Mani George @ Sojo v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** **CRL.A.No. 834 of 2013 (D)** **AGAINST THE JUDGMENT IN SC No.74/2011 of SESSIONS COURT, KOTTAYAM, DATED 13.03.2012** **APPELLANT/ACCUSED:** **MANI GEORGE @ SOJO, AGED 26 YEARS, S/o GEORGE, KANIYAKETHUVEEDU, NECHIPUZHOOR KARA, LALAM VILLAGE, KOTTAYAM DISTRICT.** **BY ADV. SRI.S.DILEEP (KALLAR)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **BY PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON 09.10.2018 DELIVERED THE FOLLOWING:** Crl. Appeal No. 834 of 2013 2 ## **JUDGMENT** ## **P. Somarajan, J.** One George @ Vakkan met with a sad death in the hands of his son Mani George in an alleged incident happened on 04.10.2010 at 4.00 p.m. at the house of the victim and he succumbed to the injuries on 07.10.2010 at 11.00 a.m. The crime was registered for the offence punishable under Section 302 IPC at the Pala Police Station as Crime No.1119/2010 and final report was also submitted. Consequently, he was tried for the offence punishable under Section 302 IPC in Sessions Case No.74/2011 by the Additional Sessions Judge, Adhoc-II, Kottayam and he was found guilty for the offence punishable under Section 302 IPC and convicted thereunder and ordered to undergo imprisonment for life and to pay a fine of Rs.10,000/with a default sentence of six months' rigorous imprisonment by judgment of conviction and the order of sentence dated 13.03.2012. 2. There is no eye witness to the alleged incident and hence the prosecution heavily relied on the circumstantial evidence. The incident happened at 4.00 p.m. on 04.10.2010. PW1 is the first informant, a relative of both the accused and the deceased. He is having only a hearsay knowledge regarding the Crl. Appeal No. 834 of 2013 3 alleged incident. He was intimated about the incident by one Binoy. Then both PW1 and Binoy went to the hospital and found the deceased undergoing treatment in the Intensive Care Unit, but he was unconscious at that time. FIS was given on the next day, i.e. on 05.10.2010. The accused was also arrested on the same day, 05.10.2010. 3. PW1, the first informant, had given the details of an earlier incident happened two years back to the alleged incident in which the accused inflicted an injury on his father, the deceased herein. The prosecution tried to develop a motive behind the crime based on the oral testimony of PW1 that the accused and the deceased were in inimical terms for several years on account of the hostile attitude taken by his father in the matter of marriage of his son, the accused. But, no case of immediate provocation for the alleged commission of offence was brought out through any of the witnesses examined by the prosecution, except the case of enmity and the earlier incident happened two years back. 4. PW2 is a Police Officer and a neighbour to both the accused and the deceased. He was examined to show that there was no cordial relationship between the accused and the deceased. The accused was brought up in the parental house of Crl. Appeal No. 834 of 2013 4 his mother and he began to reside along with parents only few years before the incident. He had also deposed about the incident happened two years back. According to him, the deceased used to pick up quarrel with his wife after consuming alcohol and there was frequent quarrel between them. 5. PW3 is the daughter of PW2. Both the accused and deceased are known to her. According to her, on the previous day, the wife of Vakkan came to her house and kept her household articles which can be used as a weapon by stating that there is a possibility of using the same for killing her husband by her son. Both PW2 and PW3 also deposed that on the date of alleged incident the deceased came before PW2 and shared his apprehension that he would be killed by his son. It is thereafter the alleged incident had happened on the very same day. PW3 had also deposed about the incident which had happened two years back and the usual and frequent quarrel between the deceased and his wife. 6. PW4 is the mother of the accused. She turned hostile to the prosecution. PW5 is another hostile witness. He was examined to show that the accused was found near the hotel on the date of alleged incident. PW6 is another neighbour who is a salesman in a ration shop and he had seen the accused by Crl. Appeal No. 834 of 2013 5 3.00 p.m. near the ration shop. He turned hostile to the prosecution. PW7 is an auto rickshaw driver who took the accused in his auto rickshaw to the junction on the date of incident. Exhibit D1 contradiction was marked. PW9 is the witness to Exhibit P9 mahazar under which the firewood alleged to have been used for the commission of offence was recovered, but no blood stain was found in the firewood. PW10 is the Doctor through whom the injuries sustained by the deceased on the earlier incident happened two years back was brought into evidence. PW11 is the Doctor who attended the deceased and had drawn Exhibit P5 Medical Certificate. PW12 is the Doctor who conducted post-mortem examination on the body of the deceased and had drawn Exhibit P6 post-mortem examination certificate. PW13 is the Village Officer who prepared Exhibit P7 scene plan. Exhibit P8 scene mahazar was prepared by PW14. PW15 is the witness to Exhibit P9 seizure mahazar under which the firewood was seized. PW17 is the Sub Inspector of Police who registered Exhibit P10 FIR, on the basis of Exhibit P1 FIS recorded by PW16. PW18 is the Circle Inspector of Police, the Investigating Officer. 7. One of the incriminating circumstances relied on by the prosecution brought out through PWs 2 and 3 is that on the previous day of alleged incident the wife of the victim came to Crl. Appeal No. 834 of 2013 6 their house and entrusted her household articles which can be used as a weapon so as to keep the same in their house and the same was entrusted on the apprehension that her son, the accused herein, would use the same for killing her husband. But, it was rejected by her during her examination as PW4 stating that there was frequent quarrel between herself and her husband and the household articles which can be used as a weapon were kept in the house of PW2 apprehending danger from her husband. It is true that she turned hostile to the prosecution. But the version given by her admitting the entrustment of household articles with PW2 and her explanation for keeping the same in that house are found to be genuine and acceptable, especially when there is frequent quarrel between herself and her husband. 8. Yet another aspect was also brought to the notice of this Court that the deceased himself, on the date of alleged commission of offence, came before PW2 and shared his anguish and apprehension that he would be killed by his son, the accused herein. This cannot be brought under the purview of Section 32 of the Evidence Act as a previous statement. This Court had the occasion to consider the said question in **Methalatt Balan v. State of Kerala** [2017 (5) KHC 35 (DB)] (in which we are the members). Unless the statement made by the person constitutes Crl. Appeal No. 834 of 2013 7 or reveals a circumstance of the transaction which has resulted in his/her death and a linkage of a particular circumstance forming part of same transaction, it cannot be brought under the purview of Section 32(1) of the Evidence Act. A disclosure or statement made before the alleged commission of offence or an apprehension or suspicion in the mind of the victim, cannot be brought under either the first part or the second part of Section 32(1) of the Evidence Act. Hence, the apprehension shared by the victim with PW2 before the commission of offence cannot be brought under Section 32 of the Evidence Act. 9. The further version given by PW3 that she heard some sound from the house of accused does not itself constitute an incriminating circumstance against the accused. The oral evidence tendered by PW7, an auto rickshaw driver, also stands on the same footing and suffers the very same defect. The fact that the accused was taken in an auto rickshaw to the junction on the alleged date of incident itself is not sufficient to prove involvement of the accused in the alleged crime. He was not taken from his house, the place of occurrence, and there is no iota of evidence to show at least the presence of accused in the place of occurrence in and around the time in which the alleged incident happened or before or after the incident. The fact that Crl. Appeal No. 834 of 2013 8 they were in inimical terms owing to the hostile attitude of the victim in arranging a marriage to his son, the accused, and the fact that there was no cordial relationship between them as the accused was brought up in the parental house of his mother though constitute a valid motive for the commission of crime, unless there is evidence to show his involvement in the alleged incident it is of no use. The oral evidence tendered by the ration shop dealer, PW6, also stands on the same footing. The presence of accused near to the ration shop is also not sufficient to bring home the guilt of accused. The offence was committed inside the house of both the victim and the accused. It had happened by 4.00 p.m. None of the witnesses examined by the prosecution even mentioned about the presence of accused in his house or in the near vicinity in and around the time in which the incident had happened. The medical evidence adduced hence is of no use except to show the cause of death of the victim. 10. The earlier incident which happened two years prior to the alleged incident is also of no use when there is no evidence showing at least the involvement of accused in the alleged crime. It is seemed to be so unfortunate that the learned Sessions Judge had entered into a finding and convicting the accused for the offence under Section 302 IPC without any legal basis. The Crl. Appeal No. 834 of 2013 9 accused who was arrested as early as on 05.10.2010 was under judicial custody till the verdict of the learned Sessions Judge and thereafter he is undergoing the sentence imposed. Now eight years already lapsed. No offence has been made out against the accused and hence deserves only an acquittal and we do so. In the result, Crl. Appeal is allowed. The finding of guilt of accused, the judgment of conviction and the order of sentence for the offence under Section 302 IPC against the accused are hereby set aside. The accused is found not guilty of any offence and hence acquitted. He shall be released forthwith, if his presence is not required in connection with any other case. **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/P.SOMARAJAN JUDGE** DMR/-