Rajendran @ Kunjumon and Suresh Babu @ Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MRS. JUSTICE K.HEMA** **WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929** ## **CRL.A.No. 761 of 2004** **------------------------------SC.378/2001 OF II ADDL. SESSIONS COURT, TRIVANDRUM CP.233/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD** **......................................** ## **APPELLANT: ACCUSED 1 AND 2** **---------------------------------------------** **1. RAJENDRAN @ KUNJUMON, S/O. WILSON, KAITHAMARAPOIKA VEEDU, VALIYATHANNIMOODU, ANADU MURI, EURUPUZHA VILLAGE.** **2. SURESH BABU @ SURESH,** **S/O. WILSON, KAITHAMARAPOIKA VEEDU, VALIYATHANNIMOODU, ANADU MURI, KURUPUZHA VILLAGE** **BY ADV. SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE** ## **RESPONDENTS: COMPLAINANT** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B.KOSHY & K.HEMA, JJ.** -------------------------------------Crl.A.No.761 OF 2004 ------------------------------------Dated 9[th] January, 2008 ## **JUDGMENT** ## **Koshy,J** . This appeal is filed against the conviction and sentence of the appellants/accused under section 302 read with section 34 of the Indian Penal Code. Appellants were charge-sheeted for the offence punishable under Section 302 read with section 34 of the Indian Penal Code for murdering one Biju. According to prosecution, on 13.5.2000 at 5 p.m., the 2[nd] accused pushed Biju down by holding around the neck of Biju and at that time, the first accused inflicted serious cut injuries on both hands and legs of Biju by cutting with a chopper so many times in quick succession at a place on the forest `thadam' 7 metres 25 cms. south-west from the south-west corner of the house bearing No.646/6 situated in Nandiyodu Panchayat in Kurupuzha Village and thereafter, both the accused had taken Biju to the foot-path of the road in the forest property situated 96 metres north from the above `Thadam' and left him there. The injuries inflicted by the accused in furtherance of their common intention to cause death of Biju were sufficient in the ordinary course of nature to cause death of Biju and Biju succumbed to the injuries at about 7 p.m. on the same day. The prosecution further alleged that the accused had enmity towards the deceased Biju in connection with the sustaining Crl.A.761/2004 2 of injury by the father of the accused from the hands of Biju using cracker. It is further alleged that on 13.5.2000 at about 4.30 p.m., Biju had manhandled the sister of the accused, namely Sakunthala. 2. PW1, the elder brother of Biju, had received information at about 5.30 p.m. with regard to the sustaining of injury by the deceased. Immediately, he proceeded to the spot and he found Biju lying on the side of the road at Chathappu in a pool of blood with serious injuries. He felt nervous. The people assembled there had taken Biju in a jeep to the Medical College Hospital. PW1 proceeded to the hospital in another car. The Doctors examined Biju and declared him dead at about 7 p.m. on that day. After removing the dead body to the mortuary, PW1 proceeded to his house. He reached the house at about 9 p.m. on that day. Thereafter, he had given Ext.P1 F.I. Statement before PW12 at 11.30 p.m. on the same day (13.5.2000) and it reached the Magistrate on 15.5.2000. Prosecution examined 13 witnesses and marked 17 documents and identified 11 material objects. In 313 statement accused denied all incriminating circumstances and pleaded their innocence. According to them, they were falsely implicated in the crime. The first accused has further submitted hat the deceased Biju was an accused in 25 cases and that the deceased Biju had so many enemies. The father of the accused is in a critical condition due to the throwing of cracker by the deceased Biju. The first accused is looking after the affairs of his father. The first accused has further stated that he is innocent. The 2[nd] accused Crl.A.761/2004 3 has stated that he is also endorsing the submissions made by the Ist accused and that he is innocent. Defence examined one witness. 3. Before analysing the evidence of occurrence witness, we shall consider the medical evidence. PW5 conducted postmortem examination and issued Ext.P4 certificate. It shows the following ante-mortem injuries: - “1. Incised wound 10 x 5 x 3.5 cm. on the front and inner aspect of right forearm, the front upper outer end being 2 cm. below the middle of elbow exposing the cut muscles, vessels and soft tissues. 2. Incised wound 9.5cm. Oblique involving the front and inner aspect of right forearm 5cm. Above the wrist, exposing the cut ends of muscles, vessels and bones which showed stepping of edges, almost seperating the part from above, attached by skin and soft tissue of back of forearm. 3. Incised wound 2.5 x 1 x 0.3cm. On the front of right forearm 0.6cm. above and parallel to injury No.2. 4. Incised wound 4.5 x 0.3 x 0.2 cm. on front of right forearm 0.5cm. above and parallel to injury No.3. 5. Incised wound 5 x 0.5 x 0.3cm. In front of right forearm 1 cm. above and parallel to injury No.4. 6. Incised wound 6.5 x 4.5 x 2 cm., involving the front and inner aspect of left elbow, exposing the particulars surface of left ulna with the humerus. 7. Incised wound 4.5 x 0.2 cm. skin deep Crl.A.761/2004 4 oblique on the front of left forearm 5.5 cm. below and parallel to injury No.6. 8. Incised wound 8 x 1.5 x 0.3cm. Oblique on the back of left hand, the lower outer end being 7.5cm. Above the tip of left middle finger exposing the muscles and tendons of back of the hand. 9. Incised wound 2 x 0.5 x 0.2 cm. oblique on back of left ring finger 5.5 cm. above its tip exposing the tendon. 10. Incised wound 1 x 0.5 x 0.2 cm. oblique on back of left little finger 6 cm. above its root, exposing the tendon. 11. Incised wound 4 x 0.8 x 0.4 cm oblique on the top and outer aspect of left knee. 12. Incised wound 5 x 1.5 x 2.5 cm. on the front and inner aspect of left knee. 13. Incised wound 3 x 2 x 2cm. On the back of left foot, horizontal across the heel cutting the back of calcaneum for a depth of 1.5cm. Downwards. 14. Incised wound 3 x 1 x 0.3cm. (bone deep) on the front of right leg 28 cm. below the knee. 15. Incised wound 3 x 1 x 1.5cm. On front of right leg 0.8cm. Below and parallel to injury No.14 cutting the leg bone downwards. 16. Incised wound 1.5 x 0.5 x 0.3cm. on front of right ankle. 17. Abrasion 2 x 0.2cm. Oblique on right side of face, the upper outer end 4.5cm. In front of tragus of ear. 18. Contusion 0.5 x 0.5 x 0.2 cm. on the inner aspect of lower lip just to right of midline. 19. Abrasion 8 x 4 cm. oblique on back of trunk, the upper outer end being 8 cm. to Crl.A.761/2004 5 right of midline and 11 cm. below the angle of collar bone. 20. Abrasion 4 x 1.5cm. on the back of lower trunk, the lower inner end 7cm. to right of midline just above the rim of hip bone.” PW5 opined that the death of Biju was due to multiple injuries sustained by him. According to him, injury Nos.1, 2, 6 and 12 together or injury Nos.1 and 2 are independently sufficient in the ordinary course of nature to cause death. PW5 has further opined that the bleeding from the other injuries in Ext.P4 might have also contributed to the cause of death along with injury Nos.1, 2 6 and 12. It is further in the evidence of PW5 that injury Nos.1 to 16 could be caused with MO1 chopper. Injury Nos.1, 2 and 6 are injuries on the hand of Biju. Injury No.12 is an incised wound on the front and inner aspect of left knee. In cross-examination, PW5 has stated that injury Nos.1, 2, 6 and 12 in combination resulted the death of Biju. PW5 also proved Ext.P5 certificate issued by the Joint Chemical Examiner after analysing the viscera and blood of the deceased. Ext.P5 would show that the blood of Biju contained 81 mg. of ethyl alcohol per 100 ml. of blood. 4. With regard to evidence of witnesses, PW1 is the elder brother of the deceased. He had not seen the incident. He had also no direct knowledge regarding the incident. PWs 2 and 3 were cited to prove the occurrence, but, they turned hostile. Their evidence is of Crl.A.761/2004 6 no help to the prosecution. They also deposed that they have not seen the incident and police never questioned them. PW4 is the only occurrence witness who supports the case of the prosecution. According to him, he has seen part of the incident though he has not seen actual infliction of injuries. He deposed that at about 4.30 p.m. on 13.5.2000, when he reached the place called Chathuppu on his way to the house of his brother-in-law, namely, Thulaseedharan, for borrowing some money, he saw both the accused at Chathuppu. The Ist accused was having MO1 chopper with him at that time. PW4 proceeded to the house of his brother-in-law, and when he reached there, nobody was there in that house. Thereafter, he came back to his house. On his way back to his house, he again reached Chathuppu, when he saw both the accused carrying Biju by holding the hands and legs of Biju and thereafter, the accused had dropped Biju on the side of the road. The accused then ran away from there. PW4 went near to Biju. Then he noticed that Biju was lying in a pool of blood with serious injuries on his right hand. People assembled there had taken Biju to the hospital in a jeep. The shirt worn by Biju was removed as the same was completely stained with blood. Later on, he came to know that Biju had died. He identified MO1 chopper carried by A1. He identified MO2 lunki worn by the 1[st] accused at the relevant time. PW4 also identified MO3 pants and MO4 shirt worn by the 2[nd] accused at that time. PW4 was having acquaintance with the accused even from his child-hood. The accused had enmity towards Biju in connection with an incident wherein Biju had thrown crackers 7 Crl.A.761/2004 and caused injury on the father of the accused. PW4 is also having hearsay information that the sister of the accused, namely, Sakunthala, was beaten by Biju. Ext.P15 report from the Forensic Science Laboratory shows that MOs 1 to 4 contained human blood though group was not detected. 5. PW13 Circle Inspector deposed that MO1 weapon was recovered at the disclosure of the 1[st] accused (Ext.P9(a) in the disclosure statement) and the recovery mahazar was attested by PW9. PWs 10 and 13 deposed that MOs 2 to 4 and 6 were taken from the house of the accused by PW13. PW13 also proved Ext.P16 F.I.R in Crime No.5/2000 of Palode Police Station having F.I. Statement appended to it. The said case relates to the sustaining of injury by the father of the accused, namely, Wilson in connection with throwing of cracker by the deceased Biju. PW13 has further proved Ext.P17 F.I.R. in Crime No.70/2000 of Palode Police Station registered against athe deceased in connection with the manhandling of the sister of the accused, namely, Sakunthala by the deceased Biju. 6. DW1 has been examined by the defence to prove that PW4 could not see the incident leading to the death of Biju. According to him, at about 4 p.m., on the day on which Biju sustained injury, he was present in his property along with PW4. PW4 was engaged in spade work in the property of DW1 from 8 a.m. till 5 p.m. on that day. Thereafter, DW1 came to his house along with PW4. Crl.A.761/2004 8 Then both of them went to the river to take bath. The evidence of DW1 would show that DW1 and PW4 have came back after taking bath at about 5.45 p.m. His evidence show that PW4 was with him on that day from 2 p.m. to 5 p.m. In cross-examination he stated that he was teaching in a parallel college, that he failed in B.A. and he was an accused in an abkari case. 7. Trial court mainly relied on recovery evidence as well as evidence of PW4. PW4 is a chance witness. According to him, he wanted to get money from his brother-in-law and hence he went through the place of incident, but, he was not going through the normal route. He did not go to the shop of his brother-in-law which was in the junction itself to get the money or to meet him. This apprehends a doubt regarding the presence of PW4 at the place of incident. In cross examination PW4 deposed that he was a distant relative of the deceased. He was a coolie worker and his work is from 8 a.m. to 4.30 p.m. On the date of incident he did not go for work. He also stated that from his house Thannimmoodu junction is very close. He further stated that he was going to meet his brother-in-law Thulasidharan to get money for taking his wife to the hospital. But, he did not enquire about Thulasidharan at his tea shop in the junction and he did not take his wife to the hospital on the same day. He did not report to the police regarding the incident. He did not give water to the deceased. Even though he was related, he did not accompany Biju to the hospital and he did not ask anything to Biju or accused. It Crl.A.761/2004 9 is also deposed that Biju may be an accused in 25 cases. PW4 was convicted for an offence under section 326 IPC and sentenced to under go six months