Pathrose v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 ``` ``` CRA(V) NO. 656 OF 2016 ``` ``` JUDGMENT DATED 09.09.2015 IN SC 437/2014 OF ADDITIONAL SESSIONS ``` ## **`JUDGE, NEYYATTINKARA`** ## **`APPELLANT/CW2:`** ``` PATHROSE AGED 70 YEARS, PP VILAKOM, PULLUVILA P.O, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA ``` ## **`RESPONDENT/STATE & ACCUSED 1 TO 4:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** - **`2 NELSON S/O JOSEPH, NISHAN HOSPITAL CONDUCTED HOUSE, NEAR UDAYA MARTHANDAM P.O, KARINKAL MEL VIDALAM, KK DIST.`** - **`3 SEEMON S/O ERANIYOSE, PP VILAKOM, CHEMBAKARAMNA THURA WARD, PULLUVILA, KARAKULAM VILLAGE.`** - **`4 FRANCIS S/O SIRIL, ERAYIMMAN THURA PURAYIDOM, PULLUVIALA, KARAKULAM, THIRUVANANTHAPURAM.`** - **`5 NASREEN FERNANDO S/O KULANTHAL FERNADO, HOUSE NO 581 (439), PEERUPILLAI VILAKAM, 9 SAINT JACOB, PEERUPILLA VILAM, KARUMKULAM PANCHAYATH, KARUMKULAM VILLAGE, NEYYATTINKARA TALUK.`** ``` 2 ``` ## **`CRA(V) NO. 656 OF 2016`** ``` BY ADVS. ``` ``` V.G.ARUN (K/795/2004) V.JAYA RAGI NEERAJ NARAYAN R.HARIKRISHNAN (KAMBISSERIL) ADHARSH SREEKUMAR SREEKUMAR C. SRI.ALEX.M.THOMBRA, SENIOR P.P ``` ``` THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRA(V) NO. 656 OF 2016 ``` ``` 3 ``` ## **`JUDGMENT`** Ziyad Rahman A.A., J. This appeal is filed under Section 378 of Cr.P.C. by the father of the victim, challenging the order of acquittal passed by the Additional Sessions Court, Neyyattinkara in S.C. 437/2014. The aforesaid case arises from Crime No.92/2005 of Kanjiramkulam Police Station which was registered against the respondents 2 to 5 herein arraigning them as accused Nos.1 to 4, for the offences punishable under Sections 302, 341, 325 and 323 read with Section 34 of Indian Penal Code. 2. The prosecution case is that on 23.04.2005 the respondents 2 to 5, in furtherance of a common intention and due to the animosity which the 2[nd] and 3[rd] respondents was having against the deceased, committed murder of one Wilfred @ Vijayan, the son of the appellant herein, by inflicting injuries upon his body. The deceased was found dead at a beach in the early hours of 24. 04.2005. 3. Police registered the case under Section 174 of Cr.P.C as the death of the deceased was initially, under suspicious circumstances. Later, in the year 2011, the offences under Section 341, 323, 325 and 302 of Indian Penal code read with Section 34 were ``` CRA(V) NO. 656 OF 2016 ``` ``` 4 ``` incorporated and the respondents 2 to 5 were arraigned as accused. After investigation, final report was submitted against the respondents 2 to 5 herein. Upon completion of legal formalities, the Judicial First Class Magistrate Court – III, Neyyattinkara before whom the final report was submitted, committed the matter to the Sessions Court, Thiruvananthapuram and later the same was made over to the Additional Sessions Judge, Neyyattinkara, where it was tried as Sessions Case No.437/2014. 4. In support of the prosecution case, PWs 1 to 21 were examined and Exts.P1 to P35 were marked. No material objects were produced. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to them. They denied the same and pleaded innocence. The defence evidence consists of Exts.D1 and D2 which are the contradictions in the statements recorded under Section 161 statements of CWs 14 and 15. 5. After appreciating the evidence adduced, the Sessions Court came to a finding that the respondents 2 to 5 are not guilty of the ``` CRA(V) NO. 656 OF 2016 ``` ``` 5 ``` offences and accordingly, they were acquitted from all the charges. This Criminal Appeal is filed challenging the aforesaid finding of not guilty. 6. Heard Sri.Suman Chakravarthi, learned counsel appearing for the appellant, Alex M. Thombra, learned Public Prosecutor appearing for the State and Sri.Arun V.G., learned counsel appearing for the respondents 2 to 5. 7. Learned counsel for the appellant contends that the finding of the Sessions Court acquitting the accused is not legally sustainable. The evidence adduced by the prosecution, particularly the evidence of PW4 clearly establishes that the respondents 2 to 5 are guilty of the offences. It is pointed out that, from the evidence of PW4, it is clear that there occurred a scuffle between the deceased and the accused at around 11 p.m. on 23.04.2005 and the deceased was found dead on the morning of 24.04.2005. The medical evidence also suggests that the death of the deceased was due to the injuries sustained to him on his head and neck. From Ext.P12 postmortem certificate which is proved by PW15 Doctor, it can be seen that there were 19 ante-mortem injuries on the body of ``` CRA(V) NO. 656 OF 2016 ``` ``` 6 ``` the deceased. By relying upon the aforesaid evidence, learned counsel contends that, by applying principles of last seen theory, the Sessions Court ought to have found the accused guilty of the offences. Reliance was placed on the decisions in **State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254]** , and unreported judgment of the Hon’ble Supreme Court in **Crl.A No.186/2018 (Hari and Another v. State of Uttar Pradesh).** 8. On the other hand, the learned counsel for the respondents 2 to 5 pointed out that, the evidence of PW4 cannot be believed for more than one reason. Firstly, he was declared hostile to the prosecution and even the part of his evidence which supports the prosecution case, does not clearly establish that the accused persons had inflicted injuries upon the body of the deceased so as to cause death. It is also pointed out that, the statement of PW4 implicating the accused persons for the offences was made by him after a period of 5 years of the incident and no explanation is forthcoming as to why he kept silent on all these days. It is also contended that, in such circumstances, in the absence of any corroborative piece of evidence, the conviction is not possible by solely ``` CRA(V) NO. 656 OF 2016 ``` ``` 7 ``` relying upon the evidence of PW4. In such circumstances, the learned counsel for the respondents 2 to 5 prayed for dismissal of the appeal. 9. The question that arises is as to whether an interference is warranted in the finding entered by the Sessions Court. The first question that is to be considered in connection with the above is the medical evidence available on record, indicating the cause of death of the deceased. Ext.P12 is the postmortem certificate. PW15 is the Doctor who conducted the postmortem and issued the said certificate. On going through the evidence of PW15, it can be seen that he has noted 19 ante-mortem injuries. He expressed his opinion as to the cause of death as due to the injuries sustained to head and neck. It is discernible from her evidence that, she ruled out the possibility of causing such injuries due to a simple fall of a person. However, it was clarified that, if the fall is from a height with head-on collision, it is likely to be caused. On examining the evidence of PW15 and the contents of Ext.P12, though it is evident that the death of the deceased was due to the injuries noted by PW15, the cause of such injuries is not ``` CRA(V) NO. 656 OF 2016 ``` ``` 8 ``` very clear. Therefore, the said aspect is to be considered based on the other materials, if any, available on record. 10. When we move on to the other evidence available, the crucial evidence is that of PW1 and PW4. PW1 is the first informant on whose instance the crime was registered. Ext.P1 is the First Information Statement which was recorded by PW21. In Ext.P1, he has stated that, on 24.04.2005 at 7 a.m. he was informed by one of his neighbours that his brother/deceased is lying unconscious on the beach. Immediately he along with some other persons went there and tried to wake up the deceased, but there was no response. Therefore, they have taken the deceased to one ‘Bhargawa Vilasam Vaidyasala’ at Mulloor where the deceased was examined by a Vaidyan and he informed that the deceased died. Accordingly, they have taken the dead body to their house washed the body and informed the relatives as to the death of the deceased. However, when the relatives gathered, someone expressed doubt as to the nature of the death of the deceased, and accordingly he informed the matter to the Police. He also stated that, the deceased left home on 23.04.2005 at 9 p.m. after having food. According to him, the ``` CRA(V) NO. 656 OF 2016 ``` ``` 9 ``` deceased had consumed alcohol at that time. He further stated that the death has occurred due to some unknown reasons while the deceased was sleeping on the beach. He expressed no suspicion as to the cause of death. On the basis of the same, the crime was registered under Section 174 Cr.P.C. and the body of the deceased was examined and inquest report was prepared. Later, postmortem was also conducted and thereafter the body was released to the relatives. 11. Later, during the course of investigation, after 5 years of registration of the crime, a disclosure was made by PW4 to the effect that, he had seen the accused Nos.2 to 5 having a scuffle with the deceased at 11 p.m. on 23.04.2005 at a place near Tsunami market in Pulluvila. On the basis of the same, offences as mentioned above were incorporated, investigation was conducted, and the final report was submitted. 12. While being examined as PW1, he deposed that the accused Nos.1 and 2 were having animosity with the deceased. The 3[rd] respondent is the father- in-law of the deceased. As the marriage of the deceased with the daughter of the 3[rd] respondent /2[nd] accused had taken ``` CRA(V) NO. 656 OF 2016 ``` ``` 10 ``` place without the consent of the 3[rd] respondent, he was in inimical terms with the deceased. Later, wife of the deceased was sent abroad at the instance of 3[rd] respondent, against the wish of the deceased, and this strengthened their enmity. He has also stated that 2[nd] respondent/1[st] accused also used to interfere in the dispute between the deceased and his wife. It is also stated by PW1 that, the wife of the deceased went abroad with the help of the 2[nd] respondent as well. The 4[th] and 5[th] respondents are the friends of the 2[nd] and 3[rd] respondents and they were also nursing grudge against the deceased. The manner in which he came to know about death of the deceased has been stated by PW1 in the manner as recorded in Ext.P1. However, it is mentioned that after the deceased got examined by a Vaidyan, he was also taken to ‘Brother’s Hospital’ to examine him by a Doctor having MBBS degree. There also it was informed that the deceased has breathed his last. It is stated by him that, even though he has given a statement before the Police that he was not having any suspicion about the death of the deceased, later PW4 made certain disclosures with regard to the incident of scuffle occurred between the deceased and respondents 2 to ``` CRA(V) NO. 656 OF 2016 ``` ``` 11 ``` 5 on 23.04.2005 between 11 p.m. and 11.30 pm. On the basis of the said disclosure, he had given further statements before the Police. 13. PW2 is another brother of the deceased. Apart from the manner of receipt of information of death, which is as stated by PW1, there is not much material helpful to the prosecution. PW3 is another crucial witness examined by prosecution to prove the involvement of the accused. However, he turned hostile to the prosecution and his evidence does not provide any support to the prosecution case. 14. The only other evidence relied on by the prosecution is that of PW4. While being examined, he stated that, on 23.04.2005 at 11 p.m. he found the deceased having a scuffle with the accused. He stated that the 2[nd] respondent was also there. He further stated that, he does not know the individual acts committed by each accused persons. PW4 was declared hostile and was subjected to cross-examination. The relevant portion of his statement under Section 161 of Cr.P.C. contradicting the deposition of PW4 was marked as Ext.P4. The statement given by PW4 before the Magistrate under Section 164 was also marked as Ext.P5. The specific case of the learned counsel for the ``` CRA(V) NO. 656 OF 2016 ``` ``` 12 ``` appellant is that the evidence of PW4, even though hostile to the prosecution, contains sufficient materials to implicate the accused persons. It is pointed out that, merely because of the reason that PW4 was declared hostile, his entire evidence cannot be discarded and on the other hand, that part of evidence which supports the prosecution case can be accepted for arriving at the conclusion of guilt of the accused. The Learned Counsel for the appellant, places reliance upon **Kashi Ram’s** case (supra) and **Hari’s** case (supra), in support of the said contention. We perfectly agree with the legal proposition laid down in the said decisions and we are prepared to appreciate the evidence of PW4 in that perspective. However, the crucial question that arises is as to whether the evidence of PW4 is reliable and also as to whether it is safe to arrive at a finding of guilt on the sole evidence of PW4 without any corroboration. When evidence of PW4 is considered in that point of view, we are convinced that the finding of the Sessions Court in this regard is probable and sustainable. This is particularly because, the evidence of PW4, even if it is accepted as such, would not indicate that it was the accused who have inflicted injuries upon the body of the ``` CRA(V) NO. 656 OF 2016 ``` ``` 13 ``` deceased as noted in Ext.P12 postmortem certificate, which ultimately lead to his death. The only evidence of PW4 is that he had seen the accused persons having a scuffle with the injured person. His evidence does not indicate any instance of inflicting any injuries upon the body of the deceased. His deposition does not indicate the gravity of such scuffle and also does not contain the details of the acts committed by the accused persons specifically. In this case another crucial aspect to be noticed is that, PW4 has also stated that, before the incident mentioned above, he found the deceased consuming alcohol with 4 or 5 persons at 9.30 p.m. at Kochupally junction near Kallara. The evidence of PW1 is to the effect that, while leaving home at about 9.PM, the deceased had consumed alcohol. It is also to be noted that the deceased was found dead on a beach whereas the prosecution case is that the incident of scuffle between the deceased and the accused persons occurred near Tsunami market. The evidence of PW4 does not contain any mention as to the place where such scuffle has occurred. There is no evidence explaining the manner in which the deceased was brought to or came the beach, which is a different place. Even though the ``` CRA(V) NO. 656 OF 2016 ``` ``` 14 ``` prosecution has a case that after inflicting injuries upon the deceased, he was dragged to the beach by the accused, there are no materials establishing the same. When all these aspects are taken into consideration, we find that, the evidence of PW4 is not sufficient to hold that the respondents 2 to 5/accused had committed the offence as alleged, in the absence of any corroborative materials. On going through the entire evidence available on record we are unable to find any material supporting the evidence of PW4 in any manner. Even Ext.P5 statement under Section 164 do not throw any light on the question of guilt of the accused as there also, it is not specifically mentioned as to the nature of injuries inflicted by the respondents 2 to 5 upon the deceased. 15. The learned counsel further contends that, the evidence of PW4 indicates that the deceased was last seen with the respondents 2 to 5 and it is a relevant aspect indicating their involvement. In **Surajdeo Mahto v. State of Bihar (AIR 2021 SC 3643)** , the Honourable Supreme Court observed that, unless and until the last seen theory is substantiated by other circumstantial evidence to constitute an ``` CRA(V) NO. 656 OF 2016 ``` ``` 15 ``` unbreakable chain of events, conviction cannot solely rest upon the same. In this case, the place where they were found together and having scuffle is not the place where the body was found. The alleged scuffle took place near Tsunami Market and the body of the deceased was found on the beach. There are no materials explaining how the deceased reached the beach. Thus it is evident there are no materials establishing the entire chain of events, so as arrive at a conclusion of guilt of the accused, based on last seen theory. 16. Another crucial aspect which prompts us to suspect the creditworthiness of PW4 is that, even though the incident occurred in the year 2005, he has disclosed about involvement of the respondents 2 to 5 only in the year 2011 which is after 5 years. The enormous delay in making such disclosure is also not properly explained and this is yet another aspect which creates a serious shadow of doubt over his evidence. 17. It is a well settled position of law that, in order to establish the guilt of the accused, the prosecution has to adduce evidence beyond reasonable doubt. The evidence of PW4 does create a suspicion as to ``` CRA(V) NO. 656 OF 2016 ``` ``` 16 ``` the involvement of the respondents 2 to 5. However, mere suspicion, which may lead to a finding that “may be true” is not sufficient. The prosecution has to travel the distance up to “must be true” by adducing positive and unimpeachable evidence, ruling out all hypothesis of innocence of the accused. In this case we are unable to find any such materials. 18. **In Chandrappa and Others v. State of Karnataka [2007 KHC 3199]** , the Hon’ble Supreme Court examined and framed guidelines as to the manner in which the evidence is to be appreciated by the 1[st] appellate court, while considering an appeal against the order of acquittal. After elaborately discussing large number of decisions, it was concluded in the manner as follows: _“41. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;_ _(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;_ _(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against_ ``` CRA(V) NO. 656 OF 2016 ``` ``` 17 ``` _acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion._ _(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court._ _(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court.”_ The aforesaid judgment was relied on **in Basappa v. State of Karnataka [2014 (5) SCC 154]** and **State of Gujarat v. Balchandra Laxmishankar Dave [2021 (2) SCC 735]** . Thus from the aforesaid principles it is evident that, while considering an appeal against acquittal, we have to be conscious of the fact that there is a double presumption in favour of the accused, one arising from fundamental principles of criminal jurisprudence that a person shall be treated as innocent until proven guilty and another one, consequent to the finding of acquittal entered by the trial court, upon appreciating the evidence let in before the trial judge, who had the occasion to observe demeanor of the witnesses. It is also held in **Chandrappa** ’s case (supra) that, if two ``` CRA(V) NO. 656 OF 2016 ``` ``` 18 ``` views are possible from the materials adduced, the appellate court should not disturb the finding of the acquittal recorded by the trial court. In this case, on examining the entire materials before us, we are unable to find any infirmity in the findings entered by the Sessions Court. In the light of the aforesaid principles, and also the lack of credible materials to interfere with finding of the trial court, we are of the view that there is no merit in the appeal warranting any interference. In the result, this appeal is dismissed and the judgment dated 09.09.2015 in S.C. 437/2014 passed by the Additional Session Judge, Neyyattinkara, is hereby confirmed. ## **`Sd/-`** ``` K.VINOD CHANDRAN JUDGE ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS