Allowed

A. Devadas, C.NO.337 v. State of Kerala

Kerala HC16 Jul 2020CRL.A/812/2016

Case brief

AI extract

What is this about?

This criminal appeal involved a murder conviction under Section 302 IPC. The High Court of Kerala, analyzing the reliance on a single eye-witness and an inadmissible extra-judicial confession, found the prosecution evidence unreliable. The court quashed the life sentence and ordered the acquittal of the appellant.

What did the court decide?

Appeal allowed; Applicant acquitted of all charges and set free forthwith.

A. Devadas, C.NO.337 Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

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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.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942

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CRL.A.No.812 OF 2016(B)

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SC 1303/2015 OF SPECIAL ADDITIONAL SESSIONS COURT(MARADU CASES)KOZHIKODE

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CRIME NO.238/2008 OF Kozhikode Town Police Station , Kozhikode

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APPELLANT

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A. DEVADAS, C.NO.337

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S/O.APPUKUTTY KURUP,C.NO.337/16, CENTRAL PRISION AND CORRECTION HOME, KANNUR.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT/

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STATE OF KERALA (TOWN POLICE STATION KOZHIKODE, CR.NO.238/2008.)

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SR PP MR. ALEX M THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.A.812/2016

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A.HARIPRASAD & M.R.ANITHA, JJ

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Crl.Appeal 812 of 2016

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Dated : 16^th July, 2020

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JUDGMENT

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A.Hariprasad, J.

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Aggrieved by the conviction under Sec.302 IPC and imposition of life sentence, the accused in Sessions Case No.1303/2015 before the Special Additional Sessions Judge (Marad Cases), Kozhikode, has come up in appeal.

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Heard the learned counsel for appellant and the learned senior Public Prosecutor.

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The prosecution case, as borne out from the charge framed by the Sessions Judge, is that on 7.7.2008 at about 9.45 pm, the appellant caused death of Jaleel, who is the husband of PW19 by inflicting a cut injury on the victim's neck with a shaving blade resulting in his death.

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He had also wrongfully restrained the victim and beat him

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with bare hands. The appellant therefore was charged under Secs. 323, 341 and 302 IPC. After trial he was acquitted under Secs.341 and 323 IPC, but held liable under Sec.302 IPC. Imprisonment for life and fine of Rs.25,000/- was imposed on him. Ext.P10 is the First Information Statement (FIS) lodged by PW19. According to her version in Ext.P10, the incident happened at about 10.45 pm on 7.7.2008 by the side of a public road near the railway station, Kozhikode. She lodged Ext.P10 at 0045 hours on 8.7.2008. According to the averments in Ext.P10, she and her husband (the deceased) were eking out livelihood by collecting scrap. On the date of occurrence, they gained Rs.65/-. At about 8.30 in the night, they went to a local bar and consumed liquor. Thereafter, they had taken some porridge and came to the

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Link road, Kozhikode and sat on the footpath. While they

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were talking to each other, the appellant came and invited the deceased and PW19 to have a drink. Again they went to take liquor and after consuming liquor, they proceeded to take food to a nearby hotel. At that time the appellant demanded the deceased that PW19 should be spared to satiate his sexual desire for which the deceased was not

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willing. On that score, there were altercations and scuffle. It happened from the side of Link road, leading to railway station. In the course of melee, the appellant slashed neck of the victim by using a shaving blade and the victim fell

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down. He was profusely bleeding. Appellant took to his heel and persons gathered at the place of occurrence took the victim to Beach hospital, Kozhikode. Doctor, when examined, found the victim dead.

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PW19 reiterated some of the aspects in Ext.P19, but she

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did not properly identify the appellant as the assailant. In the chief examination she had stated that while they were alighting from an autorikshaw, the appellant took out a blade and placed it on the neck of the deceased. According to her deposition, it was a surgical blade. She deposed that blood spilled profusely and people gathered took the victim to hospital. He was declared dead from there. In the chief-examination itself, PW19 deposed that she was completely under the influence of alcohol and she was not fully conscious. In the cross-examination she admitted that she did not remember the events correctly as she was in an inebriated mood. To a specific question, whether the appellant did the crime, PW19 answered that she was not sure. In the light of these evidence tendered by the sole eye witness, we are inclined to look for other evidence to accept the prosecution case.

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PW1 is a witness to Ext.P1 inquest report. PW2 is an

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autorikshaw driver, who was cited to prove a mahazar. He did not support the prosecution case.

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PW3 is yet another autorikshaw driver. In PW3's autorikshaw the victim was taken to the hospital. Admittedly, PW3 has not seen the incident. His information that appellant was the aggressor is only

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hearsay.

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PW4 is a police constable who took the body of the deceased for postmortem to Medical College hospital. He also did not prove the incident.

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PW5 is yet another police constable cited to depose that

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he was put on scene guard duty after the incident.

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PW6 is also another constable who was engaged in the

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scene guard duty. PW7 is the person who received the

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dead body from Medical College hospital after

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postmortem. PW8 was Circle Inspector of police,

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Kozhikode Town station. He conducted initial investigation and caused preparation of the cite plan.

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PW9 Dr.Krishnakumar conducted autopsy on the body of the deceased. Postmortem findings relating to ante mortem injuries are as follows :

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Incised wound 19x9x1 cm, oblique at front and sides of neck upper right end 5 cm outer to midline back and 2 cm above root of neck. The lower left end was just above middle of left collar bone.

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The lower border showed 2 side cuttings 9 cm and 11 cm inner to right end with a skin tag of 4 x 1 cm in between with corresponding angulation at the upper border. The right sternocleido mastoid muscles seen divided at its middle exposing the internal jugular vein, which showed two cuts; upper measured 1x0.2 cm and the lower 2x1 cm . The trachea showed cut involving half the circumference of its front aspect. 5 cm below the Adam's apple and 1 cm below the cricoid cartilage. Thyrohyoid muscle of right side and left sternocleidomastoid muscles showed partial cuts at their front middle portions. External jugular vein of

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right side seen cut and retracted. Vague nerve was intact.

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Incised wound 5x0.6 cm transverse at left side of neck, muscle deep with downward bewelling, front end 3 cm away midline and 4 cm below jaw border.

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Lacerated wound 0.5x0.5x0.2 cm inner aspect of upper lip 0.5 cm left to midline with contusion 1.5 cm around.

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Contusion inner aspect of lower lip 1.5 cm right to midline.

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Abrasion 2.5x1 just to left of philtrum.

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Abrasion 0.5x0.5 cm left ala of nose and abrasion

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0.5x0.5 cm at tip of nose.

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Abrasion 3x0.3 cm front of chest 5 cm left to midline and 12 cm below left collar bone.

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Superficial incised wound 5x0.4 cm, oblique, back of right side of neck. Upper left end 4cm above root of neck at back midline with bewelling downwards.

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Superficial incised wound linear and oblique 4 cm back of right trunk, upper left end at back midline and 36 cm above natal cleft.

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Superficial incised wound 1.5x0.2x0.1 cm vertical at back of trunk, 7 cm right to midline, lower end showed a tailing for 10 cm and was inclined downwards and left (injuries 8, 9 and 10 showed minimal infiltration of blood.]

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Contused abrasion inverted 'U' shaped 6 cm x 1 cm, back of left shoulder 4cm below top of shoulder and 12 cm from midline. There was a contused abrasion 1.5x0.5 cmx2cm outer to it.

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Contused abrasion 1x1 cm at small of back, 4cm right to midline at top of hip bone.

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PW9 testified that cause of death was air embolism following cut injury to neck. A shaving blade was shown to the witness and he identified that injury Nos.1, 2, 5, 9 and 10 were possible by using a weapon of this nature. It is interesting to note that the shaving blade was recovered from the crime scene at the time of preparing the scene mahazar.

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PW10 Dr.Sonu examined the accused/appellant after his arrest. Ext.P5 is the wound certificate proved through this witness. It is clearly mentioned that the appellant was brought before him in the presence of a police constable. In Ext.P5 it is mentioned that the injuries seen on the appellant's hand were sustained while he held a blade to inflict injury on another person. This could have been an

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extra judicial confession made to PW10. If the accused

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were not arrested and produced for medical examination by police, this confession in the form of history and the alleged cause of injury recorded in Ext.P5, could have been proved. But here it is clearly hit by Sec.25 of the Indian Evidence Act and therefore, we cannot take into account this confession for entering a finding.

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PW11 turned hostile to prosecution. He was supposed to speak that he had seen the incident. PW11 was engaged in collecting parking fee in the railway station compound. He deserted the prosecution case.

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PW12 is the Village officer who prepared the site plan. PW13 is the property clerk of the Judicial First Class Magistrate court-I, Kozhikode, cited to prove forwarding of the material objects for analysis. PW14 is the police photographer. PW15 is the witness to Ext.P9 mahazar

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whereby photographs were seized. PW16 is an autorikshaw driver. He was cited to prove that the appellant was restrained by people gathered at the crime scene. But he did not identify the appellant from court. Hence his testimony too is of no value.

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PW17 is the Sub inspector of Town police station who recorded Ext.P10. He registered Ext.P11 FIR. PW18 is the investigating officer. He spoke about the steps taken in investigation. Even if we find that the investigation was proper, we cannot approve the conviction mulcted on the appellant in the light of unreliable evidence adduced. In other words, regularity and propriety of the investigation shall not be a reason for accepting the prosecution case in

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the light of the unconvincing evidence tendered in the case. Therefore we find no basis for the conviction and

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sentence. It appears that learned Sessions Judge

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throughly failed to appreciate evidence on record. We

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have no hesitation to find that the trial court committed a great mistake in convicting the appellant for a serious offence of this nature.

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In the result, the appeal is allowed. The appellant is acquitted of all charges in Sessions Case No.1303 of 2015 before the Special Additional Sessions Judge (Marad Cases), Kozhikode, and he shall be set free forthwith, if not wanted in any other case.

Sd/Judge

A.HARIPRASAD

Sd/-

M.R.ANITHA Judge

Mrcs/16.7.

A. Devadas, C.NO.337 v. State of Kerala

Case brief

What is this about?

What did the court decide?

A. Devadas, C.NO.337 v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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