imprisonment. The suggestion that he was employed by DW1 on the date of incident up to 5 p.m. was denied by him. But, defence evidence also cannot be ignored. Defence witnesses are to be treated on par with prosecution witnesses as held by the Apex Court in **Munshi Prasad** v. **State of Bihar** (AIR 2001 SC 3031) (JT 2002 (1) SC 275). PW4 is an agriculture labourer and he was employed by DW1 on the relevant date up to 5 p.m. If that is believed, PW4 is not a reliable witness as he cannot see the incident at 4.30p.m. Incident occurred at 4.30 p.m. alleged to be in a forest area. PW4 did not see the infliction of injuries. According to him, he saw accused coming with the deceased to the public road at Chathuppu. After inflicting several injuries on him at the forest area there is no need for the accused to carry the deceased to the public road. It is very difficult to believe PW4, as a whole. Explanation of PW4 for his presence at the scene of occurrence is not believable. Further, according to PW4, he saw the accused with weapons at 4.30 p.m. on 13.5.2000 in the junction. One of the motive alleged is that deceased assaulted the sister of the accused, that too, at 4.30 p.m. on the same day. F.I.R. regarding that incident was marked as Ext.P17 proved by PW13 Investigating Officer. That F.I.R was received at 9 p.m. only after this incident. If that be so, there is no chance of PW4 seeing the accused at 4.30p.m. at forest. If allegations in Ext.P17 are correct, there is no chance that both incidents took place at the same Crl.A.761/2004 10 time as part of same crime. But, most probably, Ext.P17 F.I.R. also was manipulated for popping up a case against the accused after deceased was found injured, on the basis of suspicion as nobody has seen the incident. But, Ext.P1 F.I.R was registered at 11.30 p.m.. Even though the incident occurred at 4.30 p.m. and the deceased was taken to the Medical College Hospital, the matter was not reported to the police till 11.30 p.m. It reached the Magistrate only on 15.5.2000. All that raise suspicion. PW13 Investigating Officer stated that immediately after inquest they went to the place of incident and the house of the accused was searched, but, no incriminating materials were found out. On the next day another search was conducted and CW6 produced a pair of chappels and later the accused were arrested on 19.5.2000. A search was conducted again on 20.5.2000 and blood stained shirt and pants were found on the clothe-line of the house. The recovery of MOs 3 to 5 during search is not believable. It is true that MO1 weapon was recovered as per the disclosure statement of the accused and it contained human blood, but, no attempt was made to ascertain the blood group. Further, since prosecution tried to manipulate other three recoveries, it is difficult to believe the recoveries. In any event, recovery can be accepted only as corroborative evidence and it cannot be the sole basis for conviction especially when prosecution deliberately created some evidence. PWs 2 and 3 who are alleged to be eye witnesses turned hostile and did not support any of the version of the prosecution and PW1 has no case that he has seen the incident. Even Crl.A.761/2004 11 according to PW4, he did not see the actual infliction of injuries. His evidence is suspicious. We are of the opinion that the prosecution failed to prove the case beyond reasonable doubt. It is true that Ext.P16 F.I.R. shows that there was a previous incident where the deceased assaulted father of the accused on 7.1.2000. It can be a motive, but, it can also be a reason for falsely implicating the accused. Mere existence of motive is not enough to convict a person as it is the duty of the prosecution to prove the case beyond reasonable doubt. Prosecution was not able to prove the genesis of the case and was not able to produce correct facts. In any event, appellants are entitled to the benefit of doubt. Considering the totality of circumstances, we are of the opinion that the conviction and sentence passed on the appellants are not sustainable in law. Hence, we set aside the conviction and sentence passed against the appellants and they are acquitted. They should be released forthwith if they are not required in any other case. The appeal is allowed. **J.B.KOSHY JUDGE** **K.HEMA JUDGE** tks