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Judgment
C.Jayachandran, J.
Under challenge in this appeal is the judgment of the Additional Sessions Court-I, Kalpetta dated 13.10.2015 in S.C.No.24/2014, as per which the appellant/accused was convicted under Section 304, Part-II of the Penal Code. He was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs.50,000/-, with a default clause of 18 months imprisonment.
When this matter was taken up for hearing, learned Public Prosecutor submitted that as per information received vide letter dated 6.5.2022, the appellant/accused was given remission by the Government and that he was released from the prison on 15.7.2019, after remitting the entire fine amount on the same date. However, in view of the judgments of this Court in Balan v. State of Kerala [1981 KLT 652] and Samul Philipose v. Koshy Thomas [2009 (4) KLT 360], the appeal cannot be dismissed as infructuous and has to be heard on merits.
The prosecution case
The accused is a drunkard and he used to quarrel with his wife frequently in the night after being fully drunk. On 9.3.2012 at about 11 p.m, the wife of the accused rescued herself from the house due to quarrel with the accused. The accused came to the house of the deceased in search of his wife and children. PW1, the daughter of the deceased, told the accused that his wife and children are not there. PW1 was pushed down. Seeing this, the deceased interfered. Infuriated by the same, the accused took a bamboo pole and assaulted the deceased on his head, to which the deceased succumbed on 16.3.2012 at 2.30 p.m in Medical College Hospital, Kozhikkode.
The prosecution paraded 11 witnesses, through whom Exts.P1 to P11 were marked. The weapon of attack – the bamboo pole – was marked as MO1. Upon completion of prosecution evidence, the accused was examined under Section 313, Cr.P.C. He denied all incriminating circumstances. No evidence, oral or documentary, was adduced by the accused.
On an analysis of the facts and evidence, the learned Sessions Judge convicted the accused as already referred. The learned Sessions Judge, essentially, placed reliance upon the evidence tendered by the eye witnesses, PW1 & PW2, as also, Ext.P6 postmortem report supported by the evidence of PW8, Doctor, who conducted the autopsy.
Heard Sri.P.G.Jayasankar, learned counsel appearing for the appellant/accused as State Brief and Sri.Alex M.Thombra, the learned Public Prosecutor. Perused the records.
Learned counsel for the appellant/accused argued the following points:-
(1) Although the incident took place on 9.3.2012, Ext.P1 F.I.S was preferred only on 11.3.2012, which delay is not explained.
(2) The wound certificate from Government Hospital, Sulthan Bathery, where the deceased was first treated is not produced. Nor is the Doctor concerned examined. The accused is prejudiced because of the above omissions.
(3) A perusal of the evidence adduced by PW2 would amplify that she had not seen the assault, or for that matter, the assailant.
(4) Recovery of MO1 bamboo pole is illegal. The names of the persons, who pointed out MO1 bamboo stick, are not referred to in Ext.P2 mahazar.
(5) No evidence was adduced to show that there was adequate light in the scene of occurrence, so as to enable the eye witnesses to identify the accused, particularly when the incident occurred in the midnight.
(6) In the context of the injuries sustained, the oral version is not compatible with the evidence adduced. The witnesses spoke of a single blow only, whereas Ext.P6 postmortem certificate indicates that there were multiple injuries.
Per contra, all these allegations were refuted by the learned Public Prosecutor. This Court will now consider the appellant's contentions, one by one.
As regards the alleged delay in lodging F.I.R, this Court finds little merit. The F.I.R was lodged within two days by PW1, the daughter of the deceased. It has come out in evidence that the victim was initially taken to Taluk Hospital, Sulthan Bathery, from where he was taken to the Medical College Hospital, Kozhikkode. It was PW1, the first informant, who accompanied the victim and stood as the bystander. Therefore, the delay, if any, stands explained.
As regards non production of the wound certificate from Taluk Hospital, Sulthan Bathery also, this Court finds little merit, inasmuch as, the victim had ultimately succumbed and postmortem report is made available. Nor is the non-examination of the Doctor, who treated the deceased first, fatal to the prosecution. How the appellant is prejudiced by the non-production of the wound certificate, or for that matter, the non-examination of the Doctor concerned is not explained. That apart, once the material produced and relied upon by the prosecution is sufficient to prove the guilt of the accused, the accused cannot be gainsaid by contending that further materials might and ought to have been produced by the prosecution. If the production of the wound certificate or the examination of the Doctor concerned would have thrown some light as regards the innocence of the appellant/accused, it was well-nigh within his domain to produce the document/witness while adducing defence evidence, which obviously is not done.
The next contention is one pertaining to the evidence adduced by PW2, which, according to the learned counsel, would indicate that she had not witnessed the real incident of assault; or the assailant. This Court finds some merit in the said contention raised by the learned counsel for the appellant/accused. In chief examination, it is not clear whether PW2 had actually witnessed the incident, although she narrates the incident as her version. In cross examination, although PW2 claimed that she had seen the accused assaulting the deceased, she would simultaneously admit that she came to the spot upon hearing the cry of PW1 and that PW1 cried upon seeing the assault on the accused. It has also been elicited that when PW2 came to the spot, PW1 was coming back. Evidence has been adduced to the effect that the incident took place in the courtyard of the house of the deceased. Therefore, ample room is there to suspect whether PW2 had witnessed the actual assault on the deceased, as also, the assailant. In such circumstances, the said contention of the appellant/accused is liable to be recognized. However, as regards the ultimate outcome of the appeal, acceptance of the said contention is not of any critical impact, inasmuch as the evidence tendered by PW1 is categoric, clear and fully believable as regards the assault, as also, the assailant.
The fourth contention of the appellant/ accused is that in Ext.P2 mahazar, evidencing recovery of MO1 bamboo stick, the names of witnesses, who had identified the material object, are not stated. Learned counsel also submitted that it is not clear as to whether the term 'witnesses' referred to twice towards the close of Ext.P2 mahazar meant the witnesses to the incident or the witnesses to recovery. This Court is not persuaded to accept the said contention of the learned counsel for the appellant. In Ext.P2, towards its end, what is stated first is that MO1 bamboo stick, which was found in the place of occurrence and pointed out by “the witnesses”, was recovered in the presence of the witnesses. It is clear that the witnesses first above referred are witnesses to the incident and the witnesses second referred are persons, who witnessed recovery of MO1 bamboo stick. Merely because that the names of the witnesses to the incident, who pointed out MO1 bamboo stick at the place of occurrence, are not specifically referred to, Ext.P2 recovery is not liable to the doubted. The records are to be reckoned and construed as a whole and when the case, as propounded by the prosecution, projects certain witnesses, the expression 'witnesses' employed in Ext.P2 only refers to those witnesses to the incident, who in this case include PW1 and PW2. The said contention is also, therefore, rejected.
The next contention is as regards the availability of adequate light in the scene of occurrence, since the incident admittedly took place at the midnight. This Court is not persuaded to attach much significance to the said contention raised by the learned counsel, for the reason that the accused/assailant is none other than the brother's son of PW2, who is residing in the immediate neighbourbood and who is closely acquainted with PW1 and PW2. It has come out in evidence that there was an altercation and exchange of words between the accused and PW1, as also, with the deceased. The version is to the effect that the accused came in search of his wife and obviously, there were conversations in that regard. If that be so, the availability of light or otherwise is of no moment in the context of identifying the accused. The said contention is, therefore, repelled.
The last contention is with respect to the alleged incompatibility between the oral version and the medical evidence as regards the number of injuries. According to the learned counsel for the appellant/accused, there was only a single blow by using MO1 bamboo pole, going by the prosecution version. However, Ext.P6 postmortem certificate would indicate multiple injuries on the victim, which is not explained at all by the prosecution. This, according to the learned counsel, is fatal to the prosecution case. It is one thing to say that the incompatibility alleged is with respect to a very relevant and significant aspect. However, the point to ponder is whether the same is fatal to the prosecution case. The law in this regard is settled by the Hon'ble Supreme Court in Kamaljit Singh v. State of Punjab [(2003) 12 SCC 155]. The relevant observations are extracted here below:-
“It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses the testimony of eyewitness cannot be thrown out. ……”
Therefore, the question is whether the medical evidence adduced in the case at hand would completely rule out all possibilities of injuries taking place in the manner as stated by the eye witnesses. While appreciating this point, it is to be noted that, going by the version of PW1, the accused assaulted the deceased by using MO1 bamboo pole on the head of the deceased and that blood oozed out from his mouth and nose. PW1 would also state in chief examination that the deceased had not uttered a word after the incident, until his death after seven days. Corresponding to the oral evidence adduced, the first injury noted in Ext.P6 postmortem report is “Scab loose abrasion 15x4-8 c.m on scalp at right side head, on mastoid area, back of ear and temporal area”. Similarly, injury no.6 noted is as follows:-
“6. Contusion 8x4-6x1 cm. Left frontal eminence area of scalp. Flap of craniotomy 4x3.5 cm on left tempero parietal region of skull.
Diffuse thin subarachaoid heamorrhage. Brain weighed 1400 gm. Contusion necrosis with hematoma 6x2-3x2-2-2.5 cm left temporal lobe extending to back of internal capsule area. Contusion necrosis with hematoma 6x1-1.5x1-1.5 cm on right temporal lobe. Brain was edematous. Cribriform plate showed fracture.”
It could thus be seen that a proximate injury, which may result from the narration in the oral version, is very much there on the victim, going by Ext.P6 postmortem certificate. This, coupled with the opinion as to cause of death that the deceased died due to head injury, would leave no room for any suspicion as regards the nature of assault, the injury caused and the cause of death. Merely because certain other injuries referred to in the postmortem report are not spoken of by the witness, in specific and particular terms, the prosecution case is not liable to be suspected. As it is well settled, it is not every doubt, however fanciful it is, which would enure to the benefit of the accused/ appellant. Only reasonable doubts, which cast a shadow on the prosecution version alone, are liable to be looked into. Specific evidence has been let in to indicate that immediately after the assault, the deceased was taken to Government Hospital, Sulthan Bathery first and thereafter, to the Medical College Hospital, Kozhikkode, where he breathed his last. This would plug the possibility of any other event/happening, which would have caused such other injuries as noted in the postmortem examination. This Court also finds that injury no.2 is one pursuant to the surgery undergone by the victim.
In the light of the above discussion, this Court rejects all the contentions of the appellant. This Court has also perused the evidence adduced by PW1 and PW2, the eye witnesses to the incident. Even if the evidence of PW2 is discounted, the evidence of PW1 is clinching, as regards the culpability of the accused/appellant. For the reasons already adverted to, there arise no question of any mistaken identity. This Court, therefore, finds that the judgment of conviction passed by the court below is liable to be upheld and it is so done. Inasmuch as the appellant/accused has already been released upon granting remission, the order of sentence passed by the court below is also not liable to be interfered with.
In the result, this appeal fails and the same is dismissed.