Raju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939 CRL.A.No. 1490 of 2013 (D) --------------------------- AGAINST THE ORDER/JUDGMENT IN SC 199/2010 of ADDITIONAL DISTRICT & SESSIONS COURT , FAST TRACK COURT NO.1, THRISSUR DATED 30-10-2010 CP 39/2009 of J.F.C.M.-I,THRISSUR CRIME NO. 725/2008 OF TOWN EAST POLICE STATION, TRISSUR APPELLANT(S): ------------ RAJU, CONVICT NO.223, CENTRAL PRISON, VIYYUR, THRISSUR-10. BY ADVS.SRI.S.SACHITHANANDA PAI SMT.K.S.JEENA REETHA RESPONDENT(S): -------------- STATE OF KERALA, REP. PUBLIC PROSECUTOR BY ADV.SRI.NICHOLAS JOSEPH, PUBLIC PROSECUTOR BY ADV. SRI.S.U.NAZAR, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-112017, THE COURT ON 22/11/2017 DELIVERED THE FOLLOWING: **“C.R.”** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal No. 1490 of 2013 ==================== Dated this, the 22[nd] day of November, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ Appellant is the accused in SC No.199/2010 of the Additional District and Sessions Court, Fast Track No.1, Thrissur. He is convicted and sentenced to undergo imprisonment for life with fine of `10,000/- for offence u/s 302 IPC and RI for 7 years along with fine of `5,000/- for offence u/s 326 IPC. If default is committed in payment of fine of `10,000/-, he has to undergo simple imprisonment for one year and in default of payment of `5,000/-, he has to undergo simple imprisonment for six months. 2. The victim in the case is a lady by name Ammini. She was 60 years old. According to the prosecution, while Ammini was sleeping on the road side, the accused hit her on her head twice with a concrete slab. The incident occurred on 3/11/2008. She was taken to the hospital. She remained unconscious and died at 9 p.m Crl.Appeal No.1490/13 -:2:- on 12/11/2008. 3. To prove the above case, prosecution examined PW1 to PW11 and marked Exts.P1 to P12 and produced MO1 to MO3. 4. Since the appellant was not represented by a counsel, Adv.S.Sachithananda Pai was engaged as a counsel to argue the matter. 5. It is argued by the learned counsel for appellant that the evidence of PW1 and PW5 who are the eye witnesses to the incident is not believable. There is no scientific evidence to connect the accused with the crime. There is no evidence of any previous enmity between the accused and the deceased, whereas, the deceased suffered injuries on account of a confrontation with PW1 which had been clearly stated by the accused in his statement under S.313. Such a possibility had not been investigated by the police. The details of post mortem report has not been specifically recorded in the evidence of PW7, the Doctor who conducted the post mortem. Even according to PW1 and PW5, somebody called the police immediately after the incident and the police had come to the scene of occurrence, but, the First Information Statement was recorded only at 9.00 am on 3/11/2008 and consequent to which the FIR was prepared and Crl.Appeal No.1490/13 -:3:- despatched to the learned Magistrate which reached the Magistrate Court only at 6.00 p.m. It is argued that there are several infirmities in the prosecution case which have not been considered by the Court below. Even otherwise, there was no motive for the accused to commit such an offence and even assuming that the evidence of PW1 and PW5 is believable, there is no evidence to prove that it is a culpable homicide amounting to murder. 6. On the other hand, learned Public Prosecutor supported the judgment of the Court below and submitted that though there are a few infirmities in the investigation as well as in the conduct of trial, still evidence of PW1 and PW5 is enough to find the accused guilty of the offence u/s 302 IPC. 7. PW1 has given the FI statement at 9 am on 3/11/2008. According to him, he along with PW5 was working as Security Guards of a concern by name Josco Jewellers. By around 8.30 at night, they saw the deceased whom they knew earlier having a conversation with a person aged about 40 years on the northern side of Josco Jewellers and in front of the Bata showroom. They told her not to sit there. The lady did not agree and she slept there itself in the footpath in front of the Bata show room. The Crl.Appeal No.1490/13 -:4:- other person slept on the northern side, little away from where she was sleeping. By about 2.30 a.m, while PW1 and PW5 were sitting, talking to each other in front of the Josco showroom in the footpath, PW5 saw the person whom they had seen earlier carrying a big stone in his hand. Both of them suddenly went near them. Uttering that she did not pay him back `510/-, he inflicted a blow on her head with the stone he was carrying. He gave another blow also with the same stone on her head. Immediately PW1 and PW5 caught hold of him and he stopped. They shouted aloud and people near the hospital junction and autorickshaw drivers came running. Somebody called the police and within 5 minutes the police came to the site. Some people in the locality took the lady to the District Hospital. Accused was taken in the police jeep. The lady was bleeding after the impact of the hitting. He said he could identify the said person. In evidence, PW1 also deposed to the very same facts. However, learned counsel for the appellant pointed out that, in the evidence, PW1 attempted to state that, at about 8 p.m on 2/11/2008, the accused and deceased came in front of their shop room in a drunken state and they were quarreling with each other. PW1 and PW5 asked them to move away from the said area threatening them that they will Crl.Appeal No.1490/13 -:5:- call the police. After sometime, they proceeded near to the Bata showroom and the lady started sleeping on the footpath in front of the show room. Further, the witness stated that the lady was taken to the hospital, initially to the District Hospital and later to the Medical College Hospital. He also deposed that when the police came, accused was sleeping and they spilled water on his face and he got up. The accused on waking up was asking where she had gone and that she had to pay him `510/- and that is why he had done so. If anything happens, he will take care of the situation. Thereafter, the police had taken him in the jeep. While being cross examined, PW1 was asked regarding his statement in evidence that they were drunk and were quarrelling. According to him, he had mentioned it to the police and he does not know why the police has not recorded the same. The counsel points out that this is a serious omission and the witness was trying to give false evidence by deposing about an incident which had not happened at all. In cross examination, the suggestion was that PW1 was trying to misbehave with the victim and when she tried to shout, he had hit her on her neck and it is on account of the hit on her head with MO1 stone that she suffered injury, which he denied. 8. PW5 also has given evidence on similar fashion. In Crl.Appeal No.1490/13 -:6:- chief examination, he does not refer to the quarrelling between accused and deceased at about 8.30. But in cross examination he states that after their meals when they came back, PW1 and PW5 saw the accused and deceased quarrelling and the accused was telling that they had liquor from Plaza Bar. 9. Only two aspects are clear from the evidence of PW1 and PW5. One is with reference to the omission in the FI statement regarding the quarrel between accused and deceased at about 8.30 p.m whereas in the FI statement given by PW1, he stated that they saw them sitting and talking to each other at around 8.30. But, we do not think that this is a material discrepancy or omission by which the evidence of PW1 and 5 can be discarded in total. The second aspect is that there was an attempt to prove motive through the words of the accused stating that she owed him `510/-. However, the said statement, even according to PW1 was made after the police had arrived at the scene and cannot be treated as evidence. 10. Therefore, going by the evidence of PW1 and 5, we do not find any reason to disbelieve their version. Of course, the accused has a case that PW1 tried to abuse the victim and he had hit her on her neck and in that process, she would have hit Crl.Appeal No.1490/13 -:7:- against a stone. The defence also had a case that she was using the stone as a pillow. But, in the evidence of PW7, the Doctor who conducted the post mortem, she deposed that the deceased died due to head injury. During cross examination she was asked whether the head injury could be caused by use of hard substance like slab surface, which she answered in the positive. Then she was asked whether tracheotomy was conducted, her answer was that it was done. Another question was asked whether the tracheotomy could be caused by hit with fist, the answer was that it cannot be caused. Tracheotomy is a medical operation to cut a hole in the trachea to enable the patient to breathe. In Ext.P5, the ante-mortem injuries noted were as under: - _“1, Tracheostomy wound 2.5x0.5 cm on lower part of front of neck._ _2. Healing abrasion 1.5x1cm with brown scab at places on back of right wrist._ _3. Healed abrasion 1x0.7 cm on back of right forearam, 5 cm above wrist._ _4. Multiple healing abrasion over an area 3.5x2cm on left cheek with brown scab at places, underneath there was fracture of left zygomatic bone_ _5. Multiple healing abrasion over an area 3x2cm on left side of forehead, 4cm outer to midline, with brown scab at places._ _On dissection, there was contusion of scalp_ Crl.Appeal No.1490/13 -:8:- _16x10 cm on left frontal, temporal and parietal region. Depressed comminuted fracture 10x10cm involving left frontal, temporal and parietal bones. Comminuted fracture of left middle cranial fossa floor with fissured fracture extending to sella tursica and right middle cranial fossa floor and forward to left anterior cranial fossa floor. Brain showed subdural blood clots 0.2cm thick on left frontoparietal region and thin subdural haemorhage on right cerebral hemisphere. Subarachnoid haemorrhage seen on both cerebral hemispheres. Haemorrhagic contusion 2.5x2cm on right temporal pole. Haemorrhage 3x2cm on floor of fourth ventricle in the lower half.”_ 11. Apparently, tracheotomy wound is a medical operation and is not due to any injury being caused by a stone or any form of physical force, whereas the contention of the accused in the 313 statement was that by 12 midnight, he heard Ammini shouting. When he woke up, he saw a a fat, bald, security person getting hold of Ammini's neck and pushing her. He found her falling down. He immediately went and asked PW1 about it and immediately PW1 and PW5 caught hold of him and he was threatened that he will be done away, if he opens his mouth. Thereafter, they shouted that somebody had hit Ammini on her head and people came around. The incident mentioned by the Crl.Appeal No.1490/13 -:9:- accused in the 313 statement had happened at 12 midnight whereas the incident spoken to by PW1 and 5 is around 2.30 am. Even according to the accused, on hearing PW1 and 5 shouting, people in the locality gathered and the police came within 5 minutes. What happened in between 12 midnight and 2.30 am has not been stated anywhere in the said statement. According to him, he was threatened that he will be killed. The accused does not have a case that he saw PW1 or any person hitting the deceased with a stone. The ante-mortem injuries 2 and 3 are only small abrasions whereas 4 and 5 are clear abrasion on the left cheek with a fracture of left zygomatic bone and on the left side of the forehead. Apparently, two blows were inflicted on the head of the deceased. There is no contradiction as far as the evidence of PW1 and PW5 is concerned with reference to the incident of hitting twice with a large stone. The material object stone was also produced and taken from the scene of occurrence. Therefore, medical evidence coupled with the evidence of PW1 and PW5 clearly proves a case of homicide by the accused and his contention that it was committed by PW1 is not supported by any material. 12. Learned counsel for the petitioner therefore argued Crl.Appeal No.1490/13 -:10:- that the accused had no intention to commit murder in so far as he had no enmity with the deceased and no intention to commit murder. The case set up by the witnesses that the murder was committed for not returning `510/- cannot be treated as evidence as the said statement apparently is made in the presence of police officers. S.300 of IPC, 4[th] Exception reads as under:- _“Exception 4: Culplable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”_ 13. Learned counsel for the appellant placed reliance upon two judgments of the Apex Court – (i) _**Surinder Kumar v. Union Territory, Chandigarh**_ [(1989) 2 SCC 217] and (ii) _**Arjun and another v. State of Chhattisgarh**_ [(2017) 3 SCC 247]. One aspect which has been highlighted by the learned counsel for appellant is that when the police had come, the accused was sleeping and the police had to sprinkle water on his face. Therefore, he was in a dazed or in an intoxicated situation and he was totally unaware of the nature of crime that he is alleged to have committed, in which event, his punishment should be confined to S.304. Since the date of custody, i.e., 3/11/2008, he Crl.Appeal No.1490/13 -:11:- was in judicial custody and after conviction, he is suffering the sentence. 14. It is apparent that no motive had been proved in the case and the intention for committing the murder is not clear. The accused would have committed the crime in an impulse without even knowing whether the injury might cause death. Even according to PW1 and PW5, at the time when they saw them, both of them were under the influence of alcohol. 15. Having regard to the nature of offence that had been committed, it is rather clear that the accused would not have known that his act might result in death of the deceased. 16. Yet another factor which we would like to highlight in this appeal is with reference to the manner in which the investigation and prosecution had been conducted in the case. First of all, the police had come to the scene of occurrence within 5 minutes from the time of occurrence ie atleast by 2.35 a.m in the morning. What prevented the police from registering First Information Report and recording First Information Statement at the relevant time is not explained. Such matters are very important as far as criminal investigation is concerned and attitude of the Station House Officer in delaying preparation of Crl.Appeal No.1490/13 -:12:- First Information Statement and the First Information Report may even result in gross miscarriage of justice which should be prevented by taking appropriate measures in time. Further, these are all instances where attempts would be made to cause embellishments in the information received which also would amount to gross miscarriage of justice. 17. The manner in which the medical evidence had been given in the case also requires to be addressed, though it may not have effected the case on hand. The evidence would show that the victim was taken to the District Hospital initially, from where she was referred to Medical College Hospital. Ext.P4 is the accident and wound certificate of the deceased recorded by the Chief Medical Officer of District Hospital, Thrissur on 3/11/2008. None of the injures of the deceased had been mentioned in the certificate. The deceased was in the medical hospital from 3/11/2008 till 12/11/2008. The wound certificate prepared in the Medical College Hospital or the case sheet of the patient was not produced before Court. That apart, when the Doctor who conducted post mortem was examined as PW7, other than marking Ext.P5, postmortem certificate and giving a statement as to the cause of death, none of the particulars in the post mortem Crl.Appeal No.1490/13 -:13:- certificate are seen recorded by the Court. It is trite law that when a Doctor is examined, all necessary particulars relating to the injuries seen in the body, especially ante-mortem injuries, the cause of death and all other particulars had to be recorded in evidence. Oral testimony of the Doctor is therefore highly required to prove the case against the accused. 18. The Constitution Bench in _**State of Bihar and Others v. Sri Radha Krishna Singh**_ (AIR 1983 SC 684), while considering admissibility of a document, it was held that before a document can be made admissible under S.35 of the Evidence Act, the document must be in the nature of an entry in any public or other official book, register or record, it must state the fact in issue or a relevant fact and the entry must be made by a public servant in discharge of his official duties or in performance of his duties specially enjoined by the law of the country in which the relevant entry is kept. Going further, Apex Court held that admissibility of a document is one thing and its probative value is quite another. Both the said two aspects cannot be combined. Even if a document is admissible, it may not carry any conviction and weight or its probative value may be nil. That was a case in which Apex Court was considering the admissibility of a report Crl.Appeal No.1490/13 -:14:- made by an officer of Government in the discharge of his official duties. 19. In _**Munshi Prasad and Others v. State of Bihar**_ [(2002) 1 SCC 351] the Apex Court held that the post mortem report is a document which 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. The report in normal circumstances ought to be used only for refreshing the memory of the Doctor who comes as a witness or to contradict whatever he might say from the witness box. 20. In _**State of Haryana v. Ram Singh**_ [(2002) 2 SCC 426], the Apex Court has reiterated the fact that post mortem report by itself is not a substantive piece of evidence, but the evidence of the Doctor conducting the post mortem cannot be ascribed to be insignificant. 21. In _**State of U.P. v. Mohammed Iqram**_ (AIR 2011 SC 2296), the Apex Court placed reliance upon the Constitution Bench judgment in _**Sri Radha Krishna Singh**_ (supra) and held that even if the post mortem report revealed any sexual assault on the deceased victim, such contents are not admissible. In that case, though the Doctor was examined, he had deposed that the Crl.Appeal No.1490/13 -:15:- injuries to the victim could be caused by strangulation by hands. However the Doctor has not made any reference to sexual assault either in his examination in chief or in cross examination. The said aspect was never put to either of the accused in the statements recorded under S.313 of Cr.P.C. as well. Hence it was held that it is not possible for the High Court to hold the accused guilty of committing rape based on the findings in the post mortem report. 22. Such being the law laid down by the Apex Court, necessarily, when a Doctor is examined to prove the findings reported during post mortem, all particulars are to be mentioned in the oral evidence and the same has to be recorded by the Court. 23. In this case, no such attempt had been made by the Prosecutor. It is also the duty of Court to ensure that to avoid miscarriage of justice, evidence has to be recorded in accordance with the well settled principles of law. Such practices in dealing with murder cases in a summary fashion is not expected of any Court handling such cases and we deprecate such practice. Taking into consideration the over all factual circumstances involved in the matter, we do not think that the Court below was justified in convicting and sentencing the accused under S.302 of Crl.Appeal No.1490/13 -:16:- IPC, whereas his action can be treated as culpable homicide not amounting to murder punishable u/s 304 Part II of IPC. The accused is found guilty of the offence punishable under Section 304 Part II IPC and is convicted thereunder. The period of imprisonment including pre-trial detention shall be the sufficient punishment for the offence punishable under Section 304 Part II IPC and hence ordered accordingly. The accused shall be released from jail, if his presence is not required in any other case. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge