Thankappan and Daisy 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** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRA(V) NO. 40 OF 2019** **AGAINST THE JUDGMENT IN SC 198/2012 OF II ADDITIONAL DISTRICT** **COURT,TRIVANDRUM** ## **APPELLANTS:** **1 THANKAPPAN, AGED 71 YEARS S/O. MADHAVAN, FATHER OF DECEASED GILBERT, SHEEJABHAVAN, VIKAS NAGAR, VEMBANNOOR, ARUVIKKARA, THIRUVANANTHAPURAM DISTRICT. 2 ADDL. APPELLANT NO.2 SMT.DAISY AGED 64 YEARS W/O LATE. THANKAPPAN, SHEEJABHAVAN, VIKAS NAGAR, VEMBANNOOR, ARUVIKKARA, THIRUVANANTHAPURAM DISTRICT. IMPLEADED IN CRL.A(V) NO.40/2019 AS PER ORDER DATED 30/11/2021 IN CRL.MA NO.1/2021 IN CRL.A(V) NO.40/2019.** **BY ADVS. ANCHAL C.VIJAYAN P.D.DHARMARAJ V.C.SARATH** ## **RESPONDENTS:** - **1 STATE OF KERALA, THROUGH CIRCLE INSPECTOR OF POLICE, NEDUMANGADU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** **2 VINOD @ SANU S/O. MANOHARAN, MANOJBHAVAN, MULLANKUZHI, VEMBANNOOR, KADAMBANADU MURI, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 564.** - **3 SIVA PRASAD @ PRASAD S/O. VIKRAMAN NAIR, SANTHIBHAVAN VEED, (RENTED HOUSE), VEMBANOOR, KADAMBANAD MURI, ARUVIKKARA** Crl.A.(V)No.40/2019 2 **VILLAGE, PIN-695 564, FROM SUNITHABHAVAN, PLAVILAKUNNU, VILAPPILSALA, KARODE MURI, VILAPPIL VILLAGE, THIRUVANANTHAPURAM.** **4 SAJEEV S/O. MANIKANTAN, SOBHABHAVAN, AYANIKONAM, VIKAS NAGAR, VEMBANNOOR, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 564.** **BY ADV SRI.B.RADHAKRISHNA PILLAI** ## **OTHER PRESENT:** **SRI.ALEX.M.THOMBRA, SR.PP** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.(V)No.40/2019 3 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------Crl.Appeal No.40 of 2019 ------------------------------------------Dated, this the 3[rd] March, 2022** ## **JUDGMENT** **An instance of moral policing led to the death of a person, is the prosecution case. The three accused who stood trial for the offences under S.341 and 302 r/w S.34 IPC, were acquitted. The appeal is by the father of the deceased.** **2. None appeared for the appellant when the matter was called. A prayer for adjournment was made on behalf of the learned Counsel appearing for the appellant on the ground that he was not ready in the matter. We refused to grant an adjournment, since the matter was scheduled three months back to this specific date and it was incumbent upon the learned Counsel to get ready. We sent for the learned Counsel to read the evidence, but none turned up. Hence we heard the learned Government Pleader and the learned Counsel appearing for the respondent.** **3. Ext.P1 FIS was by the brother-in-law of the** Crl.A.(V)No.40/2019 4 **deceased. He was informed of his brother-in-law having been admitted to the Medical College Hospital, after sustaining a stab injury. Despite a surgery conducted, his brother-in-law succumbed. On enquiry, he was told that at around 1.30, his brother-in-law was accompanied by PW2 and PW3, when A1 and A2, along with another came with three girls. Gilbert, the deceased and PW2 and PW3 picked up a quarrel with the accused, and the girls were boarded off in a bus. Later, when the three were proceeding home, the accused waylaid them in two bikes and A1 took a beer bottle from the hip of A2, broke it and stabbed Gilbert twice.** **4. PW2 did not speak about the accused having brought the girls. His version was that three girls came to the spot, where he was sitting with Gilbert and PW3. Gilbert asked them to go back, at which time, they saw the accused consuming beer near a bunk shop. The accused were talking to some boys and Gilbert too talked to the accused. Later, the three of them proceeded in a bike, then they were waylaid and Gilbert was stabbed. According to PW2, there were three stabs delivered on the** Crl.A.(V)No.40/2019 5 **left side of the chest of the deceased. In cross examination, many omissions were marked in the prior statement to the Police and the Magistrate. To many of these omissions, there was no explanation and when offered it was that the Magistrate did not specifically ask about the same. The witness though admitted to have told the police about having seen the three accused consuming liquor; the Investigating Officer, PW18 proved it as an omission. It was not stated before the Magistrate also. The quarrel between Gilbert and the three accused was also not stated before the Magistrate. PW2 also had not spoken to the Magistrate of A1 having threatened that, PW2 would be the next. Gilbert was taken from the scene of occurrence in a bike, then in an Autorickshaw and later, in a Car to the Medical College Hospital. The Doctor on querying about the history, PW2 said that he told him of the stab. However, the history recorded was otherwise, as we will presently see. PW2 failed to identify the broken piece of the recovered bottle, he was confronted with, in the box, as the bottle which was used to stab the victim. According to him,** Crl.A.(V)No.40/2019 6 **there was blood on the neck of the said bottle.** **5. PW3, another eye witness and friend of the deceased, spoke of the incident in a different manner. According to him, when the three of them were sitting on the steps leading to the Dam, they saw three girls talking to the accused, who then moved to the bunk shop. Then, Gilbert, PW2 and PW3 went down and warned the girls from remaining in the spot. The girls then left the place in a Bus and they entered the bunk shop of an old lady, where the accused were consuming alcohol. The accused picked up a quarrel with them, for Gilbert having sent off the girls. There was an altercation when the old lady asked them to leave. PW3 also said that when they were waylaid, A1 again questioned them about the girls being send off. He spoke only of A1 having stabbed and did not say specifically as to the number of times. In chief examination, he denied that he told anybody about Gilbert having slipped to fall on a broken beer bottle. Ext.D2 contradiction was marked from his prior statement by which he said that he heard PW2 telling the Doctor that Gilbert slipped and fell, thus sustaining an injury. He** Crl.A.(V)No.40/2019 7 **identified MO6 glass piece from the bottle, which was said to have been used in the stabbing. He also spoke of the glass piece having revealed blood stains, when the same was recovered.** **6. PW4 turned hostile. PW5 is one of the girls who came to the Dam with CW6 and CW7. She spoke of having gone to the Dam, talked to A1. Gilbert, along with PW2 and PW3 scolded them for talking to A1. Gilbert called them to come to him, but the girls did not comply. PW6 was proffered as the lady who carried on the bunk shop in the scene of occurrence. She turned hostile. PW7 is the sales man in the Beverages Corporation Outlet at Nedumangad. He said that A3 had purchased 6 bottles of "Sandpiper" beer from him on 04.11.2008. He also identified A3 as the person shown to him in the police station and MO6, being the piece of the bottle of beer having brand name, "Sandpiper". PW8 prepared A6 Inquest Report and PW9, the witness to the scene mahazar, turned hostile. PW10 is the owner of the bike which was used by PW2. She was sent a notice as per Ext.P6 to which she replied by Ext.P6(a). She also affirmed that on the day** Crl.A.(V)No.40/2019 8 **in which the incident occurred, PW2 was using the bike. PW11, the brother of A1, turned hostile and refused to toe the prosecution line that he witnessed the recovery of a bike bearing registration No.KL-21-4170, which was said to be the bike driven by A1. PW12 prepared the scene plan.** **7. PW13 is the Doctor who conducted Postmortem examination and PW14, a Police Constable, witnessed Ext.P10 mahazar, by which MO1 jeans worn by the deceased was seized. He also witnessed Ext.P11 mahazar, by which A1's bike was seized and also Ext.P12 by which A3's bike was seized. PW15, the Sub Inspector of Police witnessed Ext.P13 mahazar, seizing the bike in which the deceased was travelling and Ext.P14 mahazar by which the glass piece (MO7) recovered by the Doctor from the body of the deceased, was seized. PW16 registered Ext.P1(a) FIR on the basis of Ext.P1 FIS. PW18 is the I.O and PW20 submitted the final report before Court.** **8. The medical evidence is supplied by PW13, PW17 and PW19. PW13 is the Doctor who conducted the postmortem examination. The injuries noted were eleven** Crl.A.(V)No.40/2019 9 **in number. The death was opined to be due to the penetrating injury sustained which was indicated as injury No.2. This was the only injury sustained by the deceased which is the stab injury as spoken of by the prosecution witnesses. The Doctor's evidence establishes the fact that the death was due to the incised wound on the left side of front of chest which entered the left chest cavity through the 5[th] , 6[th] and 7[th] costal cartilages and corresponding inter costal muscles, terminating on the front bone of the left and right ventricles of the heart, just above the apex. Though the injury is proved, death by homicide is doubtful for reason of the history of the injury spoken of by the bystanders of the victim being that of an accidental fall.** **9. PW19 is the Doctor who examined the patient and issued Ext.P15 wound certificate. He spoke of the alleged history of injury having been recorded as caused due to a fall on a beer bottle near the Aruvikkara Dam as spoken of by Ratheesh, who is PW2. PW17 is the Doctor who was first examined, which testimony was objected to and is not significant since later PW19, who issued the wound** Crl.A.(V)No.40/2019 10 **certificate, was examined.** **10. The first history spoken of by the person who accompanied the victim to the Hospital and who was also examined as an eye witness, is of an accidental fall. The other eye-witness, DW3 in his prior statement said that he heard PW1 tell the Doctor that the injured accidentally fell on a beer bottle. PW2 and PW3 had different versions about the quarrel and the persons involved at the site of the Dam. While PW2 said that there were three stab injuries, PW2 did not specify the number. The medical evidence speaks of only one injury. MO6 which was recovered from the scene of occurrence, according to PW2, was not the one recovered from the scene of occurrence and used by A1 to stab the deceased. PW3, however, identified MO6 as the broken bottle which was used by A1.** **11. The testimony of PW7, according to us, is very artificial. It is very difficult to believe that the salesman in a Beverages Corporation Outlet would remember a customer or the brand he purchased. Especially when, PW7 does not speak of any prior acquaintance with A3. He** Crl.A.(V)No.40/2019 11 **also says that he was shown A3 at the Police Station. More artificial is the identification of MO6, as the piece of beer bottle with brand name, "Sandpiper", purchased by A3. We find no reason to believe the testimony of the said witness. PW2 and PW3 spoke of the genesis of the quarrel differently and PW5, one of the girls who was in the Dam site, had a totally different version. At best, what stands established by the evidence of PW5, is that there were some words exchanged between the accused and the other group, comprised of PW2, PW3 and the deceased. PW2 and PW3 though claimed to be eye witness, cannot be believed for reason of the inconsistencies in their testimonies, the omissions and contradictions in their prior statements, proved through the I.O, and the history spoken of to the Doctor, who first attended to the victim. A reasonable doubt lingers in our mind and the evidence led does not commend us to hold that the homicide stands proved. Neither is the homicide proved nor the culpability of the accused. The version of PWs 2 and 3 that the beer bottles were taken by A1 from the hip of A2, requires further elaboration.** Crl.A.(V)No.40/2019 12 **It is not stated either by any of the eye witness as to how the beer bottle was kept at the hip of A2 nor were they questioned on this aspect by the police.** **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** Crl.A.(V)No.40/2019 13 **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**_ **) 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”.** **It has to be stated that we do not find any reason to interfere with the acquittal ordered by the learned Sessions Court. We are of the opinion that there is no other reasonable view occurring to our minds after having read the judgment impugned and the evidence led in the case. We say this because going by the cited decision, even if such an alternative reasonable view exists, that does not enable the reversal of an order of acquittal, especially when we find that the findings of the trial court cannot be categorized as perverse or unreasonable. We find no reason to interfere with the order of the trial court and we reject the appeal.** ## **Sd/K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **lgk**