Sindhu v. 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** ## **FRIDAY, THE 11[TH] DAY OF FEBRUARY 2022 / 22ND MAGHA, 1943** ## **CRA(V) NO. 704 OF 2017** **AGAINST THE JUDGMENT IN SC 1094/2012 OF DISTRICT COURT & SESSIONS** ## **COURT,KOLLAM** **(CP 43/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM)** ## **APPELLANTS:** **SINDHU, AGED 41 YEARS D/O. VASANTHAKUMARI, KUTTIPARAMBIL, ERAZHA NORTH, CHETTIKULANGARA P.O., MAVELIKARA, ALAPPUZHA.** **BY ADV SRI.SAJU J PANICKER** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 RAJAN, S/O. NARAYANAN, SANNIDHANAM VEEDU, CHAVARA MURI, CHAVARA VILLAGE, KOLLAM. BY ADVS. SERGI JOSEPH THOMAS SRI.RENJIT GEORGE SRI.K.SHAJ SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)** ## **OTHER PRESENT:** **SMT.S.AMBIKA DEVI, SPECIAL GOVERNMENT PLEADER FOR ATROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY** **HEARD ON 11.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal (V) No. 704/2017 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------Crl.Appeal (V) No.704 of 2017 ------------------------------------------Dated, this 11[th] February, 2022** ## **JUDGMENT** **Vinod Chandran, J.** **The appellant was charged with the murder of his sister. The allegation was that there were family disputes and the brother and sister were at loggerheads. The brother had obstructed the sister from entering the family house to see their mother. The brother allegedly abused his sister in filthy language and destroyed the window panes of the family house causing injuries to the sister from the broken glass. The incident happened at around 7.30 p.m on 26.12.2010, subsequent to which, when the sister and her daughter were again proceeding to the family house, the accused/brother attacked the sister with a chopper thus resulting in her death.** **2. At the trial, the defence examined 15 witnesses, marked 25 documents and produced 10 material objects. PW1 was the daughter of the deceased who was** Crl.Appeal (V) No. 704/2017 **3** **proffered as an eye witness. The trial court found inconsistencies in her deposition. According to PW1, she suffered the injuries on her from the chopper brandished by the accused. There were also inconsistencies in her First Information Statement, all of which according to the trial court rendered her untrustworthy. The trial court also found that the deposition of the Investigating Officer (I.O) about the recovery of the weapon was not in consonance with the confession Statement under S.27. The trial court also noticed that the prosecution witness-PW3, in cross-examination spoke of the possibility of PW1 having inflicted the injuries accidentally on her mother, while attacking the accused. The trial court acquitted the accused.** **3. learned Counsel Sri Saju J Panicker appearing for the appellant submitted that there are only minor contradictions and the same cannot be treated as material. The learned Counsel relied on** _**State of Punjab v. Gurmit Singh [(1996) 2 SCC 384], State of A.P v. Gangula S Murthy (1997) 1 SCC 272**_ **,** _**Umar**_ Crl.Appeal (V) No. 704/2017 **4** _**Mohammed v. State of Rajastan (2007) 14 SCC 711**_ **,** _**Ramesh v. State of U.P [(2009) 15 SCC 513]**_ **and** _**State of U.P v. Naresh [(2011) 4 SCC 324]**_ **. It is argued that with respect to the attack unleashed and the injuries caused to the deceased who is the mother of PW1 there is no inconsistency. What PW3 stated about the attack having been initiated by PW1 is a mere rumour and a canard to boot. The recovery was from the place pointed out by the accused and the inconsistency noticed by the trial court does not exist since the family house and the property of the deceased lie adjacent to each other. PW3 ought to have been declared hostile and the prosecution failed to conduct the case properly. Sri. Sergi Joseph Thomas, learned Counsel appearing for the respondent seeks to sustain the order of the trial court.** **4. In the FIS, PW1 stated about the earlier incident when the accused obstructed the entry of her mother into the family house. After the said incident herself, her son and her mother-the deceased returned to their house. Again they proceeded to the family house in** Crl.Appeal (V) No. 704/2017 **5** **the night at 10 p.m and on the way, the accused charged on them with a chopper and inflicted the injuries on her mother. She did not speak of any injuries on her, having been inflicted by the accused. Her statement was that when there was a scuffle between herself and her uncle she fell down sustaining an injury to her left elbow and the little finger of the right hand. Her uncle too had sustained an injury on the head. In the FIS she also stated that after the earlier incident one another uncle Ravi and her cousin Binu came to their house.** **5. Obviously there was an altercation at around 8'O clock in the night and PW1 along with her mother returned home. The accused continued showering abuses, upon which PW1 and her mother telephoned her relatives. PW3 and his father came to the premises and passified the accused. It is the categoric statement of PW3 that he advised PW1 and her mother not to go out of the house. The further deposition of PW1 is that after the earlier incident, they again proceeded to the family house when her uncle charged at them with the chopper.** Crl.Appeal (V) No. 704/2017 **6** **Considering the earlier incident and the narratiive by PW1 and PW3 it is very unlikely that PW1 and her mother would have again gone to the family house that too at 10.00 p.m in the night, to see the grandmother especially when the accused staying in the family house had at the earlier point obstructed the entry of the deceased into the family house.** **6. PW2 is a neighbour who came out of his house on hearing a commotion. He saw PW1 and the accused engaged in a scuffle and falling down. PW1 asked PW2 to look for her mother and she was found lying on the ground bleeding from her head. PW2 spoke of injuries on both the accused and PW1 also. It is to be noticed that PW2 does not speak of the accused having run away or having been in a possession of a chopper. PW3 is the cousin of PW1 who spoke of a suspicion having arisen that the injuries caused on the deceased were accidentally inflicted by PW1, when the accused was attacked. We do not place any reliance on such statement. But however, it is to be noticed that there** Crl.Appeal (V) No. 704/2017 **7** **arises a suspicion regarding the testimony of the sole eye witness.** **7. PW3 also said that when he arrived at the spot on being summoned by an aunt, by name Baby, he saw the accused and the deceased lying on the ground and PW1 standing near her mother. Baby, according to PW3, called him since she saw the incident where the three were involved in “stabbing and cutting” (in the vernacular). The said Baby was not examined. He also spoke of the deceased having been taken in an autorickshaw followed by the accused in another autorickshaw which again leaves little time for the accused to conceal the weapon. There is also no evidence that the accused ran away.** **8. PW11 is the Casualty Medical Officer at the District Hospital, Kollam who examined PW1. She had an abrasion on the left elbow and right knee, a contusion on the forehead, pain and swelling on the right little finger and a suspected fracture. The specific deposition of PW11 was that the injuries could have been caused in** Crl.Appeal (V) No. 704/2017 **8** **a scuffle and by the blunt side of MO1 weapon. There were no incised wounds found on PW1. As far as the deceased is concerned the evidence of PW12, the Doctor who conducted postmortem examination established the death to be a homicide. The cause was injury sustained, which injuries were possible by MO1 weapon. Very pertinent is the history of the injury caused to PW1 as stated by her and recorded in Ext.P9 which is in the course of a scuffle between her mother and uncle. She does not at the first instance speak of an attack by the uncle on the mother with a chopper.** **9. Ext.P3 Mahazar for recovery of MO1 weapon was made by PW14, I.O. As per the confession statement, the accused threw the chopper into his family house while he was running away. The evidence of the persons who were present in the scene of occurrence is that the accused was lying down, injured, when they came to the scene of occurrence. After the deceased was taken to the hospital, immediately the accused was also taken to the hospital. There is no time for concealment and there is** Crl.Appeal (V) No. 704/2017 **9** **no evidence that the accused had run away from the scene of occurrence. Though for different reasons, we also do not place any reliance on the recovery made under S.27.** **10. The narration of PW1 as to the genesis of the incident is very suspicious. When PW1 and her mother were driven away at night from the family house by the accused, there was no reason for them to come back still later, on the same night at 10 p.m. PW3, PW1's cousin and the nephew of the deceased categorically stated that he advised them to remain in their house. Later PW3 came to the spot on being informed by one Baby, his aunt that there is a fight going on. The said aunt who witnessed the incident was not examined. It is a reasonable hypothesis that PW1 and her mother with ill-will went back to the family house armed with a weapon. That there were disputes between the accused and deceased, a number of them festering for a long time, is the prosecution case itself. Then there can be no credence attached to the eye witness testimony of PW1 who was enmically disposed to the accused. This is especially so when** Crl.Appeal (V) No. 704/2017 **10** **there was another eye witness equally connected to the accused and deceased who could have spoken the truth of what actually transpired. We are considering an appeal from the order, acquitting the accused and we cannot find the acquittal to be wholly perverse or unreasonable.** _**11. Gurmith Singh (supra)**_ **was a case of sexual molestation, which the Court, should be dealt, with utmost sensitivity and an otherwise reliable prosecution case should not be thrown out merely for reason of minor contradictions and insignificant discrepancies in the evidence of the prosecutrix. In** _**Umar Mohammad (supra)**_ **the injured witness was corroborated by other witnesses and there were only minor controversies. Here the eyewitness though injured, the injury was not on an attack by the accused, but due to falling down in a scuffle; the genesis of which has been doubted by us and the trial court.** _**Ramesh (supra)**_ **held that minor inconsistencies further validate the truthfulness of the prosecution witness; which has no application here.** Crl.Appeal (V) No. 704/2017 **11** _**12. Chandrappa and others v. State of Karnataka (2007 (4) SCC 415)**_ **restated the 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** Crl.Appeal (V) No. 704/2017 **12** ## **strengthened by the trial court.** **(** _**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.** **On the conspectus of the evidence discussed above we are not convinced of any ground existing to overturn the order of acquittal. The appeal stands dismissed.** **Sd/K.VINOD CHANDRAN, JUDGE** **Sd/C.JAYACHANDRAN, JUDGE** **jma**