Saji v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 CRL.A NO. 520 OF 2006 [AGAINST THE JUDGMENT DATED 8.2.2006 IN SC 115/2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KOTTAYAM] CP 4/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,KANJIRAPPALLY ## APPELLANT/: SAJI, S/O DAMODARAN, KURUNNUMMALA VEEDU, ANICKADUVADAKKUMBHAGOM KARA, CHENGALAM EAST, VILLAGE. BY ADVS. JOHN VARGHESE K.S.SAJEEV KUMAR ## RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ## OTHER PRESENT: BY ADV. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.520 /2006 2 ## JUDGMENT The appellant is the accused in S.C.No.115/2005 on the file of the Additional Sessions Judge (Adhoc)-1, Kottayam. The aforesaid case arises from Crime No.43/2005 of Pallickathode Police Station, which was registered for the offences punishable under Section 308 of the Indian Penal Code (IPC). 2. The prosecution case is as follows: The appellant herein, who was having some previous enmity with the defacto complainant, on 23.2.2005 at about 8.30 p.m. at MundankunnuThekkumthala road about 150 metres away from the house of Parayil Raveendran stabbed at the abdomen of the defacto complainant and when he attempted to stab again the same was warded off by the de facto complainant and thereby he Crl.Appeal No.520 /2006 3 sustained injuries. It was alleged that the injuries were inflicted by the appellant to commit culpable homicide, not amounting to murder. Accordingly, crime was registered for the offence punishable under Section 308 IPC. After completing the investigation thereon, the final report was submitted, and the same was tried by the Additional Sessions Judge (Adhoc)1, Kottayam as S.C.No.115/2005. 3. In support of the prosecution, PWs.1 to 8 were examined. Exhibits P1 to P7 were marked and material objects 1 and 2 were identified. After the closure of the prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure (Cr.PC) and the incriminating materials brought out during the course of the trial were read over to him, which he denied and pleaded innocence. In defence, DW1 was examined and the contradictions in the Crl.Appeal No.520 /2006 4 statements of PW4 were marked as Exts.D1 to D3. After evaluating the materials available on record, the learned Sessions Judge arrived at the conclusion that the appellant is guilty of the offence and accordingly, he was sentenced to undergo rigorous imprisonment for three years with a fine of Rs.5,000/- with a default sentence to undergo rigorous imprisonment for six months. This appeal is submitted challenging the order of conviction and consequential sentence. 4. Heard Sri. John Varghese, the learned counsel appearing for the appellant and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the State. 5. The main contention put forward by the learned counsel for the appellant is regarding the absence of a source of light in the place of occurrence at the relevant time. In addition to Crl.Appeal No.520 /2006 5 the same, it was also contended that there was a delay in the registration of the F.I.R. It was pointed out that, even though the incident occurred on 23.02.2005, the F.I.R. was registered only on 01.03.2005. According to the learned counsel, the aforesaid delay, even though the defacto complainant had sustained very serious injuries, it clearly indicates the falsity and afterthought in the case put forward by the prosecution. He places reliance upon certain instances indicating some previous enmity between the parties. In such circumstances, the learned counsel for the appellant seeks interference in the order of conviction and sentence of the appellant. 6. On the other hand, the learned Public Prosecutor would point out that the materials available on record are sufficient to hold the appellant guilty. It is pointed out that how the Crl.Appeal No.520 /2006 6 appellant committed the assault was mentioned by PW1. It is also pointed out that PWs.2 to 4, even though they were declared hostile, had clearly mentioned that, when they rushed to the place of occurrence upon hearing the cry of PW1, he had stated that he was stabbed by the appellant herein. About the contention of the learned counsel for the appellant that there was no light to substantiate the incident, the learned Public Prosecutor brought my attention to the deposition of PW1, wherein it was stated that he had witnessed the incident in the light from the house of one Ravi. It is also pointed out that the said fact is mentioned in Ext.P1 F.I.statement. The learned Public Prosecutor sought to clarify the delay in the registration of the F.I.R by relying upon the evidence of PW1 who had stated that he could not inform the matter earlier to the police because he was Crl.Appeal No.520 /2006 7 under the impression that the doctor would have done the same. He also said that during the initial days, he was undergoing treatment as an inmate in ICU, so he was not in a position to inform the police of the incident earlier. In such circumstances, the learned Public Prosecutor prays for the dismissal of the appeal. 7. The first contention that the learned counsel has raised for the appellant is about the delay in the registration of the F.I.R. There is indeed a delay of 7 days in registering the F.I.R. The only explanation for the same is in the deposition of PW1 who had stated that he was under the impression that the matter would have been informed to the police by the doctor. On the other hand, the specific case of the appellant is that, the naming of the appellant as an accused in this case was the result of an Crl.Appeal No.520 /2006 8 after thought at the instance of the brother of PW1 one Santhosh. According to him, there was some previous enmity between the parties, and the previous animosity between them is an admitted fact as the prosecution case itself is based on the same motive for commission of the crime alleged. It is true that the medical evidence in the form of Ext.P5 wound certificate and the deposition of the PW7doctor would indicate that he had sustained severe injuries and was undergoing treatment. In Ext.P5 wound certificate, the cause of injury stated is that ‘stabbed by a person known to him’. The question whether PW1 was conscious or not at the relevant time is not very clear from the evidence available on record. The evidence of doctors in this regard is not very specific. Exhibit P5 does not explicitly mention anything Crl.Appeal No.520 /2006 9 to the effect that PW1 was conscious or not. In such circumstances, no evidence is available indicating how such information happened to be recorded in Ext.P5. Normally, as soon as the wound certificate is prepared by explicitly showing the cause of injury as an assault, it should have been informed to the Police then and there. In this case, the same is not seen as done. The omission in doing so cannot be attributed to PW1 because he was seriously ill at the relevant time. It is a lapse on the part of the responsible person who handled the situation at the relevant point of time. However, the said aspect indeed creates a benefit of the doubt, which should go in favour of the appellant. 8. The next aspect relates to the source of light at the place of occurrence during the relevant time. The incident occurred at 8.30 Crl.Appeal No.520 /2006 10 p.m. In Ext.P1 F.I.statement, it is specifically mentioned that the source of light is from the residence one Parayil Raveendran. Exhibit P7 is the scene mahazar prepared by PW8. On going through the aforesaid scene mahazar, it can be seen that the residence of the said Parayil Raveendran @ Ravi is about 150 away from the place of occurrence. Whether figure 150 refers to feet or meter is not clear from Ext.P7. However, while being examined as PW8, he had clearly stated that the place of occurrence is 150 meters away from the residence of the said Parayil Raveendran. PW1 has also stated that he had identified the accused in the light from the residence of the said Raveendran. However, as is evident from Ext.P7 as explained by PW8, the residence of the said Raveendran is 150 meters away from the place of occurrence. Normally, the source of light from 150 meters away from the Crl.Appeal No.520 /2006 11 spot may not be sufficient to identify the person. In such circumstances, the existence of adequate light on the spot, as claimed by PW1, is highly doubtful. 9. The learned Public Prosecutor brought my attention to the statement of PW1 to the effect that he was carrying a candle at the relevant time. However, such a statement is a clear embellishment as it is not seen mentioned either in Ext.P1 F.I.S nor in the statement recorded by the Police. Moreover, even though PW1 has stated that he was carrying a candle, it is not clear whether it was a lighted candle or not. He further submits that he identified the accused in the light from the residence of the said Raveendran. 10. The learned Public Prosecutor further pointed out that PWs.2, 3 and 4 had clearly stated that when they reached the spot after Crl.Appeal No.520 /2006 12 hearing the cry of PW1, they found PW1 in front of the residence of Parayil Raveendran (not 150 meters away). It was also pointed out that, PWs.3 and 4 have clearly stated that, they were carrying a torch at the relevant time. However, the aforesaid evidence cannot be accepted to conclude that at the time of happening of the event there was sufficient light. The fact that PW1 was in front of the residence of the said Raveendran when these witnesses have seen him, also cannot be taken into consideration, because of the fact that they had seen him after the incident. They did not witness the incident of assault. 11. It is true that the parties are known to each other, and there is some possibility of identification by PW1 by way of the sound of the appellant. However, in this case, in the F.I.statement, there is absolutely nothing Crl.Appeal No.520 /2006 13 mentioned to the effect that while inflicting injuries upon PW1, the appellant has uttered any words. PW1 has indeed stated in his examination that the accused uttered obscene words while committing the act. But on analysing the entire evidence, I am of the view that the same cannot be accepted since the same is an omission and is a clear deviation from Ext.P1 F.I. statement and statements given to the police. In such circumstances, the possibility of identification by sound also cannot be taken into account, and the benefit of the doubt in this aspect will go in favour of the appellant. 12. The learned Public Prosecutor attempted to highlight that the evidence of PW1 about the allegation that it was the appellant who stabbed PW1 was corroborated by the evidence of PWs.2,3 and 4. It was pointed out that all the said witnesses, even though declared hostile, have Crl.Appeal No.520 /2006 14 clearly stated that, when they reached the spot, PW1 stated to them that it was the appellant who stabbed him. According to the learned Public Prosecutor, the said statement can be accepted in evidence by Section 6 of the Evidence Act as it forms the same transactions in which the incident occurred. It is true that the same can be relied upon as it forms part of the same transaction. However, in this case, the crucial question that arises is whether the appellant was identified correctly by PW1. The doubt is relating to the identification of the accused, by PW1, as there was no evidence to show the source of light at the relevant time. In such circumstances, even if such a statement was assumed to be made by PW1 and the same was assumed to be corroborated by the evidence of PWs.2 to 4, still, the said identification is based on the realization Crl.Appeal No.520 /2006 15 /understanding of PW1. Here, the doubt arises as to the identification made by PW1 himself because of the lack of proper light. Hence, the evidence from the depositions of PWs. 2 to 4 cannot come to the rescue of the prosecution as the primary evidence is the identification by PW1, which is doubtful on account of the reasons mentioned above. In such circumstances, the evidence above cannot be relied upon for arriving after guilt. 13. The learned counsel for the appellant also places reliance upon the judgment rendered by the Hon'ble Supreme Court in the State of Rajasthan v. Netrapal and Ors.[2007 AIR SCW 1370]. As per the principles laid down therein, the absence of a source of light in the site plan and the evidence of witnesses are fatal to the prosecution if the offence is committed during the night. When the materials on record, Crl.Appeal No.520 /2006 16 in this case, are considered by keeping the principles laid down in Netrapal’s case (supra) , I find some force in the contention of the learned counsel for the appellant in this regard. The only source of light highlighted by the prosecution is by placing reliance upon the F.I.statement as well as the deposition of PW1, which is the light from the house of the said Raveendran. As mentioned above, even according to the prosecution it was 150 meters away from the place of occurrence. Under normal circumstances, it cannot be possible for a person to identify a person from a source of light during the night at a distance to that extent. In such circumstances, in the absence of any specific material showing source of light the benefit of the doubt that emerges from the same has to be given to the appellant. Of course, the documents available on record do indeed create an extreme Crl.Appeal No.520 /2006 17 suspicion that it was the appellant who committed the crime. However, to hold a person guilty of the offence, the prosecution has to travel the distance from "may be true" to "must be true" by adducing positive evidence in this regard. When materials available on record, in this case, are considered from that perspective, I am of the view that the prosecution could not rule out all hypotheses of the innocence of the accused. Hence, the only conclusion possible is that the interference in the finding entered by the learned Sessions Judge is warranted. As a result, this appeal is allowed and the conviction and sentence entered by the Additional Sessions Judge (Adhoc)-I, Kottayam, as per the judgment dated 8.2.2006 in S.C.No.115/2005, are hereby set aside. The appellant is found not guilty, and he is Crl.Appeal No.520 /2006 18 acquitted of all charges. Bail bond, if any, executed by the appellant shall stand cancelled. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk