Sakunthala P.P. v. Ramakrishnan, Kunjiraman and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **THURSDAY, THE 02[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943** ## **CRA(V) NO.18 OF 2019** **AGAINST THE JUDGMENT IN S.C.NO.748/2010 DATED 10/07/2014 OF THE ADDITIONAL SESSIONS COURT-IV, PALAKKAD.** - **[C.P.NO.52/2009 OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPPALAM]** **------------** **APPELLANT/ LEGAL HEIR OF THE VICTIM:** **SAKUNTHALA P.P., AGED 41 YEARS, W/O. LATE SURESH KUMAR, MUNDOORTHODI HOUSE, MUNNURKODE, TRIKKATIRI, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS** ## **RESPONDENTS/ ACCUSED & PROSECUTION:** - **1 RAMAKRISHNAN, AGED 63 YEARS, S/O. KARUPPAN, KALLAMPARAMBIL VEEDU, MUNNURKODE, TRIKKATIRI, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 502.** - **2 KUNJIRAMAN, AGED 65 YEARS, S/O. CHATHAN, KULATHILTHODI VEEDU, MUNNURKODE, TRIKKATIRI, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 502.** **- 2 -** **Crl.A (V)No.18 of 2019** **3 STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE STATION HOUSE OFFICER, CHERPULSSERI POLICE STATION, CHERPALSSERI, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 679 503.** **BY ADVS.** **R1 BY SRI.K.M.SATHYANATHA MENON R2 BY SRI.T.C.SURESH MENON SRI.JOHN S.RALPH SMT.KAVERY S THAMPI SRI.P.S.APPU SRI.A.R.NIMOD R3 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH.** **THIS CRIMINAL APPEAL (V) BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 02.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 3 -** **Crl.A (V)No.18 of 2019** **K.Vinod Chandran & C.Jayachandran, JJ. -------------------------------------Crl.A (V).No.18 of 2019 --------------------------------------Dated this the 02[nd] December, 2021** ## **JUDGMENT** ## **Vinod Chandran, J.** **The victim of homicide was found with injuries on his face and head, to which he had succumbed, before he was brought to the hospital. The accused, two in number, were arrested as the perpetrators of the crime. The motive alleged was that the accused, engaged to cut with trees in the ancestral property of the deceased, failed to do it in accordance with the instructions of the carpenter. The deceased questioned the accused and blamed them for causing pecuniary loss. An altercation ensued, in which the accused together beat the victim, causing fatal injuries to his head and face. The main link in the chain of circumstances was the last seen together theory. The Trial Court acquitted the accused, against which acquittal, the grieving wife of the victim is before us in appeal.** **2. We remind ourselves the principles to be kept in mind when considering an appeal against an order of acquittal. In** _**Chandrappa and others v. State of Karnataka**_ **[** _**(2007) 4 SCC 415**_ **] the Hon'ble Supreme Court has restated the** **Crl.A (V)No.18 of 2019 - 4 -** **principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:** **“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:** **(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.** **(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.** **(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.** **(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.** **- 5 -** **Crl.A (V)No.18 of 2019** **(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”** _**.**_ **3. The prosecution, in the trial, examined twenty witnesses as PWs.1 to 20 and marked twenty seven documents as Exts.P1 to P24 as also eleven Material Objects as MO1 to MO11. The defence marked two contradictions, Exts.D1 and D2, from the evidence of PW3.** **4. We heard learned Counsel R.Sreehari, who appeared for the appellant and took us through the entire evidence. The learned Counsel would assert that the motive was established and so was the last seen together theory. The learned Trial Judge committed an error in acquitting the accused despite proof of guilt, as discernible from an unbroken chain of circumstance. The learned Counsel for 1[st] respondent (A1) Sri.Sathyanatha Menon and learned Counsel Sri.John S.Ralph for 2[nd] respondent (A2) argued in support of the judgment.** **5. PW1 gave the FIS, Ext.P1(a), at 8.30 a.m. on 16.4.2007. Ext.P1 FIR registered indicates PW1 having seen the deceased with injuries on the face at about 7.30 in the morning. He deposed that victim had gone for a festival in a** **- 6 -** **Crl.A (V)No.18 of 2019** **temple on the crucial day and that there was some dispute between the victim and A1 regarding the cutting of the tree, by reason of which they quarreled, resulting in the death of the deceased. However in cross-examination, PW1 admitted that he had no direct knowledge about the activities of the deceased just prior to his death and the body was first seen by a 16 year old boy. He also did not state to the police about the quarrel between the deceased and A1.** **6. PW2 is the attestor to the inquest report, Ext.P2, who also identified the two sticks, MO1 and MO2, which were seized by the police from near the scene of occurrence. A match box, MO4, and two beedi packs identified as MO3 series were seized by the police from the scene of occurrence. The suggestion in cross-examination that the deceased had a quarrel with one Prabhakaran Nair, the owner of the property in which the body was found, was denied. PW3 is the sister-in-law of the deceased, who spoke about the engagement of the accused for cutting trees in her house premises for renovation of the house. According to her, it was her husband and Sankaran (PW17), her husband's brother-in-law, who entrusted the work to one Ramakrishnan (PW12), a carpenter, to carry out the work. PW12 is said to have prepared a note regarding the measurements in a paper,** **- 7 -** **Crl.A (V)No.18 of 2019** **torn from a diary, which was entrusted to PW17. PW17 handed it over to her husband and when the accused came to their house; since her husband was not there she handed it over to A1. This was on 12.04.2007 and later the accused carried out the work in 2-3 days. The paper which was prepared by PW12 and handed over to the accused was marked as Ext.P3.** **7. PW4 is the wife of the deceased and her statement was recorded at the time of inquest. To a question in chief-examination as to what led to the incident, she deposed that the accused was engaged to cut wooden logs in the ancestral house and after the work was finished, the carpenter found the cut logs to be not as per his measurements. The accused were questioned about this, by her husband. Her husband had gone to the temple on 15[th] in connection with the festival and when he did not come back in the night, she thought that he had gone to his sister's house where their second son was residing.** **8. PW5, a salesman in a medical store, was standing near his provision store on 15.04.2007. He closed the shop at 7.30 p.m., but later by about 8.00 p.m, the deceased came to him and asked for beedi and he opened the shop for the deceased. The deceased purchased two packs of beedi and left. PW6 purchased 5.5 cents of property belonging to the wife of** **- 8 -** **Crl.A (V)No.18 of 2019** **the deceased and his brother was married to the sister of the deceased.** **9. PW7, a coolie worker, identified both the accused and deposed that he had gone for the festival in the temple with one Murali, where he had seen the accused persons. Later, they had gone to the toddy shop where the accused persons came and also PW6 and the deceased. The time was around 7.00 p.m. and there was heavy rush in the toddy shop. PW7 and Murali then went to the Kavu (temple) to pick up his wife and children. On their way back they visited the wife's house of Murali to have tea. While they were returning, an unidentifiable man was found wounded and lying down, near the canal, at around 8.45 p.m. PW8 also deposed in tune with what PW7 said. He also said that PW12, the carpenter, was also present in the toddy shop. Both PWs.7 and 8 said that the person they saw lying near the canal was unidentifiable and they thought that somebody was lying in a drunken stupor. On these witnesses hinge the prosecution story of last seen together, which immediately we have to notice stands demolished from the evidence of PW5, who saw the deceased alone later.** **10. PW12 is the carpenter, who identified Ext.P3 as the one written by him on which the measurements for cutting** **- 9 -** **Crl.A (V)No.18 of 2019** **the logs was specified. He also spoke of the same having been handed over to PW17 at the house of the another brother of the deceased, PW3's husband. PW17, the brother-in-law of the deceased, took the carpenter to PW3's husband on 12[th] April. He deposed in tune with PW3 and PW12 about Ext.P3. Pertinently none of the witnesses have a case that the cutting of logs carried out by the accused was not in tune with the measurements in Ext.P3. The carpenter PW12 also said that his transaction was with the husband of PW3 and PW17 and not at all with the deceased. PW4, the wife of the deceased also said that the ancestral house was kept to the share of PW3's husband in partition and the trees cut were in the property of PW3's husband.** **11. PW9, the CPO, was an attestor to the inquest report, PW10, the CPO, who produced the dead body for post-mortem and PW11, an ASI, who attested Ext.P5 seizure mahazar. PW13 witnessed the accused being taken into custody and saw A1 handing over dresses and a piece of paper to the C.I, which seizure was evidenced by Ext.P6 mahazar. One lungi was identified as MO5 and the shirt of A1 as MO6. Ext.P3, the paper on which the measurements were written down by PW12, was also identified as seized from A1's house. PW14 prepared Ext.P7 scene plan and PW15 conducted autopsy. The doctor** **- 10 -** **Crl.A (V)No.18 of 2019** **opined that the death was caused by the injuries on the face and head, which could have been caused by MO1 and MO2 sticks.** **12. PW16 witnessed a seizure of shirt and dothi from A2's house by mahazar Ext.P9. PW18 saw the recovery of the diary, Ext.P10, by Ext.P11 mahazar from which a paper was torn to prepare Ext.P3, as deposed by PW3, the sister-in-law of the deceased. PW19 recorded the FIS and registered the FIR and PW20 is the Investigating Officer (I.O).** **13. The medical evidence is undisputed and Ext.P8 indicates twenty lacerated wounds, four abrasions and one contusion; twenty of these injuries on the face and head, two on the right hand fingers, one on the right leg and the other on the right foot and the contusion on the left forearm above the wrist. Injuries on the face and head reveal a brutal homicide and the opinion of the doctor is also to that end. Now the issue to be considered is whether the motive is proved and the last scene theory established.** **14. It is very pertinent that none of the witnesses except the wife and PW3 speaks of a dispute having arisen for reason of the accused having not cut the logs in accordance with the measurement given by PW12, the carpenter.PW20 the I.O confirmed that none of the witnesses examined spoke of the quarrel. From the evidence of the sister-in-law (PW3) and** **- 11 -** **Crl.A (V)No.18 of 2019** **the brother-in-law (PW17) of the deceased, there is nothing to show that even the deceased had any financial stake in the renovation of the ancestral house. PW4, the wife of the deceased too, confirms that the trees were cut from the property of her husband's brother and the house sought to be renovated was also that of the said brother. From the evidence, it is clear that the renovation was of the house in which PW3 was residing along with her husband, the brother of the deceased. The renovation was entrusted to PW12, a carpenter, who wrote down the measurement at the house of PW3 in the presence of PW17. PW17 handed over the measurements to PW3, who, on instructions of her husband, handed over the same to A1. The deceased is not involved in any of these transactions. The witnesses also surprisingly do not say anything about the logs having been cut out of measurement, as seen from Ext.P3. The motive, hence, does not seem to have been established.** **15. The prosecution case, as we noticed, hinges on the last seen together theory which stand demolished by the evidence of PW5. PWs.7 and 8 are the witnesses on which the prosecution relies to propound a last seen together theory. Their evidence is only to the effect that the deceased and PW6 were seen in the toddy shop and the accused were also** **- 12 -** **Crl.A (V)No.18 of 2019** **present there, which does not give rise to any last seen together theory especially when the testimony is that there were about 50 persons in the toddy shop. It cannot hence be said that the testimonies of PWs.7 and 8 offer any valid last seen together theory. There is nothing to show that the accused had toddy with the accused. Further, PW5 categorically says that the deceased came to his shop to purchase beedi and also purchased two beedi packs. The beedi packs were recovered from the scene of occurrence corroborating the evidence of PW5.** **16. There is also no scientific evidence insofar as the dress of the accused having not disclosed any trace of blood as spoken by the I.O, PW20. The dress of the accused recovered were not even sent for scientific examination. There is nothing in the evidence of the I.O to indicate the dress of the accused having been sent to the laboratory. The sticks said to have been used to inflict injuries on the victim were also seized from the scene of occurrence and there is nothing to connect the accused to the same. The wife, PW4, herself had other suspicions about the death of her husband, initially and merely toed the line of the prosecution. In the totality of the circumstances as coming forth from the evidence led by the prosecution, we do not** **- 13 -** **Crl.A (V)No.18 of 2019** **think there is any other view possible. The only view possible is, that taken by the Trial Court which resulted in acquittal of the accused. We fully agree with the same and reject the appeal.** **Sd/K.Vinod Chandran Judge** **Sd/C.Jayachandran Judge vku/-**