Gireesan, S/o. Thankappanassary; Ani, S/o. Gangadharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** **CRL.A NO. 2474 OF 2007** **AGAINST THEJUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE COURT OF THE ADDITIONAL DISTRICT COURT (ADHOC) III, TRIVANDRUM IN SC 1024/2003 DATED 06.12.2007** ## **APPELLANT/ACCUSED:** 1 GIREESAN, S/O. THANKAPPANASSARY, HOUSE NO.TC 55/1008, ANANDMMOOLA VEEDU, NEERAMANKARA, MANIKULADHYCHAMANGALOM,, NEMOM VILLAGE. 2 ANI, S/O. GANGADHARAN, PANACHARAVILA, NEERMANKARA, MANIKULADHYCHAMANGALOM, NEMOM VILLAGE. BY ADV SRI.R.BINDU (SASTHAMANGALAM) ## **- RESPONDENT/COMPLAINANT STATE:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SR.G.P.SMT.M.N.MAYA. THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.07.2022, THE COURT ON 05.08.2022 DELIVERED THE FOLLOWING: Crl.Appeal.No.2474 of 2007 2 ## **C.S.SUDHA, J.** **-----------------------------------------Crl.Appeal No.2474 of 2007 ----------------------------------------------------Dated this the 5[th] day of August, 2022** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. filed by the appellants who are the accused in S.C.No.1024/2003 dated 06/12/2007 on the file of the Sessions Judge, Thiruvananthapuram, challenge the conviction entered and sentence passed against them for the offences punishable under Sections 341, 308 read with Section 34 of the IPC. 2. The prosecution case is that the accused due to their enmity towards PW4, the injured, and in furtherance of their common intention to commit culpable homicide not amounting to murder, on 14/08/2002 at 11:30 p.m, in the Karamana-Shankar Nagar road at Manukuladichamangalam, wrongfully restrained him and hit him with pieces of granite on his forehead above his right eye brow, on several parts of his head, his right shoulder and left arm causing bleeding injuries. Hence the accused are alleged to have committed the offences punishable under the above mentioned sections. 3. On the basis of Ext.P4 FIS of PW4, Ext.P7 FIR, i.e., crime No.218/2002 of Nemom Police Station was registered by PW8, the then Sub 3 Crl.Appeal.No.2474 of 2007 Inspector of Police, Nemom Police Station, PW8 completed the investigation and submitted the final report before the court alleging the offences punishable under the above mentioned sections. On appearance of the accused before the court below, they were furnished with copies of all the prosecution records. On 27/06/2007, the court below framed a charge for the offences punishable under Section 341, 308 read with Section 34 of the IPC, which was read over and explained to the accused to which they pleaded not guilty. The prosecution examined PWs1 to 8 and got marked Exts.P1 to P9 and MO 1 to MO4 series in support of their case. After the close of the prosecution evidence, both the accused were questioned under Section 313(1) (b) Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. Both the accused denied those circumstance and maintained their innocence. 4. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused were asked to enter on their defense and adduce evidence in support thereof. DW1 and DW2 were examined on behalf of the accused. 5. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment convicted and sentenced both the accused to rigorous imprisonment for three years and to pay a fine of ₹ 5000/- each and in default of payment of fine to 4 Crl.Appeal.No.2474 of 2007 undergo six months imprisonment for the offence punishable under Section 308 read with 34 IPC. No satisfactory evidence was found by the court below to hold the accused guilty of the offence under Section 341 IPC and hence they have been acquitted for the said offence. 6. In the appeal memorandum, it is alleged that the court below without properly appreciating the facts, circumstances and evidence, has wrongfully convicted the accused persons and hence the judgment is liable to be set aside. 7. The only point that arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the accused by the court below are sustainable or not. 8. Heard Sri.R.Bindu Sasthamangalam, the learned counsel for the appellants and Ms.M.N.Maya, the learned Senior Public Prosecutor. 9. In the case on hand, there is only the sole testimony of PW4, the injured, in support of the prosecution story. The other independent witnesses, namely, PWs.1 to 3 are hostile. It is true that the evidence has to be weighed and not counted. It is also true that the evidence of the sole injured witness would be sufficient to prove the case provided it is credible and trust worthy. Therefore, I will examine the testimony of PW4 to find out whether the same is credible and trustworthy to find the accused guilty of the offences alleged. 10. In Ext.P4 FIS recorded soon after the incident, the role of one 5 Crl.Appeal.No.2474 of 2007 Nathan, arrayed as the 3[rd] accused in Ext.P7 FIR is clearly referred to. According to PW4 on the said day, after closing his shop, he was on his way back home on a bicycle. When he reached in front of the house of one Raveendran, an employee of KSEB, whose house is situated in Akshayanagar, he found the car of Nathan bearing registration No.KL.2D 2923 parked in the middle of the road. He found Nathan and the first and the second accused, who were standing outside the car, talking. He questioned the act of parking the car on the middle of the road and blocking passersby. He then moved forward. He saw Nathan saying something to the first and the second accused. Immediately thereafter Nathan with the first and the second accused in the car followed him and blocked his further passage. The first and the second accused alighted from the car. The first accused then pulled him by the collar of his shirt backwards and with a piece of granite hit him above his right eye-brow causing a bleeding injury. The first accused with the piece of granite stone also hit him on different parts of his head. The second accused then hit him with a piece of granite below his right shoulder and left clavicle causing bleeding injuries. He fell down on the road crying out for help. Seeing the people nearby approaching, both the accused and Nathan got into the car and proceeded towards the south. The accused had assaulted him with a stone and caused injuries knowing that it would result in his death. Due to the severity of the injuries, there was considerable blood loss. Had the flying 6 Crl.Appeal.No.2474 of 2007 squad not come on time and taken him to the hospital for treatment, he would probably have died. The incident happened at 11:30 p.m. 11. On the basis of Ext.P4 FIS, Ext.P7 FIR was registered in which three persons have been arrayed as the accused. In addition to the first and the second accused, Nathan referred to by PW4 in Ext.P4 has been arrayed as the 3[rd] accused. According to PW8, the Investigating Officer, his investigation revealed that the 3[rd] accused Nathan referred to in the FIR is not involved in the crime and hence he was deleted from the array of the accused. Ext.P8 is the report submitted to the court deleting the 3[rd] accused from the array of the accused and informing the court that the investigation is proceeding with the first and the second accused in the array of the accused. 12. PW4, the injured when examined before the court has a different story to narrate. He deposed regarding the presence of Nathan also at the scene of occurrence on the relevant day. PW4 deposed that the car of Nathan was found parked in the middle of the road in front of the house of one Raveendran. He questioned the act of blocking the road and then moved forward in his bicycle. All three of them, i.e., both the accused and Nathan followed him in the car, overtook him and then stopped the car in front of him by blocking him. Both the accused got out of the car, the first accused caught him by the collar of his shirt and then both the accused hit him with a piece of granite on his forehead and on the back of his head. There was 7 Crl.Appeal.No.2474 of 2007 considerable blood loss. He fell unconscious on the road. Somebody telephoned the flying squad, who came to the spot and took him to the Medical College Hospital, Thiruvananthapuram. PW4 deposed that he sustained injury on his right front clavicle area also. According to him, after he fell down, he does not know what all acts were done by the accused. Pursuant to the incident, there was a pool of blood on the road. MO1 according to PW4 is the piece of stone with which he was assaulted and injured. MO2, MO3 and MO3(a) are stated to be the shirt, lungi and the torn pieces of his shirt. MO4 series is the pair of sandals that was worn by him on the relevant day. He further deposed that Nathan had not assaulted him. PW4 also deposed that the bicycle that had been shown to him during his examination in court does not belong to him. According to him he had already got back his bicycle from the police. 12.1. In the cross examination, PW4 deposed that on the relevant day, Nathan was inside the car and that the first and the second accused were standing outside the car talking to Nathan. According to PW4, MO2, MO3 and MO3(a) were seized by the police from the scene of occurrence. He had changed into a different shirt and dhoti at the place of occurrence itself. The set of dress had been brought to him by his uncle’s son after the incident. It was the police who had asked him to change his dress at the scene of occurrence itself. PW4 further deposed that one Raveendran’s son informed 8 Crl.Appeal.No.2474 of 2007 his uncle’s son, pursuant to which the latter arrived at the scene of occurrence. However, both the said persons had not accompanied him to the hospital. Raveendran’s son had come to the scene from his house, sprinkled water on his face and had also given him water to drink. On regaining consciousness, he sat leaning on the gate of the house of Raveendran. When the police arrived at the spot, his uncle's son was also present along with him. According to PW4, he must have been unconscious for about half an hour. He told his brother’s son that he wants to go to the hospital for treatment. He removed his dress and left it at the scene of occurrence. PW4 further deposed that after the incident he is seeing the shirt and the lungi, which he had abandoned at the scene of occurrence for the first time in the court. He denied having consumed alcohol on the said day. According to PW4, the shirt worn by him had only one pocket. He also deposed that Nathan had left the scene of occurrence before the incident took place. 13. PW5 when examined deposed that while he was working as Senior Lecturer Medical College Hospital, Thiruvananthapuram, on 15/08/2022 he had treated a patient by name Ani (the injured), who was admitted in the hospital at 03.30 a.m on the said day. Multiple lacerated wounds were seen on the scalp, over the forehead, back of the head and on the parietal region of the scalp. The patient was admitted in the surgery ward. The C.T. scan taken showed right front parietal hematoma. At the time of the 9 Crl.Appeal.No.2474 of 2007 examination, the patient was drowsy, disoriented and there was smell of alcohol. According to PW5, the wounds were sutured. The patient was discharged on 18/08/2002. The case sheet has been marked as Ext.P5 and the causality O.P ticket as Ext.P5(a). PW5 further deposed that in the case sheet four injuries have been noted, which according to him are clinically serious injuries. PW5 also deposed that the injuries could be caused by MO1. In the cross examination PW5 deposed that he is not sure whether a wound certificate had been prepared or not. In Ext.P5, the name of the hospital has not been mentioned. The number in Ext.P5(a) does not find a place in Ext.P5 case sheet. PW5 also admitted that the identification mark(s) of the patient has not been recorded either in Ext.P5 or in Ext.P5(a). He has also not recorded his opinion as to the cause of injuries or the history of assault as is usually done. 14. PW6 when examined deposed that on 14/08/2002, he was the commander of the squad of the police control room. On the said day, he was on patrol duty and by about 02:00 a.m, he received a wireless message that a person is lying injured in front of the house of one Raveendran situated in Shankar Nagar. He proceeded to the scene of occurrence, found the injured there and hence he removed the injured to the hospital. Ext.P6 according to him, is the report that he had given to the police station concerned relating to the incident. PW7 is stated to be one another member in the flying squad, Crl.Appeal.No.2474 of 2007 10 who is alleged to have accompanied PW6 to the spot. 15. Finally, PW8 the then Sub Inspector, Nemom Police Station, when examined deposed that on 14/08/2002 he had received information that the flying squad had taken the accused to the hospital for treatment. Pursuant to the same, he proceeded to the Medical College Hospital, Thiruvananthapuram, where he found PW4 under treatment. He recorded Ext.P4 FIS and Ext.P4(a) body note. On the basis of Ext.P4 he registered crime No.218/2002 of Nemam police station. He commenced investigation, proceeded to the scene of occurrence and prepared Ext.P3 scene mahazar. His investigation revealed that the 3[rd] accused mentioned in the FIR is not involved in the crime and therefore he submitted Ext.P8 report deleting the 3[rd] accused from the array of the accused and proceeded with the investigation with the remaining accused. He had questioned the witnesses and recorded their statements. In the cross examination he deposed that Ext.P8 report had been submitted before the court on the very next day itself. On further examination he admitted that from the records it is seen that Ext.P8 report has been produced along with the charge sheet. According to him, the material objects seized were produced before the court along with Ext.P9 property list. He further deposed that he does not know whether item number 7 in the property list, that is, a Hercules cycle, had been kept under the safe custody of the court. PW8 denied the suggestion put by the defence 11 Crl.Appeal.No.2474 of 2007 that the cycle produced before the court during the time of examination of PW4 was some other old bicycle. According to PW8, he had seized pieces of two pockets torn from the shirt alleged to have been worn by PW4 at the time of the incident. He deposed that he is not sure whether the said two pieces are actually from the shirt worn by PW4. PW8 deposed that when he prepared the scene mahazar, there was nobody residing in the house of Raveendran. According to PW8, Nathan had not assaulted PW4 and hence the reason why the said person had been removed from the array of the accused. 16. DW1 and DW2, examined on behalf of the accused have given an entirely different version regarding the manner in which PW4 sustained injuries. DW1 is none other than the Nathan referred to in Ext.P4 FIS and the 3[rd] accused in Ext.P7 FIR. It is true that the incident as narrated by DW1 and DW2 was never suggested to PW4 while he was in the box. But the accused can take an inconsistent stand also. It is the duty of the prosecution to first establish their case. Once that is established, only then there is a duty on the part of the accused to explain the incriminating circumstances against him and not the other way around. Here the testimony of PW4 is not in conformity with the story narrated by him in Ext.P4 FIS, which is seen recorded on 15/08/2002 at 05:30 hours. The incident in this case is alleged to have taken place on 14/08/2002 at 11:30 p.m. Therefore, Ext.P5 FIS is 12 Crl.Appeal.No.2474 of 2007 recorded within quite a short span of time of the occurrence of the alleged incident. Further, according to PW4 the shirt worn by him had only one pocket. His evidence does not make out a case that the shirt was torn by the accused during the incident. According to PW8, he had seized two pocket pieces that had been torn from the shirt of the injured. PW8, the Investigating Officer has no case that the injured had been asked to change his dress immediately after the incident and before he was taken to the hospital. Ext.P3 scene mahazar says that dress worn by the injured was found abandoned at the scene of occurrence, which is stated to have been seized by PW8. There are two other persons referred to by PW4 in his cross examination, who are stated to have arrived at the scene of occurrence after the incident. However, these persons have not been made witnesses, for which no reason whatsoever has been given by the prosecution. 17. Further, no wound certificate has been produced in this case. It is true that Ext.P5 case sheet and Ext.P5(a) O.P. ticket have been produced. The injuries noted in Ext.P5 case sheet do not tally with the oral testimony of PW4. According to the court below, the testimony of PW4 would prevail over the medical evidence as his testimony is credible and trustworthy. I am unable to agree with this finding of the court below. The testimony of PW4 could have been preferred over the medical evidence provided, his testimony was credible and trustworthy, which is not the case here. Further, from the Crl.Appeal.No.2474 of 2007 13 FIS and FIR, the 3[rd] accused certainly has a role in the incident. He was very much present at the spot and he had followed PW4 in his car along with the other accused and had blocked the further passage of PW4. It was pursuant to the same, the first and the second accused are alleged to have alighted from the car, assaulted and caused injuries to PW4. If PW4 is to be believed Nathan certainly has a role in the crime and he along with the accused herein seems to have acted in concert. However, PW8 the Investigating Officer as well as PW4 in the box has no such case. They have given a clean chit to Nathan who in turn appears before the court as DW1 and has given an entirely different version. PW4 does not have a case that Nathan is in enmical terms with him. 18. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, when faced with the testimony of a single witness, the court may have to classify the oral testimony into three categories namely- (i) wholly reliable ; (ii) wholly unreliable ; and (ii) neither wholly reliable nor wholly unreliable. In the first two categories there will be no difficulty in accepting or discarding the testimony of the witness. The difficulty arises in the third category of cases, in which cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial before acting upon testimony of a single witness ( **Vadivelu** Crl.Appeal.No.2474 of 2007 14 **Thevar v. State of Madras, AIR 1957 SC 614** and **Lallu Manjhi v. State of Jharkhand, 2003 KHC 846** ). 19. In this case, PW4 the injured cannot be termed as wholly reliable or wholly unreliable. He seems to fall under the third category, namely, neither wholly reliable nor wholly unreliable. It appears that on the date of the incident he did sustain injuries. However, it is doubtful whether the injuries were sustained in the manner as deposed by him. As the testimony of PW4, the sole witness and injured supporting the prosecution case, is not wholly reliable or wholly unreliable, this Court will have to look for corroboration in material particulars by reliable testimony, direct or circumstantial before acting upon his testimony. However, in this case, there are no independent witnesses, as PWs 1 to 3, the alleged occurrence witnesses have turned hostile to the prosecution story and denied having seen the incident or stated to the police that they had seen the incident. Most importantly, the third accused referred to in Ext.P7 FIR, who was subsequently deleted from the array of the accused when examined as a defence witness, has narrated an entirely different story. There is no reason to completely discard the testimony of DW1 or DW2. PW4 is not wholly reliable and therefore, this court cannot completely rely on his testimony. That being the position, the only conclusion that can be arrived is that the prosecution has failed in establishing the guilt of the accused beyond Crl.Appeal.No.2474 of 2007 15 reasonable doubt. Hence, in these circumstances, I find that the accused is entitled to the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence of the accused for the offences punishable under Section 308 read with 34 IPC by the impugned judgment is set aside and the appellants/accused are acquitted under Section 235(1) Cr.PC. Their bail bonds shall stand cancelled and they shall be set at liberty forthwith. Sd/- **C.S.SUDHA JUDGE** Jms/30.07