State of Kerala v. Antony, Wilfred, Mary Dasan, Mary (D/O Antony), Meyamma, Mary (D/O Mary Dasan) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **CRL.A.No. 1407 of 2013** **AGAINST THE JUDGMENT IN SC 296/2005 of II ADDITIONAL SESSIONS COURT,THIRUVANANTHAPURAM DATED 18-10-2010** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS.** **PUBLIC PROSECUTOR** **SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST WOMEN & CHILDREN** ## **RESPONDENTS/ACCUSED:** |**1**|**ANTONY**| |---|---| ||**S/O MARY DASAN, PULLUVILA CHARTHADY PURAYIDOM,**| ||**KARUMKULAM DESOM, KARAMKULAM VILLAGE-695526.**| |**2**|**WILFRED**| ||**S/O MICHEAL, CHARATHADY PURAYIDOM, KARUMKULAM**| ||**DESOM, KARUMKULAM VILLAGE-695 526.**| Crl.Appeal No.1407/13 -:2:- - **3 MARYDASAN S/O ADIMA, CHARATHADY PURAYIDOM, KARUMKULAM DESOM, KARUMKULAM VILLAGE-695 526.** - **4 MARY D/O ANTONY, CHARATHADY PURAYIDOM, KARUMKULAM DESOM, KARUMKULAM VILLAGE-695 526.** - **5 MEYAMMA** - **D/O WILFRED, CHARATHADY PURAYIDOM, KARUMKULAM DESOM, KARUMKULAM VILLAGE-695 526.** - **6 MARY** - **D/O MARYDASAN, CHARATHADY PURAYIDOM, KARUMKULAM DESOM, KARUMKULAM VILLAGE-695 526.** **BY ADV. E.SHEENA (STATE BRIEF) FOR R1 TO R6** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4.01.2019, THE COURT ON 29/3/2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1407/13 ## -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the State of Kerala against the judgment of acquittal passed by the 2[nd] Additional Sessions Judge, Thiruvananthapuram in S.C.No. 296 of 2005. 2. Prosecution case is as follows:- Altogether there were six accused. The accused and the deceased belong to southern coastal area of rural Thiruvananthapuram. The third accused namely Mary Dasan had made a request to PW1, who is the sister of the deceased, to draw an electric line over the property of PW1 to the house of 3[rd] accused. PW1 did not consent and objected the same. To wreck vengeance, accused herein, who are six in number, on 24/03/2003, formed into an unlawful assembly with a common object to commit murder of the deceased Mettilsy, went to the house of PW1, quarrelled and beat PW1 who was washing vessels. At that time, two children of PW1 and the daughter of PW2 were present in the house of PW1. Seeing the incident, the children of PW1 ran away. PW3 went and brought the deceased to Crl.Appeal No.1407/13 -:4:- the house of PW1. The deceased scolded PW1 for having quarrelled with the accused. PW3 explained the actual incident to the deceased. Then the deceased consoled PW1. Thereafter, the deceased along with PW3 went to their house which was a little away. While they were going to their house and as they reached in front of the house of one Clara, the accused as a team came and accused no.1 scolded the deceased. The deceased asked A1 why he picked up a quarrel with her. On hearing this, A1 uttered “I will kill you” and gave a blow on the head of the deceased with MO1 kattadikkuzha (a cylindrical wooden plank). The deceased suffered an injury on her head and there was bleeding. Thereafter, the second and third accused beat the deceased using reapers. Accused nos. 4 to 6 beat the deceased with their hands. Seeing this, PW2 went and informed PW1 about the incident. Immediately, PW1, PW2 and the husband of PW1 and CW1 came to the spot. They saw all the accused beating the deceased with reapers. When CW1 and PW1 made an attempt to take away the reapers from the hands of the accused, the second accused beat PW1 on her head and right shoulder. CW1 tried to take MO1 from the hands of 1[st] accused and then accused nos. 1 Crl.Appeal No.1407/13 -:5:- to 3 beat CW1. Thereafter CW1 forcibly took MO1 from the hands of 1[st] accused and kept the same at the kitchen of PW1's house. PW2 thereafter went to call the husband of the deceased i.e., PW3 who was sleeping at his house. Immediately, PW3 along with PW2 came to the place of occurrence. PW3 found the deceased bleeding from her head. CW1 and PW3 took the deceased to a nearby private hospital namely Christuraja Pally Hospital, Pulluvila. PW8 the Doctor gave first aid to the deceased and referred her to Medical College Hospital (MCH), Thiruvananthapuram. On the way to MCH, they stopped in front of their house to take some clothes and at that time the deceased vomitted blood. Immediately she was taken to MCH in an autorickshaw and on the same day at 7.15 p.m., she was declared dead by hospital authorities. 3. The learned Special Government Pleader for Attrocities Against Women and Children Smt.Ambika Devi argued that the Court below erred in arriving at the conclusion that the accused are not guilty. Court below went wrong in concluding that the evidence of eye-witnesses PWs 1 and 2 is not believable since they did not explain how A3 got injured during the incident. Court Crl.Appeal No.1407/13 -:6:- failed to appreciate even the basic facts of the case. Court below also went wrong in finding that there was no blood-stains even on MO1. In spite of clear proof as to the place of occurrence from the evidence of witnesses, Court below took a view to find that the place of occurrence is not proved. Court below also failed to notice that the false explanation made by A1 should be taken as an additional circumstance against him in the light of available evidence. The impugned judgment is quiet unreasonable and perverse. She vehemently argued for the reversal of the finding of the trial Court. She relied on _**Sikander Singh and Others v. State of Bihar**_ (AIR 2010 SC 3580) to show that it cannot be held as an unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of which the prosecution has to be disbelieved. She also placed reliance on _**Shajahan and Others v. State of Kerala and Another**_ (2007 (2) KHC 88) and _**Krishan and Others v. State of Haryana**_ [(2006) 12 SCC 459] to affirm the above point. 4. The learned Counsel appearing for and on behalf of the respondents submitted that the respondents are innocent in Crl.Appeal No.1407/13 -:7:- the case. Already trial Court acquitted all the accused. Motive is not proved by the prosecution. Also, even the place of occurrence is not brought on record by the prosecution. Evidence of PW1 and PW2 cannot be believed as they are interested and partisan witnesses. MO1 is recovered from the house of PW1. A3 also got injured in the incident. A1 and A2 were not present at the time of offence. No blood-stains were found on MO1 or at the alleged place of occurrence. Trial Court is fully justified in arriving at the present conclusion and hence there is no need to disturb the same. 5. It is settled law that a judgment of acquittal by Court of law would fortify the initial presumption of innocence of the accused/appellants. It is also well settled that the appellate Court shall not disturb the finding of the Court below merely because another view is possible. If the view taken by the trial Court is a probable view, it shall not be interfered with. Law allows an intervention by appellate Court only when the judgment is found to be illegal, perverse or unreasonable. Such a finding of the trial Court inevitably calls for the intervention of the appellate Court to do justice. We have to consider the appeal keeping in mind the Crl.Appeal No.1407/13 -:8:- above settled position. 6. Overt acts are attributed to A3 Mary Dasan. It is submitted that A3 is no more and hence appeal stands abated as far as A3 is concerned. 7. Prosecution examined PWs 1 to 16 as their witnesses, produced documents and marked them as Exts.P1 to P20. They also produced and identified material objects MO1 to MO4. 8. During 313 examination, the accused denied all incriminating circumstances against them. They contended that they are innocent. Accused nos. 1 and 2 contended that they were not present at the place of occurrence at the time when the alleged offence took place. They were in the high seas for fishing and they came back only on the next day morning. A3 stated that on the date of incident at about 2.30 p.m., when he went to a shop, CW1, PW1 and the deceased came to him and CW1 beat on his head with a kattadikkazha and due to which his head got injured and was bleeding. When questioned, CW1 again beat on his right head due to which he sustained injury to the finger of his right hand. Hearing his cry, accused 4 to 6 came to the spot. Again CW1 attempted to inflict a blow to him and it hit on the Crl.Appeal No.1407/13 -:9:- head of the deceased Mettilsy and she sustained injury. 9. Defence examined DW1 and DW2 to prove the plea of alibi. 10. The prosecution evidence, in brief, is as under: CW1 gave F.I. Statement on 25/03/2003 at 07.30 a.m., to PW14 the then S.I. of Police, Kanjiramkulam Police Station and Ext.P1(a) FIR was registered on its basis. Ext.P1 is proved through PW1 as CW1 was no more at the time of trial. PW1 is the wife of CW1 and is an occurrence witness. PW2 is the daughter of the deceased who is an eye-witness to the incident. Both of them supported the prosecution. PW3 is the husband of the deceased. He identified the accused and also identified the dress of the deceased MOs 2 to 4. 11. PW6 is the Doctor who examined CW1 on 25/03/2003 and Ext.P4 is the wound certificate. He also examined PW1 on the same day and issued Ext.P5 wound certificate. 12. PW7 is the Doctor who conducted the post-mortem of the deceased. Ext.P6 is the post-mortem certificate issued. The following injuries were noted in Ext.P6: _1. Sutured lacerated wound 4.5 cm long and bone_ Crl.Appeal No.1407/13 -:10:- _deep, oblique on the right side of front of head, its lower outer end being 8 cm above eyebrow and 4 cm outer to midline. Underneath the scalp was contused over an area 9x9x0.5 cm. Brain showed thin film of bilateral subdural and subarachnoid haemorrhages. There were flattening of gyri and narrowing of sulci._ _2. Abrasion 1.5x0.5 cm on the back of right elbow._ _3. Contusion 2x1x0.2 cm on the inner aspect of right elbow._ _4. Contusion 4x2x0.5 cm on the back of right hand 5 cm below wrist and 2.5 cm outer to the inner border._ _5. Contusion 3x2x0.5 cm on the back of left hand 2 cm below wrist and 2.6 cm outer to the inner border._ _6. Contusion 2.5x1x0.2 cm on the back of left hand 6 cm below wrist and 6 cm outer to the inner border.”_ According to PW7, the death was due to head injury. 13. PW9 is the Village Officer, Karumkulam and she issued Ext.P9 scene plan. 14. PW10 is the Doctor who examined A3 on 01/04/2003 and issued Ext.P10 wound certificate. 15. PW13 is the official Chemical Examiner who conducted chemical examination and issued Ext.P11 chemical analysis report. 16. PW15 is the then S.I.of Police, Poovar Police Station. He prepared Ext.P3 inquest report. PW4 is an attestor to Ext.P3. Crl.Appeal No.1407/13 -:11:- Ext.P12 is the scene mahazar to which PW5 and PW11 are witnesses. Both of them turned hostile to the prosecution. PW11 admitted the presence of A3 and Christudas(CW1). Ext.P13 is the seizure mahazar prepared by PW15 for the seizure of MO1 kaattadikkazha. He arrested A1 to A3 on 31/03/2003 at 06.45 p.m. Ext.P4 series is the arrest memo and Ext.P15 series is the inspection memo. MO2 to MO4 were dress worn by the deceased and they were produced before Court as per Ext.P15, 151 A form. MO1 was produced before Court as per Ext.P17, 151 A form. 17. PW16 completed the investigation and submitted the final report. 18. DW1 and DW2 were examined on the side of the defence and they stated that, on the day of incident, both A1 and A2 were with them for fishing at the high seas and they reached the shore only on the next day morning. 19. As already stated, the evidence of PW7 Doctor who issued Ext.P6 post-mortem certificate would show that Mettilsy died due to head injury. Medical evidence would further show that the said injury is possible with MO1. She also ruled out the possibility of this injury being caused because of fall on a rough Crl.Appeal No.1407/13 -:12:- surface or on the projection. This would prove that the death of Mettilsy was a homicide. Court below also rightly held so. The question to be looked into is whether the view taken by the trial Court is a probable view in the light of available evidence to pronounce a judgment of acquittal. Our interference is warranted only if the finding of the Court below is perverse or unreasonable. 20. Evidence of PW6 Doctor would show that both CW1 and PW1 sustained injuries as mentioned in Exts.P4 and P5 respectively in the same incident. It can also be seen that all the accused are close relatives. So is the material witnesses. A3 is the father of A1, A2 is the son-in-law of A3 and A4 to A6 are the spouses of A1 to A3 respectively. PW1 is the sister, PW2 is the daughter and PW3 is the husband of the deceased. CW1 is the husband of PW1 and he is no more. PW11 is the brother of CW1. 