State of Kerala v. Natesan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** ## **CRL.A.No. 120 of 2013** **AGAINST THE JUDGMENT IN SC 318/2003 of ADDITIONAL DISTRICT & SESSIONS JUDGE, N.PARAVUR DATED 14-11-2012** ## **APPELLANTS/ACCUSED NOS 1 TO 9:** **1 NATESAN AGED 40 YEARS S/O.NARAYANAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA.** - **2 GIREESH AGED 29 YEARS S/O.SUBRAMANIAN,MATTUMMAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA.** - **3 ABHILASH AGED 19 YEARS S/O.SATHEESHAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** **4 RAJU AGED 36 YEARS S/O.VASU,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** Crl.Appeal No.120/13 -:2:- - **5 SREEJAN AGED 23 YEARS S/O.PURUSHAN,PALLIPARAMBU VEEDU,CHIRACKAKAM KARA, VARAPUZHA** - **6 ANEESH AGED 20 YEARS S/O.SADANANDAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** - **7 SANEESH AGED 19 YEARS S/O.SADANANDAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** - **8 PUSHKARAN AGED 38 YEARS S/O.RAGHAVAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** **9 RATHEESH AGED 19 YEARS S/O.RAGHUVARAN,AANJILICKAL VEEDU, CHIRACKAKAM KARA, VARAPUZHA** **BY ADVS. SRI. B. RAMAN PILLAI (SR.) SRI. ANIL K.MOHAMMED SRI. MANU TOM SRI. M.K. SUMODH SRI. R. ANIL SRI. SUJESH MENON V.B. SRI. T. ANIL KUMAR SRI. THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2018, THE COURT ON 21/8/2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.120/13 -:3:- ## **J U D G E M E N T** ## _**Shaffique, J.**_ This appeal had been filed by accused 1 to 9 in SC No.318/2003 of the Additional District and Sessions Judge, North Paravur, by which they challenged the judgment finding them guilty for the offence of murder and other related offences and sentenced to undergo imprisonment for life and to pay fine of `2,000/- each. Separate sentence had been imposed for offences under Sections 449, 143 and 148 as well. Altogether, there were 11 accused in the case and accused 10 and 11 died during trial. 2. The prosecution case is that on account of enmity towards Babu @ Babuji (the deceased), the accused with the common object and intention to cause death of the deceased, formed themselves into an unlawful assembly, caused riot with deadly weapons and trespassed into the house of deceased. Though the deceased ran away, he was chased, caught, his both hands were tied using a towel, he was brought to the Panchayat road and he was inflicted with serious injuries using deadly weapons. Still, Babu ran away. He was again chased and dragged out from the house where he tried to escape and he was again inflicted with severe injuries using deadly weapons. When he Crl.Appeal No.120/13 -:4:- was about to die, Babu was dragged towards the canal bank on the southern side of Marottichodu-Anjilikkal Panchayat road. The police after investigation filed final report implicating the accused under Sections 143, 147, 148, 120(b), 449 and 302 I.P.C. 3. Before the trial Court, prosecution examined PWs 1 to PW28 and marked Exts.P1 to P30. MO1 to MO21 were the material objects that were produced. Exts.D1 to D4 were the contradictions which were brought out by the defence. After completing the procedural formalities, all the accused were convicted as stated above. There were several eye witnesses to the incident and except for PW2 and PW3, all others turned hostile. The learned counsel for the appellants submits that none of the witnesses had identified the accused and there was no eye witness to the incident and as the so called eye witnesses had turned hostile, Court below had convicted the accused only on surmises and inferences drawn out of facts, which were not proved and purely based on the assumptions arrived at during investigation. 4. The Court below had considered this case based on certain circumstances which according to the Court below stands -:5:- Crl.Appeal No.120/13 proved. 5. Before the Sessions Court, following were the circumstances which were relied upon by the prosecution to substantiate its version:- _1. Deceased Babu sustained serious injuries and died on 23.10.2000 in between 5 am and 6.15 am._ _2. From the evidence of PW3 Deepa it can be inferred that accused inflicted injuries on the person of deceased Babu using dangerous weapons._ _3. Immediately after the incident, ie in between 6 am and 6.30 a.m PW12 Rajesh and PW14 Letha saw the accused with dangerous weapons._ _4. From the evidence of PW12 Rajesh and PW14 Soman it can be seen that accused were made sufficient preparation to kill deceased Babu from the day before the incident onwards._ _5. From the evidence of PW2 the motive, ie. enmity between accused NO.1 Natesan and deceased Babu can be seen._ _6. All the accused were absconding after the incident._ _7. All the accused were arrested from platform No.2 of Aluva Railway Station on 4/10/2000._ _8. Recovery of M.O.1 to M.O.8 on the basis of Ext.P14(a) and P15(a) disclosure statements made by accused No.5 Sreejan and accused No.9 Ratheesh respectively._ Crl.Appeal No.120/13 ## -:6:- _9. Presence of human blood on item No.1 (MO.1) and item No.2 (stick swords) mentioned in Ext.P29 chemical analysis report and presence of human blood in item No.10 and 11 bamboo sticks mentioned in Ext.P29 chemical analysis report and presence of human blood in item No.16 to item No.22 mentioned in Ext.P29 chemical analysis report”._ 6. There is no dispute about the fact that Babu died on account of the injury sustained by him as evident from the deposition of PW22, the Doctor who conducted postmortem and Ext.P20 postmortem certificate. He had suffered 62 ante-mortem injuries and according to the Doctor, the cause of death is due to the combined effect of multiple injuries. There is no doubt about the fact that there are substantial incised wounds in the body of the deceased and the attempt of the assailants was to bleed him to death. 7. Now coming to the evidence adduced on the side of the prosecution, PW1 is the de-facto complainant who is the elder brother of Babu. He gave the FIS (Ext.P1) on 23/10/2000 at 8.30 am. He was informed by his brother-in-law that another person had telephoned him and informed about the death of Babu. PW1 immediately reached the residential house of Babu. He found his wife and daughter crying and people were gathered there. It was Crl.Appeal No.120/13 -:7:- understood that the body of Babu was lying on the southern side of Panchayat road which is passing through the northern side of Babu's house. He saw Babu lying there with multiple injuries. His enquiry revealed that a group of people had come at about 5 am on the said day and trespassed into the house of Babu. Babu ran away, but they chased him and inflicted the injuries. Apparently, PW1 had not seen the incident. Though the prosecution examined PW2 to PW11, all of them turned hostile to the prosecution. None of them deposed that they had seen Babu being inflicted with injuries by any of the assailants. The Court below however observed that though there were no eye witnesses who supported the prosecution version, evidence of PW2 and PW3, wife and daughter of deceased Babu, would indicate that a group of persons had come to their house in the early hours of the day and enquired about Babu. Immediately, Babu left the place and thereafter they heard Babu crying near the house of PW4. Court below further observed that from the evidence of PW4 to PW6, it could be discerned that a commotion had taken place at about 6 am near their house and in the said commotion, Babu sustained injuries and he succumbed to the Crl.Appeal No.120/13 -:8:- injuries. 8. PW12 has given evidence stating that, on 22/10/2000 at about 9 p.m, some of the accused along with certain other persons went to the house of PW12 and enquired whether Babu was present in his house. At that time, they had stick sword, chopper, iron pipe, bamboo stick etc., in their hands. Babu was not in the house and therefore the group searched him nearby the bushy area. Babu died on 23/10/2000. On the said day, at about 6 am, while he was going to market for purchasing fish, he found Natesan (accused No.1) and the other accused coming towards west. He saw a stick sword in the hand of Natesan and Gireesh (accused No.2). Those swords were having wooden handle. He saw blood stains in the sword. Raju (accused No.4) and Abhilash (accused No.3) were having choppers in their hand. He found iron pipes in the hands of Saneesh (accused No.7) and Sreejan (accused No.5). Bamboo sticks and wooden sticks were in the hands of others as well. He feared that something had happened. He went back to his house and at 8 am it was understood that Babu died. He went to the place of incident and he saw Babu lying in a pool of blood. He heard that Babu was Crl.Appeal No.120/13 -:9:- killed by the accused. During cross examination, PW2 stated that the arrival of the accused with weapons on the day before the incident in his house was not disclosed to anybody else. He had also not filed any complaint before the police regarding the said incident. 9. PW13 is the first wife of Babu. She is residing near the house of Babu. She deposed that, on the date of incident, between 6 am and 6.30 am, she found 11 persons coming towards the western side of her house. She further deposed that Natesan had a stick sword and Sreejan had a chopper. All the accused had weapons with them. When Sreejan saw her, he said that Babu is killed and she is asked to prepare funeral pyre. 10. With reference to the recovery of material objects, MO1 to MO5 were recovered on the basis of Ext.P14(a) disclosure statement given by fifth accused and MO6 to MO8 on the basis of Ext.P15(a) disclosure statement given by 9[th] accused. Though the material objects were recovered in the presence of witnesses and they have signed the seizure mahazar Exts.P14 and P15, they deposed that the signatures were put in the police station itself. The Court below found that though they are not admissible Crl.Appeal No.120/13 -:10:- u/s 27 of the Evidence Act, the same can be considered as a conduct of the accused u/s 8. Yet another important factor is Ext.P29 chemical analysis report. Human blood was detected in MO1 sword. 11. There is no dispute about the fact that the victim died on account of the injury sustained to him. Ext.P20 is the postmortem certificate. The autopsy was conducted by PW22. It could be sen that the victim suffered 62 injuries on his limbs. Apparently, deadly weapons were used for inflicting the injuries. PW22 deposed that majority of the wounds are incised wounds. The victim also had compound fracture and other fracture injuries. PW22's testimony would show that on account of the muscle deep injuries and bone deep injuries, there will be profuse bleeding which itself is enough to cause death. There is no doubt about the fact that the weapons which have been used were deadly weapons and 62 injuries were caused which in the ordinary course of nature is sufficient to cause death. Therefore, it is a case of culpable homicide amounting to murder and does not come within any of the exceptions to S.300. Then the question is who had committed the crime. As already stated, Crl.Appeal No.120/13 -:11:- there is no direct evidence other than the circumstances relied upon by the prosecution. The Court below had in fact relied upon the testimony of PW12 and PW13. PW12 in his evidence had only seen the accused with chopper, iron pipes, bamboo sticks and wooden sticks. He had also deposed that he had seen blood stains in the sword held by Natesan and Gireesh. He also deposed that there was a quarrel between Babu and Natesan on account of which Babu was killed. But during cross examination, PW12 deposed that he had not mentioned to PW1 about the incident on 22/10/2000 and the fact that he saw the accused at 6 am on 23/10/2000. He further deposed that he had not stated that to anybody. But, during cross examination the fact that Natesan and Gireesh were having swords with them and that he saw the other accused with weapons and that he saw that the weapons had blood was mentioned to the police and he does not know the reason why it was not stated in the 161 statement. This had been pointed out by learned counsel for appellant as an omission which had resulted in a contradiction. 12. Yet another crucial witness to the case is PW13 Letha. She deposed that between 6 and 6.30 am on 23/10/2000, she Crl.Appeal No.120/13 -:12:- saw Sreejan, Natesan, Abhilash, Ratheesh, Peethambaran, Gireesh, Abhi (Abhilash), Pushkaran and Saneesh walking towards the western side. They had with them swords, chopper, iron rod, bamboo sticks etc. She further deposed that when the 5[th] accused saw her, he said that Babu is killed and prepare the funeral pyre. They thereafter proceeded to the rear side of Raju's house and dumped the weapons in a pit in the paddy field. She also deposed that she found blood dropping from the sword. She also deposed that she saw the accused at the place which is at a distance of 70 metres from where Babu was found dead. She had also identified the accused. During cross examination, she deposed that she was residing with Babu when she completed 18 years of age and she has two children born in the relationship. The eldest daughter is aged 28 years and the younger one is aged 26. During cross examination, she deposed that she did not disclose the fact that she saw certain people with weapons on the date of incident as nobody asked her regarding the said aspect. She gave a statement to the police that she saw 11 persons on the date of incident between 6 am and 6.30 am and she does not know whether the police had recorded the same. Ext.D3 is a Crl.Appeal No.120/13 -:13:- contradiction marked . The fact that she saw the accused digging a pit in the paddy field and putting the weapons inside the pit was pointed out as an omission in the statement. Similarly, that she had seen the tip of the sword with blood falling drop by drop was also stated to be an omission. Suggestion of the defence was that she had not seen any of the accused on 23/10/2010. The argument of the counsel for defence is that in the material aspects of PW12 seeing the accused with weapons has not been mentioned to any person and the police have wrongly recorded the same. Further, an attempt had been made to improve the prosecution case by stating that PW12 has seen the sword with blood stains. With reference to the evidence of PW13 also, defence argued that she is an interested witness as she was living with Babu since the age of 18 and she had two children. That apart, most of her evidence are omissions especially her statement that she had seen all the accused, that they had weapons with them and she saw the weapons dipping with blood. 13. On the other hand, learned Public Prosecutor argued that the evidence of PW12 and PW13 clearly establishes the presence of the accused in or near the place where Babu was Crl.Appeal No.120/13 -:14:- found dead. The accused were armed with deadly weapons, sticks etc. Two of the witnesses saw blood stains in the sword. That apart, the swords were recovered based on the statement made by the accused. 14. As far as the recovery of weapons are concerned, the confession statement is made only by two of the accused. The chemical analyst's report Ext.P29 would show that in item nos.1, 2, 10, 11 and 16 to 22, there is presence of human blood. Item Nos.1 and 2 are the swords alleged to have been used in the incident. Item Nos.10 and 11 are the bamboo sticks which were seized by the police from the place of incident as per Ext.P13 inquest report. The recovery of the weapons has been proved on the basis of disclosure statement given by 5[th] accused as Ext.P14(a). MO1 to MO5 were the weapons recovered. MO6 to MO8 were recovered based on the disclosure statement given by 9[th] accused, Ext.P15(a) is the said statement. Ext.P14 is the recovery mahazar with reference to MO1 to MO5 and Ext.P15 with reference to recovery mahazar with reference to MO6 to MO8. Exts.P16 and P17 are the witnesses who stated that they have put their signature while they were in the police station. But they Crl.Appeal No.120/13 -:15:- admitted their signatures in Exts.P14 and P15. Court below however placed reliance upon the evidence of PW28 Circle Inspector and found that the recovery was made on the basis of the disclosure statement. But the disclosure statement does not contain the authorship of concealment which cannot be inferred from the same and therefore they are not admissible in evidence u/s 27. But at the same time, the recovery of weapons effected on the basis of the disclosure statements can be considered as a conduct of the accused u/s 8 of the Evidence Act. 15. Learned counsel for the appellant have also relied upon the following judgments:- (i) _**Surinder Singh v. State of Punjab**_ [1989 SCC (Cri) 649] In this case, the Apex Court held that if a witness had seen the attack on the victim, it would be natural to expect him to go and inform the parents and relations of the victim about the occurrence and also the police authorities. If he does not do so, his story has to be considered with suspicion. That apart it is held that if the only evidence that remains is the recovery of blood stained knife from the appellant's house, and it is not shown that Crl.Appeal No.120/13 -:16:- the blood stains of the knife were of the same group as the blood of the victim, it raises doubts about the prosecution case and a conviction cannot be based on such material. (ii) In _**Bhupan v. State of MP**_ [(2002) 2 SCC 556], the Apex Court held that the mere fact of the prosecution having recovered a sword at the instance of the accused by itself cannot be a basis for a conviction u/s 302 I.P.C. in the background of the fact that all other evidence produced by the prosecution are disbelieved by the Court. (iii) In _**Deva v. State of Rajasthan**_ (AIR 1999 SC 214), it was held that merely because of the alleged recovery of knife at the instance of the accused, the guilt cannot be established beyond reasonable doubt. (iv) In _**Varkey Joseph v. State of Kerala**_ (1993 Crl.Law Journal 2010), the Apex Court was considering the implication of putting leading questions on material part of evidence which a witness intends to give against the accused. Paragraph 11 is relevant, which reads as under:- _“11. Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor_ Crl.Appeal No.120/13 -:17:- _(plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answer to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the Court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give, his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the_ Crl.Appeal No.120/13 -:18:- _prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner to which the witness by answer merely "yes" or "no" but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and,obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is not a curable irregularity.”_ 16. From the materials placed on record, it could be seen that PWs 12 and 13 are the crucial witnesses to the prosecution. Though the Court below had placed reliance on the evidence of PW2 and 3 to a certain extent, we do not think that such materials were sufficient to plead the same as a circumstance to implicate the accused. The testimony of PW12 and PW13 would indicate that the Prosecutor had put several leading questions in chief examination and that too with reference to material parts of Crl.Appeal No.120/13 -:19:- the evidence and as held by the Apex Court in _**Varkey Joseph's case**_ (supra), it is illegal and unfair to the accused offending his right to fair tongue and it is not a curable irregularity. That apart, their evidence does not instill confidence. PW12 has stated that after seeing the dead body, he had gone home and did not give any statement to the police until he was summoned. PW13 is admittedly an interested witness. Most of the witnesses who was supposed to prove the prosecution case and the circumstances leading to the crime had turned hostile. Even the so called eye witnesses turned hostile. Under such circumstances, it is not safe to believe the version of PW12 and PW13 in order to convict the accused. 17. What remains is the recovery of the material objects. The Court below itself has found that the recovery is not made adopting the procedure u/s 27 of the Evidence Act. That apart, the witnesses had stated that they had signed the mahazar in the police station and they have not seen the weapons being recovered from the place where it is allegedly taken. 18. S.8 of the Evidence Act reads as under:- _“8. Motive, preparation and previous or subsequent_ Crl.Appeal No.120/13 -:20:- _conduct.—Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact._ _The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto._ _Explanation 1.—The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.—When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant”_ . ## 19. In _**Prakash Chand v. State (Delhi Admn.)**_ (AIR 1979 SC 400), the Apex Court held that where the accused led the police and pointed out the place where stolen articles or weapons, which might have been used in the commission of the offence, and they are found hidden, the conduct of the accused is admissible u/s 8 irrespective of the fact whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of S.27 of the Evidence Act. Crl.Appeal No.120/13 -:21:- Here, in this case, other than the evidence of the investigating officer PW28, there is no independent evidence to prove that the weapons were recovered from the place shown by the accused. The police was in fact led by the accused. But the independent witness does not support the said fact. Hence, it may not be possible for the Court to treat the same as a relevant fact coming u/s 8 of Evidence act. 20. On a consideration of the entire factual circumstances involved in the matter, when most of the witnesses have turned hostile and the case completely rests on circumstantial evidence, and the probable inferences that could be drawn from the proved facts, we are of the view that the prosecution has not established the case beyond reasonable doubt. Under such circumstances, the accused are entitled for the benefit of doubt and are liable to be acquitted. 21. Accordingly, the appeal is allowed. We set aside the judgment of the trial Court and the accused are acquitted of the charges levelled against them. Crl.Appeal No.120/13 -:22:- We are told that all the accused had been released on bail. Their bail bond shall stand cancelled. **Sd/A.M.SHAFFIQUE Judge Sd/P.SOMARAJAN Judge** Rp //True Copy// PS to Judge