Santhosh Gogoi vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.181 of 2010 on the files of the Sessions Court, Kottayam is the appellant in this appeal instituted challenging the conviction entered and the sentence passed against him in the said case.

The accusation against the appellant in the case as narrated in the final report is that on 02.09.2009, at about 9 p.m., while the deceased Lohith Deghar @Bhinu, a native of Assam, was consuming liquor in the company of his friends who also hail from the State of Assam, in a room occupied by one among them namely, Dileep in the Industrial Unit in which Dileep was employed, the appellant and one Mony who are also natives of Assam came to the said room; that an altercation took place in the course of their conversation after sometime between the deceased on one side and the appellant and Mony on the other side in connection with a monetary transaction; that the appellant unexpectedly gave a few blows to the deceased in the course of the altercation with an iron spade on the left side of his head below his left ear, on his forehead and also on his right cheek causing severe injuries to his head as also to his face and that as a result of the same, he died instantaneously.

A case was registered in connection with the occurrence on the following morning at about 6 a.m. by the Ettumanoor police on the basis of the information furnished by a person residing in the neighbourhood of the Industrial Unit and after investigation, final report was filed against the appellant alleging commission of the offence punishable under Section 302 of the Indian Penal Code (IPC). On the final report being filed, the jurisdictional Magistrate committed the appellant for trial to the Court of Session. On appearance of the appellant, the Court of Session framed charge against him for the offence punishable under Section 302 IPC and read over the same to him, to which he pleaded not guilty.

The prosecution thereupon examined 24 witnesses as PW1 to PW24 and proved through them as many as 19 documents as Exts.P1 to P19. MO1 to MO10 are the material objects caused to be identified through the prosecution witnesses. Among the witnesses examined on the side of the prosecution, PW1 is the person who has given the First Information Statement, Pws.2 and 3 are the room-mates of the deceased, PW6 is the Security Guard in the Industrial Unit adjoining the Industrial Unit where the occurrence took place, PW9 is the supervisor in the Industrial Unit in which the occurrence took place, PW10 is the employer of the appellant, PW18 is another room-mate of the deceased, PW19 is the Police Surgeon who has collected the nail clippings, scalp hair and blood samples of the appellant, PW21 is the Police Surgeon who conducted the post-mortem examination on the body of the deceased, PW22 is the Scientific Assistant attached to the Forensic Science Laboratory, Thiruvananthapuram who collected samples of blood and scalp hair found at the scene, MO1 spade as also samples of blood found on the body of the appellant for forensic examination, PW23 is the Sub Inspector of Police who has recorded the First Information Statement and registered the crime and PW24 is the police officer who has investigated the case and filed the final report in the case. Among the documents proved, Ext.P1 is the First Information Statement, Ext.P1(a) is the First Information Report, Ext.P2 is the Inquest Report, Ext.P9 is the Post-Mortem Report, Ext.P14 is the property list submitted by the investigating officer to the court while forwarding the samples of blood and other materials for forensic examination, Ext.P17 is the report of the Forensic Science Laboratory, Ext.P18 is the report filed by the investigating officer deleting the name of Dileep who was initially arrayed as an accused in the case.

After the prosecution tendered its evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution against him. The appellant denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the appellant was called upon to enter on his defence. He, however, chose not to adduce any evidence.

On an appraisal of the materials on record, the Court of Session found the appellant guilty of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-. There was also a default sentence. As noted, the appeal is against the said decision of the Court of Session.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The essence of the arguments advanced by the learned counsel for the appellant was that the prosecution has not established beyond reasonable doubt the presence of the appellant at the time of occurrence and even if it is found that the prosecution has succeeded in establishing the said fact, they have miserably failed in establishing the fact that it was the appellant who inflicted the fatal injuries on the deceased. It was also the submission of the learned counsel that at any rate, it is a case where the appellant is entitled to the benefit of doubt. The learned counsel has also brought to our notice a few circumstances, which according to the learned counsel, would cast a genuine doubt as to who inflicted injuries on the deceased.

The learned Public Prosecutor supported the impugned decision pointing out that the evidence tendered by PWs.2 and 3 alone is sufficient to justify the conviction of the appellant.

