CRL.A/962/2003 of GEORGE Vs STATE OF KERALA on 12 December 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MRS. JUSTICE K.HEMA

MONDAY, THE 12TH DECEMBER 2005 / 21ST AGRAHAYANA 1927

CRL.A.No. 962 of 2003(C)

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SC.93/1996 of ADDL. SESSIONS COURT (ADHOC), KALPETTA

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APPELLANT:

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GEORGE @ KUTTAPPAYI,

CONVICT NO.8635,

CENTRAL PRISON, KANNUR.

BY ADV. ADV.PRAMOD J.DEV(STATE BRIEF)

RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY A

C.I. OF POLICE, MANANTHAVADY, WYNAD

BY PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD

ON 12.12.2005, THE COURT ON 12/12/2005 DELIVERED THE

FOLLOWING:

K.HEMA, J.

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CRL.A.NO.962 of 2003

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Dated this the 12[th] day of December, 2005 JUDGMENT

The appellant was charge sheeted for offences under Sections302 and 506 of the Indian Penal Code (`IPC', for short). After trial,he was convicted and sentenced to undergo 10 years rigorousimprisonment under Section 304(I) of IPC by the Additional SessionsJudge. The said conviction and sentence are challenged in thisappeal.

2. According to prosecution, the incident occurred on9.5.1991 at about 1.30 p.m. from the mud road lying about 65meters on the south-eastern side of the house of PW6. The accusedstabbed the deceased Thommi on the head and when he fell down hestabbed him in quick succession on the stomach and chest. PW1tried to intervene while he turned to him. PW1 ran towards theeastern side through the road. The accused also left the scene. PW1and others went to the deceased Thommi and tied the wound with atowel. He was taken to the hospital and on his way he wasdeclared dead at the hospital. The incident occurred since thedeceased Thommi tried to intervene in a quarrel.

3. PWs 1 to 13 were examined, Exhibits P1 to P10 and MOs 1 to13 series were marked. The lower court on an analysis of theevidence found the accused not guilty of offence under Section 302IPC, but he was found guilty of offence under Section 304(I) IPC. Thecourt below also found that there is no evidence to support thecharge under Section 506(II) IPC that the said charge does not standproved. According to the court below, the accused committed theoffence without pre-meditation. He was a hot-tempered man and he

was provoked by the interference made by the deceased, when theaccused was having some quarrel with his own brother and relativeand hence he committed the offence at a stage when he lost hissense. It was also found that “the possibility of violent attitude beingaroused because of the mental illness suffered by him cannot betotally ruled out”.

4. To prove the prosecution case the prosecution examinedPWs 1 to 6 who are the alleged eye witnesses. PWs 1 and 2 arebrothers who are independent witnesses to the occurrence. PW6 isthe brother of the deceased Thommi with whom there was analleged altercation immediately prior to the incident. PW6 turnedhostile to the prosecution. He did not state anything regarding theincident. He only said that he saw the deceased Thommi fallingdown. His evidence is of no use to the prosecution to prove theactual incident.

5. However, PWs 1 and 2 stood by the prosecution. Both ofthem gave evidence that the incident happened when they wereworking in the property of the accused and that there was analtercation between the accused and PW6 at about 12.30 p.m. andboth of them were taken to their respective houses by the personswho were working in the property. Thereafter they heard a cry, whenPW1 and PW2 were taking food after after about 1 p.m. and theyrushed to the scene. They saw the accused standing by the side ofthe road near the house of PW6, carrying a knife in his hand. Thedeceased Thommi went to the accused and told him to go to the houseand that the issue can be settled etc.

6. But the accused immediately stabbed the deceasedThommi on his head. The deceased Thommi fell down while hestabbed him in quick succession with the knife. PW1 tried to

intervene. But the accused turned to him while he ran away. Laterthe accused left the place and the witnesses came to the scene anddressed the injury of the deceased Thommi. He was taken to thehospital, from where he wasdeclared dead.

7. PWs 1 and 2 gave evidence corroborating each other in allmaterial particulars. hey are independent witnesses, who wereworking in the property of the accused. But a suggestion was madeto PW1 that PW1, 2 and others attempted to trespass into theproperty of the accused and when his mother attempted to preventthe same she was assaulted and the accused was also stabbed byPW1, when he tried to run away. The same suggestion was put toPW2 that PW2 and others attempted to assault the accused and hismother when the incident occurred. These suggestions were deniedby the witnesses. But the evidence in this case will disclose that theaccused had some injuries on his body. He was admittedly having aninjury of 4 c.m. length on his head, as disclosed from the evidenceof PW13, investigating officer. PW13 the also admitted that theaccused had other injury also on his body, on the shoulder. In theremand report, it is seen recorded that when the accused wasproduced on 10.5.1991, there was an injury on the head and that hehad also sustained injuries on various parts of the body. Thelearned Magistrate directed the Superintendent of Jail to givenecessary medical aid to the accused. PW13 deposed that theaccused was examined by a doctor in Mananthavady GovernmentHospital.

8. It is clear from what is discussed above that the accused hadinjuries on several parts of the body, including his head. He was alsoexamined by the doctor. It is not understood how he sustainedinjuries. Evidence is not forthcoming on this aspect. Prosecution has

not explained how the accused sustained so many injuries. To aquestion whether the accused had a stab injury on his head, PW13deposed that there was an injury of 4 c.m. length above the right earon his head. He also stated that the accused had some aberrationson the left shoulder. His definite case is that he did not see any injuryon the body. But this is not consistent with what has beenrecorded by the learned Magistrate in the remand report. There isabsolutely no reason to discard the endorsement made by the learnedMagistrate in the remand report. PW6 deposed that he did not think itnecessary to collect the wound certificate relating to the injuriessustained by the accused and produce the same.

9. There is absolutely no evidence to show the nature ofinjuries sustained by the accused and as to how the accused sustainedinjuries. The presence of injuries on the body of the accused, in thelight of the suggestions made by PWs 1 and 2 in cross-examination,has some significance. This cannot be ignored by the court whileevaluating the evidentiary value of PWs 1 and 2. PW1 suppressedas to how the injury was sustained by the accused, though hisevidence reveals that the accused had sustained injury. PW2also tried to suppress the injury which was sustained by the accused.He pleaded ignorance of any injury having sustained on the accused. Inthe light of the endorsement in the remand report and theadmissions made by PW13 investigating officer, regarding thepresence of some injuries on the body of the accused and alsoexamination made on him by the doctor, it is clear that PWs 1 and 2were suppressing the truth regarding the sustaining of injury by theaccused.

10. PW1 and PW2 ought to have explained how the accusedsustained injuries. In the light of the suppression made by PW1 and PW2, I find it difficult to believe their evidence. The prosecutionhas also not produced the wound certificate and explained the injuriessustained by the accused. The accused had given a statement atthe time of questioning under Section 313 Cr.P.C. that he wasassaulted at the scene of occurrence and he had also gone to thehospital. It is well settled that when the eye witnesses aresuppressing the manner in which the accused sustained injuries, theirevidence cannot be accepted for entering a conviction. It is not safeto act upon such version. Without knowing the manner in whichthe incident actually occurred, especially when the accused had acase of private defence and there is also evidence to show that hehad sustained substantial injuries, the evidence of the victim or eyewitness cannot be accepted to enter a conviction against theaccused.

11. The lower court has not considered these aspects in the rightperspective. The lower court has not dealt with the presence ofinjuries on the accused and the impact of the non explanation of suchinjuries by PWs 1 and 2. The mere recovery of MO1 at the instance ofthe accused will not be sufficient to hold the accused guilty of offenceunder Section 304(I) IPC. The prosecution has not proved beyondreasonable doubt that the accused has committed offence in themanner alleged by the prosecution and the accused is entitled tobenefit of doubt.

12. It is also fairly pointed out by the learned PublicProsecutor that a counter case was also registered based on thestatement given by the accused. But the case was referred by thepolice. But none of the records are produced by the prosecution inthis case. It is the duty of the prosecution to place all the relevantmaterials before court so that the court can decide as to how and in

what manner the incident happened. In the absence of productionof relevant materials before court, an adverse inference can be drawnagainst the prosecution.

13. The conviction and sentence passed against appellantare set aside and he is acquitted of offences under Sections 304(I) and506(II) IPC, extending the benefit of doubt. He is set at libertyforthwith. The Registry shall issue release memo to the concerned jailauthority forthwith.

This appeal is allowed.

vgs.

K.HEMA, JUDGE

K.HEMA, J. ------------------------------CRL.A.NO.962 OF 2003 ------------------------------

JUDGMENT

12.12.2005