Ismail v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **CRL.A.No.638 OF 2005** **AGAINST THE JUDGMENT IN SC NO.11/2004 DATED 03-03-2005 ON THE FILE OF THE ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO.1 (ADHOC), MANJERI.** ## **APPELLANT/ACCUSED:** **ISMAIL, S/O.MOIDEENKUTTY, KARUVADAN HOUSE, KARULAYIL AMSOM, NILAMBUR.** **BY ADV. SRI.K.P.MUJEEB** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.638 OF 2005 2 ## **O R D E R** ## **Dated this the 7th day of October 2020** **...** **The appellant is the accused in Sessions Case No.11 of 2004 on the file of the Additional Sessions Court, Fast Track Court No.1 (Adhoc), Manjeri. The above case is charge sheeted by the Circle Inspector of Police, Nilambur alleging offences punishable under Section 302 of the Indian Penal Code (IPC).** **2. The prosecution case is that on 21.5.2003 at about 10.30 a.m., an altercation was developed in between the accused and his deceased younger brother due to some dispute regarding money which was due to the accused and that in the midst of the scuffle the accused had inflicted severe blows and kicking on the naval of the deceased and that the victim was admitted in the Medical College hospital. While undergoing treatment at** CRL.APPEAL NO.638 OF 2005 3 **Medical College hospital, he had succumbed to the injuries on 25.5.2003 and therefore, the accused committed the said offence.** **3. To substantiate the case, the prosecution examined Pws.1 to 12. Exhibits P1 to P12 are the exhibits marked on the side of the prosecution.** **4. After going through the evidence and documents, the trial court found that, the accused is guilty under Section 304 Part II IPC. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for a further period of six months. Aggrieved by the above conviction and sentence, this criminal appeal is filed.** **5. Heard. The point for consideration in this case is that whether the appellant is guilty of the offence under Section 304 Part II IPC.** **6. It is a strange case in which the trial** CRL.APPEAL NO.638 OF 2005 4 **court convicted and sentenced the accused mainly relying the following circumstances. (a) The averments in the F.I.statement is proved even though the maker of the statement turned hostile.** **(b) The contradictions marked from the hostile witnesses were proved through the investigating officer. (c) Postmortem certificate is proved through the doctor and it shows the deceased sustained injuries. (d) In the inquest report some of the witnesses deposed about the incident. The trial court relied that statement also. These are some of the circumstances relied by the trial court to convict the accused under Section 304 Part II IPC.** **7. In this case, altogether 12 witnesses were examined. PW1 gave F.I.statement. But he turned hostile to the prosecution. PW2 is also a hostile witness. PW3 is only a mahazar witness. PW4 is the doctor through whom exhibit P3 certificate is marked. PW5 is also another doctor** CRL.APPEAL NO.638 OF 2005 5 **working as Assistant Surgeon at a community health centre, Thanoor. Through this witness exhibit P4 wound certificate is marked. PW6 is the Police Constable who registered exhibit P5 F.I.R. PW7 is one of the investigating officer. PW8 is the other investigating officer. PW9 is the scene mahazar witness. PW10 is the Circle Inspector of Police, who conducted preliminary investigation in this case. PW11 is also another Circle Inspector of Police who conducted some part of the investigation. PW12 is the Sub Inspector of Police who recorded the F.I.statement. These are the evidences available in this case. The trial court convicted the accused under Section 304 Part II IPC mainly relying the F.I.statement, contradictions of the hostile witnesses which is marked through the investigating officer and the statement of the witnesses in the inquest report.** **8. I had occasion to consider the judgment** CRL.APPEAL NO.638 OF 2005 6 **of the same Presiding Officer and I made the following observations in that judgment. It is a reported judgment [Mujeeb Rahman v. State of Kerala (2020(3)KHC 400)]. In Mujeeb's case this Court observed like this:** **“11. Another material relied by the learned Sessions Judge is the First Information Report. According to the learned Sessions Judge, the charge witness No.1, who is the first informant gave definite case in the First Information. According to the learned Sessions Judge, since the Charge Witness No.1 implicated the accused in the First Information Report, that is also a circumstance to be considered. It is an admitted fact that the defacto complainant is not examined in this case. Moreover, it is well settled position that, First Information Statement can be used only to contradict or corroborate the maker of such statement. In this case, admittedly, the First Informant is not examined. In such circumstances, except the fact that an FIR is registered, the contents in FIR cannot be relied. It is a trite law that unless the signatory to FIR gives evidence before Court, the Statement in the FIR cannot be used as evidence. In Mohanan Vs. State of Kerala, [2011 (4) KLT 59] this Court considered the point, whether by mere marking of the FIS,** CRL.APPEAL NO.638 OF 2005 7 **the contents of the same can be treated as evidence. The relevant portion of the above judgment is extracted herein.** _**10. What is “evidence”, as per law? S.3 of Evidence Act refers to what 'evidence' is. Relevant portion of S.3 of Evidence Act is extracted below:**_ _**“Evidence”-- “Evidence” means and includes – (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;**_ _**2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.”**_ _**11. Section 3 of the Evidence Act lays down that “evidence” means and includes “oral evidence” and “documentary evidence”. All statements which the Court permits or requires to be made before it by witness, in relation to matters of fact under inquiry are called “oral evidence”. All documents including electronic records produced for the inspection of the Court are called “documentary evidence”. Thus “evidence” consists of “oral evidence” and “documentary evidence” and the relevant facts in a case can be proved either by oral evidence or documentary evidence.**_ _**12. Section 59 of Evidence Act lays**_ CRL.APPEAL NO.638 OF 2005 8 _**down that all facts, except the contents of documents or electronic records may be proved by oral evidence. As per S.60 of Evidence Act oral evidence must, in all cases whatever, be direct. That is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. 13. So, if the first informant who has seen an incident and the manner in which it has occurred, such facts may be proved only by direct oral evidence of first informant in Court and not by documentary evidence in the light of S.60 of Evidence Act. Only if first informant deposes in Court, the facts stated in first information statement, which are perceived by his senses, such facts may constitute evidence. But, the facts stated in first information statement are not provable by mere produced of first information statement. If first information statement is produced in Court and marked through first informant, what is proved is only existence of a first information statement and not the existence of facts contained in the fist information statement.**_ _**14. Proof of preparation of first information statement and affixing of signature therein may prove existence of such a statement, but it will not further**_ CRL.APPEAL NO.638 OF 2005 9 _**prove existence or truth of the “facts” which are stated therein. If the “facts” stated in the first information statement are relevant in a case and existence or truth of such facts is in issue, mere marking of the first information statement will not prove truth or existence of such facts. The facts stated in the first information statement have to be proved by admissible evidence, in accordance with law. It is held by Supreme Court in Ramji Dayawala & Sons (P) Ltd. v. Invest Import (1981) 1 SCC 80) as follows:**_ _**“Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence ie, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. [Emphasis supplied]**_ **12.** _**This is the fundamental principle about the admissibility of an FIR. I am surprised to see that, a Session's Judge has not even seen such judgments. Hence, reliance of the FIR and its**_ CRL.APPEAL NO.638 OF 2005 10 _**contents by the learned Sessions Judge to convict the appellant is illegal, especially when the maker of the FIR is not examined.**_ **13.** _**The other material relied by the learned Sessions Judge is the contradictions marked by the Prosecution as Ext.P1(a) to P1(f). According to the learned Sessions Judge, the authenticity of these contradictory versions of PW1 brought on record stands proved through PW10, the Investigating Officer. According to the learned Sessions Judge, the credibility of the Investigating Officer (PW10) is not seen challenged. Therefore, the Sessions Judge concluded in paragraph 14 of the judgment that the contradictory versions of PW1 has to be treated as part of evidence. I am at a loss to accept this proposition of the learned Sessions Judge. In Mohanan's case (supra), also this Court considered this point. The relevant portion is extracted herein.**_ **There can be no doubt that the Court below committed a serious illegality in treating contradicted portions of first information statement which are marked as exhibits, as “evidence”, to convict accused. Contradicted portions of the first information statement do not constitute 'evidence' as stated in S.3 of Evidence Act. The contents of the marked contradicted portions of the first information statement as “evidence” to** CRL.APPEAL NO.638 OF 2005 11 **enter any finding in respect of any of the facts referred to therein. The evidence of the Police Official who deposes in Court that the first informant made statements to him as recorded in the marked portions of first informant statement which are contradicted by first informant will not prove the facts stated therein.”** **14.** _**How can a Sessions Judge rely the contradictions marked by the Prosecution as part of evidence. This is a fundamental principle of criminal jurisprudence. The contradictions and omissions of a witness, which is marked can be used only for the purpose of assessing the reliability of the witness at the maximum. The contradictions and omissions are not evidence. The finding of the learned Sessions Judge is fundamentally incorrect.**_ **15.** _**The learned Sessions Judge observed that the FIS can be used as one of the valuable piece of evidence because, it will bring the first version regarding the incident. According to the learned Sessions Judge, the same is admissible under section 11 of the Indian Evidence Act. Section 11 of the Indian Evidence Act is extracted herewith.**_ **When facts not otherwise relevant become relevant.—Facts not otherwise relevant are relevant—** **(1) if they are inconsistent with any fact** CRL.APPEAL NO.638 OF 2005 12 ## **in issue or relevant fact;** **(2) if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. Illustrations** **(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.** **(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.** **19.** _**Another circumstance relied by the Sessions Judge is Ext.P2 contradiction of PW2. In Ext.P2 contradiction marked, it is stated by PW2 that, he had seen the incident. But he denied such a statement given to the Police. But the learned Sessions Judge observed that “the authenticity of Ext.P2 stands proved through PW10 and it worked out as part of the evidence ----”. It is better not to comment about the above observation of the learned**_ CRL.APPEAL NO.638 OF 2005 13 _**Sessions Judge. How can a contradiction of the statement alleged to be given to the Police which is marked at the time of trial is 'evidence'. That is why, I stated earlier that, the learned Sessions Judge failed to follow the fundamental principles of criminal jurisprudence.”**_ 9. The same Presiding Officer passed the present judgment also. I am force to say that, the trial court convicted and sentenced the accused without any legal evidence. Even statement recorded at the time of inquest is relied by the learned judge to convict the accused. I once again perused the entire oral and documentary evidence produced in this case to find out whether there is any circumstances or legal evidence against the appellant. But I am conviced that there is no legal evidence. I can only allow this appeal because the trial court convicted and sentenced the appellant without any legal evidence. Therefore, this criminal appeal is allowed. CRL.APPEAL NO.638 OF 2005 14 The conviction and sentence imposed on the appellant as per the judgment dated 03.03.2005 in S.C.No.11 of 2004 of the Additional Sessions Court, Fast Track Court No.1(Adhoc),Manjeri are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**