Nalinakshi W/o Late Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **CRA(V).No. 31 of 2014** **AGAINST THE JUDGMENT IN SC 352/2007 of III ADDITIONAL SESSIONS COURT, KOLLAM DATED 18-05-2013** ## **APPELLANT/MOTHER OF THE DECEASED:** **NALINAKSHI W/O. LATE VIJAYAN, AGED 63 YEARS,NALINALAYAM, KIZHAKKEKANISSERY, SAKTHIKULANGARA VILLAGE, KOLLAM-691581.** **BY ADVS.** **SRI.SHABU SREEDHARAN SMT.RESHMA ABDUL RASHEED SRI.TONY THOMAS (INCHIPARAMBIL)** ## **RESPONDENTS/COMPLAINANT & ACCUSED 1 & 2:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2 SHAJU @JOHNSON S/O. FRANCIS, PADANAYIL KIZHAKATHIL VEEDU, SAKTHIKULANGARA VILLAGE, KOLLAM-691581.** Crl.Appeal (V) No.31/14 -:2:- **3 SASI @SAJI S/O. NATARAJAN CHETTIYAR, NATARAJABHAVANAM, SAKTHIKULANGARA VILLAGE, KOLLAM-691581.** **BY ADVS.** **SR PUBLIC PROSECUTOR SRI.S.U.NAZAR SRI.ABE RAJAN FOR R2 AND R3 SRI.SHANAVAS KHAN FOR R2 AND R3 SRI.V.JAYAPRADEEP FOR R2 AND R3** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON 29.03.2019 DELIVERED THE FOLLOWING:** -:3:- Crl.Appeal (V) No.31/14 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the mother of the deceased challenging the judgment of acquittal passed by the 3[rd] Additional Sessions Judge, Kollam in S.C. No. 352 of 2007. The third accused expired even prior to the commencement of trial. 2. The case of the prosecution is as follows: PW3 is the brother-in-law of 2[nd] accused and a friend of 1[st] accused. CW4 is a relative of deceased Jayakumar. On 28/08/2004, at about 03.30 p.m., a quarrel and scuffle took place between PW3 and CW4 near Moonnuthengintharamukku at Sakthikulangara and, in the said incident, deceased Jayakumar intervened as a mediator. The accused were having enmity towards the deceased Jayakumar on the belief that Jayakumar had supported CW4 in that incident. Due to the said enmity, the accused had a common intention to murder Jayakumar and with that intention, accused nos. 2 and 3 had approached Jayakumar Crl.Appeal (V) No.31/14 -:4:- on the same day at about 7.00 p.m., while the deceased, PW1, PW2 and PW11 were sitting on the platform of 110 K.V. electric tower of K.S.E.B near Kavanadu-Maruthadi road near Moonnuthengintharamukku. Thereafter, accused nos. 2 and 3 called the deceased and told him that they had to say something to him. They asked him to accompany them. Accordingly, he went with them and the accused caught hold of the deceased on his both hands by which he was wrongfully restrained and thereafter 2[nd] accused hit on the head and forehead of the deceased questioning his taking the role of a mediator. Due to the said hit, he sustained injury on his head and forehead. At that time, the 1[st] accused who reached there along a pathway on the northern side of the road stabbed Jayakumar on the middle of his chest with a knife by uttering obscene words and also by saying that the deceased need not act as a mediator. Jayakumar succumbed to the injuries later. 3. From the side of prosecution, they examined PWs 1 to 11 as witnesses, produced documents Exts.P1 to P13 series and Crl.Appeal (V) No.31/14 -:5:- produced and identified MO1 to MO5. 4. During 313 examination, the accused denied all the incriminating evidence levelled against them and pleaded that they were innocent. They stated that they are falsely implicated due to political reasons. Deceased sustained injuries not in the manner and also not at the place and time as alleged by the prosecution. No evidence is adduced from the defence side. However Exts.D1 to D8 were marked from their side. 5. Learned counsel for the appellant victim Sri.Shabu Sreedharan vehemently argued that the Court below completely went wrong in holding that the chain of circumstances proved by the prosecution were not enough to establish the involvement of the accused beyond reasonable doubt. He argued that the Court below was too hasty to conclude that the last seen together theory has no relevance in this case. According to the counsel, even the circumstances already pointed out in the impugned judgment are enough to hold the accused guilty of the offences charged and the said circumstances complete the chain beyond Crl.Appeal (V) No.31/14 -:6:- any scope of reasonable doubt. It is true that PW1 and PW2 did not support the prosecution by stating the overt acts committed by the accused. They deviated from their earlier version to that extent. But, in all other aspects, they supported the prosecution case. The Court below erred in arriving at the present conclusion which is perverse and thoroughly unreasonable and hence this Court need to intervene. He placed reliance on _**State of U.P. v. Satish**_ (AIR 2005 SC 1000), _**Amit @ Ammu v. State of Maharashtra**_ (AIR 2003 SC 3131), _**Ravindran v. State of Kerala**_ (1999 KHC 449) and _**Yogesh Karki (Chettri) v. State of Sikkim**_ (2006 KHC 2120) to emphasize the settled positions of last seen together theory. 6. Learned counsel appearing for the accused Sri.V.Jayapradeep argued that the Court below is fully justified in arriving at the present conclusion. Entire evidence has been considered in detail. The Court below found the evidence insufficient to convict the accused. Motive is not proved by the prosecution. PWs 1, 2 and 11 turned hostile to the prosecution. Crl.Appeal (V) No.31/14 -:7:- Their version is not believable as far as other portion of evidence is concerned. The accused were falsely implicated. There is no error in the findings of the trial Court. The recovery allegedly effected under Section 27 is not admissible. MO2 T-Shirt worn by the deceased was found with no tear marks though the prosecution has a definite case that the deceased died due to injuries to the chest. Alleged screw driver used for the commission of the crime by 2[nd] accused is not recovered. Blood group of the appellant is found to be A+ve, but the material objects including MO1 knife and MOs 2 to 5 dress of the deceased show presence of O+ve blood in it. All these cast serious doubt in the prosecution case and hence the right verdict passed by the trial Court need not call for any interference by this Court of appeal. 7. As the case at hand is one in which the accused were acquitted by the trial Court, there is a double presumption of innocence. It is settled law that an order of acquittal cannot be reversed merely because another view is possible. On re- Crl.Appeal (V) No.31/14 -:8:- appreciating the entire evidence, only if any perversity, illegality or unreasonableness is found in the judgment of the Court below, our intervention is required. 8. Evidence adduced in the case, in short, are as follows:- PWs 1, 2 and 11 were cited as eyewitnesses by the prosecution. PW11 completely turned hostile to the prosecution. PW1 and PW2 supported the prosecution to a certain extent by deposing the attending circumstances of the crime though they did not depose that they saw how the deceased was killed. PW3 was examined to prove the motive for the crime, but he turned hostile to the prosecution. PW4 is an attestor to Ext.P4 inquest report and PW5 is a witness in Ext.P5 scene mahazar. PW6 is the brother-in-law of the deceased. He is an attestor to Ext.P6 seizure mahazar of MO2 T-shirt and MO3 lunki worn by the deceased at the relevant time. He admitted his signature in Ext.P6 and deposed that he signed the same at District Hospital, Kollam. He did not identify the MOs. According to him, the T-shirt worn by the deceased was green in colour. MO2 herein is cream coloured. Crl.Appeal (V) No.31/14 -:9:- PW7 is a witness to Ext.P7 recovery mahazar regarding the recovery of MO1 knife. He is the co-brother of the deceased. He stated that he attested Ext.P7. PW8 is the Doctor who prepared Ext.P8 post-mortem certificate of the deceased. PW9 was declared hostile to the prosecution. CW13 is the then Village Officer who prepared the scene plan and he was no more at the time of the trial. CW15 is the then ASI of Police who recorded Ext.P1 FIS of PW1 on 28/08/2004 at 10.30 p.m. and registered FIR and prepared Ext.P6 seizure mahazar. He was also no more. PW10, the then C.I. of Police, Sakthikulangara took over the investigation and prepared Ext.P4 inquest report, Ext.P5 scene mahazar, Ext.P10 report and Ext.P11 property list. He also proved the contradicted portions in the CD and Ext.P12 FSL report. After completing the investigation, he laid the charge-sheet. 9. Learned Counsel for the victim strongly attacked the findings of the trial Court especially the observation that the last seen together theory brought in by the prosecution is not relevant in this case. Perusal of judgment would indicate that the Crl.Appeal (V) No.31/14 -:10:- trial Court came to such a conclusion based on the following aspects:- (i) Recovery of MO2 T-shirt which was allegedly worn by the deceased at the time of incident as per Ext.P6 mahazar is doubtful. The reason for the same is that PW1 and PW6 deposed that the dress of deceased was green in colour, but MO2 is cream in colour. Also, prosecution witnesses gave different version regarding the place at which the seizure was effected. PW1 stated that he produced it at the police station, whereas PW6, the attestor stated that he signed the mahazar at District Hospital, Kollam. (ii) There is no torn mark in MO2 T-shirt corresponding to injury no. 1 in Ext.P8 post-mortem report though prosecution has a definite case that MO2 was the T-shirt worn by the deceased while he was stabbed on his chest by MO1 knife. (iii) The alleged recovery of MO1 knife is not believable as there is suspicious circumstance that make it so. Several houses were situated near the place of recovery, but none of the Crl.Appeal (V) No.31/14 -:11:- neighbours were cited as witnesses. Instead, PW7, who is the cobrother of the deceased, who was staying 20 k.m. away from the said place, is cited as witness. PW7, during chief examination did not depose that the accused were present at the time of effecting recovery of MO1 from the house. He deposed as to the presence of the accused only on a leading question put to him by the prosecutor. (iv) Ext.P12 is the FSL report of items sent for examination. It shows that O+ve blood is found in all of them including MO1 knife, except the foot wear of the deceased. According to Ext.P8, the blood group of the deceased was A+ve. This is totally inconsistent and hence cannot be taken into consideration. (v) According to the prosecution, 2[nd] accused hit the deceased on his head and forehead using screw driver. But Ext.P8 does not show any such wounds on the head. (vi) There is no evidence to show that the deceased was taken to Casualty of District Hospital, Kollam on 28/08/2004 as alleged by the prosecution. According to the prosecution, soon Crl.Appeal (V) No.31/14 -:12:- after getting injured, the deceased was taken to District Hospital, Kollam and was admitted in the Casualty and he was examined by Doctor there. But Exts.D6 to D8 document show otherwise. Ext.D6 is the attested copy of the application made by the accused to Public Information Officer, Kollam for getting copy of the Casualty register of the said hospital from 28/08/2004 at 06.00 p.m. to 29/08/2004 at 10.00 a.m. Ext.D7 is the reply issued to Ext.D6 application. In Ext.D7, it is stated that, as per the records, the deceased was not brought to District Hospital, Kollam during the relevant period. It is also evident from Ext.D8, the attested copy of the Casualty register. Also, PW8 Doctor deposed that if any person is brought dead in the night, his corpse would be kept in the cold chamber. But, the deceased's body is not kept so. 10. The Court below also noted certain circumstances relied on by the prosecution in connection with the alleged incident to prove the guilt of the accused. The Court observed them in its judgment at paragraph 24, which are as under:- Crl.Appeal (V) No.31/14 -:13:- (i) Evidence of PW1 and PW2 would establish that while the deceased and PWs 1, 2, and 11 were sitting on the platform of the KSEB electric tower, accused nos. 2 and 3 came there and called the deceased and the deceased accompanied both of them towards the east. (ii) The evidence of PW1 and PW2 would show that after some time, they heard a crying sound from the direction where accused nos. 2 and 3 had taken the deceased. (iii) While PW1 and PW2 went to the spot from where the sound was heard, they had seen the deceased Jayakumar lying there with injuries and three persons were running away from the spot. (iv) The evidence of PW1 would show that the persons so ran away were the accused and 1[st] accused was having MO1 knife in his hands. (v) Blood-stained MO1 knife was recovered on the basis of Ext.P7(a) disclosure statement of accused no.1. (vi) PW8, the Doctor who conducted the post-mortem on Crl.Appeal (V) No.31/14 -:14:- the body of the deceased and issued Ext.P8 post-mortem certificate, in his evidence stated that injury no.1 in Ext.P8 which was suffered on the chest of the deceased was the cause of death of the deceased. (vii) The evidence of PW8 would show that injury no.1 in Ext.P8 is possible with MO1 knife. (viii) The deceased was last seen with accused nos. 2 and 3 prior to the infliction of the aforesaid injuries to him. 11. As far as the death of Jayakumar is concerned, there is no much dispute about the fact that the deceased met with a homicidal death. PW8 is the Doctor who conducted the postmortem of the deceased and he noted the following injuries on the corpse in Ext.P8 post-mortem certificate:- _1. Incised penetrating wound 1.5x0.5 cm obliquely placed on the front of left side of chest. The lower inner sharply cut end being 1 cm outer to the midline and 3 cm below the upper end of sternum. The other end showed splitting. The wound entered the chest cavity after cutting sternum in between the attachment of 1[st] and 2[nd] ribs and terminated in the upper lobe of the left lung with nick after transfixing the root of iota. The_ Crl.Appeal (V) No.31/14 -:15:- _chest cavity contained about 1.5 litres of blood. The wound was directed downwards and backwards to the right for for a total depth of 10 cm._ _2. Incised penetrated wound 3x1x3cm on the outer aspect of left thigh. The lower split end 12 cm above the knee. The other end was found sharply cut._ _3. Lacerated wound 1x0.5 cm on outer end of left eyebrow._ _4. Lacerated wound 0.5x0.5 cm on left side of chest 3 cm below armpit._ _5. Abrasion 6x0.25 cm oblique on the left side of chest. The upper outer end being 4 cm outer to midline and 3 cm above the lower end of the sternum.”_ 12. According to him, the deceased died due to injury sustained to the chest (injury no.1). The said injury is fatal and is sufficient in the ordinary course of nature to cause death. He also deposed that the said injury is possible to be inflicted by using MO1 knife. 13. Coming to the evidence, the prosecution cited PWs 1, 2 and 11 as occurrence witnesses. But it can be seen that all of them turned hostile to the prosecution. PW11 turned completely hostile. PW1 and PW2 though turned hostile, supported the prosecution case to some extent by deposing the circumstances Crl.Appeal (V) No.31/14 -:16:- and happenings that took place at the relevant time. Of course, the Court below is justified in holding that the prosecution failed to prove their case with direct evidence as claimed by them. Only thing to be looked into is whether the other proved circumstance and evidence would establish the guilt of the appellant beyond the shadow of reasonable doubt. 14. We had gone through the evidence on record carefully especially that of PW1 and PW2. In our view, the following aspects are clearly proved by the prosecution beyond dispute:- (i) On the date of incident, in the evening at about 06.0006.30 p.m., the deceased was sitting on the platform of the 110 KV KSEB tower along with PWs 1, 2 and 11. (ii) At about 06.30 p.m., accused nos. 2 and 3 reached there and called the deceased and the deceased accompanied them and they were about 100 feet away from the said tower platform. (iii) Within 10 minutes, they heard a cry from the direction where the deceased was taken by A2 and A3 and it was the cry of Crl.Appeal (V) No.31/14 -:17:- the deceased stating _“_ ഓട�വരണ� _"_ (Come quickly). (iv) On hearing the cry, PW1 and PW2 reached the spot and found that the deceased was lying with bleeding injuries. (v) They also found three people fleeing from the spot and identified them as A1, A2 and A3 herein. (vi) A1 was carrying MO1 knife in his hand while he was running. (vii) Ext.P8 issued by PW8 who is the then Police Surgeon of District Hospital, Kollam would show that the deceased died due to injury to the chest. 15. The following circumstances are also in evidence but are disputed by the defence and some of them are disbelieved by the Court below:- (i) PW2 had taken the injured to District Hospital, Kollam in an autorickshaw and later he was declared dead. (ii) PW1 lodged Ext.P1 FIS within 3 hours of the incident i.e., on 28/08/2004 at 10.30 p.m. with names of the assailants. (iii) Injury No.1 shown in Ext.P8 could be caused using Crl.Appeal (V) No.31/14 -:18:- MO1 as the weapon of offence and it was sufficient in the ordinary course of nature to cause death. (iv) MO1 was recovered based on Ext.P7(a) disclosure statement of A1 through Ext.P7 mahazar to which PW7 is an attestor. (v) Though PW1 entertained doubt, PW2 identified MO2 as the T-shirt worn by the deceased at the time of the incident. (vi) The items collected from the scene of crime as per Ext.P5 scene mahazar including the dress of the deceased (Tshirt, lunki and undergarment), soil sample and leaves contain O Rh+ve blood except the chappal of the deceased. (vii) Ext.P12 FSL report would further show that MO1 knife recovered at the instance of A1 was stained with O Rh+ve blood group. (viii) All the accused were not available near the locality following the incident. 16. This is a case in which the eyewitnesses turned hostile to the prosecution regarding the most vital aspect of the offence Crl.Appeal (V) No.31/14 -:19:- i.e., overt acts. 17. Motive for the commission of the offence is also not proved by the prosecution. 18. Both PW1 and PW2 deposed that the deceased was taken to District Hospital, Kollam on the same night. It is denied by the defence. They produced Exts.D6 to D8 documents to prove their case. They relied on the testimony of PW8 Doctor as well, to strengthen their argument. But Exts.D6 to D8 documents are not admissible as neither the person who prepared the same nor the custodian of the said document is examined. It is only a certified copy availed as per RTI Act. PW8 does not have a case that he was on duty at Casualty of District Hospital at the relevant time. It is also in evidence that inquest and post-mortem is done in the District Hospital on the very next day at 09.00 a.m. and 12.00 p.m. respectively. 19. As far as the version of PW1 regarding the running away of A1 with MO1 knife is concerned, it can be seen that PW1’s case in Ext.P1 FIS and in chief examination is the same. Crl.Appeal (V) No.31/14 -:20:- Though he deposed so in his chief examination, during crossexamination, to a suggestion whether he had seen the 1[st] accused running with a knife, he stated in the negative. But it can be seen that the said witness had already turned hostile to the prosecution regarding other material aspects including the overt acts. 20. It is trite and as held by the Apex Court in the following judgments that on an appreciation of evidence on record, if two views are possible and the Trial Court has taken a view of acquittal, the appellate Court should not interfere with the same. Where the view taken by the trial Court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after reappreciating evidence if the charge is proved beyond reasonable doubt on record. (i) _**Harijan Bhala Teja v. State of Gujarat**_ (AIR 2016 SC 2065) (ii) _**Kilakkatha Parambath Sasi v. State of Kerala**_ (AIR Crl.Appeal (V) No.31/14 -:21:- 2011 SC 1064) (iii) _**C. Antony v. K.G.Raghavan Nair**_ (AIR 2003 SC 182) (iv) _**Ramesh Babulal Doshi v. State of Gujarat**_ (AIR 1996 SC 2035) (v) _**E.Sanjanna v. State of A.P**_ (AIR 1977 SC 785) 21. In the case on hand, the acquittal was based on the fact that there was no eyewitness to the incident and the case rested upon circumstantial evidence. The so called eyewitnesses turned hostile to the prosecution and there is evidence to show that accused Nos. 2 and 3 called the deceased and he was taken to a place about 100 feet away from the tower plant. After some time, his cry was heard and when PW1 and PW2 reached the spot, they saw the deceased lying with bleeding injuries and three people flee from the spot which they identify as the accused. On the basis of this evidence, the Court below however observed that as per the allegation of the prosecution, the 2[nd] accused had hit the deceased on his head and forehead using a screwdriver. But no such wound is seen. That apart, PW1 Crl.Appeal (V) No.31/14 -:22:- deposed that he saw the first accused running with MO1 knife, but during cross-examination he denied that the first accused was having any knife with him and that he had only seen the first accused running away from the spot. PW2 states that he could not identify the persons who had run away from the spot. 22. First of all the prosecution tried to prove the case based on testimony of eyewitnesses. But when the eyewitnesses did not speak anything about having witnessed the incident, the prosecution turned to circumstantial evidence. Of course, even if the prosecution is able to prove the circumstances on which they relied upon to establish the guilt of the accused, it is possible to arrive at such a finding. However, all the circumstances have to be proved in such a manner that it should be consistent with the only hypothesis of guilt of the accused. Apparently, there is some discrepancy with reference to the possession of knife and the material objects produced before Court which had been highlighted by the trial Court. The said finding cannot be ignored. It was held that there was no tear in MO2 T-shirt which the Crl.Appeal (V) No.31/14 -:23:- deceased was wearing at the relevant time which itself would show that the deceased has not sustained stab injury with MO1 knife while he was wearing MO2 T-shirt. As far as the recovery of MO1 knife was concerned, PW7 the attesting witness was residing 20 kms away from the place from where MO1 was recovered. The Court below felt that the same is suspicious and it effects the recovery of MO1 knife. That apart, PW7 is a co-brother of the deceased. No witness from the locality were also examined to prove the recovery. The FSL report also indicated that the blood detected in the MO1 knife was 'O' group, whereas the blood group of the deceased was A+ve which also is a discrepancy which could not be explained by the prosecution. The trial Court having taken note of all these factual aspects had come to a finding and had acquitted the accused, while exercising the appellate jurisdiction, it may not be possible for this Court to take a different view merely for the reason that another view is possible. In the light of the aforesaid discussion, we do not find any Crl.Appeal (V) No.31/14 -:24:- reason to interfere with the judgment of the Sessions Court acquitting the accused in the case. Appeal is hence dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge