Sobhanakumari K. v. Santhosh @ Pallan Shaji 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** **WEDNESDAY, THE 19[TH] DAY OF JANUARY 2022 / 29TH POUSHA, 1943 CRA(V) NO. 1014 OF 2017** **AGAINST THE JUDGMENT IN SC 936/2012 ON THE FILES OF ADDITIONAL** **SESSIONS JUDGE, NEYYATTINKARA** **(CP 12/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-II,NEYYATTINKARA)** **(CRIME NO.327/2007 OF THIRUVALLAM POLICE STATION )** ## **APPELLANT:** ## **SOBHANAKUMARI K.** **AGED 61 YEARS AGED 61 YEARS, S/O.D.ARJUNANN,RESIDING AT T.C.43/952, SONI NIVAS,PARUTHIKUZHI, MANACAUD (P.O),THIRUVANANTHAPURAM, PIN - 695 009. BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.R.B.RAJESH** ## **RESPONDENTS:** - **1 SANTHOSH @ PALLAN SHAJI AGED 42 YEARS S/O.GOPI,PUTHUVAL PUTHEN VEEDU,T.C.43/987-B (79/1231 A),PARUTHIKUZHI, KAMALESWARAM WARD,MUTTATHARA VILLAGE, MANACAUD (P.O.),THIRUVANANTHAPURAM, PIN - 695 009.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,PIN - 682 031.** ## **OTHER PRESENT:** **SRI.ALEX.M.THOMBRA, SENIOR GOVERNMENT PLEADER** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 19.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **Crl.Appeal (V) No.1014 of 2017** **K. Vinod Chandran & C.Jayachandran,JJ ------------------------------------------Crl.Appeal (V) No.1014 of 2017 ------------------------------------------Dated, this the 19[th] day of January, 2022** ## **JUDGMENT** ## **Vinod Chandran, J.** **Five friends, in an inebriated state, went to a river and only four returned. The accused, one of them, was alleged to have thrown the deceased, who did not know swimming, into the river and held his head under water, forcibly by the neck, resulting in the death. The Trial Court acquitted the accused for want of evidence and the mother of the deceased is before us.** **2. The crime was first investigated by the local Police and then handed over to the Crime Branch. The mother dissatisfied, sought for CBI investigation before this Court, in which, a special investigation team was directed to be constituted to carry out the investigation. On such constitution, a report was filed incorporating S.302 IPC after deleting the offences earlier charged under S.304A and 34 IPC. The alleged motive was that the accused owed money to the deceased.** **3. The prosecution went to trial with two** **Crl.Appeal (V) No.1014 of 2017** 3 **eye-witnesses and examined PW1 to PW29, through whom were marked Exts.P1 to P36 documents. Five material objects also were marked as MO1 to MO5. The eye-witnesses turned hostile, which resulted in the acquittal of the accused.** **4. The learned Counsel for the appellant would contend that the deceased was seen last, together with his four friends; the accused, PW1, PW14 and one another person. PW3, in whose premises the five persons had consumed liquor, spoke of the five having proceeded to the river for a bath and later only four out of five returned. They owed an explanation as to what happened and the S.161 statements of the three among the four indicated the culpability of the accused, the fourth person. One of the eye-witnesses had proceeded abroad and the other two turned hostile. It is pointed out that the Doctor had specifically spoken of the death having occurred due to the blunt injury on the neck and drowning. Obviously it is not an accidental drowning, since the Doctor also opined that the injury on the neck cannot be caused by a floating body hitting on a hard object. That the death was a homicide, is fairly proved and when the deceased was admittedly in the company of** **Crl.Appeal (V) No.1014 of 2017** 4 **the four friends, they were responsible for the murder. The learned Counsel also relied on** _**Mahabir Singh v. State of Haryana [AIR 2001 SC 2503]**_ **.** **5.** _**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, re-appreciate 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**_ 5 **Crl.Appeal (V) No.1014 of 2017** _**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) 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.”**_ **6. We have to look at the impugned judgment with the above principles in mind. PW3 is the person who saw the deceased alive in the company of his three friends and the accused. PW3 spoke of the five persons having consumed liquor in his workshop. Later it was the deceased, who suggested that they proceed to the river for a bath. Subsequently, four of them returned and informed PW3 that the deceased fell into the water and was not seen thereafter. PW3 was asked to inform the relatives of the deceased. PW3 immediately informed an uncle of the deceased, by name Sajikuttan. PW3 also asserted that he did not know how the death occurred. It was admitted by PW3 that he was told by PW14 that the accused had caught the deceased by the neck and jumped into the river. However, he denied having stated that the accused drowned the deceased by forcibly holding him by the neck and keeping his head under water. The same was** **Crl.Appeal (V) No.1014 of 2017** 6 **marked as Ext.P3 contradiction. But we have to notice that even the statement was of a hearsay and not something in the direct knowledge of PW2.** **6. PW14 denied the statements made under S.164 IPC. He admitted to have made the statement that the accused pushed the deceased and later the accused and PW4 tried to save the deceased, but they could not find him in the water. PW14 also made a statement to the Police that when he told the accused that it was by reason of his action that the deceased was lost in the water, the accused did not give any answer. This was denied by PW14, before Court. PW4 was the other friend, who had gone to the river. He spoke of an accidental drowning and denied his statements before the Police. Exts.P4, P5 & P6 were the contradictions marked from his S.161 statement. As per Exts.P4 & P5, his versions to the Police was as follows:** _**“Shaji [accused] asked Sony [deceased] to come into the water and went near Sony who was sitting on the bank. I was bathing, when I heard a sound and turned back. I did not see either Shaji or Sony. After about two minutes, Shaji rose above the water near me and Sony was seen struggling in the water.”**_ **Ext.P6 was to the effect** **Crl.Appeal (V) No.1014 of 2017** 7 **that PW14 had told him that Shaji had pulled Sony into the water forcefully by the neck, again a hearsay; denied by PW14.** **7. Even the S.161 statements are only to the effect that the accused pulled the deceased into water and the deceased accidentally drowned. We say this quite conscious of the fact that S.161 statement cannot be relied on and can only be used to contradict the witness. Here both the witnesses, who were present at the time the deceased fell into the water had resiled from their earlier statements. We only wanted to impress upon ourselves that even if they spoke in tandem with their S.161 statement, there cannot be found any intention, much less any pre-meditation and at the worst it can only be said that probably a prank turned disastrous.** **8. The cited decision,** _**Mahabir Singh [supra]**_ **was a case in which there was an eye witness to the incident, who narrated it to his father and the father gave the FIS. The father narrated the details of what he heard from his son before Court in tandem with the FIS. It was held that this gives the Court an assurance that the father really heard those details from his son. '** _**Section**_ **Crl.Appeal (V) No.1014 of 2017** 8 _**157 of the Evidence Act permits the Court to use any former statement made by a witness before any person relating to a fact if it was made "at or about the time when the fact took place". The interval between the occurrence and the time of PW-1's reporting to his father, did not cross the boundaries envisaged by the words "at or about the time when the fact took place in Section 157 of the Evidence Act.” (sic)**_ **This does not in any manner help the prosecution since here, there is no such question arising. Here the prior statements were to the police under Section 161 and it was resiled from before Court. There is no immediate statement of any witness, about the culpability of the accused. Again, as found by us, even the prior statement does not lead to an inference of a premeditated murder or culpable homicide not amounting to murder.** **9. Coupled with the fact that there is no evidence of culpable homicide, the four friends, who returned immediately informed the relatives of the deceased through PW3. PW3 says that he had informed one Sajikuttan, the uncle of the deceased, who was not examined before Court. PW1 & PW12 are the uncles of the** **Crl.Appeal (V) No.1014 of 2017** 9 **deceased, who are respectively Kochaniyan and Mohanan. PW1 says that he was informed of the drowning by a brother of his, Vimal Roy. The persons who accompanied the deceased to the river, on their friend having drowned, immediately informed his relatives. The motive, as spoken of by PW1, of a debt due, even according to him came to his notice, after the death. He does not disclose the source and it is clearly hearsay.** **10. On the principles governing the conversion of an order of acquittal to conviction** _**Mahabir Singh [supra]**_ **quoted** _**Dhanna v. State of M.P AIR 1996 SC 2478:**_ **Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against** 10 **Crl.Appeal (V) No.1014 of 2017** **acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed."** **In the totality of the circumstances and insufficiency of the evidence led, we are of the opinion that the Trial Court was justified in acquitting the accused. We reject the appeal, confirming the judgment of the Trial Court.** **Sd/K.VINOD CHANDRAN, JUDGE Sd/C.JAYACHANDRAN, JUDGE** **sp/jma19/01/2022**