The point that arises for consideration in the appeal is whether the conviction entered and sentence passed against the appellant by the Court of Session are sustainable in law.

As noticed earlier, the case of the prosecution is that the appellant inflicted fatal blows on the head of the deceased with MO1 spade. PW21, the doctor who conducted post-mortem examination on the body of the deceased reported the following injuries in Ext.P9 post-mortem report:

“B. Injuries (Ante-Mortem)

Abraded contusion on back of left shoulder 9x0.7cm. oblique with inner upper and 6 cm. outer to root of neck and lower outer end 12cm. back to armpit.

Abraded contusion on left mastoid region including the pinna 9x5cm. vertical, scalp contusion underneath over an area of 14x14cm. Depressed comminuted fracture of tempero mastoid region over an area of 8x8cm.and a fissured fracture extending from left mastoid to right frontal region for a length of 18 cm. Fissured fracture through the middle cranial fossa for a length of 11.5cm.

Lacerated wound on left frontal region 3.5x1cm. transverse bone deep, 5cm. above middle of eyebrow. A depressed fracture underneath 3x1cm. with a depression of 0.5cm. The under surface of left temporal lobe of brain lacerated 4x4x3cm. Subdural and subarachnoid haemorrhages seen on both cerebral hemispheres. The brain appears pale.

Abraded contusion on right cheek 7x7cm. with black eye on right side with a fissured fracture running towards the occipital region through the right temporal fossa for a length of 17.5cm.

Abraded contusion on back of right elbow 0.5x0.5cm.

C. Other Findings:

The hyoid, larynx, thyroid and other soft tissues of neck were intact. Trachea and bronchi contained froth, mucosa congested. The lungs weighed 500gm. each. The lungs congested. The heart walls valves, chambers and coronaries were normal. The front wall of left ventricle showed a milky patch over an area of 2x1cm. The liver weighed 1500gm. congested, biliary passages patent. stomach and contents weighed 350gm, contained partly digested boiled food materials. Mucosa normal. No unusual smell. Urinary bladder empty. Genetal organs normal. All other organs congested; otherwise normal.”

PW21, in his evidence, opined that the death of Bhinu was due to the injuries suffered by him, and the same could have been caused with MO1 spade. He also opined that injury Nos.2, 3 and 4 caused on different parts of the head of the deceased are independently sufficient to cause death in the ordinary course of nature and all the said injuries were caused by three separate actions. The evidence tendered by PW21 was not discredited in any manner in the cross-examination. As such, it can be safely concluded that the prosecution has established that the death of Bhinu is a homicide.

The next question is whether the prosecution has established beyond reasonable doubt that it is the appellant who inflicted the fatal injuries on the head of the deceased.

As noted, PW1 who gave the First Information Statement is a person residing in the neighbourhood of the Industrial Unit in which the occurrence took place. He had not seen the occurrence. What was stated by him in his evidence was that on the night of 02.09.2009, the workers from Assam were on a drinking spree in the Industrial Unit in which the occurrence took place; that he heard a noise at about 10.30 p.m. and that when he looked outside on hearing the noise, he found a few persons hitting each other. He also stated that after sometime, the person who was being beaten up, ran away towards the north, two among the assailants ran away towards the west and the remaining persons went back to the Industrial Unit.

PW2 deposed that he came to Kerala along with the deceased and his brother Hemanth; that he was residing in a room along with the deceased and PW3; that they used to drink liquor in the room in which the occurrence took place, in the company of Dileep; that the appellant is a friend of Dileep and that the appellant also used to join them while drinking liquor. He deposed that on 02.09.2009, at about 8.30 p.m., he went to the room of Dileep along with the deceased and PW3 and while they were drinking liquor, the appellant and one Mony came to that room. PW2 deposed that there was an altercation earlier between the appellant and the deceased in connection with a monetary transaction and the deceased had beaten up the appellant on his cheek at that time. PW2 deposed that in the course of the conversation, the appellant told the deceased that what the deceased did was not right. He deposed that when Mony, who accompanied the appellant endorsed the said statement of the appellant, the deceased gave a kick on the face of Mony and as a result, blood was oozing from his face. PW2 deposed that when the appellant objected to the said conduct of the deceased, the deceased beat the appellant also. PW2 deposed that the appellant then took MO1 spade which was lying in the adjoining room and gave blows with the same on the back side of the left ear and also on the forehead of the deceased. He deposed that the appellant left the scene immediately after throwing the spade in the shrubs nearby. PW2 deposed that although he along with others chased and caught the appellant outside the room, the appellant beat them and escaped, when PW6 rushed to that place. PW2 deposed that when they came back to the room, they found that Bhinu had succumbed to the injuries in the meanwhile. He deposed that since there was no vehicle available in the locality, they could not take Bhinu to the hospital. During the cross-examination, PW2 stated that he has not seen Dileep and Mony after the occurrence; that the brother of the deceased came to the scene by about 10.45 pm on the same day; that PW2 was not there at the scene when the brother of the deceased came to the scene; that PW2 was not present at the scene when the inquest report was prepared and that he does not know as to when the police came and left the scene. PW2 also stated in the cross-examination that he does not know the place where Mony and Dileep had gone after the occurrence; that the appellant and Mony came to the scene without any weapon and that PW2 had not informed the occurrence to anyone, except their employer. PW2 also stated in his cross-examination that he does not know whether Dileep sustained injuries in the course of occurrence.

PW3 also gave evidence more or less on the same lines of the evidence tendered by PW2. During cross-examination, PW3 stated that he did not go to the room after the occurrence, where the occurrence took place; that he did not see Mony and Dileep after the occurrence and that he does not know their whereabouts. To a specific question put to PW3 in his cross-examination as to whether he took any effort to take the deceased to the hospital, the answer of PW3 was that he could not do so. He stated in the cross-examination that he did not go to the nearby house, seeking help to take the deceased to the hospital. He denied the suggestion that it is because he was also involved in inflicting injuries on the deceased, that he did not take the deceased to the hospital. PW3 stated that he was not available at the scene when the police came to the scene. He also stated that he does not know at what time the police came to the scene and left the scene. Though he admitted that he saw the brother of the deceased on the same day, 2.9.2009 at about 10 a.m., he did not tell him as to who caused the death of Bhinu.

PW6 deposed that on 02.09.2009 at about 10 p.m., he heard a noise from the road in front of the quarters in which workers from Assam were residing, and when he went to the said place, he found that a few persons were hitting another person and when he intervened in the quarrel, they dispersed. During cross-examination, PW6 stated that he is not in a position to state as to who was being beaten and who beat him, as there was no light at that place at the relevant time. PW9 deposed that the appellant is working in a factory situated at Thiruvanchoor; that the appellant and his friends used to be in the premises of the factory during holidays; that Dileep was staying in the room inside the factory premises and that the appellant took a spade from the factory for removing the bushes. PW10 deposed that the appellant was working at the time of the occurrence in his factory. PW18 deposed that he was residing in a room owned by the company in which he was working along with PW2, PW3 and the deceased; that PW2, PW3 and the deceased went to the industrial unit in which Dileep was working on 02.09.2009 at about 8.30 p.m.; that at about 10.30 p.m. PW2 and PW3 informed him that the deceased was killed and that on receiving the said information, he went to the room of Dileep. In cross-examination, PW18 deposed that he did not find Dileep and Mony on 02.09.02009 in the room where the body of the deceased was lying.

PW24, the investigating officer has admitted in chief-examination that Dileep was also arrayed as an appellant initially based on the hearsay information furnished by PW1 in the First Information Statement. PW24 deposed that he seized MO1 spade about 15 meters away from the room where the occurrence took place. PW24 deposed that he found blood and blood-stained hair at the hollow portion of the spade. He identified MO1 spade in court. He also identified its hollow portion where blood and blood-stained hair were found. PW24 deposed that when he arrested the appellant, there were injuries on his body and that based on the statements given by the appellant, a crime was registered against the brother of the deceased, PW2 and PW3 as Crime No.482 of 2009 under Sections 341, 323, 324 read with Section 34 of the IPC. PW24 deposed that as it was found in the course of investigation that Dileep was not involved in the crime, he was removed from the array of accused in the case. In cross-examination, PW24 stated that he noticed injuries on the body of the appellant at the time of his arrest. PW24 has also stated in cross-examination that as he could not find Mony, no investigation could be carried out as to the involvement of Mony in the Crime. PW24 has also stated that he could not find Dileep and Mony after the occurrence, despite earnest efforts. On a specific question as to the basis on which he filed a report in court deleting Dileep from the array of the accused, the answer given by PW24 was that it was revealed to him in the course of investigation that Dileep was not involved in the crime.