21. According to the prosecution, there are two stages for the whole incident. First phase of the incident took place at 2.00 p.m. at the house of PW1. Both PW1 and PW2 deposed about this phase. PW1 was washing vessels at her house. At that time, all the accused came to her house and scolded her and she was beaten. PW2 who was present there went to her house to call his Crl.Appeal No.1407/13 -:13:- mother Mettilsy (deceased herein) and within a while both PW2 and her mother came to the house of PW1. Mettilsy enquired about the incident and scolded PW1. Then PW1 told in detail what had happened. Mettilsy listened and she went back to her home with her daughter PW2. According to PW1, after 15 minutes, PW2 came back and told PW1 that the deceased was beaten by the 1[st] accused. Immediately, PW1 along with her husband CW1 and PW2 went to the place of occurrence. There, they found the deceased with injury on her head with bleeding. PW1 could also witness accused nos. 2 to 6 beating the deceased with wooden reapers. It is her further version that when she attempted to snatch reapers from the hands of 2[nd] accused, 2[nd] accused beat her on her body, head and right shoulder. CW1 also suffered injury from the hands of A1 to A3. At that time PW2 went to call her father PW3. PW3 came to the spot and the deceased was taken to the hospital. 22. PW2 deposes the whole incident, particularly the second phase of the incident. According to her, after she and her mother left PW1's house to their house, when they reached in front of the house of one Clara, A1 came to them and scolded the Crl.Appeal No.1407/13 -:14:- deceased. Her mother asked why A1 was scolding her unnecessarily. At that time, A1 shouted “I will kill you” and inflicted a blow on the head of the deceased with MO1. It struck on her head and she started bleeding. It is her version that A2 and A3 also beat on the body of the deceased with wooden reapers and A4 to A6 with their hands. Immediately PW2 rushed to PW1's house and brought PW1 and CW1 to the place of occurrence. 23. Court below disbelieved their version stating that they did not depose anything with respect to the injuries sustained by A3 during the course of the same transaction. It is also seen that PW11 though turned hostile to the prosecution, deposed that he saw A3 with bleeding injuries at the scene of occurrence. Based on the said evidence, the learned Sessions Judge took a view that the above witnesses are suppressing truth from Court as they are not deposing about this very material aspect of the case. 24. In this case, it is important to note that A3 was absconding soon after the incident which happened on 24/03/2003 and Ext.P10 issued by the Doctor is prepared after the arrest of A3 on 12/04/2003. Ext.P10 issued by Assistant Crl.Appeal No.1407/13 -:15:- Surgeon, Community Health Centre, Poovar on 12/04/2003 reveals the following injuries: “ _(1)Sutured injury (4 sutures) at the region of the nail on right thumb. (2) Nail not seen, granulating tissues were present. The said injury was infected and it was having more than one week duration. (3) 1 cm x 0.5 cm healed abrasion on the parietal region of the scalp on the middle.”_ 25. PW11 though was examined to prove the scene mahazar, while being cross-examined, deposed that he had seen the 3[rd] accused at the place of occurrence and at the relevant time with injuries on his head, right hand thumb and there was profuse bleeding. PW11 was the brother of CW1. The Court below felt that there is no reason to disbelieve his version and came to the conclusion that the 3[rd] accused had sustained injuries in the said incident which is not explained by the prosecution. 26. Another reason relied upon by the Court to extend benefit of doubt to the accused is that prosecution failed to adduce clear-cut evidence to prove the exact place of occurrence. Court below found that though PW1, PW2 and other prosecution witnesses deposed that the place of occurrence was in front of the house of one Clara, the said house is not shown either in Crl.Appeal No.1407/13 -:16:- Ext.P12 scene mahazar or in Ext.P9 scene plan. Neither Clara nor any of the members of her house is cited as witnesses by the prosecution. Of course, lapse on the part of investigating agency to mark the place in a document does not affect the testimony of eyewitnesses if their version is believable. In fact, accused admitted the place and presence of witnesses even. Under such circumstances, the finding of the Court below regarding place of occurrence is an error, that is the result of improper appreciation of available evidence and technical approach. 