Ramjith vs State Of Kerala

,,,,,,,,,

M.B. Snehalatha , J",,,,,,,,,

Accused in S.C.No.301/2011 of Court of Sessions, Alappuzha, is the appellant herein. He calls in question the conviction and sentence passed",,,,,,,,,

against him for the offence punishable under Section 302 of the Indian Penal Code [IPC].,,,,,,,,,

In short the prosecution case is as follows:,,,,,,,,,

On 10.02.2008 at 6.15 pm. at Chirapparambu of Aroor Panchayat, accused with intent to commit murder of victim Sumesh, stabbed on the chest of",,,,,,,,,

Sumesh with a knife and committed murder of Sumesh. Further it is alleged that the accused committed murder of said Sumesh with the knowledge,,,,,,,,,

that Sumesh belonged to Scheduled Caste. The accused thereby committed the offence punishable under Section 302 IPC and Section 3(2)(v) of,,,,,,,,,

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.,,,,,,,,,

Pursuant to Ext.P1 FI statement laid by PW1, Crime No.80/2008 of Aroor Police Station was registered. After investigation, final report was filed",,,,,,,,,

before the Judicial First Class Magistrate Court-II, Cherthala. The learned Magistrate received the same as C.P.No.41/2008 and after complying the",,,,,,,,,

legal formalities under Section 207 of Cr.P.C, the case was committed to the Court of Sessions, Alappuzha. The learned Sessions Judge framed",,,,,,,,,

charge against the accused for the offences punishable under Section 302 IPC and Section 3(2)(v) of Scheduled Caste and Scheduled Tribes,,,,,,,,,

(Prevention of Atrocities) Act (SC/ST (POA) Act). The accused abjured the guilt, alleged false implication and claimed to be tried.",,,,,,,,,

To prove the guilt of the accused, prosecution examined PWs 1 to 23; marked Exts.P1 to P24 and Exts.C1 and C2. MOs 1 to 7 are the material",,,,,,,,,

objects. No witnesses were examined on the side of the accused. Exts.D1 to D13 viz, portions of Section 161 Cr.P.C statement of prosecution",,,,,,,,,

witnesses and Exts.D14 to D17 were marked on the side of the accused.,,,,,,,,,

By the impugned judgment, the learned Sessions Judge found the accused guilty of the offence punishable under Section 302 IPC and he was",,,,,,,,,

sentenced to undergo imprisonment for life and to pay a fine of ₹50,000/- for the offence under Section 302 IPC. The accused was found not guilty of",,,,,,,,,

the offence under Section 3(2)(v) of SC/ST (POA) Act and he was acquitted of the said offence.,,,,,,,,,

Aggrieved by the conviction and sentence passed against him for the offence under Section 302 IPC, the accused has preferred the instant appeal",,,,,,,,,

on the ground that the trial court went wrong in appreciating the evidence; that the trial court failed to appreciate the fact that the prosecution has,,,,,,,,,

suppressed the genesis of the occurrence and the true facts from the eye of law and manipulated records to change the time of arrest; that the trial,,,,,,,,,

court ought to have found that the contemporaneous medical records would reveal that the incident happened not as alleged by the prosecution and not,,,,,,,,,

at the place of occurrence. It is further contended that there is unreasonable and unexplained delay in registering the FIR; that the court below ought,,,,,,,,,

to have appreciated the fact that the deceased was in an aggressive mood after consuming alcohol. It is further contended that the omissions and,,,,,,,,,

contradictions brought out during cross-examination were not considered. It is also contended that the prosecution thoroughly failed to establish the,,,,,,,,,

motive for the crime; that the court below ought to have found that the medical evidence is contrary to the oral evidence.,,,,,,,,,

Per contra, the learned Public Prosecutor contended that there are no infirmities in the impugned judgment of conviction and sentence; that the",,,,,,,,,

prosecution by adducing ocular and medical evidence clearly and cogently established the case against the accused and therefore there are no reasons,,,,,,,,,

at all to interfere with the impugned judgment of the trial court.,,,,,,,,,

The point that arises for consideration is whether the conviction entered and the sentence passed against the accused by the trial court is,,,,,,,,,

sustainable or not.,,,,,,,,,

Though there is no challenge over the finding rendered by the Court of Sessions that the case on hand is one of homicide, let us ensure the same by",,,,,,,,,

analysing the evidence on record. In order to establish that the victim Sumesh died as a result of the stab injury sustained by him on 10.02.2008,,,,,,,,,

evening, the prosecution would rely on Ext.P10 wound certificate and Ext.P11 postmortem certificate and the testimonies of doctors who were",,,,,,,,,

examined as PWs.16 and 17.,,,,,,,,,

PW16 doctor testified that on 10.02.2008 while he was working as a Causality Medical Officer at Lakeshore Hospital, Ernakulam, at 8.05 pm he",,,,,,,,,

had examined Sumesh, aged 25 years and issued Ext.P10 wound certificate. The injuries noted in Ext.P10 have been spoken to by PW16. The injuries",,,,,,,,,

noted in Ext.P10 are as follows:,,,,,,,,,

“Penetrating incised wound 4x2 cm below left nipple. Air entry absent on the left side of chest.â€​,,,,,,,,,

In Ext.P10 it has been noted that the patient expired at 9.25 pm on 10.02.2008. The doctor has further testified that there was emergency,,,,,,,,,

consultation with a Thorasic surgeon and Anaesthetist; that emergency Thoracotomy was done by the Cardio Thorasic Surgeon. Endotracheal,,,,,,,,,

intubation was also done.,,,,,,,,,

PW17 doctor, who was the Assistant Professor, Forensic Medicine, Medical College, Alappuzha testified that on 11.02.2008 he conducted the",,,,,,,,,

postmortem examination on the body of Sumesh and Ext.P11 is the postmortem certificate. The ante-mortem injuries noted by PW17 were as follows:,,,,,,,,,

“1. Sutured surgically modified incised wound 20 cm long, obliquely placed on left side of front of chest with its lower front split and 20 cm below inner end of",,,,,,,,,

collar bone and upper back end 8 cm below armpit. The fifth rib on the left was seen cut through at a point 1 cm outer to costal margin and the wound was penetrating,,,,,,,,,

through a surgically modified, defect 11 x 1.5 cm in the 5th intercostal space and terminated in the cavity of the left ventricle of heart through an incised punctured",,,,,,,,,

wound 2.5 cm long (seen sutured) obliquely placed on the frontal wall of left ventricle (2 cm above apex) where the lower right end was split and upper left end,,,,,,,,,

sharply cut. The wound track was seen directed to the right, backwards and slightly upwards for a total minimum depth of 4.5 cm. The left chest cavity contained 600",,,,,,,,,

ml of fluid bloods left lung was collapsed.,,,,,,,,,

Sutured surgical drainage wound 2 cm long horizontally placed on left side of chest 12 cm below armpitâ€​.,,,,,,,,,

The opinion as to cause of death: Death due to the injury sustained on the chest (injury No.1),,,,,,,,,

PW17 doctor has categorically testified that injury No.1 was fatal and it was sufficient in the ordinary course of nature to cause death. PWs.16,,,,,,,,,

and 17 have further testified that the injuries noted in Exts.P10 and P11 can be caused by MO1 knife. Nothing could be brought out during cross,,,,,,,,,

examination of PWs.16 and 17 to cast any doubt on the veracity of the evidence tendered by PW17 that injury No.1 sustained on the chest of the,,,,,,,,,

victim caused to his death and the said injury was sufficient in the ordinary course of nature to cause death. Thus, it stands established by the",,,,,,,,,

prosecution that the death of victim Sumesh was a homicide.,,,,,,,,,

The next aspect for consideration is whether the complicity of the accused in the commission of the crime stands proved or not.,,,,,,,,,

The first information statement was laid by PW1 Shaiju. According to him, on 10.2.2008 at 6 pm while he along with his friends viz. PW2 Shelvan,",,,,,,,,,

PW3 Preethan, PW4 Ajeesh and the victim Sumesh were chatting by sitting at Chiraparambu near to the house of PW2, accused Ramjith who was a",,,,,,,,,

,,,,,,,,,

not mention the name of the assailant to the doctor or the doctor has not recorded the name of the assailant is not a ground to discredit the versions of,,,,,,,,,

PWs 1 to 4, who are the ocular witnesses. It is to be borne in mind that in the F.I statement given on the date of the incident immediately after the",,,,,,,,,

death of the victim, PW1 has specifically mentioned the name of the assailant as Ramjith. Therefore, the argument put forward by the learned counsel",,,,,,,,,

for the accused that since the name of the assailant does not find a place in Ext.P10 wound certificate, the prosecution case has to be viewed with",,,,,,,,,

suspicion is untenable. A doctor is not at all concerned as to who committed the offence. His primary effort is to save the life of the person brought to,,,,,,,,,

him. So the fact that in the wound certificate the name of the assailant does not find a place, is not a ground to disbelieve the versions of PWs 1 to 4",,,,,,,,,

that it was the accused Ramjith who stabbed victim Sumesh with a knife and caused the fatal injuries. In this context we find it apposite to mention the,,,,,,,,,

observation made by the Apex Court in para 17 of the decision In Pattipati Venkaiah v. State of Andra Pradesh (AIR 1985 SC 1715):,,,,,,,,,

