Ettowa Munda v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY,THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA, 1945 CRL.APPEAL NO. 1409 OF 2018** **AGAINST THE JUDGMENT DATED 01.10.2018 IN SC 283/2018 OF ADDITIONAL SESSIONS COURT-IV, KOLLAM AGAINST THE ORDER/JUDGMENT IN CP 1/2018 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA CRIME NO.1728/2017 OF SASTHAMCOTTA POLICE STATION, KOLLAM** ## **APPELLANT/ACCUSED:** **ETTOWA MUNDA AGED 22 YEARS, S/O GANESH MUNDA, C.NO.3029, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT ESUKUL LINE, BIRPARA TEA GARDEN, ALIPUR DISTRICT, WEST BENGAL.** **BY ADV T.U.SUJITH KUMAR (STATE BRIEF)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 THE SUB INSPECTOR OF POLICE, SASTHAMCOTTA POLICE STATION.** **BY SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 04.12.2023, THE COURT ON 14.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1409 of 2018 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1409 of 2018 ----------------------------------------------------------Dated this the 14[th] day of December, 2023** ## **JUDGMENT** The appellant was convicted for an offence punishable under Section 307 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- by the Additional Sessions Judge, Kollam in S.C.No.283 of 2018. The said judgment dated 01.10.2018 is under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. The appellant was a labourer at a hollow bricks factory named “Muttath Hollow Bricks” at Mynagappally. PW2 Sri.Mohanan was the supervisor. They had an altercation and therefore they were in inimical terms. At about 12.00 midnight on 31.08.2017 while PW2 was asleep at the outhouse of that factory, the appellant sat on his chest and slashed at his neck using MO1 knife. That caused injury to his 3 Crl.Appeal No.1409 of 2018 vocal cord disabling him from speaking out or swallowing food. The appellant alleged to have done so with an intention to cause the death of PW2. 3. On the said charge, the appellant was tried before the Additional Sessions Judge-IV, Kollam. PWs.1 to 13 were examined and Exts.P1 to P20 were marked. MO1 to 4 were identified. When questioned under Section 313 of the Code, the appellant took the stand that he did not commit such an offence. He added that he was brutally tortured by the police after his arrest. No defence evidence was, however, adduced. The trial court, after considering the evidence on record, found the appellant guilty. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The prosecution places reliance on two sets of evidence, essentially, to bring home the charge levelled against the appellant. PW2, the injured, deposed before the court that out of the previous enmity, the appellant inflicted him injuries at the midnight on 31.08.2017. He deposed that 4 Crl.Appeal No.1409 of 2018 while he was sleeping in the outhouse, he was awakened at about 12.00 in the night to see the appellant sitting on his chest. The appellant had with him a knife and using it he inflicted a cut injury at his neck. From his testimony, it is seen that he is not able to freely speak out. He could speak with the help of a machine only. He explained that as a result of the injury inflicted by the appellant, his vocal cord was cut and therefore he could not speak out properly. He is not able to eat solid food also. Coupled with the oral testimony of PW2, the prosecution relies on the recovery of MO1 to prove the charge. It was on the basis of the information gathered from the appellant, PW13, the investigating officer, effected the recovery. He deposed that on the next day he had arrested the accused from near the Sasthamcotta Railway Station and on the basis of his statement while in custody the knife and his dress were recovered. It is the version of PW13 that as led by the appellant he went near the outhouse of Muttath Hollow Bricks and from the south-western side of the said outhouse the knife and dress were seized as pointed out by the 5 Crl.Appeal No.1409 of 2018 appellant. Ext.P2 is the mahazar under which the recovery was effected. 6. Immediately after the incident, information was passed on to PW1, who is the owner of the brick factory. Two other workers in the factory, named, Rahul and Kamal, who were there in that factory on the fateful day, informed PW1 about the incident. At the time when PW1 reached, PW2 was found lying in a pool of blood and he was immediately taken to the Taluk Headquarters Hospital, Karunagappally. From there, he was shifted soon to the Medical College, Hospital, Alappuzha. It was PW1, who gave the F.I. statement in police, Ext.P1. Based on Ext.P1, crime was registered by PW12 as per Ext.P10 F.I.R. PW1 did not see the incident. He had only hearsay information regarding the incident. He knew about the incident from Rahul and Kamal and the appellant was not available in the factory when he reached there along with PW4 and others. 7. PW3 is a neighbour. He also stated regarding the incident. His version is that when he, on hearing a hue and 6 Crl.Appeal No.1409 of 2018 cry from the outhouse of the factory, reached there and happened to see PW2 lying with injuries. He did not see the incident. PW4, who reached the spot along with PW1 also did not see the incident. 8. As regards the injury sustained by PW2 and its cause, there can be no dispute. While PW1 reached the place of occurrence, PW2 was lying on a pool of blood with injuries at his neck. He was taken to the Taluk Headquarters Hospital, where PW9, the duty doctor, attended him. Ext.P7 is the wound certificate issued by PW9. Since the injuries were serious, PW2 was immediately referred to the Medical College Hospital, Alappuzha, where he was examined by PW8. Ext.P6 is the discharge certificate issued by PW8. From the evidence of PWs.8 and 9, it is evident that PW2 had a serious injury at his neck. PW8 opined that such an injury could be caused using a knife. The cut injury on the neck was a deep one reaching upto the pre-vertebral bone. Jugular veins of PW2 were partly cut. The said injuries affected his ability to speak, breathe and to take solid food. PW2 categorically deposed 7 Crl.Appeal No.1409 of 2018 before the court that the injury was inflicted by the appellant cutting at the neck using a knife. Regarding the cause of injury, the said version of PW2 can well be believed. That evidence coupled with the medical evidence, proved that the injury he sustained was inflicted by the assailant slashing at his neck using a knife. 9. As stated, besides PW2, no prosecution witness has seen the appellant causing injuries to PW2 using a knife. Two witnesses, Rahul and Kamal, the co-workers of PW2 and the appellant were cited by the prosecution, but not examined. PW3 is a neighbour, who reached the place of occurrence soon after the incident. By the time he reached, the incident was over and the assailant was not available there. A statement appeared in his evidence that the appellant was seen there. On a reading of the whole of his deposition it can be understood that by saying so he only meant that the appellant was also a labourer along with PW2, Rahul and Kamal in that factory. Thus, the only direct evidence to prove the occurrence is the oral testimony of PW2. 8 Crl.Appeal No.1409 of 2018 10. The learned Public Prosecutor would submit that PW2, being the injured, who sustained serious injuries converting his life miserable, will never implicate an innocent and therefore his version can be believed. PW12, the investigating officer recovered MO1, which PW2 identified to be the knife used by the appellant to chop at his neck. It is submitted that evidence lends sufficient support to the evidence of PW2 and therefore the findings of the court below is liable to be upheld. 11. Ext.P2 is the mahazar under which MO1 was recovered. The statement of the appellant which led to the recovery is stated in Ext.P2. The statement is to the effect that the appellant placed the knife and dress at a place. He did not disclose which was that place. Since the place of concealment was not disclosed, the recovery may not strictly be one relevant under Section 27 of the Evidence Act, 1872. However, such a recovery is relevant under Section 8 of the Evidence Act as a subsequent conduct of the accused. 12. The learned counsel for the appellant in the above regard submits that the appellant is not a person proficient in 9 Crl.Appeal No.1409 of 2018 Malayalam. But, his statement stated in Ext.P2 is in Malayalam. The learned counsel by placing reliance on **Sanjay** **Oraon v. State of Kerala [2021 (5) KHC 1]** contended that such a recovery will be inadmissible in evidence. In that case, the statement that led to the recovery was given in a different language, but it was recorded in Malayalam as translated by the translator. It was observed that for want of recording the statement given by the accused in his language, the court could not get satisfy itself as to what was spoken by the accused and therefore the recovery could not be relied on. In this case, PW13 did not avail the help of a Translator even while recording the statement of the appellant, which led to the recovery. It is seen that the statement of the accused while framing charge and also questioning him under Section 313 of the Code were recorded with the help of a Translator, which obliviates an inference that the appellant did not know Malayalam. In view of the law laid down in the aforesaid decision, the recovery of MO1 is not able to be acted upon as evidence relevant under Section 8 or 27 of the Evidence Act. 10 Crl.Appeal No.1409 of 2018 13. The incident occurred at 12'O clock in the midnight. PW2 is specific that it was the appellant, who sat on his chest and incised his neck using a knife. He was asleep. He woke up while the accused started assaulting him. It was a single cut injury at his neck. From the evidence, it is obvious that the assailant left the place along with the knife. In that context, the learned counsel for the appellant submitted that the identification of the assailant by PW2 cannot be relied on. It is pointed out that no evidence regarding availability of light in the place of occurrence is coming forth. In the scene mahazar, Ext.P2, although it is stated that the outhouse is electrified, availability of a light point or light source in the room where the incident took place is not noted. PW2 did not state how he could see the assailant or about availability of light. Quite conspicously, PW2 did not point out and identify the appellant before the court as the assailant. True, PW2 and the appellant were co-workers. So, PW2 might be able to identify the appellant even from his sound or other features. But when PW2 did not state how he identified the assailant, his evidence 11 Crl.Appeal No.1409 of 2018 in that regard becomes doubtful. In a similar set of facts, the Apex Court held in **Ashoksinh Jayendrasinh v. State of Gujarat [(2019) 6 SCC 535]** that when it was dark at the time and the place of occurrence making it difficult for the witnesses to identify the assailants, the benefit has to be given to the accused. 14. From the evidence of PW2 and the attending circumstances, it is possible to have an inference that it was the appellant who inflicted injuries. Intention for infliction of such an injury using a knife can certainly be to cause death of the injured. The injury inflicted caused the life of PW2 miserable also. But, the appellant can be found guilty only if there is evidence sufficient to prove his guilt beyond doubt. A presumption or inference, howsoever strong it is, cannot be the substitute for evidence. The aforesaid nature of the evidence tendered by the prosecution is insufficient to prove beyond doubt that it was the appellant who committed the offence. The court below failed to take into account the aforementioned aspects while appreciating the evidence, 12 Crl.Appeal No.1409 of 2018 which resulted in wrong findings. Therefore, I find that the conviction and sentencing of the appellant are liable to be reversed. 15. Hence, this appeal is allowed. The appellant is acquitted. He shall be released forthwith; provided his presence is not required in connection with any other case. Registry shall send immediately a copy of this judgment to the Superintendent of the Jail, where the appellant is lodged. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr