Rathishkumar @ Iruttu v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945** **CRL.A NO. 1169 OF 2007** **AGAINST THE CONVICTION AND SENTENCE IN** **SC 45/2007 OF THE ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM** **APPELLANT/1ST ACCUSED:** **RATHISHKUMAR @ IRUTTU ELAMALA HOUSE,KOLLAD KARA, PANACHIKAD VILLAGE,KOTTAYAM.** **BY ADVS.SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU SRI.SUVIN R.MENON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **SRI.SANAL P. RAJ-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 3/3/2023, THE COURT ON 24.03.2023, DELIVERED THE FOLLOWING:** **Crl.Appeal No.1169 of 2007** 2 ## **C.S. SUDHA, J.** **-----------------------------------------Crl.Appeal No.1169 of 2007** **----------------------------------------------------Dated this the 24[th] day of March, 2023** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. has been filed by the first accused (A1) in S.C.No.45/2007 on the file of the Court of Session, Kottayam, challenging the conviction entered and sentence passed against him for the offence punishable under Section 308 IPC. 2. The prosecution case as stated in the final report/charge sheet is as follows - A1 due to his enmity towards PW1 as the latter refused to accede to the demand for money by the former and with the intention of causing his death, A1 along with his accomplices, namely, A2 to A4, on 15/08/2005 at 12.10 a.m. wrongfully restrained (വട� വളഞ�) him and then A1 with a knife in his possession, stabbed PW1 on the left side of his forehead causing a grievous injury. Thus, A1 to A4 have committed the offences punishable under Sections 341, 308 read with Section 34 IPC. 3. On the basis of Ext.P1 FIS given by PW1-the injured on 15/08/2005, which was recorded by PW7, the Head Constable, **Crl.Appeal No.1169 of 2007** 3 Gandhinagar Police Station, Kottayam, Ext.P5 FIR, that is, Crime No.379/2005, Gandhinagar Police Station, was registered by PW8, the then Sub Inspector of the aforesaid police station. PW8 conducted the initial investigation, which was taken over by PW9, the Sub Inspector of police who took charge thereafter. PW9 completed the investigation and submitted charge-sheet against four persons, namely, A1 (Rathishkumar), A2 (Ani P. James), A3 (Lowrance T.J.) and A4 (Charles George). On submission of the final report before the jurisdictional Magistrate, the case was taken on file as C.P.No.09/2006, pursuant to which the case was committed to the Court of Session, Kottayam, which court took the case on file as S.C.No.45/2007. 4. When all the accused appeared before the Court of Session, n they were furnished with copies of all the prosecution records. O 24/03/2007, the court framed a charge for the offences punishable under Sections 341, 308 read with Section 34 IPC, which was read over and explained to all the accused, to which they pleaded not guilty. The prosecution examined PWs.1 to 8 and got marked Exts.P1 to P8 and MO1 to prove the case. After the close of the prosecution evidence, all the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to 4 ## **Crl.Appeal No.1169 of 2007** the incriminating circumstances appearing against them in the evidence of the prosecution. All the accused denied those circumstances and maintained their innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence have been adduced by the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the Sessions Court by the impugned judgment acquitted A2 to A4. A1 has been found guilty for the offence under Section 308 IPC and hence convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of ₹5,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months. It has also been directed that if the fine amount is paid, the same would be paid to PW1 under Section 357(1) Cr.P.C. Set off as provided under Section 428 Cr.P.C. has also been allowed. 7. On 29/06/2007, this Court directed the execution of the sentence to stand suspended and the accused was granted bail. In the appeal memorandum it is alleged that the conviction and sentence 5 ## **Crl.Appeal No.1169 of 2007** imposed on the appellant/A1 is contrary to evidence and law; that though prosecution has failed to prove the offence alleged against A1, the trial court has wrongly convicted him ignoring the major contradictions and omissions in the testimony of PW1 and PW2; that though there were independent witnesses available at the scene, none of them have been examined; the trial court failed to take note of the fact that the prosecution case is inherently improbable; recovery of MO1 knife is only a farce and that even assuming that the prosecution case is accepted _in toto,_ the offence under Section 308 IPC has not been made out. That being the position, the argument advanced is that A1 is entitled to the benefit of doubt and hence the impugned judgment is liable to be interfered with. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against A1 by the Sessions Court is sustainable or not. 9. Heard Sri.S.Manu, assisted by Sri.Suvin R.Menon, the learned counsel for the appellant/A1 and Sri.Sanal P.Raj, the learned Public Prosecutor for the respondent. 10. I make a reference to the evidence adduced by the prosecution in support of the case. The story narrated by PW1-the injured, **Crl.Appeal No.1169 of 2007** 6 in Ext.P1 FIS reads: - On 14/08/2005 at 12.10 a.m., he was assaulted with a knife by a person called 'Iruttu' (A1) and three other persons. On the said day by about 09.15 p.m., he heard that George chettan (PW3), an acquaintance, had been assaulted and injured by Iruttu (A1) and some other persons, which incident took place near the shop of one Baby chettan. PW3 had been assaulted with an axe resulting in injuries on his head. Hearing this, he immediately proceeded to the place near the shop of Baby chettan. There he saw George chettan (PW3) with a bleeding injury on his head. PW1 along with his father, Baby (PW2) and Sojan took the injured in an autorickshaw to the Medical College Hospital, where PW3 was admitted. While he was with George chettan (PW3) in the observation ward of the hospital as a bystander, by about 12.10 a.m., Iruttu (A1) along with three other persons arrived there. They surrounded him. A1 saying that PW1 is only an outsider, expressed his displeasure in PW1 not giving the money demanded by the former. Saying so, Iruttu(A1) with a knife stabbed him on his left forehead resulting in a bleeding injury. When the people standing nearby made a hue and cry, the four assailants left the place. He was immediately taken by his father (PW2) and Sojan to the casualty where he was examined by a doctor, pursuant to which he was admitted in the hospital. He is acquainted with **Crl.Appeal No.1169 of 2007** 7 Iruttu (A1), who comes to his work place. He can also identify the other three persons who were present along with Iruttu. 10.1. PW1 has further stated that he is a mason and that during the relevant time, he was working in the construction site of a building situated near the ESI hospital. Iruttu (A1) used to come to the work site and keep demanding money from the workers at the site saying that they are all outsiders and hence obliged to give him money. According to PW1, Iruttu (A1) has the habit of not returning the money lent to him and so he never used to give the latter any money. It was due to that enmity, Iruttu(A1) had assaulted and injured him. The act of A1 could even have caused his death. He can identify the knife used to injure him. There are several witnesses to the incident. 11. PW1 when examined, to a certain extent stands by the case in Ext.P1 FIS. He identified MO1 knife with which A1 is alleged to have stabbed and injured him. PW1 deposed that on being stabbed, he had cried out aloud and then A1 ran away from the scene of occurrence. The injury required to be sutured. He identified his signature in the FIS and the same has been marked as Ext.P1. In the cross examination PW1 deposed that he had stated the name of A1 to the police while giving his FIS. According to PW1, A1 had demanded money immediately before 8 ## **Crl.Appeal No.1169 of 2007** the stabbing incident and it was because he had refused to accede to the demand, the former had stabbed him. A1 had stabbed him with the intention to cause his death. To a question whether MO1 is an instrument used in the hospital for cutting plaster, he answered in the affirmative. 12. PW2, the father of PW1 supports the case of his son. According to him, the incident had taken place when he along with his son were attending PW3 who had been admitted in the hospital. On the said day, he was sitting on the bed of PW3, at which time his son was standing next to him. A1 came there and stood looking at PW3 for some time. A1 then moved towards his son. He heard his son crying out that he has been stabbed. He saw blood flowing from the injury sustained by PW1. Ratheesh (A1) ran away. He took his son to the doctor at the casualty. The injury required to be sutured. In the cross examination, he denied having heard any conversation taking place between A1 and his son before the incident. According to PW2, the incident took place in front of him and at that time, he had not seen anybody else. (എന� മന�ല വച�ണ� സ�ഭവ� ഉണ�യത� മറ�ന�യ� ഞ�ന കണ�ട�ല.) 13. CW2 – Sojan, who along with PW2, is stated to have taken PW1 to the doctor, has not been examined. He was given up by the prosecution. **Crl.Appeal No.1169 of 2007** 9 14. PW3 admitted that he is acquainted with PW1 and PW2 and that on 14[th] day of August, he had been admitted in the hospital due to injuries sustained by him. However, he denied having seen the incident in which PW1 had been injured. According to him, he has only hearsay knowledge of the fact that PW1 had been injured on the said day. He further deposed that when the incident in this case took place, he was not in a conscious state. He admitted that PW1 and PW2 were his bystanders at the hospital. He denied having stated to the police that he had seen the incident. He identified A1 in the box. He denied the suggestion put to him that he is deposing falsehood as A1 had threatened him. PW3 deposed that he is unaware as to who had assaulted and injured him on the said day before the incident in this case took place. 15. PW4, Lecturer General Surgery, Medical College Hospital, Kottayam, deposed that on 15/08/2005, at 12.15 a.m., he had examined PW1 and issued Ext.P3 wound certificate. The injury noted is a lacerated wound 3 x 0.5 cm over the frontal region of the scalp and 7 cms above medial end of the left eyebrow. PW4 when asked whether the injury noted in Ext.P3 certificate could be caused by MO1 knife, replied in the affirmative. In the cross examination, he deposed that, if timely treatment had not been provided, the injury could have turned fatal. PW4 deposed **Crl.Appeal No.1169 of 2007** 10 that stabbing could cause an incised wound. He admitted that he had not noted any bleeding from the injury mentioned in Ext.P3 certificate. He also deposed that had the injury been fresh, he would have noticed whether the injury had been bleeding or not. To a question whether the injury was sufficient to cause death, he answered that the site of injury was on the scalp and therefore had it not been treated timely, it could have turned fatal. 16. PW5, who is stated to be an attestor to the scene mahazar, turned hostile and denied having attested the mahazar. He denied any acquaintance with A1. 17. PW6 admitted his signature in Ext.P4 seizure mahazar. According to PW6, he had attested in the mahazar, which was prepared in the vicinity of the quarters of his wife bearing no. E15, situated in the campus of the Medical College hospital, Kottayam. He does not know whether A1 was present along with the police on the said day. He had not noticed the presence of anyone other than the police on the said day. According to him, the police had showed him a weapon. When MO1 was shown to him, PW6 deposed that he cannot say whether MO1 is the weapon that had been shown to him by the police on the day of the alleged recovery. **Crl.Appeal No.1169 of 2007** 11 18. PW7, Head Constable, Gandhinagar Police Station deposed that on the basis of the intimation received from the Medical College Hospital, he had proceeded to the hospital and recorded Ext.P1 FIS on 15/08/2005 at 09.30 a.m. He admitted his signature in Ext.P1. In the cross examination, PW7 deposed that PW1 has not referred to the name of A1, (Ratheesh) in the FIS. On the other hand, PW1 referred to his assailant as 'Iruttu'. When PW7 was asked whether any identifying marks of the said person had been stated by PW1, he answered that PW1 had only stated that he could identify the assailant by sight. 19. PW8, Sub Inspector, Gandhinagar Police Station deposed that on the basis of Ext.P1 FIS, he had registered Ext.P5 FIR on the same day. He had conducted the investigation in this case, proceeded to the scene of occurrence and prepared Ext.P6 scene mahazar. Though he had searched the house of A1, nothing incriminating could be recovered. The search memo and the search list have been marked as Exts.P7 and P8 respectively. He had questioned the witnesses and recorded their statements. The further investigation was conducted by PW9. In the cross examination, he deposed that as per the version of PW2, there was more than one assailant. **Crl.Appeal No.1169 of 2007** 12 20. PW9, Sub Inspector, Gandhi Nagar Police Station deposed that on 15/10/2005 he had taken over the investigation in this case. He had arrested A1 on 27/10/2005. PW9 identified MO1, which according to him was recovered as per Ext.P4 seizure mahazar on the basis of Ext.P4(a) disclosure statement given by A1. The recovery was from the sunshade on the southern side of quarter bearing no. E15 situated in the Medical College campus. 21. Now the question is whether the aforesaid evidence is sufficient to find A1 guilty of the offence punishable under Section 308 IPC. It was submitted by the learned defence counsel that the evidence on record is totally unsatisfactory and insufficient to establish the case alleged against A1. The version of PW1 in the box is inconsistent with the version in Ext.P1 FIS as well as the testimony of his father, namely, PW2; that the recovery of MO1 knife has not been properly established; that in the light of the charge framed, Section 308 IPC will not alone stand, in the absence of Section 34 IPC; that there were several other independent witnesses present at the time of the alleged incident, but none has been examined; that the ocular evidence and medical evidence do not tally; that there is no material on record to show how the police identified or **Crl.Appeal No.1169 of 2007** 13 concluded that A1 is the assailant in the absence of any identifying marks of the assailant being referred to in Ext.P1. So, the argument is that A1, the appellant, is entitled to the benefit of doubt. 22. _Per contra_ , it is submitted by the learned Public Prosecutor that PW4-the doctor, has deposed that, had timely treatment not been given to PW1, the same would have proved fatal, which according to him, proves the ingredients of the offence under Section 308 IPC. Recovery of MO1 knife is proved through PW6. The overt acts of A1 have been clearly deposed by PW1 and PW2, who have also identified MO1. There is no infirmity in the findings of the trial court calling for an interference by this Court, submits the learned Public Prosecutor. 23. As stated earlier, in Ext.P1 FIS, PW1 speaks of the involvement of four persons including A1. Going by the version in Ext.P1, A2 to A4 had actually assisted A1 in the act of wrongfully restraining/confining PW1 and then in furtherance of their common intention, A1 is alleged to have stabbed PW1 with MO1 knife. However, that is not the case of PW1 in the box. His testimony is completely silent about the role of A2 to A4. This is not a case where, the testimony of PW1 against the remaining accused is unsatisfactory, but is a case where **Crl.Appeal No.1169 of 2007** 14 there is absolutely no reference to the role of the remaining accused in the crime. Had it been otherwise, or a case where his evidence was unsatisfactory as against the other accused, the same alone could not have been a ground to discard his evidence or disbelieve him. However, in this case quite inconsistent with his version in Ext.P1, PW1 in the box takes up a different case. No attempt has been made by the prosecution during the trial to clarify this aspect. 24. PW2's version is again slightly inconsistent with the version of his son, PW1. True, he also speaks of the incident of stabbing by A1. PW1 says that a conversation had taken place between him and A1, before the incident of stabbing took place. According to PW1, A1 used to demand money from him even before the incident also. On the date of the incident also, A1 after coming to the place of occurrence, questioned PW1's reluctance/refusal to accede to his demand for money and is then stated to have stabbed him. However, PW2 has no such case. This inconsistency could have been ignored, had other evidence been satisfactory. But that is not the case here. Further, the presence of other independent witnesses including CW2 at the scene, is referred to in Ext.P1 FIS. However, no independent witnesses have been examined. It is true **Crl.Appeal No.1169 of 2007** 15 that it is the prerogative of the prosecution to decide which witnesses are to be examined to prove their case. However, when independent witnesses were very much available and the testimony of PW1 and PW2 are not quite satisfactory, prosecution has certainly a duty to explain why CW2, an independent witness, though alleged to have been present at the time of the incident, was given up without being examined to prove the case. 25. Further, the incident in this case is alleged to have taken place at 12.10 a.m. PW1 was examined by PW4, the doctor, at 12.15 a.m. Therefore, the gap between the incident and the medical examination of PW1 is hardly five minutes. If PW1 and PW2 are to be believed, the former had sustained a bleeding injury. However, PW4, the doctor, has no such case. He deposed that had there been a bleeding injury, he would certainly have noted the same in Ext.P3 wound certificate. It is true that normally when there is discrepancy between the ocular testimony and the medical evidence, ocular evidence would prevail, provided the same is creditworthy. However, in the instant case, that is not the case. 26. Now, coming to the recovery of MO1 knife. PW6 who is the attestor in Ext.P4 seizure mahazar, does not support the prosecution case. **Crl.Appeal No.1169 of 2007** 16 He admits that he is an attestor to Ext.P4. However, he does not support the prosecution case relating to the recovery. If PW6 is to be believed, it was the police who had showed him MO1. He does not support the prosecution story that it was A1 who had taken MO1 knife from the sunshade of Quarter No.E15 situated in the campus of the Medical College Hospital. It is true that even in cases where the attesting witnesses turn hostile or do not support the prosecution case, that alone is also no ground to disbelieve or discard the prosecution case. However, in the light of the other unsatisfactory evidence referred to, it may not be safe to enter into a conclusion of conviction on the basis of a mere recovery. (See **Bijender @ Mandar v. State of Haryana, 2021 ICO 2145** ). 27. Finally, in Ext.P1 FIS, PW1 only says that he was assaulted by a person known as 'Iruttu' (ഇരട� ). The name of A1, that is, Ratheesh, is not seen referred to in Ext.P1. The fact that PW1 had not stated the name of A1 in the FIS, is admitted by the investigating officer also. No identifying marks have been mentioned in Ext.P1 FIS. It is not clear from the evidence as to how then, the police had identified or concluded that it was A1 who was the actual assailant. The trial court in paragraph 15 of the impugned judgment, has referred to an incident of A1 threatening PW1 **Crl.Appeal No.1169 of 2007** 17 with dire consequences if he testified against A1, pursuant to which PW1 is stated to have submitted a request for police protection. The complaint was forwarded to Gandhinagar police station with necessary directions and A1 had also been warned from repeating his act. According to the learned Sessions Judge, this incident could probably have weighed with PW3, an eye witness, and prompted him to deviate from the prosecution story and turn hostile. However, no such materials are seen placed on record to substantiate this finding of the trial court. Going by the version of PW1 or if PW1 is to be believed, A1 had stabbed him with MO1 knife which resulted in a bleeding injury. If that be so, the assault or attack must have been with the sharp edge of MO1 and not with its blunt side. However, the trial court in paragraph 16 is seen to have come to a conclusion which version even PW1 does not have. As per Ext.P3 wound certificate, PW1 had sustained a lacerated injury on his forehead. According to the accused, had PW1 been stabbed with MO1 knife, an incised wound alone would have been the result and that the possibility of causing a lacerated wound by stabbing with MO1 knife is quite remote. The trial court rejected this argument by concluding that the lacerated injury must have been caused during the course of the incident by the blunt side of MO1 weapon hitting PW1. This is a case which PW1 does **Crl.Appeal No.1169 of 2007** 18 not have. Going by his case, A1 stabbed him with MO1 knife which caused a bleeding injury and that the intention of A1 in stabbing him with MO1 knife, was to cause his death. He has never a case that the assault by A1 was with the blunt portion of the knife. The trial court seems to have taken into account extraneous matters to come to the conclusion regarding the guilt of A1. The evidence on record is unsatisfactory to prove the guilt of the accused beyond reasonable doubt. Hence, I find that he is entitled to the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence of the appellant/A1 for the offence punishable under Section 308 IPC by the impugned judgment is set aside and he is acquitted under Section 235(1) Cr.P.C. The bail bond of the accused shall stand cancelled and he shall be set at liberty forthwith, if not required in any other case. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S. SUDHA JUDGE** ami/Jms