Partly allowed

State of Kerala v. Rasheed

Kerala HC19 Sept 2012CRL.A/760/2001

Case brief

AI extract

What is this about?

In an appeal against acquittal for attempted murder, the High Court held that the trial court erred in disbelieving the injured and witnesses due to non-examination of others. The Single Judge convicted the first accused of Section 307 IPC based on clear medical and witness evidence but acquitted the others, upholding the safe verdict of acquittal for co-accused.

What did the court decide?

Appellant convicted of Section 307 IPC, sentenced to one year rigorous imprisonment and fine; acquitted of other offences; acquittal of A2 to A7 confirmed.

State of Kerala Vs Rasheed — Murder and Culpable Homicide | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934

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CRL.A.No. 760 of 2001 (C)

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SC.69/1996 of I ADDL.SUB COURT, THRISSUR

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APPELLANT(S):

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THE STATE OF KERALA, CHARGE SHEETED BY THE CIRCLE INSPECTOR OF POLICE, GURUVAYOOR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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BY ADV. PUBLIC PROSECUTOR SRI. ROY THOMAS

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RESPONDENT(S):

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RASHEED, S/O. PANIKKAVEETTIL KUNHIMON, THIRUVATHRA DESOM, MANATHALA VILLAGE

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ASOKAN, S/O.THEKKAN DHARMAN, RESIDING NORTH OF FISHERIES SCHOOL, THIRUVATHRA, MANATHALA

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GOPAN @ PRATHAPAN, S/O. CHOZHIRAKATH APPU, MANATHALA VILLAGE

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YAKOOB, S/O. KALIRAKATH MUHAMMADALI, THIRUVATHRA DESOM, MANATHALA

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NASSAR, S/O. KUNNATH HAMSA, THIRUVATHRA DESOM, MANATHALA

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SANKARAN, S/O. ARAYACHAN VEETTIL KUTTARU, RESIDING SOUTH OF KOTTAPPURAM FISHERIES SCHOOL, THIRUVATHRA DESOM, MANATHALA

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HANEEFA, S/O. KOTTAPPURATH ABU, THIRUVATHRA DESOM MANATHALA

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BY ADV. SRI.RAJIT FOR R2 TO R5 BY ADV. SRI.A.VELAYUDHAN BY ADV. SRI.RANJIT BABU

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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N.K. Balakrishnan, J.

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................................................. Crl.Appeal No. 760 of 2001

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Dated: 19-09-2012

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JUDGMENT

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This appeal is filed by the State challenging the

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judgment of acquittal passed by the I Addl. Assistant Sessions Judge, Thrissur.

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Seven accused persons faced trial for offences punishable under Sections 143, 147, 148, 506 (ii) and 307 read with Sec. 149 of I.P.C. The incident in this case took place on 5-12-1993 at about 7.30 p.m. on the road near Thiruvathara Fisheries School and near the shop of one Sekharan. P.W.2, the injured along with four others were returning from Kottappuram and when they reached near the shop mentioned above, the accused persons were seen there. With regard to an incident that took place between the father of A1 and the uncle of P.W.2 relating to card play, there was exchange of words. It was alleged that A2 and A3 pushed

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P.W.2 towards A1 shouting 'kill him' and then A1 took out a knife from his waist and stabbed P.W.2 causing a penetrating injury on his abdomen and when P.W. 2 bent downwards because of the injury, A2 again inflicted a stab injury on the head of P.W.2. P.Ws 1,3 and 4 though tried to intervene, the accused threatened them with dire consequence. Sekharan, the neighbouring shop owner and others reached there. The wound on the abdomen was tied with a shawl. P.W.2 was immediately taken to the Government Hospital, Chavakkad The doctor examined him. After giving first aid he was referred to the Medical College Hospital, Thrissur.

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On getting information, P.W.11, the Assistant Sub Inspector of Chavakkad Police Station went to the hospital at about 9.30 p.m. on the same day. As P.W.2 was not in a position to give statements, P.W.11 recorded the statement of P.W.1 who was an eye-witness to the occurrence and who was in the hospital as a bystander. Based on that statement

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F.I.R. was registered. Though F.I.R. was registered against A1 to A5 only. Subsequently, A6 and A7 were subsequently added as accused. Investigation was conducted by the Circle Inspector of Police and charge sheet was laid against all the seven accused persons.

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The case was committed to the Court of Session and from there it was made over to the I Addl. Asst. Sessions Judge for trial. P.Ws 1 to 12 were examined and Exts. P1 to P13 were marked. MO1 (knife) and MO2 (lunki) and MO3 (shirt) worn by P.W.2 at the time of incident and MO4 (shawl) by which the wound was tied were identified and marked. On the side of the defence, DWs 1 to 3 were examined and Exts. D1 to D5 were marked. The learned trial Judge disbelieved the case of the prosecution and acquitted the accused.

