SHAJAHAN ALIAS SHAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANTS are the accused in S.C.No.82 of 2004 on the file of First Additional Sessions Court, Ernakulam. They were tried for the offence under Section 302 read with Section 34 of Indian Penal Code. Learned Sessions Judge convicted and sentenced the appellants to imprisonment for life and a fine of Rs.25,000/- and in default, simple imprisonment for three months. The appeal is filed challenging the conviction and sentence. When the appeal was originally heard, it was contended by the appellants that the second appellant was a juvenile on the date of commission of the offence, on 1.3.2001, as he was born only on 10.4.1983. The second appellant produced copy of the birth certificate issued by the Corporation of Cochin which prima facie supported his plea. This court, by order dated 28.7.2011, having satisfied that prima facie the second appellant was a juvenile on the date of commission of the offence, directed the learned Sessions Judge to conduct an enquiry regarding the juvenility of the second accused and if he is found to be juvenile as on 1.3.2001, directed to obtain a split charge from the Investigating Officer as against the second appellant and to forward the same to the Juvenile Justice Board to be dealt with in accordance with the provisions of Juvenile Justice(Care and Protection of Children)Act, 2000. As directed, learned Sessions Judge conducted an enquiry and based on the materials collected, entered a finding on 4.10.2011 that the second accused was a juvenile on 1.3.2001, the date of commission of the offence. As the second accused was a juvenile, his trial is void and therefore the culpability of the second appellant is not to be considered in the appeal. As directed by this court by order dated 28.7.2011, learned Sessions Judge has to forward the split up charge as against the second accused to the Juvenile Justice Board, Ernakulam to be dealt with in accordance with the provisions of Juvenile Justice(Care and Protection of Children)Act, 2000. The scope of the appeal is therefore restricted only to the correctness of the conviction of the first appellant/first accused.

(2.) PROSECUTION case is that on 1.3.2001, at about 8.30 pm, PW1 Nixon, PW2 Vijesh, Faisal who was not examined and deceased Nandakumar met at the Bus stand, Panangad. PW2, Faisal and deceased Nandakumar got into the bus and proceeded towards Madavana. PW1 followed the bus in his bicycle. They met on the way. But by that time, PW2 had got down from the bus, though promised to be near the tea shop of Narappan. PW1, along with Faisal and deceased Nandakumar proceeded to the tea shop of Narappan and consumed tea. While so, PW2 also reached there. Thereafter, they proceeded towards Nice Bakery. When they reached near to the Nice Bakery, appellants came from the opposite direction. There was a scuffle between Nandakumar and the first appellant. PW1 and others separated them. Along with deceased Nandakumar, PW1, PW2 and Faisal proceeded further towards the south. When they reached near Kammath Reading Room, appellants came from behind and proclaiming that Nandakumar will not be allowed to live, first appellant inflicted an injury on his throat with Mo1 knife. Sustaining the injury, Nandakumar fell on the ground. While so, second accused inflicted an injury on his back shoulder, with Mo2 thorn of fish. When Pws 1 and 2 helped the deceased to stand up, appellants ran away. PW1, PW2 and Faisal got the car driven by PW3 stopped, and took the injured to P.S.Hospital, Maradu. On examination of the injured, PW13 Dr.Sanjeev Thambi found him dead. PW13 sent Ext.P9 intimation to the S.I of Police, Panangad. PW1 proceeded to Panangad Police Station and furnished Ext.P1 F.I.Statement which was recorded by PW16, the S.I at 11.30 pm. PW16 prepared Ext.P1(a) FIR and registered Crime No.36 of 2001 of that police station, for the offence under Section 302 read with Section 34 of Indian Penal Code against first appellant and another identifiable accused. PW17, the Circle Inspector took over the investigation. He prepared Ext.P2 inquest report at 8.30 am on 2.3.2001 in the presence of Pws 5 and 6 and forwarded the body with the requisition for post mortem examination. PW12, Dr.K.S.Sasi, Civil Surgeon and District Police Surgeon conducted the autopsy and prepared Ext.P8 post mortem certificate finding that the death was caused by the injury sustained on the throat. At the time of post mortem examination, PW12 removed Mo2 fish thorn which was found pierced on the shoulder of the deceased and handed it over to PW17. It was seized under Ext.P4 mahazar in the presence of PW9. PW17 prepared Ext.P3 scene mahazar in the presence of PW8 and continued the investigation. On 17.3.2001, he furnished Ext.P12 report showing the details of the appellants, including the identity of second appellant. Both the accused surrendered before PW17 on 17.3.2001. PW17 recorded their arrest at 2 pm. On the information furnished by first appellant, Mo1 knife was recovered under Ext.P5 recovery mahazar in the presence of PW10. The dresses worn by the accused at the time of the incident, were seized under Ext.P6 and P7 mahazars in the presence of PW11 police constable. The Mos were sent to the Chemical Examiners Laboratory for examination by submitting Ext.P16 forwarding note and got prepared Ext.P17 and P18 certificates. After completing the investigation, charge was laid before learned Magistrate, who committed the case to Sessions Court, which was made over to the Additional Sessions Court for trial. When charge for the offence under Section 302 read with Section 34 of Indian Penal Code was framed, read over and explained to the accused, they pleaded not guilty. Prosecution then examined 17 witnesses, marked 18 exhibits and identified six material objects. After closing the prosecution evidence, questioning the appellants and on hearing the prosecution and the defence, though appellants were directed to enter on their defence and adduce evidence, they did not adduce any defence evidence. Earlier at the time of cross examining the prosecution witnesses, Exts.D1 to D5, portions of the statements of the witnesses recorded under Section 161 of Code of Criminal Procedure and Ext.D6 to D9, the F.I.Statement, FIR, the final report and the mahazar prepared by PW16, the Investigating Officer in Crime No.37 of 2001 and its judgment were marked. They are in respect of the crime registered based on the incident which allegedly took place near to the scene of occurrence at 9.30 pm on the same day of the incident.

(3.) LEARNED Public Prosecutor argued that there was no delay in lodging the F.I.R. It was pointed out that the incident occurred at 8.30 pm and at 11.30 pm, PW16 recorded Ext.P1 statement of PW1 and registered the case and hence there was absolutely no delay. Learned Public Prosecutor also argued that though Ext.P1(a) F.I.R shows that it reached the Magistrate onl9y on 3.3.2001, when PW16 or PW17 were examined, they were not asked to explain the delay and in such circumstances, it cannot be found that there was any unexplained delay and in such circumstances, no adverse inference could be drawn for the delay in reaching the F.I.R before the court. Learned Public Prosecutor relied on the decisions of the Apex Court in State of Kerala V.Yarappa Reddy(1999 (3) KLT 456), Bhajan Singh alias Harbhajan Singh V. State of Haryana(2011(7) SCC 421 and Brahm Swaroop V. State of U.P(AIR 2011 SC 280) and argued that there is no delay in lodging the FIR or reaching of the same before learned Magistrate and in any case, delay, if any, did not cause any prejudice to the accused. It was also argued that considering the scope of inquest as provided under Section 174 of Code of Criminal Procedure, it does not warrant any adverse inference to be drawn against the prosecution, for not showing the details shown in the Ext.P1(a)FIR, adverse inference cannot be drawn and it cannot be found that Ext.P1(a) was not in existence when Ext.P2 inquest report was prepared. Learned Public Prosecutor, relying on the Division Bench decision of this court in Edakkandi Dineshan @ Pulipp Dineshan V. State of Kerala(2011(2) KLD 16) argued that a similar statement recorded in a proceedings under Section 107 by the Sub Divisional Magistrate was considered by the Division Bench of this court and found that the Sub Divisional Magistrate is not empowered to conduct pre- trial of a Sessions Case and the statement so recorded by the Sub Divisional Magistrate though a previous statement, cannot be made use of, for any purpose as it was procured by illegal means and therefore the credibility of PW1 cannot be challenged based on Ext.D2 Statement. Learned Public Prosecutor also argued that the Sub Divisional Magistrate, who recorded Ext.D2 statement was not examined and in any case, Ext.D2 is not the certified copy of the deposition as it did not contain the certificate by the Magistrate as provided under Rule 57 of Kerala Criminal Rules of Practice and therefore Ext.D2 statement cannot be used for contradicting the evidence of PW1, and the evidence of PW1 cannot be disbelieved on that ground. Learned Public Prosecutor pointed out that though the incident occurred in March 2001, Pws 1 and 2 were examined before court only in June 2008, after the lapse of 7 years and there would be some contradictions and variations but so long as they do not go to the root of the prosecution case, there is no reason to disbelieve the evidence of Pws 1 and 2. Learned Public Prosecutor argued that there is no material contradiction in the evidence of Pws 1 and 2 and evidence of PW1 is corroborated by Ext.P1 F.I.Statement and the evidence of PW2 is also corroborated by the evidence of PW1 and in such circumstances, the finding of the learned Sessions Judge that it was the first appellant who inflicted the fatal injury on the throat of the deceased and caused his death is perfectly correct. Learned Public Prosecutor also pointed out that the evidence of PW17 with Ext.P5 recovery mahazar establish that Mo1 knife was recovered on the information furnished by the appellant and Ext.P17 and P18 certificates establish that Mo1 contains human blood of the same group of the deceased, as is clear from the group of blood found in Mos 1 to 3 dresses which were found on the body of the deceased at the time of inquest by PW17 and hence the conviction of the first appellant is perfectly legal.