“Another argument advanced before us was that although PW1 and 2 were supposed to be eye witnesses, they never cared to disclose the name of the assailant",,,,,,,,,

to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who,,,,,,,,,

committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and",,,,,,,,,

inform the police in medico-legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that",,,,,,,,,

doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and",,,,,,,,,

if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.â€​,,,,,,,,,

The learned counsel for the accused pointed out that in Ext.C2 remand report filed by the Investigating Officer it has been mentioned that the,,,,,,,,,

accused was taken to custody by the police from the scene of occurrence at midnight 12 O’ clock. In Ext.D9 viz. the portion of Section 161,,,,,,,,,

Cr.P.C statement of PW6 also he had stated that police came to the spot at midnight 12 O’ clock. But while examined before the court the,,,,,,,,,

version of PW6 is that the police reached the spot at 8.30 pm. According to the learned counsel for the accused, it is a material contradiction which",,,,,,,,,

raises serious doubt in the prosecution case.,,,,,,,,,

It is true that in Ext.C2 remand report filed by the investigating officer before the court it has been mentioned that the accused was taken to,,,,,,,,,

custody by the police from the scene of occurrence at midnight 12 O’ clock. In order to see whether the said time mentioned in Ext.C2 remand,,,,,,,,,

report is correct or not, we can have a look at the versions of PW20 and PW22. PW20 and PW22 were working as Assistant Sub Inspectors of",,,,,,,,,

Police, Aroor Police Station. They have testified that on 10.2.2008 at about 8 pm. when they reached the police station after law and order duty, they",,,,,,,,,

got information about the incident in this crime and immediately they proceeded to the scene of occurrence and when they reached the spot they saw,,,,,,,,,

the accused there; that they took the accused into custody and took him to the police station. The version given by PW6 is in conformity with the,,,,,,,,,

evidence tendered by PWs 20 and 22. There is no reason to disbelieve the versions of PW20 and 22. In the light of the evidence of PWs20 and 22,",,,,,,,,,

who were the Assistant Sub Inspectors of Police, Aroor Police Station, who took the accused from the spot to the police station, this Court finds that",,,,,,,,,

the time stated in Ext.C2 remand report is wrong. The said mistake in time do not in any way affect the prosecution case regarding the incident and it,,,,,,,,,

does not create any doubt regarding the genuineness of the versions of PWs 1 to 4 which is found to be reliable and trustworthy. It is trite that when,,,,,,,,,

the evidence of eye witness is cogent and proved, simply because the investigating officer failed to perform the duty in accordance with the",,,,,,,,,

requirements of law, it will not benefit the accused persons and the court cannot act on such incorrect, illegal and deliberate omissions committed by",,,,,,,,,

the investigating officer.,,,,,,,,,

It has come out in evidence that the accused was a friend of PWs 1 to 4 as well as the deceased. There is nothing on record to show that PWs 1,,,,,,,,,

to 4 have had any axe to grind against accused Ramjith so as to implicate him in a grave crime of this nature.,,,,,,,,,

By relying on Ext.C1 chemical analysis report the learned counsel for the accused would contend that the victim Sumesh had consumed alcohol,,,,,,,,,

and he was in an intoxicated stage. But the prosecution witnesses viz. PWs 1 to 4 suppressed the said fact. It is true that Ext.C1 report reveals that,,,,,,,,,

victim Sumesh had consumed alcohol. The fact that Sumesh had consumed alcohol need not always be within the knowledge of PWs 1 to 4. So the,,,,,,,,,

question of suppression of the said fact does not arise at all. Moreover, even if the victim Sumesh had consumed alcohol on that day, there is nothing",,,,,,,,,

on record to show that the said fact has any relevance as far as the case on hand.,,,,,,,,,

Though the learned counsel would contend that there are material discrepancies in the versions of PWs 1 to 4, on an analysis of the evidence we",,,,,,,,,

find no merit in the said contention. There are no major contradictions, inconsistencies, embellishments or improvements in their versions regarding the",,,,,,,,,

incident on trivial matters which do not affect the core of the prosecution case shall not be a ground on which the evidence can be rejected in its,,,,,,,,,

entirety. Similarly mere marginal variation in the statement of the witness cannot be taken as improvements as the same may be elaborations of the,,,,,,,,,

statements earlier made by the witness. In other words what is expected from the court in such cases is that, an opinion about the credibility of the",,,,,,,,,

witness must be formed and a finding as to whether his deposition inspires confidence must be recorded (Sanker v. State of Karnataka [(2011) 6 SCC,,,,,,,,,

279).,,,,,,,,,

On an appreciation of the evidence adduced, we find that the learned Sessions Judge has considered all the aspects in its proper perspective and",,,,,,,,,

came to the correct conclusion in its finding that the accused has committed the offence punishable under Section 302 IPC and there is no irregularity,,,,,,,,,

or illegality in the conviction and sentence imposed on the appellant/accused by the trial court. Hence, we find no need to interfere with the impugned",,,,,,,,,

judgment of conviction and sentence.,,,,,,,,,

Accordingly, appeal fails and is dismissed.",,,,,,,,,