From the evidence tendered by PW9, the Supervisor in the factory in which Dileep was working and PW10, the employer of the appellant and also from the fact that the appellant was taken into custody by the investigating officer from the locality on the following morning itself, it can be found that the appellant was present in the locality on the relevant day. The various suggestions put by the learned counsel for the appellant to the prosecution witnesses would also show that the said fact has not in fact been seriously disputed by the appellant also. The materials on record would indicate that blood was found on the upper limbs of the appellant at the time of his arrest and the samples of the same were therefore taken for chemical analysis. Ext.P17 report of the chemical analysis does not indicate that the said samples match with the blood samples taken from the scene of occurrence and MO1 spade. The report of the chemical analysis only shows that the blood found on the body of the appellant at the time of arrest was human blood. The same was the situation in relation to the blood sample taken from the dress worn by the appellant for chemical analysis at the time of his arrest also. In other words, Ext.P17 report is not helpful to the prosecution to establish the presence of the appellant at the scene when the occurrence took place.

As noted, it was categorically deposed by PW2 and PW3 that when they were consuming liquor in the company of Dileep and the deceased, the appellant came to the scene of occurrence with Mony. There was no suggestion by the counsel for the appellant to the said witnesses that the appellant has not come to the room of Dileep at all on the relevant day. On the other hand, the suggestion put to the said witnesses by the learned counsel for the appellant was that the deceased sustained injuries in the scuffle with Dileep and Mony. In other words, the evidence tendered by PW2 and PW3, convincingly establish the fact that the appellant was also present at the scene when the occurrence took place.

The fact that the deceased suffered fatal injuries on his head in the occurrence that took place in the room of the Dileep on the fateful night at about 10.30 p.m. is not challenged by the appellant. The question remaining to be considered, therefore, is as to who inflicted the fatal injuries on the deceased. As noted, PW2 and PW3 have deposed consistently that on 02.09.2009, at about 8.30 p.m., they went to the room of Dileep along with the deceased and while they were drinking liquor, the appellant and one Mony came to that room. Pws.2 and 3 deposed that there was an altercation earlier between the appellant and the deceased in connection with a monetary transaction and the deceased had beaten the appellant on his cheek at that time. They deposed that in the course of the conversation, the appellant told the deceased that what he did was not right. PW2 and PW3 deposed that when Mony, who accompanied the appellant, endorsed the said statement of the appellant, the deceased gave a kick on the face of Mony, as a result of which blood was oozing from the face of Mony. They deposed that when the appellant objected to the said conduct of the deceased, the deceased beat the appellant also. PW2 and PW3 deposed that the appellant then took MO1 spade which was lying in the adjoining room and gave blows with the same on the back side of the left ear and also on the forehead of the deceased. PW2 and PW3 deposed that the appellant left the scene immediately after throwing the spade in the shrubs nearby. The essence of the arguments advanced by the learned counsel for the appellant was that the evidence tendered by PW2 and PW3 as regards the occurrence are not reliable and trustworthy and as such, conviction in a case under Section 302 IPC, cannot be rested on such evidence.

Let us now deal with the various circumstances brought to our notice by the learned counsel for the appellant, in order to bring home the point that the evidence tendered by PW2 and PW3 as regards the occurrence is not reliable and trustworthy. One of the circumstances pointed out by the learned counsel for the appellant to contend that it was not the appellant who inflicted fatal injuries on the deceased, was that out of the six persons mentioned by PW2 and PW3 as present at the time of occurrence at the scene, Dileep, who was the occupier of the room and Mony fled from the scene immediately after the occurrence and they were not seen at all by anyone thereafter. According to the learned counsel, if Dileep and Mony had no role at all in causing the injuries suffered by the appellant, there is no reason why they should flee from the scene of occurrence and from the locality, permanently. Inasmuch as it is admitted by PW2 and PW3 that Dileep and Mony were also present at the scene when the occurrence took place, there arises certainly a doubt as to the reason why they should flee away from the scene and the locality after the occurrence, if they were not involved in any manner, whatsoever, in causing injuries to the deceased. It is all the more so since PW2 and PW3, who were also present at the scene when the occurrence took place remained in the locality, though they were not available at the scene after the occurrence. In a case of this nature, the investigating officer was certainly obliged under law to conduct necessary investigation as to the reason why Dileep and Mony also fled from the scene, and placed on record a plausible explanation for the said conduct of the aforesaid two persons, so as to enable the court to arrive at a correct conclusion as to the guilt of the appellant. The materials indicate that there was no such investigation. It is seen that on the investigating officer being questioned on this aspect during cross-examination, the answer given by him, to say the least, was not a responsible one. The answer was that he could not trace Dileep and Mony and as such, he could not conduct any investigation as to their role, if any, in the occurrence. It might be a case where they must have fled from the scene and locality fearing that they would also be arrayed as accused in the case since they were present at the scene when the occurrence took place. But since PW2 and PW3 chose to remain in the locality after the occurrence, the possibility of Dileep and Mony having some role in the occurrence in which the deceased suffered injuries cannot be ruled out.

Another circumstance pointed out by the learned counsel for the appellant was that the statement of the brother of the deceased, Hemant, recorded in the inquest report is that the death of Bhinu was caused by the appellant and Dileep together. True, the said statement is not evidence, but inasmuch as such a statement was made, it was obligatory for the investigating officer to conduct necessary investigation in that regard as well, and there is nothing on record to indicate that there was any investigation on that direction. The aforesaid also, is a circumstance which creates doubt in our minds, as to the reliability of the evidence tendered by PW2 and PW3 as regards the occurrence.

Another circumstance pointed out by the learned counsel for the appellant was that the investigating officer found various injuries on the face of the appellant at the time of his arrest. Even though the investigating officer has stated in his evidence that it was the brother of the deceased, PW2 and PW3 who had inflicted those injuries in an occurrence that took place at a later point of time, there is no satisfactory evidence before the court to indicate that there was a subsequent occurrence involving the brother of the deceased, PW2 and PW3 to inflict injuries on the appellant. It is all the more so since PW2 and PW3 have denied existence of such an occurrence. Needless to say, the injuries found on the face of the appellant would create some suspicion as to the genuineness of the evidence tendered by PW2 and PW3 as regards the occurrence.

The scene of occurrence is a place situated almost 2 kms. away from the police station. PW2 and PW3 did not inform the occurrence to the police. They did not also take the injured Bhinu to the hospital. Instead, they left from the scene, either on that day or on the subsequent day. Another circumstance pointed out by the learned counsel for the appellant to bring home the contention that the evidence tendered by the said witnesses is not reliable is that, the conduct aforesaid of PW2 and PW3 is not normal human conduct. According to the learned counsel, if PW2 and PW3 had no role at all in the injuries caused to the deceased, there is no reason why they should not inform the occurrence to the police or take the injured Bhinu to the hospital. We find that the above circumstance is not one that could be ignored, as there was no satisfactory explanation either from PW2 or from PW3 as to the reason why they did not take the injured to the hospital and as to the reason why they did not inform the occurrence to the police. It is all the more so since PW2 and PW3 did not remain at the scene after the occurrence. No investigation is seen to have been conducted on these aspects.

Be that as it may, PW3 in his cross-examination has stated that even though he met the brother of the deceased on the same night and informed him about the death, PW3 did not tell him as to who caused the death of Bhinu. Under normal circumstances, in a situation of this nature, what is expected to be informed to the brother of the deceased by a person who is carrying the information relating to death, is as to how the death occurred. The conduct of PW3 in not divulging to the brother of the deceased as to how the death occurred, also creates suspicion. It appears that there was no investigation on this aspect also.

In the light of the discussion aforesaid, we are of the view that it is a case where the appellant is entitled to the benefit of doubt.

In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case.

Registry is directed to communicate the above order forthwith to the concerned prison, where the appellant is undergoing incarceration.