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Learned Public Prosecutor submits that the court below has not at all considered the evidence given by P.W2,

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the injured whose evidence was supported by P.Ws. 1 and 4 . The fact that P.W.3 did not support the prosecution does not in any way affect the case of the prosecution. The fact that P.W.2 sustained injuries as mentioned earlier at the time and place of incident, was not challenged by the defence. The suggestion put by the defence was that P.W.2 sustained injury as he was stabbed by somebody else. It is also contended that the court below without analysing the evidence given by P.W.2 and the witnesses who corroborated P.W.2, tried to disbelieve the case of the prosecution pointing out that Sekharan the neighbouring shop owner and Khalid who later reached the scene of occurrence and who helped to tie the wound were not examined.

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The learned counsel for the respondents/accused submits that the court below was not persuaded to accept the case of the prosecution since no motive was alleged by the prosecution and also because it was not at all possible for the

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witnesses to identify the assailants as there was no light at the place of occurrence. It was also pointed out that P.W.12, the Circle Inspector of Police wanted the court to believe that on 5-4-1994 all on a sudden, the first accused who was never arrested and who was on bail throughout appeared before him with MO1 knife and that knife was produced by the Circle Inspector of Police to show that it was with that knife A1 stabbed P.W.2. Therefore, that artificial story created by P.W.12 was sufficient to disbelieve the prosecution case, the learned counsel for the respondents submits.

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The point for consideration is whether the verdict of acquittal entered by the court below is unsustainable. P.W.2, the injured was at first seen by P.W.5, the doctor attached to the Taluk Headquarters Hospital at 8.10 p.m. on the same day. The incident took place at 7.30 p.m. A specific allegation was made that he sustained injury as he was stabbed with a knife at Thiruvathra. Ext.P5 is the certificate

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issued by him where the doctor noted a penetrating injury upper abdomen 2x5x1 c.m. Since it was risky at that time the depth was not exposed. Omentum was seen at the wound. The wound was dressed and P.W.2 was immediately referred to Medical College Hospital, Thrissur. It was stated that the injury could be caused by MO1. There can be no doubt that the injury as noted above can be caused by MO1 or any other sharp edged weapon like MO1. That is not now disputed by the defence also. P.W.6 was the Lecturer in Surgery, Medical College Hospital, Thrissur. He was examined to prove Ext.P6, the discharge certificate. P.W.7, the Professor of Surgery was examined to state that P.W.2 was treated in that hospital by P.W.6 and others. P.W.10 was the Assistant Professor of Orthopaedic , Medical College Hospital, Thrissur. He was examined to prove Ext.P9 the case sheet pertaining to the treatment given to P.W.2. In Ext.P9 it was noted that at 9.40 p.m. on the same day the injured had told that he was stabbed

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by A1 (Rasheed). Stab injury penetrating into the stomach and another incised injury on the scalp were noted in Ext.P9 certificate. The case sheet shows that emergent laparotomy was conducted upon P.W.2. The evidence given by the doctors mentioned above would show that the injuries were fatal in nature.

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It is argued with vehemence by Sri. Rajit, the learned counsel for the respondents that Ext. P1, the First Information statement was not given by P.W.2 the injured but by P.W.1 since P.W.2 was at that time unconscious. That statement was recorded at 9.30 p.m. It is pointed out that P.W.2 had told the doctor at 9.40 p.m. that he was stabbed by A1 (Rasheed). It is argued that the averments in Ext.P1 F.I. statement cannot be accepted as true since the allegation made by P.W.2 was only against one person, when he was examined by the doctor (P.W.5) and also when he was seen by P.W.6 and other doctors at 9.40 p.m.. It is important to note

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that the consistent case is that P.W.2 was stabbed by A1. The question whether other accused persons were there or whether A1 stabbed P.W.2 in prosecution of the common object of the unlawful assembly is not a matter to be recorded by the doctor nor is it required to be stated by the injured to the doctor. Therefore, there is no contradiction in the evidence on that point given by the doctor and what is contained in Ext.P1 F.I.S. There was no reason or justification for the court below to have any doubt regarding the evidence on that point.

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Much was said by the court below regarding the nonexamination of Sekharan, the neighbouring shop owner and one Khalid who reached the spot on hearing the hue and cry of P.W.1 and others. The evidence given by P.W.4 would clearly show that business in that shop was busy at that time. Not only that a person conducting business in the shop is not expected to be on the road, that too at night, to see what

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happens on the road. When he is conducting business he would be concentrating on his business. Not only that there was no case for the defence that Sekharan was immediately present at the place of occurrence so as to enable him to see the incident. When there is evidence in abundance given by P.Ws 1 and 4 that the incident took place on the road infront of that shop, unless it is a case where Sekharan was present at the very spot to see the incident it is indiscernible how non-examination of Sekharan would assume significance. Similarly, there is no evidence to show that Khalid was immediately present so as to witness the incident nor was there any suggestion that Khalid had seen the incident. The evidence would only show that he reached there on hearing the hue and cry and, thereafter, he also helped in dressing or tying the wound. Therefore, the learned Public Prosecutor submits that the reason given by the court below for disbelieving the prosecution case is rather moonshine, flimsy

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or irrational, if not perverse. The credibility or otherwise of the witnesses examined by the prosecution cannot depend on the non-examination of any other witness. The acceptability of the evidence of the witnesses is to be tested on the touchstone of credibility, it can never depend upon the examination or non-examination of other persons. The question is whether the evidence given by P.W.2 the injured and P.Ws.1 and 4 the eye-witnesses to the occurrence infuses confidence in the mind of court or whether there is any intrinsic infirmity so as to eschew their evidence as unworthy of credence.

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It is axiomatic that the evidence given by an injured witness has to be given much credence, for, he will not spare the real culprit and implicate somebody else as the person who inflicted the injury. There is evidence given by P.W.1 that he along with P.Ws.2, 3 and others were returning from Kottappuram and incident took place when they reached

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the road near the shop of Sekharan. Questions were asked why they returned along that road. The evidence would show that they used to go to Kottappuram and return to that place as usual. The fact that the wound was dressed or tied by P.W. 1 and others and P.Ws.1 and 4 had accompanied P.W.2 to the Taluk Headquarters Hospital, Chavakkad could not be properly controverted by the defence. That would sufficiently prove that P.Ws 1 and 3 were present at the very spot of occurrence. They have also given evidence that A1 and others were seen near the shop and there was exchange of words with regard to the incident that took place between A1's father and the uncle of P.W.2at the place of card play. It is also in evidence, and was not disputed also that the accused are residing in the neighbourhood and that they were known to each other. Since there was exchange of words between them for one or two minutes and, it was thereafter A1 stabbed P.W.2 with a knife, the contention that there was

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no possibility for P.W.1, P.W.2 or P.W.4 to identify the person who inflicted the stab injury cannot be sustained at all.

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It was also argued that the Village Officer has stated that among the bulbs on the two electric posts one was damaged, to contend that there was no sufficient light to identify the assailants .

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In the scene mahazar which was prepared on 6- 12-1993 it was specifically noted that there was light in the electric post MTA 529 . It was specifically noted that there was electric light in the tea shop of one Velayudhan. The place of occurrence was only 9.99 metres from the electric post MTA 529. It was stated by P.W.2 and other witnesses with certainty that there was sufficient electric light at the scene of occurrence at the relevant time . A far-fetched argument was advanced on behalf of the accused before the Court below that if the accused had intention to attack P.W.2, they could have attacked P.W.2 in darkness. That was

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readily accepted by the learned trial Judge to hold that the evidence given by the injured and other witnesses is unacceptable. In the light of the unambiguous and unassailable evidence given by P.W.2 and other witnesses which gets corroboration from the observation contained in the scene mahazar, the learned trial Judge was not at all justified in doubting the prosecution case that it was A1 who inflicted the stab injury on P.W.2.

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DWs 1 to 3 were examined by the defence to set up a plea of alibi. It was stated that there was a 'kettunira' (to go to Sabarimala) at another place and the accused persons were seen at that place. Mere oral vibration of such persons that the accused persons were seen at another place, that too only a few metres away from the scene of occurrence cannot be accepted to hold that the plea of alibi set up by them is acceptable. The court below also did not place reliance on the evidence to that effect given by the defence

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witness. Another witness (DW2) was examined to state that A3 is his classmate undergoing karatte training and they were attending such classes at Ponnani. A certificate to that effect was also produced. That does not mean that at the relevant time and place of occurrence the accused was not present. The court below also did not rely upon that evidence.

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On going through the judgment of the court below it could be seen that the evidence given by P.W.2 the injured and P.Ws1 and 4 was not at all analysed but the court below was more swayed by the non-examination of two witnesses who were not actually the eye-witnesses, to hold that the prosecution case is unbelievable. The question whether the incident occurred because of political enmity or not cannot assume much relevance since there is the ocular version of the injured and the two witnesses as to how P.W.2 sustained stab injury at the hands of A1. Since the prosecution does not rest its case on circumstantial evidence, proof or absence

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of motive cannot throw overboard the otherwise credible evidence.

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I am not oblivious of the fact that unless there are strong grounds to hold that the appreciation of evidence done by the court below was clearly upturned and irrational or that there was total non-consideration of credible evidence, the appellate court cannot substitute its view to alter a verdict of acquittal. But so far as the complicity of A1 is concerned there is evidence in abundance to hold that it was he who inflicted the stab injury on the body of P.W.2. It is true that the Circle Inspector of Police (the Investigating Officer) made a story that A1 surrendered before him on 5-4-1994 i.e. more than three months after the incident with a knife stating that that was the knife used by him to inflict the injury. The accused was not in custody. No effort was made by the Investigating Officer to arrest the accused or to get his custody to question him regarding the knife alleged to have

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been used by him. The artificiality in the evidence regarding the alleged production of MO1 by the accused before the Circle Inspector of Police which is only to be brushed aside as unworthy of credence cannot in any way affect the credibility of P.W.2 which was supported by P.Ws 1 and 4. There can be no difficulty to hold that the court below has totally ignored the reliable and acceptable evidence and was seen searching for untenable grounds to acquit the accused.

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I have no doubt in my mind that A1 inflicted the injury on P.W2 with a knife. Even if MO1was not accepted as the knife used by A1 to inflict the injury, the evidence is definite and certain that he used the weapon like MO1 to inflict injuries noted by P.Ws 5, 6 and others. Their evidence would further show that injury was fatal in nature. In fact, P.W.2 had a providential escape. Therefore, there can be no difficulty to hold that A1 attempted to cause murder of P.W.2 by stabbing with a weapon like MO1. Sitting in appeal against

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acquittal, I find the evidence is insufficient to hold that there was an unlawful assembly or to hold that A1 stabbed P.W.2 in prosecution of the common object of an unlawful assembly.

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On going through the evidence of P.Ws 1, 2 and 4 it can also be seen that there was evidence available for the trial court to convict A2 and A3 who were stated to have pushed P.W.2 towards A1 exhorting 'kill him'. Accepting that evidence, the trial court could have convicted A2 and A3 also. But sitting in appeal against the verdict of acquittal, I find that it is not proper or safe to convict A2 and A3 based on the evidence produced against them. I do not mean that the evidence given on that point by PWs 1,2 and 4 is unacceptable. It is an appeal against acquittal, I find that part of the evidence is not sufficient to convict A2 and A3. Being an appeal against acquittal , I do not find any reason to upset the verdict of acquittal entered by the court below in favour of A3 to 7 as well.

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In the result this appeal allowed in part. While setting aside the verdict of acquittal, the first accused/first respondent is found guilty of the offence under Sec. 307 I.P.C. and he is convicted thereunder. He is acquitted of other offences. Acquittal of A2 to A7 is also confirmed.

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Heard the learned counsel for the first respondent on the question of sentence.

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Learned Public Prosecutor submits that sentence must commensurate with the gravity of the offence.

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Learned counsel for the respondent submits that the incident took place in the year 1993. At this distance of time, imprisonment may not be awarded. Here the conviction is under Sec.307 IPC. Considering the gravity of the offence, that submission is not acceptable. It is also submitted by the learned counsel that in fact the matter was subsequently squared up, but since the offence is under Sec.307 IPC, the parties could not file a compounding petition.

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Considering the nature and gravity of the offence, first respondent deserves to be awarded a deterrent sentence. But taking note of the submissions made by the learned counsel for the first respondent, I find that R.I. for one year and a fine of Rs. 15,000/- would be the adequate punishment to be awarded. Hence, (A1) is sentenced to undergo R.I. for one year and to pay a fine of Rs.15,000/(Rupees fifteen thousand only) and in default he will undergo R.I. for one year. If the fine amount is paid, Rs.10,000/- shall be paid to PW2, the injured as compensation. First respondent will surrender before the learned II Addl. Sessions Judge, Thrissur on 29.10.2012.

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Dated this the 19th day of September, 2012.

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Sd/-N.K. Balakrishnan, Judge.

ani.

/true copy/

P.S. to Judge

Crl.Appeal No. 760 of 2001

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-:20:-

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N.K. Balakrishnan, J. ................................................. Crl.Appeal No. 760 of 2001

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Dated: 19-09-2012

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JUDGMENT

State of Kerala v. Rasheed

Case brief

What is this about?

What did the court decide?

State of Kerala v. Rasheed

Case brief

What is this about?

What did the court decide?

What the court decided

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