CRL.A.NO. 685 OF 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 18TH DAY OF MARCH 2016/28TH PHALGUNA, 1937** **CRL.A.NO. 685 OF 2004 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC NO.212/2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-I, KOTTAYAM DATED 29-03-2004** **---------------------** **APPELLANT(S)/ACCUSED: --------------------** **JOSE, S/O.ABRAHAM, VALIYANKAL HOUSE, MANTHUMPARA BHAGAM, MOONILAVU, KOTTAYAM DISTRICT.** **BY ADVS.SRI.SHAJI THOMAS PORKKATTIL SRI.T.J.JOSE** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.685 of 2004 ---------------------------------Dated this the 18[th] day of March, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the judgment of conviction and sentence in S.C. No.212 of 2003 of the Additional Sessions Judge (Adhoc)-I, Kottayam. He was charge sheeted by the Additional Sessions Judge under Sec.324 and 306 of the Indian Penal Code. The charge is that, on 12.09.2002 at 6.30 p.m., the deceased Lucikutty was walking through a pathway, when she reached 20 metres south-east corner of house no.VII/236 of the Moonnilavu Panchayath, the accused, with an intention of inducing the deceased to commit suicide, called abusive words, told her that “why can't she also die as her two children are dead” and thereafter, inflicted injury with a sickle on her right arm. He also pelted stones towards her and threatened her, as a result of which, on 13.09.2002 between 9.00 a.m. and 2.00 p.m., she committed suicide by jumping into a well near house no.VII/242 of Moonnilavu Panchayath. In this incident, Melukavu Police registered a crime and after Crl. Appeal No.685 of 2004 2 completing investigation, they filed charge sheet before the Judicial First Class Magistrate Court, Kanjirappally. Subsequently, the case was committed to Sessions Court, Kottayam and from there, it was made over to Additional Sessions Judge. 2. During trial prosecution examined PW1 to PW11 and marked Exts.P1 to P12 as documentary evidence. MO1 to MO5 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and marked Exts.D1 to D5 in support of his defence. The learned Additional Sessions Judge acquitted the accused under Sec.306 IPC and convicted the accused under Sec.324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year and fine of Rs.5,000/- with default sentence of six months. Being aggrieved by that, the accused preferred this appeal. 3. Learned counsel appearing for the appellant contended that the prosecution failed to produce the Crl. Appeal No.685 of 2004 3 medical evidence to prove the alleged occurrence. The blunt portion of MO5 had contacted the deceased, if that story is believed, injury no.1 in Ext.P2 is impossible. When there is no direct evidence to prove the prosecution story, the appellant is entitled to get the benefit of doubt. 4. Learned Public Prosecutor contended that the medical evidence is corroborating the prosecution case and no reason to disbelieve the oral testimony of PW2 and PW6. The contact of blunt portion of MO5 is a new story created by the appellant and no questions were asked to the occurrence witnesses about it in the trial court. In the absence of any such challenge, the new defence put forward by the appellant is only to be discarded. 5. While considering the contention as a whole first I analysed the evidence of the occurrence witnesses. The occurrence was deposed by PW2. Her evidence shows that on 13.09.2002, Lucykutty fell into a well and died. On the date of incident, evening, while PW2 was standing near her kitchen, she saw the deceased walking Crl. Appeal No.685 of 2004 4 through the pathway of the property of one Vazhayil Kuriachan and the appellant, at that time, called abusive words towards the deceased. The appellant is her neighbour and she identified him in the trial court. She came to the place of occurrence with one Kuttiyamma, the deceased was proceeding through the pathway with a goat. The appellant told the deceased that both your children having died, you also go and die and he attacked her with a sickle and she sustained injury on her right arm. When she proceeded forward, the appellant pelted stones towards her. It is clear from the evidence of PW2 that the accused attacked the deceased with MO5 sickle. 6. PW6 who was present at the place of occurrence, stated that she saw the incident. She supported PW2 and reiterated the same version as given by PW2. In order to avoid the repetition of the oral testimony, I am not reiterating the entire oral testimony of PW6. What is seen from the evidence of PW2 and PW6 is that the appellant attacked the deceased with MO5. PW10 deposed that he went to the house of the deceased Crl. Appeal No.685 of 2004 5 and entrusted MO1 diary to the Police in which the deceased narrated the incident. She categorically mentioned in MO1 that the appellant threatened her by showing a sickle and she warded off that waving. The evidence in MO1 is corroborating the oral testimony of PW2 and PW6. 