27. One more aspect noted by the learned Judge was that though PWs 1, 3, 8, 11 and 15 deposed that there was head injury and bleeding from the head of the victim, Ext.P12 mahazar shows no trace of blood-stains. Also, no blood-stain was found in MO1 as per Ext.P11 FSL report issued by PW13. Same is the fate with Ext.P13 recovery mahazar. MOs 2 to 4 were not stained with blood. Even A3 also got injured. The attesting witnesses denied even the signature to the scene mahazar. On perusal of the records, we find that it is factually incorrect to say that there was no blood-stains in MO1. We could see that Ext.P11 issued by PW13 would show that blood-stains were there in MO1 though its Crl.Appeal No.1407/13 -:17:- origin could not be traced due to lack of sufficient quantity. It can also be seen that the injury was inflicted using MO1 kattadikkazha which is a strong wooden structure cylindrical in shape with solid core. The time of contact between the head of the victim and the said MO1 is minimal. It need not lead to profuse bleeding though caused bleeding. No question was put to the witness regarding quantum of bleeding by the defence. Medical evidence is that the death happened due to the internal effects of the said injury. We do not find any basis for the said conclusion of the trial Court. 28. Another finding that led to the conclusion of the Court below was that motive for the crime is not proved by the prosecution. Even according to the prosecution, the enmity is between A3 and PW1. No enmity existed between the accused and the deceased. As held by the trial Court, motive is not proved by the prosecution to the satisfaction of the Court. Though the learned Public Prosecutor argued that the motive is not a relevant factor to be considered when there are eyewitnesses to speak about the incident, motive becomes relevant in the present case when considered in the light of the evidence tendered by PW1 Crl.Appeal No.1407/13 -:18:- and PW2. 29. The star witness to the prosecution is PW2 who had seen the incident. She deposed that when she along with the deceased reached in front of the house of Clara, accused came to them and scolded the deceased and shouted “I will kill you” and then inflicted the fatal injury on the deceased. While considering the aforesaid evidence, motive becomes relevant. The first accused had no animosity against the deceased in which event, why should he say “ I will kill you” the moment he saw the deceased. Therefore, the evidence of PW2 to that extent cannot be believed. It is PW2 who goes and tells PW1 about the incident. When PW1 comes, the deceased had already been injured and thereafter the contention is that all of the accused were beating her. When none of the accused had any animosity against the deceased, why should the deceased be inflicted with any injury. It is in the said circumstances that the injury of third accused assumes importance. In the 313 statement of the accused, they have stated that there was a scuffle in which 3[rd] accused got injured. Of course they have a case that A1 and A2 were not in the picture itself and they have set up a defence of alibi. Before Crl.Appeal No.1407/13 -:19:- considering the defence of alibi, it has to be considered whether the prosecution could prove the case beyond reasonable doubt. When none of the accused had any motive to commit a crime against the deceased and when the 3[rd] accused is seen to have suffered injury in the very same incident, it is possible that there was a scuffle between two groups and in the process, A3 suffered an injury and the deceased also suffered an injury. When the injury on the 3[rd] accused has not been explained by the prosecution, which the court below had taken note of, and taking into account certain other circumstances, the Court below had acquitted the accused, we do not think that by exercising the appellate jurisdiction, we should interfere with the acquittal of the accused though on certain matters, our view is different from the view taken by the learned Sessions Judge. The prosecution is bound to explain the injuries on the accused. Of course the settled law is that minor injuries need not be explained. But the injuries noted on A3 is not considered to be minor by the learned Sessions Judge based on the materials made available. There is no reason why we should take a different view. That apart, when the motive to commit crime on deceased has not been proved Crl.Appeal No.1407/13 -:20:- and the genesis of the incident has not been properly explained by the prosecution, and when the scene of occurrence had not been properly explained, in the facts and circumstances of the case, we sustain the judgment of the Court below. Crl. Appeal is hence dismissed. **Sd/A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge