MANOJ v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938** **CRL.A.No. 1608 of 2011 (A)** **----------------------------------------** **AGAINST THE JUDGMENT IN S.C.NO. 71/2011 OF THE 3RD ADDITIONAL DISTRICT &* SESSIONS COURT (ADHOC-I), THODUPUZHA** **----------------** **APPELLANT(S)/ACCUSED : -----------------------------------------** **MANOJ, S/O.CHARLEY, AGED 36 YEARS, PUNNATHANATHU HOUSE, CHANDRAKANTHI BHAGAM, VANDANMEDU KARA, VANDANMEDU VILLAGE.** **BY ADVS. SRI.SHAJI KURIAN SRI.T.J.MICHAEL** **RESPONDENT(S)/COMPLAINANT : ----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPL. PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. C.K.ABDUL REHIM & B. SUDHEENDRA KUMAR , JJ. ----------------------------------------------Crl.Appeal No. 1608 of 2011 ----------------------------------------------Dated this the 8th day of August, 2016 ## JUDGMENT ## Abdul Rehim,J. The sole accused in Sessions Case No.71/2011 on the files of the IIIrd Additional Sessions Court, Thodupuzha is the appellant herein, who was charge sheeted for offence punishable under section 302 of Indian Penal Code (IPC) and tried for the said offence. The Sessions Court having found that the prosecution could not prove any premeditation on the part of the appellant or that the appellant has not proved to have acted in a cruel or unusual manner, convicted and sentenced him only under part II of section 304 IPC, finding that there is justifiable evidence to treat the case as one falling under Exemption 4 of Section 300 of IPC. The appellant was sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs.50,000/- and in Crl.A.1608/2011 2 default of payment to undergo rigorous imprisonment for one year. 2. The prosecution case in brief is that the deceased had misbehaved with the wife of the appellant on 16.4.2008 at 7.30 p.m. at a place called Chandrakanthi at KumalyKattapana public road. The appellant had committed murder of the deceased by chopping him with an Axe and thereby committed offence punishable under section 302 IPC. Before the trial court the prosecution had examined Pws. 1 to 16 and marked Exts.P1 to P19 documents and also identified MO1 to MO9 series material objects. No evidence was adduced from the side of the appellant. The case was initiated based on Ext.P1 statement given by PW1 at Vandanmedu police station which was recorded by PW13 Sub Inspector of Police, based on which Ext.P1(b) FIR was registered at about 7.30 p.m. on the date of occurrence itself. PW15 is the investigating officer who took charge of the investigation on the next day morning and prepared Ext.P3 inquest report on examination of the dead body of Crl.A.1608/2011 3 the deceased at the place of occurrence itself. He had arrested the appellant at 12.30 p.m. on the next day (17.4.2008) by preparing Ext.P13 memo. Based on the disclosure statement alleged to have been given by the accused MO2 Axe was recovered from a bush situated near the spot of the accident as led by the appellant, at 14 hrs. on 17.4.2008. PW15 also prepared Ext.P10 observation mahazar on visiting residential premises of the appellant at 15 hrs. on 17.4.2008. He had also seized MO1 Dothy (Mundu) alleged to have been worn by the appellant, after recording his arrest at the relevant time at about 13.15 hrs. The seized articles were subjected to chemical analysis and Ext.P19 is the report obtained from the Forensic Science Laboratory, Thiruvananthapuram. He completed the investigation and laid the charge. 3. Autopsy on the body of the deceased was conducted by PW8. Ext.P8 is the Post Mortem Certificate issued. PW8, when examined before the court, deposed that the death occurred due to the head injury sustained by Crl.A.1608/2011 4 the deceased. He further opinioned that injury Nos. 6,11,13 and 14 mentioned in Ext.P8 can be caused with a weapon like MO2 Axe. Therefore the evidence let in by the prosecution would clearly prove that the deceased Prasad died due to the head injury sustained at the time and place of the occurrence. But there is no ocular witness with respect to the incident. In Ext.P1 statement given by PW1 before the Sub Inspector (PW13) it is mentioned that, he got information from PW3 that the deceased was lying dead in front of his house at Kattapana -Kumily public road and while PW1 and PW3 were talking about this the appellant came to the house of PW1 and confessed that the deceased came with an Axe to his house and attempted to molest the appellant's wife and there occurred scuffle and fight between them and at the public road he inflicted a chop injury on the head of the deceased with the Axe and that the deceased is lying bleeding in a condition on the public road. It is further mentioned in Ext.P1 that the appellant pleaded for his rescue and that PW1 had taken Crl.A.1608/2011 5 him to the police station in the Autorickshaw driven by PW3. But PW1 and PW3 have not supported the version, while examined before the court. The prosecution has confronted Ext.P1(a) portion of FI statement while examining PW1. Learned Public Prosecutor raised vehement contentions that Ext.P1(a) portion of contradiction marked while examining PW1, which is proved through PW13 who recorded the same, need to be considered as an extra judicial confession made by the appellant and should be accepted as a valuable piece of evidence to sustain the conviction. It is to be noted that PW1 while examined has not supported the prosecution version and denied of having given such a statement before PW13. Learned Public Prosecutor had cited decision of the hon'ble Supreme Court in **Bhagwan Dass vs. State (NCT of Delhi 2011 (6) SCC) 396.** In the said case, with respect to a statement given by the mother of the accused before the police officer, the apex court observed that “ in the present case we are of the opinion that the mother denied her earlier Crl.A.1608/2011 6 statement to the police because she wanted to save her son. Hence we accept the statement to the police and reject the statement in court. The defence has not shown that the police had any enmity with the accused or had some other reason to falsely implicate him”. Evidently the hon'ble Supreme Court in that case had placed some reliance on the statement made by the particular witness to the police, which she denied before the court. But, apart from making such an observation relying on such statement, the apex court in the said decision itself had clarified the legal position as follows:- _“We are of the opinion that the statement of Smt. Dhillo Devi to the police can be taken into consideration in view of the proviso to section 162 (1) Cr.PC. and her subsequent denial in court is not believable because she obviously had afterthoughts and wanted to save her son (the accused) from punishment. In fact in her statement to the police she had stated that the dead body of Seema was removed from the bed and placed on the floor. When she was confronted with this statement_ Crl.A.1608/2011 7 _in court she denied that she had made such a statement before the police. We are of the opinion that her statement to the police can be taken into consideration in view of the proviso to section 162(1) Cr.PC.”_ 4. As contained in the dictum laid, a statement which is made to the police which was subsequently denied while examined before the court, can be taken into consideration only in view of second proviso to section 162 of the Cr.PC. The proviso to section 162(1) envisages that if a statement of a witness which has been reduced into writing is duly proved at the time of trial may be used either by the accused or by the prosecution with permission of the court to contradict such witness in the manner provided by section 145 of the Evidence Act 1872. Therefore it is clear that the contradicted portion of the statement given before the police can be used only for the purpose of contradicting the witness and not for a corroboration. As such that portion of the statement cannot be considered as a material piece of evidence which can be used for sustaining the Crl.A.1608/2011 8 conviction. It is pertinent to note that Ext.P1 is the statement given under section 154 Cr.PC and the maker of such statement has not supported the version while examined before the court. Therefore Ext. P1 cannot be considered as a substantive piece of evidence. 5. Much emphasis has been placed by the prosecution regarding recovery of MO2 Axe, based on Ext.P7(a) alleged disclosure made by the appellant. No independent witness had supported the version of the prosecution regarding the recovery. According to PW6 and PW4 they had signed Ext.P7 mahazar at the police station and MO2 Axe was available at the station when their signature were obtained on Ext.P7 mahazar. Learned Public Prosecutor contended that the testimony of PW15 would establish that the appellant had given Ext.P7(a) disclosure statement and as led by the appellant MO2 Axe was recovered from a compound situated near to the scene of occurrence. Question remains with respect to credibility of the version of PW15 regarding the alleged recovery. Prosecution case Crl.A.1608/2011 9 is that the appellant was kept at the station house from 7.30 p.m. on 16.4.2008 onwards, under surveillance. Testimony of PW15 is to the effect that he had visited the scene of occurrence on the same night at about 9.00 p.m. While cross examined he conceded that he came to the scene of occurrence along the road situated nearby to the police station. He also conceded that he was having knowledge that the appellant was kept in custody at the police station during that time. But he denied of having visited the police station or questioned the appellant on that day. The arrest of the appellant was recorded only at 12.30 p.m. on the next day. The alleged recovery of MO2 is at 14 hrs on the next day. But the records would indicate that the appellant was produced before the Magistrate at 9.40 p.m. on 17.4.2008, at the residence of the Magistrate . Admittedly, even after coming to know about the fact that the accused was kept custody under surveillance from 7.30 p.m. on the previous day, the investigating officer has not chosen to question him or to record his arrest at any time Crl.A.1608/2011 10 before 12.30 p.m. on the next day. So also there is no reason forthcoming for the delayed production of the accused before the Magistrate till 9.40 p.m. on that day. There is no explanation as to any specific reason for keeping the appellant in custody without recording his arrest. Under such circumstances no credibility can be attached with respect to the evidence of PW15 in relation to the discovery of MO2. 6. Yet another piece of evidence upon which the prosecution had placed reliance is the seizure of MO7 Dhothy (Mundu) alleged to have been worn by the deceased at the time of incident. MO7 was seized as seen lying on the boundary of the court yard of the appellant's house. From Ext.P10 observation mahazar prepared in this regard it is evident that the mahazar was prepared only at 15 hrs on 17.4.2008 . There is evidence to the effect that both the house of the deceased as well as the appellant are situated nearby to the scene of occurrence. Admittedly PW13 as well as PW15 had visited the scene of occurrence at the night on Crl.A.1608/2011 11 16.4.2008 itself. Further the examination on the dead body was conducted by PW15 between 8.30 a.m. and 11. a.m. on 17.4.2008, from the scene of occurrence itself. There is no explanation as to why MO7 Dhothy was not recovered at any of the above said occasions. Even when MO2 was alleged to have been recovered at 14 hrs. by brining the accused to the scene of occurrence, MO7 Dhothy was not recovered at that time. Therefore no reliance or credence can be placed with respect to the seizure of MO7 from the residential compound of the appellant. Further, no evidence is brought out with respect to ownership of the property of the residential compound from which MO7 was alleged to have been recovered. So also no witness had identified MO7 as the Dhothy worn by the deceased at the time of occurrence. Even according to the case of the prosecution there is no overt acts committed at the place from where MO7 was seized. 7. Lastly the prosecution had placed reliance on the aspect that Ext.P19 FSL report would indicate that MO1 Crl.A.1608/2011 12 Saffron coloured Dhothy seized from the appellant after his arrest, contained blood stains. But the report is to the effect that the blood stains found on the said item of property was insufficient for determining its origin or group. Merely because the Dhothy worn by the accused at the time of his arrest contained blood stains, it cannot be said that any inference regarding his guilt can be drawn solely based on the same, particularly when there is no evidence that the blood is of human origin or belonging to the group of the deceased. It is of common knowledge that there is every chance of clothes of rustic villagers and manual workers may contain blood stains which is possible due to various reasons connected with the nature of their work. Further, there is no proper identification with respect to MO1 Dhothy of the appellant or to the effect that it is the cloth which was worn by the appellant at the time of occurrence. 8. From the discussions contained in the forgoing paragraphs we are of the considered opinion that, on a reappreciation of the entire evidence on record, this court do Crl.A.1608/2011 13 not find that the prosecution was successful in establishing guilt of the accused to sustain a conviction either under section 302 or under section 304 of IPC. Resultantly, it is held that the appellant is liable to be acquitted. 9. In the result the appeal is allowed. The conviction and sentence imposed by the court below in SC No.71/2011 under section 304 part II IPC is hereby set aside. The appellant is on bail. The bail bond will stand cancelld and the appellant is set at liberty. C.K.ABDUL REHIM, JUDGE ## B. SUDHEENDRA KUMAR,JUDGE Pmn/ Crl.A.1608/2011 14