7. PW3 has no direct knowledge with regard to the incident. PW1, who is the neighbour of the deceased, gave Ext.P1 statement to the Melukavu Police and on the basis of that, the Police registered a crime. Ext.P1(a) is the FIR. The evidence of PW3 shows that during the quarrel, the appellant waved sickle towards the deceased and the deceased warded off it and sustained injury on her hand. This is only a hearsay information. PW5 prepared Ext.P3 site plan as requested by the Police. PW7 (husband of the deceased) and PW8 (sister of PW7) also have hearsay information about the incident. PW8 identified MO1. PW9, the daughter has hearsay information about the incident but, she identified MO1 and MO2. PW10 identified MO1. The incident was Crl. Appeal No.685 of 2004 6 reported to the Police by PW1 who is the neighbour of the deceased. PW1 deposed that he informed the matter to the Melukavu Police where, they recorded his statement which was marked as Ext.P1. He also has hearsay information about the incident. Therefore, it is clear that the incident was witnessed by PW2 and PW6 alone. 8. In this backdrop, it is relevant to consider the medical evidence in this case. PW4 conducted postmortem examination and issued Ext.P2 certificate. The injuries noted in Ext.P2 are as follows: “Incised wound, 10x0.3x0.1 c.m. oblique, on the back and the outer aspect of right forearm the upper posterior and of the injury being 4 cm below the elbow in the back, and the lower front and being 12 cm below the elbow on the outer aspect of the forearm. The injury was covered with reddish scab.” Learned counsel, relying on Modi's Medical jurisprudence [the Medico-Legal Aspects of Wounds], in page No.366 highlighted that a small wound may show scab formation after about 24 hours. But, no specific question with regard to the time of causing such injury Crl. Appeal No.685 of 2004 7 (injury no.1 in Ext.P2) was asked to PW4. The cause of injury and kind of weapon used for inflicting injury were not questioned in the trial court, but such facts are not mentioned in the postmortem examination. It is true that force is necessary to cause an injury. But, it depends upon the sharpness of the weapon used by the assailant. The tissues through which the weapon penetrate or inflict may cause wounds which depends upon the nature of force used. While forming an opinion on the basis of medical officer, the statement made by the witnesses and the nature of weapon used by the accused are also relevant. Here, even though no such questions were asked by the appellant to PW4 the formation of scab shows that injury was sustained before 24 hours, for that, no explanation was offered by the prosecution on this point. When medical evidence is not corroborating the oral testimony of PW2 and PW6, that evidence is not sufficient to prove the offence. 9. The Sub Inspector of Police, Melukavu Police station recorded Ext.P1 statement of PW1. On that basis, Crl. Appeal No.685 of 2004 8 he registered Crime No.99 of 2002 under Sec.174 of the Code of Criminal Procedure. Ext.P1 is the First Information Statement. On 14.9.2002, he arrived at the Medical College Hospital, Kottayam and prepared Ext.P4 inquest report and MO3 series were taken into custody. Subsequently, he arrived at the place of occurrence and prepared Ext.P5 mahazar. He arrived at the first place of occurrence and prepared Ext.P6 Mahazar. He seized MO1, MO2 and MO4 series from there. MO1 is a letter seized after preparing Ext.P7 mahazar. He identified the signature and handwriting of the deceased. MO2 is a Diary from which, MO1 was taken, for that, he prepared Ext.P8 mahazar. The independent witnesses present there attested the mahazar. 9. MO5 was recovered by the investigating officer on the basis of the opinion framed by him and, for that, he prepared Ext.P9 search memorandum and arrived at the place of search. Thereafter, he conducted a search in house no.VII/126 of Munnilavu Panchayath and recovered MO5 from there. Ext.P10 is the search list. But the witnesses who attested Crl. Appeal No.685 of 2004 9 Ext.P10 were not examined in the trial court. He also furnished Exts.P11 to P12 report. After completing investigation, he laid charge before the court. 10. It is well settled principle that positive evidence is necessary to prove the offence which is the direct oral evidence of the eye witness who had seen the incident and narrated the incident in which way it had occurred. While appreciating that direct oral evidence, the Court can reach a conclusion with regard to the alleged offence. PW2 and PW6 are the independent witnesses who saw the quarrel between the appellant and the deceased on the previous day of the death. Analyzing the oral evidence of PW2 and PW6, it is found that the appellant waved a sickle towards the deceased and she warded off it. But no connecting medical evidence is found adduced by the prosecution to show that she sustained injury on the previous day. But in the inquest report, there is an observation that a contusion was found on the left hand. In the postmortem examination no such injury found. During postmortem examination they Crl. Appeal No.685 of 2004 10 noticed incised wound 10x0.3x0.1 c.m. oblique, on the back and the outer aspect of right forearm the upper posterior and of the injury being 4 cm below the elbow in the back, and the lower front and being 12 cm below the elbow on the outer aspect of the forearm. The injury was covered with reddish scab. How this injury was inflicted is not explained by the prosecution. The doctor who examined the deceased also noticed the wound in Ext.P2 postmortem certificate. The evidence of the doctor is an opinion evidence which lends corroboration to the direct evidence in a case. When there is inconsistency between the direct evidence and medical evidence with regard to the injury, undoubtedly, it would manifest a defect in the prosecution case. 11. The apex court in **Brij Bhukhan v. State of Uttar Pradesh [ AIR 1957 SC 474]** held that, in an appropriate case, on consideration of the nature of injuries and relevant evidence, the court can come into its own conclusion if the medical evidence is deficient. Even though, there was an altercation on the previous Crl. Appeal No.685 of 2004 11 day and the deceased warded off the waving of the sickle with hand, which part of the sickle contacted the body was not stated by PW2 and PW6. If that be the position, it is the primary responsibility of the prosecution to prove the injuries found on the body of the deceased. 12. It is the duty of the prosecution to prove all the ingredients of the offence and at no stage it will shift to the accused. Even in the cases where the defence of the accused does not appear to be credible or false, that burden does not become less. When this burden is discharged by the prosecution, the accused has to explain the essential elements in the prosecution case which would have negatived it. This initial burden was not discharged by the prosecution. The apex court in **Sivji v. State of Madhya Pradesh [AIR 1980 SC 552]** held that, “ in view of the medical evidence discussed above, it is manifest that having regard to the injuries sustained by the appellant Shivaji, it was impossible for him to fire the gun as alleged by the prosecution witnesses. Thus the evidence given by the prosecution is wholly inconsistent with the medical evidence. The prosecution deliberately concealed the manner in which the accused Crl. Appeal No.685 of 2004 12 persons viz. Shivaji and Bhonda have received the injuries, and have thus not come out with the true version of the occurrence. It may be that if the two injuries were received by the appellant Shivaji and Bhonde in the third incident itself, the accused may have been justified in the right of private defence of person to fire at the deceased. In these circumstances therefore we are satisfied that the prosecution has not proved its case beyond reasonable doubt. Finally when the Sessions Judge had acquitted the appellants and rejected the prosecution case, it could not be said from the nature of evidence led by the prosecution that the view taken by the Sessions Judge was not reasonably possible. It may be that the High Court may have taken a different view but the High Court has not shown that the view taken by the learned Sessions Judge was not reasonably possible. We have gone through the evidence ourselves and are of the opinion that the view taken by the Sessions Judge was the only view which could have been reasonably possible. The appeal is therefore allowed and the appellants are acquitted of all the charges framed against them. As appellant no.7 is reported to be dead, appeal abates against him.” 13. A close scrutiny of the evidence in this case, it is found that the trial court failed to appreciate the injuries on the deceased found in Ext.P2 postmortem certificate in the right manner. While appreciating the oral evidence of PW2, PW6 and the medical evidence in Crl. Appeal No.685 of 2004 13 Ext.P2, the approach must be whether the evidence of witnesses can be read as a whole, can be relied for a conviction. Once an impression is formed that it is not reliable, the court can discard such evidence. The draw backs, deficiencies and infirmities pointed out by the accused have to be analysed in the general tenor of the evidence. Considering the facts and circumstances of the case, I think this is a fit case to extend the benefit of doubt to the accused. In the result, conviction and sentence passed by the trial court under Sec.324 of the Indian Penal Code are set aside. The appellant is acquitted and set at liberty. Sd/- **P.D. RAJAN, JUDGE** NS/14/03/2016 / True Copy / P.A. To Judge