Gopalakrishnan s/o Raman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 08TH DAY OF JULY 2020 / 17TH ASHADHA, 1942** ## **CRL.A.No.1557 OF 2005** **AGAINST THE JUDGMENT IN SC 1026/2002 DATED 05-09-2005 OF SESSIONS COURT, KOLLAM** ## **APPELLANT/ACCUSED:** **GOPALAKRISHNAN S/O.RAMAN, MANESH BHAVAN, NEELESHWARAM MURI, NEDUVATHOOR, KOTTARAKKARA.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ** ## **- RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1557/2005 ## **JUDGMENT** **Dated this the 8th day of July 2020** The appellant is the sole accused in Sessions Case No.1026 of 2002 on the file of the Sessions Court, Kollam. The above case is charge sheeted against the appellant alleging offence punishable under Section 302 IPC. 2. The prosecution case is that pursuant to the quarrel with the deceased Raju, the accused stabbed him with a knife over his left thigh, causing him a fatal injury. The alleged incident happened on 19.2.2000, at 7.30 P.M., in front of the shop of one Sivarajan situate beside the road leading to Kulangara Ela (paddy field) from Neeleswaram - Kottarakkara public road. The victim was taken to the hospital, and from the hospital, he was declared dead by the doctor. Hence the prosecution case. After investigation, the police filed the final report. The case was committed, and the Sessions Court issued summons to the accused. The accused appeared before the lower court. The trial court framed charge under Section 302 IPC. 3. After going through the evidence and the documents, the trial court found that the accused had not committed the offence 3 Crl.A.No.1557/2005 under Section 302 IPC. But, the trial court found that the accused committed the offence under Section 326 IPC. He was sentenced to undergo rigorous imprisonment for five years for the offence under Section 326 IPC. Aggrieved by the conviction and sentence imposed by the trial court, this Crl.Appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that the trial court convicted the appellant based on the evidence of PW2 and based on the recovery of MO1 under Section 27 of the Evidence Act. It is also stated by the learned counsel that the evidence of PW2 cannot be believed. According to the counsel, even as per the records of the prosecution, the house of PW2 is situated beyond 150 mtrs from the place of occurrence. The overt act alleged against the accused is a single stab. According to PW2, he heard the altercation between the deceased and the accused from his house. When he reached the place, he saw the incident. According to the counsel, it is highly improbable that PW2 witnessed the incident. The learned counsel submitted that the recovery of MO1 is also not believable. The counsel also argued that even if the recovery of MO1, based on 4 Crl.A.No.1557/2005 the statement of the accused, is accepted, that cannot be sole evidence to convict a person in a criminal case. 6. The learned Public Prosecutor submitted that the deceased sustained very serious injuries. The evidence of PW2 is reliable. He even admitted that he has got some hearing problems, but he heard the sound of the altercation. According to the prosecution, the evidence of PW2 can be believed because he is speaking the truth. In such a situation, the learned Public Prosecutor submitted that the evidence of PW2 is believable. The same is corroborated by the recovery of MO1 based on the statement of the accused. The trial court perfectly justified in convicting the accused under Section 326 IPC, is the submission of the Public Prosecutor. 7. The point for consideration in this appeal is whether the accused committed the offence under Section 326 IPC. 8. Altogether eight witnesses were examined by the prosecution. PW1 is the brother of the deceased. He gave Exhibit P1 F.I. Statement. PW2 is also an occurrence witness. PW3 is the witness to Exhibit P2 seizure mahazar. PW4 is the doctor who conducted the postmortem. PW5 is the Village Officer through whom Ext.P4 is marked. PW6 is the Sub Inspector, who registered Exhibit 5 Crl.A.No.1557/2005 P1(a) FIR based on Exhibit P1 F.I.Statement. PW7 and PW8 are the investigating officers. 9. The prosecution case, in a nutshell, is as follows : PW1 is the younger brother of the deceased. PW2 is a close relative of the deceased. According to PW1, on his way to pay the chitty subscription, he had to pass through the spot of occurrence situate near the shop of one Sivarajan. Then he witnessed the confrontation between the victim and the accused, with the latter planning a stab on the victim. PW1 would further state that he removed the injured victim with the help of others and rushed him to the Government Hospital, Kottarakkara. From there, the doctor examined the victim and the doctor declared him dead. He went to Kottarakkara Police Station and gave Exhibit P1 F.I.Statement. 10. PW2 is the other ocular witness examined by the prosecution. According to him, the deceased is his brother's son. He deposed that his house is situated adjacent to the place of occurrence. According to him, when he was in his cowshed, he heard an altercation in front of the shop of Sivarajan, and when he reached the spot, a confrontation between the accused and the victim was going on. The accused questioned the victim whether he 6 Crl.A.No.1557/2005 had come for improving the country and declared that he intended to finish him, and he stabbed the victim with MO1 knife over his left thigh. After stabbing the victim, according to PW2, the accused ran away from the place with the knife. PW7, the Circle Inspector, deposed that when the accused was arrested, his confession statement was recorded. Based on his statement and as led by him, he recovered MO1 knife. PW3 supported the recovery evidence adduced by PW7. This is the evidence available in this case. 11. The trial court considered the evidence of PW1 and came to a definite conclusion that he might not have present at the place of occurrence. The relevant portion of the discussion of the trial court is extracted hereunder : _“12. PW1, the younger brother of the victim, is the informant of the crime. On his way to pay the chitty subscription he had to pass through the spot of occurrence situate beside the shop of one Sivarajan (CW3) and then, he witnessed the confrontation between the victim and the accused with the latter planting a stab on the person of the victim, is his version. PW1 would further state he removed the injured victim, with the help of others and rushed him to the Govt. Hospital, Kottarakkara, where after examining the victim the doctor declared him dead. He then went over to the Kottarakkara Police Station and gave P1 statement over the incident. During his cross examination he would_ 7 Crl.A.No.1557/2005 _state that he had subscribed his signature twice before the police, the first time on the date of occurrence and the second time at about 7 A.M. the next morning. When the occurrence took place he was hardly two metres away from that spot and soon after the victim sustained the stab injury he rushed forward and assisted him from falling down is the further version presented during his cross examination. He raised a hue and cry and collected people, according to PW1. Strangely enough the version so presented is not reflected in his statement recorded by the police. No doubt the above circumstance showing that he has improvised his earlier version given to police sound a note of caution that his ocular account of witnessing the incident require to be scrutinised with more care. It has come out from the evidence that before the police he had a version that the chitty amount was not paid since the foremen was not available, but, before the court his version was different. During the course of the cross examination he would go to the extent of stating that P1 statement was obtained from him by the police at his house the next morning after the occurrence. Whereas the prosecution has a case that the accused inflicted the stab infliction on the victim with MO1 knife with a declaring that he intended to finish him off in the evidence of PW1 the declaration purported to have been made by the accused is absent. His version is that the accused stabbed the victim questioning him whether he had come for reforming the country._ ## _"_ ന� ര�ജ�� നന�ക�ൻ വനത�ണ�� _"_ _There was no declaration as to finishing off the victim by the accused as alleged by the prosecution. In the version_ 8 Crl.A.No.1557/2005 _of PW1 with the material contradictions noticed in his evidence give rise to strong suspicion that his version of witnessing the occurrence is not worthy of acceptance. The infirmities and contradictions noted in the evidence of PW1 indicate that he might not have been present when the occurrence took place but reached the spot later and removed the victim to hospital.”_ 12. I see no reason to interfere with the above finding of fact by the trial court. Therefore, what remains is the evidence of PW2. On a perusal of Exhibit P6 scene mahazar, it is clear that the investigating officer marked all the adjacent houses. He marked the house of one Vijayan, which is situated about 150 mtrs. away from the place of occurrence. But the house of PW2 is not marked in the scene mahazar. In Exhibit P4 plan also, the house of PW2 is not located. A perusal of Exhibit P4 plan will show that the house of Mohanan, Bhavani, Sivarajan, and Sathyaseelan are marked in it. The tea shop of Sivarajan is also marked. So, in the light of Exhibits P4 and P6, it is clear that the house of PW2 is situated beyond 150 mtrs. from the place of occurrence. PW2 admitted that he has got some hearing problems. According to him, he heard the sound of an altercation between the deceased and the accused when he was 9 Crl.A.No.1557/2005 standing near the cowshed of his house. Of course, this cow shed should be beyond 150 mtrs. from the place of occurrence. It is very difficult to accept the evidence of PW2 that he heard the sound of an altercation between the accused and the deceased while standing in front of his cow shed. According to PW2, after hearing the sound, he proceeded to the place of occurrence. Then he witnessed the incident. But the entire prosecution case is that immediately after the altercation, the accused stabbed the deceased and he left the place. There was only a single stab. It is very difficult to accept the evidence of PW2 that he witnessed the incident after hearing the sound of altercation and after that, reaching the place of occurrence, which is more than 150 mtrs. away from his house. In such a situation, the evidence of PW2 is suspicious. In addition to that, PW2 is a close relative of the deceased. He is an interested witness. It is a settled position that the evidence of interested witnesses need not be rejected in all cases without corroboration. But, in this case, in the light of the facts and circumstances mentioned above, without corroboration, it is very difficult to accept the version of PW2. PW2 is a retired school Teacher. He claims that he heard the sound from his house and reached the place of occurrence and witnessed the 10 Crl.A.No.1557/2005 incident. The prosecution has no case that the incident, as such, continued for a long time. The admitted prosecution case is that the accused inflicted a single stab injury. In such a situation, it is difficult to accept the evidence of PW2 also. 13. What remains is the recovery of MO1 based on the statement of the accused. It is a settled position that the recovery evidence under Section 27 of the Evidence Act is a weak piece of evidence, and without corroboration, the same cannot be accepted. This court considered this point in _**Mujeeb Rahman v. State of Kerala [2020 (3) KHC 400] : [2020 (2) KLD 24]**_ . The relevant portion of the judgment is extracted hereunder : _“10. …............Moreover, it is a settled position of law that, simply because the weapon of offence is recovered as per Section 27 of the Evidence Act, that alone is not sufficient to convict an accused. Recovery evidence based on Section 27 of the Evidence Act is weak piece of evidence. Without corroboration, such evidence can't be admitted.”_ 14. In the light of the above discussion, I think the accused in this case is entitled the benefit of doubt. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant, as per the judgment dated 5.9.2005 in 11 Crl.A.No.1557/2005 Sessions Case No.1026 of 2002, by the Sessions Court, Kollam is set aside. The appellant is set at liberty. The bail bond, if any, executed by him, is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **csl**