Rajesh and others 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 A.M.BABU THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939 CRL.A.No. 2440 of 2010 (D) --------------------------SC 1414/2008 of ADDITIONAL DISTRICT AND SESSIONS COURT (FAST TRACK NO.1), THRISSUR APPELLANTS/ACCUSED ----------------------------------- 1. RAJESH, S/O NARAYANAN, THOMATA HOUSE, KODUNGA DESOM, VELLIKULANGARA (IST ACCUSED) 2. RAMESH, S/O.MOHANAN, CHATTUPARAMBIL HOUSE, KANAKAMALA DESOM, KODAKARA VILLAGE, (2ND ACCUSED) 3. DASAN @ BABUTTAN @ BABUDAS, S/O.DINAKARAN, KUNNUMMAKARA, VATTAKAD,, CHATTLAMPADAM DESOM,KODAKARA (3RD ACCUSED) 4. DAVIS, S/O.ANTHONY, NJARAKADAN HOUSE, COPLIPADAM DESOM,, VELLIKULANGARA (5TH ACCUSED) BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.T.K.AJITH KUMAR SRI.P.VINODKUMAR SRI.K.S.ARUNDAS SRI.P.VIJAYA BHANU (SR.) SMT.M.M.DEEPA SMT.MITHA SUDHINDRAN RESPONDEN/COMPLAINANT --------------------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH CIRCLE INSPECTOR OF POLICE PUDUKKAD. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - Crl.A.2440 of 2010 - - - - - - - - - - - - - - - - Dated : 25[th] May, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## A.M.Babu, J 1.The appellants are convicts. They were accused 1, 2, 3 and 5 in S.C.1414/2008. That was a case on the file of the Court of Session, Thrissur division. The appellants were convicted and sentenced by the learned Additional Sessions Judge (Fast Track-I) under Secs 120B, 302, 324 and 326 of IPC read with IPC 34. 2.The prosecution case goes as under : It was at 8.30 pm on 21.10.2007 the incident. A person by name Shaju was murdered in the incident. The locale of the crime was the check-post junction at Mupli. The 1[st] accused was under an impression that his illicit brewery was raided by the police on getting information from Shaju. The former therefore had a grudge **Crl.A.2440/10** 2 against the latter. The 1[st] accused conspired with the other accused persons to do away with Shaju. The accused persons formed themselves into an unlawful assembly. They carried deadly weapons such as choppers, iron rods et cetera. Accused 1 to 3 wrongfully restrained Shaju on his way to escape from the 1[st] accused. Accused 2 and 3 with choppers cut on both the legs and hands of Shaju. PW2, who intervened to save Shaju, was beaten on his head with an iron rod by the 4[th] accused. The accused persons caused damage to the motorbike of PW1 and caused him damage to the tune of Rs.5000/-. Shaju sustained injuries on his legs and hands to which he succumbed soon. - 3.The first information statement was given by PW1, the brother of Shaju. FIR was registered under Sec.302 of IPC read with IPC 34. Investigation was conducted. Charge-sheet was filed against five accused persons alleging commission of offences punishable under Secs 120B, 143, 147, 148, 302, 324, 326 and 427 of **Crl.A.2440/10** 3 IPC read with IPC 149. The learned Magistrate committed the case to the Court of Session. The learned Sessions Judge made over the case to the Additional Sessions Judge for disposal. The learned Additional Sessions Judge, after preliminary hearing, framed charges against the accused persons for all offences shown in the charge-sheet. The accused persons denied having committed the offences. 4.The evidence consists of the oral testimonies of Pws 1 to 21 and Exts P1 to P19 on the prosecution side. MO1 series and MO2 were marked. The accused persons were examined under Sec.313 of Cr.P.C. The learned trial judge did not find any ground to acquit any of the accused persons under Sec.232 of Cr.P.C. Therefore they were called upon to enter on defence and adduce evidence. No evidence was adduced on defence side. However, Ext D1 to D13 were marked on their side when the prosecution witnesses were in the witness box. **Crl.A.2440/10** 4 - 5.The learned Additional Sessions Judge acquitted the 4[th] accused. Others were convicted under Secs 120B, 302, 324 and 326 of IPC read with IPC 34. They were imposed different jail sentences including imprisonment for life, besides fine. - 6.We heard the learned senior counsel Sri.B.Raman Pillai appearing for the 1[st] accused, the learned senior counsel Sri.P.Vijaya Bhanu appearing for accused 2 and 3 and the learned counsel Sri.Ajith Kumar for the 5[th] accused. We heard the learned Public Prosecutor Sri.S.U.Nazar too. - 7.Of the 21 witnesses examined in the case, three were examined as ocular witnesses. They were Pws 1 to 3. Among them, PW2 and PW3 did not at all support the prosecution case. They were questioned by the learned Public Prosecutor as permitted under Sec.154 of the Indian Evidence Act, but in vain. PW4 was strictly not an ocular witness. He was examined **Crl.A.2440/10** 5 to say that he saw the accused persons running away from the scene of occurrence after the incident. PW5 was examined to speak that his autorikshaw was hired by the accused persons to travel to St.James hospital, Chalakkudy. PWs 4 and 5 too turned hostile to the prosecution. They were also questioned as permitted under Sec.154 of the Indian Evidence Act, but again in vain. In short, the one and only material witness who supported the prosecution was PW1. It is his evidence which is to be analysed to decide whether the conviction and sentence on the appellants are sustainable or not. 8.One of the offences for which the appellants were charged, tried, convicted and sentenced was the one punishable under Sec.120B of IPC. We do not find anything in the evidence of PW1 to find the appellants guilty thereunder. Even the learned Additional Sessions Judge did not find any material to find the appellants guilty under Sec.120B of IPC. That was why the learned trial judge just said in one sentence at **Crl.A.2440/10** 6 paragraph 24 of the impugned judgment that the evidence made it clear that the 1[st] accused had conspired criminally with the other accused to commit murder of Shaju. The said finding of the learned trial judge is not at all supportable. No evidence on the point is seen discussed by the court below. No evidence was available for the learned judge to discuss. The conviction and sentence under Sec.120B of IPC cannot stand in any case. 9.Accused 2, 3 and 5 stand on a footing different from that of the 1[st] accused. The name of the 1[st] accused is stated in Ext.P1 first information statement given by PW1, but not the names of the other accused persons. What Ext P1 states is that Shaju and PW1 were attacked by the 1[st] accused and his companions. When PW19 registered Ext P1(a) FIR, he showed a small trick by stating that the offences were committed by the 1[st] accused and three persons identifiable by sight. The expression 'persons identifiable by sight' as stated in the FIR is **Crl.A.2440/10** 7 not in agreement with the version in the first information statement that the other persons were the companions of the 1[st] accused. PW1 did not state in Ext.P1 that the other assailants were identifiable by sight. The identity of accused 2, 3 and 5 is and has been a big issue. 10.PW1 spoke to the involvement of the accused persons in the incident. PW1's evidence suggests that accused 2, 3 and 5 were strangers to him. No doubt he deposed that at the time of the incident he knew the name of the 5[th] accused, besides the 1[st] accused. But the name of the 5[th] accused is not seen stated in the first information statement. PW1 spoke in cross-examination that he understood the names of accused 2 to 4 from the police. It is not possible to agree with the prosecution that PW1 was able to identify accused 2, 3 and 5 by sight or otherwise at the time of the incident or even later. The learned trial judge accepted the prosecution version that PW1 identified accused 2, 3 and 5 at the police station. The **Crl.A.2440/10** 8 learned trial judge has stated that in view of such identification, the identification in court was acceptable. But the evidence of PW1 that he was made to identify accused 2, 3 and 5 at the police station was hit by Sec.162 of Cr.P.C. What PW1 did at the police station when he identified those accused persons was to give a statement under Sec.161 of Cr.P.C. It was held by the apex court in Ramkishan Mithanlal Sharma v. State of Bombay (AIR 1955 SC 104) that such identification at the police station would come within the ban of Sec.162 of Cr.P.C. We may also refer to Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839) and Ganpat Singh v. State of Rajasthan [(1997) 11 SCC 565]. Inadmissible evidence has been read as admissible evidence by the learned trial judge to convict accused 2, 3 and 5. Such conviction cannot stand. When PW1 was examined in court, he was not asked to identify accused 2 to 5. The conviction of and sentence on accused 2, 3 and 5 are liable to be set aside. We do so. **Crl.A.2440/10** 9 11.Who remains is the 1[st] accused. PW1's evidence may be briefly stated as follows : At around 5 pm on the date of incident he was told by the 1[st] accused that the latter would finish Shaju as Shaju was instrumental for the raid of the illicit brewery of the 1[st] accused. Later PW2 contacted PW1 over phone and informed about the plan of the 1[st] accused to do away with Shaju. Therefore PW1 went to his tarwad house. PW1 took Shaju from the tarwad house in order to see that Shaju was saved from any attack. On their way they saw the 1[st] accused talking to PW2. On seeing Shaju and PW1, the 1[st] accused and his companions rushed towards them to attack them. PW1 ran away and asked his brother to escape. But Shaju could not run as he was caught. PW2 made an attempt to rescue Shaju. The 1[st] accused and others attacked PW2 too. PW1 concealed himself by the side of a wall and watched. From there he heard his brother crying. He saw his brother was being attacked and inflicted with cut injuries. Thereafter **Crl.A.2440/10** 10 four of the accused persons fled from the scene on a bike and the remaining one ran away. When they left, PW1 went near Shaju. There were injuries on the thigh and left hand of the victim. PW1 bandaged the wounds of his brother with the dhoti of the former. 12.The evidence given by PW1 was not in accordance with his own version in the first information statement. Going by Ext P1, the first attack was by PW1 himself. He did not speak to it in his examination-in-chief. He denied it in cross-examination. He was contradicted on that point. The contradicted portion was marked as Ext.D2. The prosecution has no explanation for the deviation from the definite version in the first information statement. Ext.D2 contradiction in Ext.P1 suggests that PW1 was the person who attacked first with a chopper. Of the two choppers recovered by PW20, one could be the one used by PW1. Ext.P1 does not suggest holding of any kind of weapon by any of the assailants. But **Crl.A.2440/10** 11 PW1 spoke about carrying of deadly weapons by the accused persons. The version of PW1 was that accused 2 and 3 were carrying MO1 series choppers. The said omission has been proved as a contradiction by putting it to PW20 who investigated the case. In these circumstances, it is not at all safe to rely on the evidence of PW1. 13.The learned senior counsel Sri.B.Raman Pillai has relied on three decisions of the apex court. The decisions are Joseph v. State of Kerala (AIR 2003 SC 507), Bhimapa Chandappa Hosamani v. State of Karnataka [(2007) 1 SCC (Cri) 456] and Rai Sandeep v. State of NCT of Delhi (AIR 2012 SC 3157). The above decisions remind every criminal court about the caution to be taken while accepting the evidence of a sole eye-witness even if he is the person injured in the incident. The Supreme Court has stated who is a sterling witness in such circumstances. In Rai Sandeep's case (supra) the Supreme Court considered the evidence of a **Crl.A.2440/10** 12 sole eye-witness. The Supreme Court has stated that the sterling witness should be of a very high quality and caliber whose version should be unassailable. It is also held that the court considering the version of such a witness should be in a position to accept it for its face value without any hesitation. The evidence of PW1 does not satisfy the standard insisted on by the apex court. His evidence, for reasons stated above, cannot at all be considered a quality evidence. It is impossible to convict the 1[st] accused on the strength of the sole ocular evidence of PW1 who even went against himself, in the sense that he deviated from his own version in the first information statement for reasons best known to him alone. - 14.The weakness of the prosecution case does not end there. PW13 conducted autopsy. The autopsy certificate was marked as Ext P6. Surprisingly, PW13 did not speak to the injuries he mentioned in his certificate. The manner in which PW13 was examined by the learned public prosecutor **Crl.A.2440/10** 13 and the manner in which his evidence was recorded by the learned trial judge cannot at all be appreciated. What was done was just to mark the autopsy certificate as Ext.P6. What PW13 spoke in court was only that the injuries were noted in the post-mortem examination certificate. That was certainly insufficient. What the medical doctor saw and observed at the time of the post-mortem examination should be deposed to by him in court. His such evidence alone is substantive evidence. The post-mortem examination certificate is only a previous statement of the author thereof when he is examined in court. It can only be used for the purposes of contradiction, corroboration and refreshing his memory under Secs 145, 157 and 159 of the Indian Evidence Act respectively. It cannot be used as a substantive evidence. But it was used for that purpose in this case unfortunately. In this connection the learned senior counsel Sri.P.Vijaya Bhanu has referred to Munshi Prasad v. State of Bihar [(2002) 1 SCC 351]. The Supreme Court holds that the **Crl.A.2440/10** 14 post-mortem examination report by itself is not a substantive evidence, but it is the doctor's statement in court which has the credibility of a substantive evidence, and not the report. It is further held that the report in the normal circumstances can be used only for refreshing the memory of the doctor or to contradict whatever he might say from the witness box. Another decision on the point is State of U.P. v. Mohd. Iqram (AIR 2011 SC 2296). 15.Sri.S.U.Nazar, the learned public prosecutor, has relied on the decision of this court in Abdul Nazar v. State of Kerala (2009 KHC 943). It was held that the failure of the doctor to depose to the cause of death could not be considered fatal. That was not a case where the doctor did not depose to the injuries he saw at the time of the post-mortem examination. The said decision can be made use of only in a case where the doctor had deposed to the injuries, but failed to depose to the cause of death. Therefore the decision relied on by the learned **Crl.A.2440/10** 15 public prosecutor is of no help to the prosecution. - 16.We conclude. We find it impossible to uphold the conviction of appellants. We therefore allow the appeal. - 17.The appeal is allowed. The impugned conviction and sentences are set aside. The appellants are acquitted of all the charges for which they were convicted and sentenced by the trial court. The bail bond of the 5[th] accused, who is on bail, stands discharged. Accused 1 to 3 who are in jail shall be released forthwith if their detention is not required in any other case. ## **Sd/C.K.ABDUL REHIM Judge** **Sd/A.M.BABU Judge** Mrcs/26.5 //True Copy// P.S.To Judge