TMI Blog2003 (8) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 302 IPC. The co-accused namely Ummer son of Kochunni who stood convicted under Sections 323 and 324 read with 34 and sentenced to undergo RI for one year by the impugned judgment of the High Court has preferred the connected SLP which will be taken up for consideration separately. The case of the prosecution as presented to the trial court is that in an altercation that took place between Kunjumuhammed PW-3, Kochunni PW-4, Khadarkunju PW-5 on one side and Moosakutty A-2, Ummer A-3, Ali A-4, Kochunni A-5, Ashraf A-6 and Subair A-7 on the other, on 3.11.1991 at about 8.15 a.m. on the North-Eastern portion of Korathukudy House No.III/209 of Vengola Panchayat, the abovesaid accused persons assaulted Kochunni PW-4 and Kunjumuhammed PW-3. At that time the deceased Majeed came to the place of the incident and resisted the said accused from assaulting PWs.3 and 4 at which time Ummer A-3 beat Majeed with an iron rod MO-1 which blow was warded off by Majeed who caught hold of the iron rod and a scuffle ensued between Majeed and Ummer A-3. At this point of time, Kunjumohammed A-1 came to the scene with a fishing sword MO-2 and stabbed on the back of Majeed with the same. Majee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rters Hospital, Perumbavoor examined Kochunni, PWs. 3 and 4 and issued Exs. P-16 and P-20, the medical certificates. This witness also identified the handwriting of CW-28, Dr. T.K. Ibrahim who had issued the certificate Ex. P-22 and who was not available to be examined. After completing the investigation, accused were committed for trial for an offence punishable under Section 302 and other offences before the Sessions Court, Ernakulam which trial then stood transferred to the III Additional Sessions Court at North Perumbavoor. At the trial since the 7th accused Subair was found to be a minor below the age of 16, his case was separated from the rest of the accused and he was directed to appear before the Juvenile Court. Thus his case stood transferred to the Juvenile Court while the trial against A-1 to A-6 stood transferred ultimately to the III Additional Sessions Court, Ernakulam. The said learned Sessions Judge as per his judgment dated 29.10.1994 came to the conclusion that though the prosecution has established that the deceased Majeed died due to the injuries suffered by him, further came to the conclusion that the prosecution has failed to establish beyond all reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus the trial court came to the conclusion that there is a strong and genuine doubt in regard to veracity of the prosecution case and benefit of that doubt should enure to the advantage of the accused and it is based on that conclusion, it acquitted the accused persons of all the charges levelled against them. It is against the said judgment of acquittal that the State preferred an appeal to the High Court of Kerala at Ernakulam as stated above, and the High Court as per the impugned judgment on a total re-appreciation of the evidence on record disagreed with the trial court in regard to the involvement of 3 appellants herein and came to the conclusion that the prosecution has clearly established its case against these accused persons namely A-1 to A-3 therefore found appellants Kunjumohammed A-1 and Moosakutty A-2 guilty of offences punishable under section 302 and sentenced them to undergo RI for life. It also convicted A-1 to A-3 of offences punishable under sections 323 and 324 read with section 34 for having caused injuries to PW-2 hence convicted them to undergo RI for a period of 1 year since A-1 and A-2 were already convicted for offence under section 302 for li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution. It found that the prosecution case that the incident in question had occurred at about 8.15 a.m. on 3.11.1991 in the front lane on the North-Eastern portion of Korathukudy House NO.III/209 of Vengola Panchayat is highly doubtful and the defence version that the incident in question must have occurred around 4 or 5 a.m. on 3.11.1991 in a Kappapadam (Tapioca garden) is more probable. The High Court of course did not agree with this conclusion of the trial court and preferred to rely on the evidence of the alleged eye witnesses to accept the prosecution case as to the time and place of incident. Since this question goes to the very root of the prosecution case we would prefer to discuss this issue at this stage itself. From the judgment of the trial court, we notice that in regard to the time of incident, the trial court relied upon the evidence of PW-1 who lodged the complaint Ex. P-1. He in his examination in chief itself has stated that he signed Ex. P-1 on the midnight of 3.11.1991. This witness was treated as hostile and cross examined by the prosecution. If this was the sole piece of evidence on which the trial court relied upon to come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the death in question must have occurred before 6.30 a.m. on 3.11.1991 which actually fits into the other facts noticed by us hereinabove while discussing the time of death. We also notice from the evidence of PW-10 and others that when they touched the body of the deceased they found the body was cold and frozen, (may be a terminology used by the locals for the body having become stiff). Therefore, we think the trial court was justified in its finding that death had occurred much earlier to the time mentioned by the prosecution, and the High Court was in error in coming to a contra conclusion. Thus relying on (a) the statement of PW-1 that the complaint was signed on the midnight of 3.11.1991; (b) the FIR reaching the jurisdictional Magistrate more than 36 hours after the incident in question though the court is situated in the same town; (c) the evidence of the doctor as to the presence of rigor mortis on the body of the deceased indicating death must have occurred much earlier than 8.15 to 8.30 a.m. on 3.11.1991; (d) recording in the inquest report Ex. P-6 that the body of the deceased when examined was found to be cold and frozen; we find that the conclusions arrived a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 who when taken for the medical examination had told the doctor PW-14 when asked about the history of the case that the incident in question had taken place in a Kappapadam (Tapioca garden). If really the incident had taken place as suggested by the prosecution, we fail to understand how PW-2 could have thought of Tapioca garden even by inadvertence. The explanation given by this witness that he was either in an unconscious state or in a disoriented state has been belied by the certificate given by PW-14, the doctor, who in his certificate had in specific terms recorded that the deceased was conscious and was in no way disoriented . Thus the following factors noticed by the trial court i.e. (a) omission on the part of the prosecution to establish there were blood stains on the ground where the deceased's neck was cut either through the evidence of eye witnesses or through the inquest report; (b) presence of clay/mud on the feet of the deceased which is similar to the one found in Tapioca garden; (c) the statement made by PW-2 to the doctor PW-14 when he was examined that the incident in question took place at Kappapadam are in our view sufficient in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at that point of time was rejected by the trial court as a mere excuse which on facts and circumstances of the case, in our opinion, is a good and valid reason to reject the evidence of PW-3 who when it came to the crucial part of the attack, did not support the prosecution case. The High Court did not notice this aspect of the evidence of PW-3 but proceeded to accept his evidence by relying upon his examination in chief only. PW-4's evidence was rejected by the trial court because he was not able to remember how A-2 inflicted the injury on the deceased in the second place of the incident. It is seen as per prosecution case the deceased after he was dragged to the second place of incident, was placed in a supine position and A- 2 cut his neck with MO-2 causing the fatal injury. If really PW- 4 had witnessed this incident as observed by the trial court, we also think it would have been very difficult for him to have forgotten this part of the prosecution case. It is not his case that he did not witness this part of the incident but he stated before the court that he did not remember how the attack took place. In our opinion, the evidence of this witness is not worthy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of PW-7 was rejected by the Sessions Court holding that his version of the attack and dragging and attack on Majeed, on the property of the 3rd accused was entirely different from the version given by PWs. 2 and 4 to 7. The trial court had observed that his evidence is inconsistent, improbable and unbelievable. We have perused the evidence and are in agreement with the learned Sessions Judge and we think the High Court was wrong in accepting a part of his evidence inspite of noticing the discrepancy in his evidence regarding the dragging of Majeed. Thus, we find most of the reasons given by the High Court for rejecting the conclusions of the learned Sessions Judge are unacceptable. At this juncture, we would like to bear in mind the law laid down by this Court in regard to reappreciation of evidence by the High Court in appeal against acquittals. This Court in Dhanna etc. v. State of M.P. [1996 (10) SCC 79] had laid down that though 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. While doing so it ought to bear in mind : first, that there is a general presumption i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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