Dismissed

Najmudheen, v. State of Kerala

Kerala HC3 Sept 2019CRA(V)/585/2015

Case brief

AI extract

What is this about?

The High Court dismissed an appeal filed by the victim (also an appellant) challenging the acquittal of five accused persons. The trial court acquitted the accused due to FIR delay, inconsistent eyewitness testimony, and insufficient corroboration. The High Court upheld the acquittal, finding no perversity in the trial court's reasoning despite acknowledging alternative evidentiary interpretations

What did the court decide?

The appeal filed by the victim/appellant is dismissed, and the order of acquittal by the Sessions Court is affirmed.

Najmudheen, Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2019)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941

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CRA(V).No.585 OF 2015(D)

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AGAINST THE JUDGMENT IN SC 280/2008 DATED 29-01-2014 OF ADDITIONAL SESSIONS COURT - V, KOZHIKODE

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APPELLANT/VICTIM:

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NAJMUDHEEN,

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AGED 30 YEARS

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S/O EASSA HAJI, RESIDING AT VELANDIYIL HOUSE, NARIKKUNI P.O, CALICUT - 673585.

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BY ADVS.

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SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.ABHISHEK KURIAN

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RESPONDENTS/STATE:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

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2 PRAJEESH, AGED 33 YEARS

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S/O. BALARAMAN NAIR, RESIDING AT THARAMMALKANDI HOUSE, NARIKKUNI AMSOM, KARUKULANGARA-673585.

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3 SHAIJU,

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AGED 37 YEARS, S/O. RAMANKUTTY, RESIDING AT VATTIKUNNUMMAL HOUSE,M NARIKKUNI AMSOM, NEDIYANADU-673585.

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4 PRAKASAN, AGED 40 YEARS, S/O. SEKHARAN NAIR, RESIDING AT 'SOUGANDIKA', PAROPPARAMMAL HOUSE, NARIKKUNI AMSOM, PARANNUR-673585.

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5 SURAJ, AGED 32 YEARS, S/O. CHANDU, RESIDING AT AREEKKAL HOUSE, NARIKKUNI AMSOM, PANNIKKOTTUR DESOM-673585.

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R1 BY ADV. SRI.ARJUN SREEDHAR R1 BY ADV. SRI.ARUN KRISHNA DHAN R1 BY ADV. SRI.JOSEPH GEORGEMULLAKKARIYIL R1 BY ADV. SRI.P.S.SREEDHARAN PILLAI R1 BY ADV. SRI.T.K.SANDEEP SR.P.P- SRI. S.U.NAZAR

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THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 04-06-2019, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:

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J U D G M E N T

Shaffique, J.

This appeal is filed by the victim challenging the judgment dated 29/1/2014 in SC No.280/2008 of the Sessions Court, Kozhikode by which the accused were acquitted for the offence under Sections 341, 326 and 307 r/w 34 of I.P.C. and they were acquitted under Section 235(1) of Cr.P.C.

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The case of the prosecution is as follows:-

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While PW2 (the injured) and his friends PW1, PW3 and a few others were returning after a housewarming function in a jeep bearing Regn.No.KL-11D-81, when they reached near Narikunni bus stand, all the accused in furtherance of their common intention wrongfully restrained the above jeep, A1 approached PW2, who was driving the jeep and told him that he want to say something. PW2 alighted from the jeep went with A1, and when

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they reached in front of S.K.Associates, A1 took a knife from his waist and with an intention to kill PW2, he stabbed him with his

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knife causing serious injuries. The accused were charged with offence under Sections 341, 326 and 307 read with 34 of the Indian Penal Code, 1860 (for short 'IPC').

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The charge was originally laid before the Judicial First Class Magistrate I, Thamarasserry, which was committed to the Sessions Court, Kozhikode. The Sessions Judge made over the case initially to the IIIrd Additional Sessions Court, Kozhikode, and later to the Vth Additional Sessions Court.

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To prove the case, prosecution examined PW1 to PW14, marked Exts.P1 to P22 documents and identified MO1 to MO3 material objects. Exts.D1 and D2 were marked on the defence side. During examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code') the appellants denied all evidence tendered against them and pleaded innocence.

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On a scanning of the evidence, it could be seen that PW2 is the injured and PW1 and PW3 are the occurrence witnesses. PW4 and PW5 were examined to prove Ext.P2 scene mahazar, as attestors. PW6 had been examined to prove seizure of MO1 and MO2 as per Ext.P3 seizure mahazar. PW7 is an attestor to Ext.P4

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seizure mahazar by which the knife, MO3 had been recovered. PW8 has been examined to prove the fact that the accused entertained an ill-will against PW2.

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PW9 has issued Ext.P5 wound certificate of PW2. Ext.P5 would show that PW2 suffered the following injuries:- (1) penetrating wound 7 x 2 cm near para spinal area near renal angle. Laparotomy was conducted and it was noticed that para spinal muscles were cut. There was transection of right kidney along with renal artery and vein. There was transection of right lobe of liver and hemoperitoneum.

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PW10 is the Village Officer who prepared Ext.P6 site plan. Ext.P7 chemical analysis report was proved through PW11, the Joint Chemical Examiner. Ext.P1 is the FIS given by PW1, which was recorded by PW12. Case was registered by PW13, the Sub Inspector of Police and Ext.P8 is the FIR. PW14 is the investigating officer in the case.

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This is a case in which PW2 suffered very serious injury on the basis of which a crime came to be registered for offences u/s 341, 326 and 307 r/w S.34 of I.P.C. After considering the evidence on record, the Court below acquitted the accused for

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the following reasons:-

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(i) Though the police got information regarding a cognizable offence at 2.00 hrs on 27/5/2007, FIR was recorded only at 12.30 hours. Delay in registering FIR has become fatal to the prosecution.

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(ii) PW2 did not mention the name of accused to the Doctor who examined him, though he knew the 1^st accused.

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(iii) PW1 and PW3 are interested witnesses and their evidence is full of inconsistencies and hence their evidence is doubtful.

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(iv) According to PWs 1 to 3, the place of occurrence is just in front of S.K. Hardwares. But in scene mahazar and Ext.P6 scene plan, no mention is made about S.K. Hardwares. Therefore, the prosecution has shifted the place of occurrence. It is found that the scene mahazar and site plan shows that the place of incident is in front of S.K. Associates. PW1 to 3 had deposed that the place of occurrence is the verandah of S.K. Associates.

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(v)In Ext.P7 report prepared by PW11, presence of human

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blood was noticed in MO3 knife, but no blood grouping was done.

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(vi) MO1 to 3 were kept by the investigating officer for quite a long time and therefore the possibility of tampering cannot be ruled out. It was not kept in received in sealed covers.

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(vii) Evidence of PW8 is not sufficient to prove motive.

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(viii) PW9 the Doctor does not state that the injury was sufficient in the ordinary course of nature to cause death and therefore S.307 of I.P.C. is not attracted.

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Learned counsel for the appellant argued that the Court below had arrived at an erroneous finding regarding all these material aspects. When the injured himself has given evidence stating that the accused came together and the 1^st accused inflicted a fatal injury on the victim, court below went wrong in looking for other corroborations. Even assuming that there was investigation laches, the same should not have been a reason to acquit the accused. It is argued that, in so far as no one has a case that such an incident had not happened, the delay in

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registering the FIR cannot became fatal to the prosecution especially on account of the fact that no prejudice could have been caused to the accused on such delay. As far as the scene of occurrence is concerned, there is not much difference as stated by the trial Court. The incident had happened in front of S.K. Associates which shop itself is known as a hardware shop. Merely for the reason that PW1 to PW3 had referred S.K. Associates as S.K. Hardwares, there is no change of scene of occurrence at all. Even though the group of blood is not detected in MO3 knife, still the incriminating factor is that knife was recovered on the basis of confession statement of the first accused and merely for the reason that the blood was not sufficient enough to determine the grouping. it cannot be stated that the recovery cannot be believed. The Doctor's evidence when examined in its entirety would clearly prove the fact that it was a fatal injury and the intention of the accused was only to commit murder. It is submitted that the trial Court has placed reliance on irrelevant material in order to acquit the accused and when sufficient evidence was available to prove the crime, Court below ought to have convicted the accused.

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The learned Public Prosecutor supported the stand taken by the counsel for appellant/victim. Learned counsel appearing for respondents 2 to 5 supported the view taken by the trial Court and contended that when the accused had already been acquitted and when there is no perversity in the judgment of the trial Court, it is settled law that an order of acquittal cannot be reversed merely for the reason that a different view is possible. It is submitted that all the accused were framed on account of political rivalry. PW1 to PW3 had no knowledge about the accused. If so PW2 would have mentioned the name of assailant to the Doctor. The FIR was deliberately delayed, to make up a case against the accused, without having known the actual assailants. That apart it is not possible for a person to inflict such an injury, taking into account the manner in which PW2 has described the same.

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Learned counsel for the appellant placed reliance on the judgment of the Apex Court in Balram Singh v. State of Punjab (AIR 2003 SC 2213) in which case it was held that delay in sending the FIR to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case. The case has to

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be judged keeping in mind the creditworthiness of ocular

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evidence. In Ramdas and Others v. State of Maharashtra [(2007) 2 SCC 170], it was held that mere delay in lodging the report by itself may not be fatal to the prosecution case. The delay has to be considered in the background of the facts and circumstances in each case and it is a matter of appreciation of evidence by the Court.

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Learned counsel for the respondents 2 to 5 placed reliance on the judgment in Mahtab Singh and Another v. State of UP [(2009) 13 SCC 670]. This was a case in which in an appeal against acquittal, the Apex Court held that the power to review evidence is wide and the appellate Court can reappreciate the entire evidence on record. However, if the view taken by the trial Court was possible as well as plausible, the appellate Court need not reverse the finding of acquittal. In this case, it was also held that delay in reporting the incident to the police station creates doubt about the truthfulness of the prosecution case. In Prabir Mondal and Another v. State of West Bengal [(2010) 1 SCC 386], the Apex Court had occasion to consider a case u/s 307 of I.P.C. In that case, it was observed that when the

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complainant did not disclose the Doctor as to how he has sustained the injuries, and it is coupled with the fact that there was delay in lodging the FIR and it was done after consultation with local villagers, fabrication of FIR cannot be ruled out.

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Apparently, this is a case in which the injured was also examined as PW2. PW1 and PW3 are the other occurrence witnesses. First let us see whether their evidence can be relied upon for the purpose of arriving at a conclusion regarding the incident that is projected by the prosecution.

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PW1 is the first cousin of PW2, Najmudheen, who suffered the injury. According to PW1, the incident happened in front of S.K. Hardwares. It was on 26/5/2007 by 11.00 p.m. He along with his friends Najmudheen, Mujeeb, Latheef and Shameer were coming back in a jeep, after a house warming ceremony. When they reached near Narikkuni bus stand, four persons whom he knew earlier Prakashan, Suraj, Prajeesh and Shaiju asked the jeep to be stopped. He identified all the four accused. First accused came near the driver. He asked PW2 to come out. He took PW2 to the front of S.K. Hardwares. Other accused were standing near the jeep. 2^nd accused uttered to kill him and at that

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time first accused took a knife from his behind and inflicted an injury on Najmudheen above his waist. On seeing this, he along with his friends ran towards Najmudheen. At that time, the accused left the place. Latheesh brought the jeep and they took him to Medical College Hospital and in the meantime, they tried to stop the blood oozing out from Najmudheen's body with a mundu (dhothi). Doctor on examining him found that his condition was critical and he was taken to the operation theatre. Police came to the hospital and he had given a statement. One kidney of Najmudheen had to be removed. His FI statement is marked as Ext.P1. He also identified MO1 shirt of Najmudheen, MO2, the dhothi which was used for tying the wound and MO3 knife. During cross-examination, he deposed that he told the Doctor as to who had committed the crime and that he knew the name of the accused even at that time.

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PW2 is none other than the injured. He also deposed in the same manner as spoken by PW1. He further stated that A1 came towards him, kept his hand on his shoulder and said that he would like to talk with him, he alighted from the jeep and went towards S.K.Hardwares. At that time he heard A2 uttering that

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“stab and kill him”. A1 removed his hand from his shoulder and stabbed him behind his body, with a knife. He showed the stab injury to the court. He fell down and his friends came running and he was taken to the hospital. On the way to hospital he felt drowsiness. He informed the matter to the Doctor. He told the Doctor that the injury was inflicted by a person whom he could identify. In that situation, he did not mention the name of the accused fearing that he might give a wrong name. Doctor examined him and thereafter he became unconscious. During cross-examination, he deposed that though there was a confrontation between the workers of bus service, he was not part of it. He only heard about the incident. According to the defence, he had not given a statement to the police that the 2^nd accused had called upon the first accused to kill him which apparently is an omission. Ext.D1 is the contradiction marked wherein he had only stated to the police that some one uttered to kill him. He further deposed that he was in ICU for about 13 or 14 days. Since a tube was inserted on his neck, he was unable to speak, but he has not stated so before police. After discharge, police came to his house and he could give statement only after a

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few days since he was unable to speak. He further deposed that at the time when the Doctor examined him, he knew who had inflicted injury on him. He also reiterated that at the time when he was taken to the hospital, he was not in a proper frame of mind. He also stated that since the injury was inflicted behind his body, he could not see the first accused inflicting the injury. When the investigating officer was examined as PW14, he deposed that PW2 had not given any statement that the 2^nd accused had uttered to kill him. He also proved Ext.D1 statement.

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PW3 also has given the very same version. He also identified the accused. Some omissions have been pointed out by the defence with reference to his evidence.

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Ext.P1 is the FIS given by PW1. In the FIS, he had stated about the involvement of the accused stopping the jeep in which they were coming. Najmudheen who was driving the vehicle was taken towards S.K.Hardwares. When others uttered to kill him, first accused took out a knife which he had tucked on his waist, inflicted an injury on him and thereafter they ran away. They took the injured to Medical College Hospital. He also stated that few days prior to the aforesaid incident, Shaiju had

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threatened Najmudheen that he will take care of him. Ext.P8 is the FIR from which it is seen that the time of occurrence was 11.00 pm on 26/5/2007 and the information was received at the police station at 12.30 hours on 27/5/2007. The FIR reached the Magistrate Court on 27/5/2007 at 6.40 p.m.

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In the cross-examination of PW1 and PW3 also, the defence contention was based on the fact that the identity of the accused was not known at the relevant time and that is the reason why there was delay in registering the FIR.

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It is evident from the facts that the police had information about the crime immediately after the incident and as per the evidence of the investigating officer, police had come to the scene of occurrence immediately after the incident. But it seems that the Station House Officer of the area did not register a First Information Report and they waited for a statement to be given by PW1 and that too at 11.00 a.m at the hospital. The defence version is that, by the time there would have been manipulation and the names of the some of the members of RSS were mentioned to the police. They also have a case that the scene of occurrence is not the place suggested by the police

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since no bloodstains were noticed in the scene of occurrence. According to the defence, PW2 would have sustained the injury at some other place and a scene of occurrence had been shifted deliberately for the purpose of the case. From the evidence of PW2, who is the injured, he states before Court that A1 had inflicted the injury. But, as stated by the trial court, PW2 was conscious at the time when he was taken to hospital, but he did not mention to the Doctor the name of the first accused. He had only stated that assailant was identifiable. It is also relevant to note that PW2 was carried by PW1 and PW3 to the hospital and if they had known the name of accused who had inflicted the injury, definitely they would have discussed the matter and even informed the others. Of course, PW2 might have been in a dazed mind and after the injury, he might have been in shock as well. But, when the Court below had relied upon the said fact and had suspected the identity of the accused, it may not be possible for this Court to overturn the said finding. As far as the 2^nd accused is concerned, even after PW2 surviving from the injury and was taking rest, he did not mention to the police that A2 has called upon the 1^st accused to kill him. As far as other accused are

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concerned, they were only part of the gang. They did not commit any overt act.

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That apart, as rightly pointed out by the trial Court, there are several infirmities in the case and when the Court below places reliance on such inconsistencies and gives the benefit of doubt to the accused, even though we have a different view in the matter, in the absence of any perversity or unreasonableness, it may not be possible for this Court to set aside the order of acquittal and convert the same to conviction. As far as the motive is concerned, it is trite that when there are eyewitnesses to the incident, motive is not a relevant factor. But still, there is evidence to indicate that PW2 was not involved in any such confrontation and therefore, the motive was only an imaginative one, and is not proved.

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Under normal circumstances, when the injured has stated that so and so has inflicted injury on him, the inescapable conclusion is that the version of the injured has to be believed. But in this case, two factors create doubt. One is that according to the injured, A1 was holding him on his shoulder and he took off his hands, took a knife from his waist and inflicted the injury on

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his back. Apparently, PW2 had not seen as to who inflicted the injury. But, the prosecution had tried to prove the said fact by the oral testimony of PW1 and PW3. Their evidence is not believed by the trial court for reasons which are possible and plausible. The second issue is that the name of A1 was not mentioned to the Doctor who specifically asked the injured as to what happened. He only stated that he could identify the person who had injured him.

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Taking into account all these facts, we do not think that the order of acquittal requires to be set aside. Consequently, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR