IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.A.No. 1171 of 2005 --------------------------------------- SC.157/2001 of ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGOD .................... APPELLANT / ACCUSED NO.1: ------------------------------------------------ APPAKUNHI, S/O.MUKUNDAN, KATATHIL VEEDU, KOLATHUR VILLAGE, KASARAGOD. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT / COMPLAINANT: --------------------------------------------------- STATE - S.H.O., BEDAKAM POLICE STATION, REPRESENTED BY THE PUBLIC PROSDECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON 24/07/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1171 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of July, 2009 JUDGMENT Basheer, J: Appellant was tried along with two others for the offences punishable under Sections 448, 341, 324, 302 read with Section 34 IPC. The court below found the appellant guilty for the offence under Section 302 IPC and he was accordingly convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/-. He was also found guilty under Section 448 IPC and sentenced to undergo rigorous imprisonment for one year. 2. The court below acquitted accused No.3 of all the charges levelled against him. It is on record that accused No.2 committed suicide during the pendency of the trial and resultantly the charge against him had abated. The order of conviction and sentence passed against the appellant is impugned in this appeal. 3. The prosecution case in a nut shell was that appellant/accused No.1 had gone to the residence of the deceased at about 7 p.m. on July 28, 1999 asking for the deceased and seeking explanation from him about the assault made by the deceased on his Crl.A.No.1171 OF 2005 :: 2 :: father during the course of the day. When the appellant informed PW1, father of the deceased, about the purpose of his visit, PW1 called his son who came out of the veranda along with his mother (PW3). At that time, the appellant allegedly took out a knife and threatened the deceased that his stomach will be taken out. PW1 asked the appellant to go out. At that time, accused Nos.2 and 3 came running to the scene and dragged the deceased out of the veranda and on to the courtyard. Accused 2 and 3 allegedly restrained the deceased by catching hold of his two hands from both sides. At that time, the appellant stabbed the deceased on the left side of his neck just below the ear lobe resulting in an injury which ultimately turned out to be fatal. 4. Appellant was immediately taken to the hospital at Kasaragod from where he was referred to Govt. Wenlock Hospital in Mangalore. According to the prosecution, the injured died at that hospital at about 11.45 p.m. PW1 gave Ext.P1, First Information Statement at 7.00 a.m. on the next day (July 29, 1999). PW10, Sub Inspector, recorded the statement and registered Ext.P1(a) First Information Report. Investigation was conducted by PW12. The three accused were arrested during the course of investigation and Crl.A.No.1171 OF 2005 :: 3 :: M.O.III knife was recovered pursuant to the information furnished by the appellant. Charge sheet was laid after completing the investigation. 5. The prosecution examined PWs 1 to 13 and marked Exts.P1 to P16. M.O.I to M.O.VII on its side. Ext.D1 and D1(a) contradictions in the statements given by the witnesses under Section 161 of the Code of Criminal Procedure were marked on the side of the defence. As mentioned earlier, the court below found the appellant guilty under Section 448 and 302 IPC. 6. PW1, the father of the victim, deposed before the court that the appellant (accused No.1) came to his residence at about 7.30 p.m. calling out his name Kittattan. At that time his wife, daughter Soumya and deceased son Gangadharan were at home. Appellant told PW1 that he had come to see Gangadharan (deceased), since he had been informed that the deceased had pushed down his father. Appellant took out a knife and stated that he would go away only after taking out the intestine of the deceased. While saying so, he was trying to polish the knife on his palm. PW1 told the appellant to go out. Accused No.1 went out on the veranda. At that time, PW1, his wife, deceased Gangadharan and daughter were standing on the Crl.A.No.1171 OF 2005 :: 4 :: door step of the veranda. Suddenly, accused 2 and 3 came there and dragged deceased Gangadharan to the courtyard holding his hands. PW1 also stepped out to the courtyard. Accused 2 and 3 pulled the hands of the deceased from both sides. At that time, accused No.1 stabbed on the left side of the neck of Gangadharan. A deep wound resulted, and it started bleeding. When his mother, PW3 tried to ward off the stab she sustained some injuries on her hand. PW1 carried his son to the veranda holding on to the wound. His daughter ran to the residence of PW4, the brother of PW3. A jeep was brought and the injured was taken to the Government Hospital, Kasaragod from where he was referred to Govt. Wenlock hospital in Mangalore. On reaching the hospital, his son passed away. He came back late in the night. He went to the North police station on the next day morning and gave Ext.P1 statement. He identified his signature in Ext.P1. He also identified M.O.I lunki which was being worn by his son at the time of the incident. Though this witness was elaborately and extensively cross examined, the defence could not succeed in shaking the trustworthiness or credibility of this witness in any manner. Crl.A.No.1171 OF 2005 :: 5 :: 7. PW2 was a witness to Ext.P2 scene mahzar under which M.O.I lunki and M.O.II stick were seized. 8. PW3, the mother of the deceased also spoke about the incident in almost identical lines as spoken by PW1. She stated that her son was with her in the kitchen at the time when appellant came there. Her daughter was sitting along with the father. Appellant came there calling out the name of her husband. He asked for Gangadharan, her son. Appellant stated that he wanted to seek an explanation from Gangadharan as to why he had pushed down his father during daytime. PW3 asserted that she heard the appellant say that he would take out the intestine of her son. On hearing the voice, she and her son came out to the veranda. Her son told the appellant that he did not know anything about the alleged incident. At that time, appellant took out the knife from his waist stating that his intestine will be taken out. He started to polish the knife on his palm. At that time, her husband told the appellant to go out. Appellant stepped out of the veranda and stood on the courtyard. Appellant asked her son whether he wanted a witness for the incident in which his father who had been pushed down to the ground. At that time, accused 2 and 3 came running to the scene Crl.A.No.1171 OF 2005 :: 6 :: and dragged Gangadharan from the veranda to the courtyard. When her son was dragged out from the veranda, PW3, her daughter and husband also stepped out to the courtyard. Appellant stabbed at the left side of the neck of Gangadharan below the ear lobe. The stab went deep inside. At that time, accused 2 and 3 were holding the hands of the deceased. When she tried to save her son, she sustained an injury on her palm. She identified M.O.III knife, M.O.II stick, and M.O.IV umbrella. According to this witness, M.O.II and IV were being carried by accused No.2. She further stated that her son did not utter a word after he sustained the injury. Her husband came back from the hospital in the mid night. He informed that her son was no more. On the next day she went to the hospital and got treatment for the injuries on her hand. She asserted that she could clearly identify the assailants. This witness was also extensively cross examined. But the defence could not cause any dent in the prosecution case. Of course in the course of her cross examination, she was confronted with her alleged statement to the police to the effect that Gangadharan had come home about 10 minutes prior to the incident. This portion was marked as Ext.D1. Under Ext.D1(a), this witness allegedly told the police that she had Crl.A.No.1171 OF 2005 :: 7 :: sustained injury on her hand while she was trying to save the life of her son who was being attacked by the three accused. She stated that she had not stated so before the police. 9. PW4, the uncle of the deceased, stated that he had taken his injured nephew in a jeep initially to the hospital at Kasaragod and later to Mangalore. M.O.V blanket and M.O.VI underwear were marked through this witness. 10. PW5 was an attester to seizure of M.O.III knife which according to the prosecution was used by the appellant to inflict the fatal wound on the deceased. According to PW5, who was an auto driver, he had seen the accused pointing out the knife concealed under a tree beneath a heap of dry leaves. 11. PW6 was a witness to Ext.P4 inquest report and PW7, photographer, spoke about Ext.P5 series of photographs taken by him. PW8 was working as Assistant Surgeon at the Primary Health Centre at Bedadka during the relevant point of time. He had examined PW3 at about 9.30 a.m. on July 29, 1999, the next day of the incident. He issued Ext.P6 certificate in which he noted “incised wound over the knuckle of the right middle finger of length around 1.5 cm. A laceration on the dorsum of right index finger over the Crl.A.No.1171 OF 2005 :: 8 :: proximal interphalangeal joint.” 12. PW9, Village Officer, prepared Ext.P7 site plan. PW10, as has been mentioned already, recorded Ext.P1 First Information Statement and registered Ext.P1(a) First Information report. He arrested accused 1 and 2 on August 2nd 1999. Accused No.3 was arrested earlier on July 31, 1999 itself. 13. PW11 had examined the injured at the Government Hospital, Kasaragod when he was initially brought there. He issued Ext.P9 wound certificate. The following injuries were noted by PW11 in Ext.P9 certificate: (1) incised wound in front of left ear 4cm long and bone deep. (2) incised wound skin deep about 5 cm long vertical and lateral to nipple. 14. Significantly, while recording the history of alleged cause of injury the doctor noted that the wound was inflicted by the three accused (appellant Nos.1, 2 and 6 ) in the case with knife. Though the patient was conscious, he was found to be drowsy. His pulse rate was 80/mt, feeble and BP was 75/40. PW12, investigating officer, spoke about the investigation process. He further stated that he had recovered M.O.3 knife pursuant to the information Crl.A.No.1171 OF 2005 :: 9 :: furnished by accused No.1 and Ext.P3 seizure mahazar was prepared in this regard. That portion of the statement leading to recovery was marked as Ext.P11. PW13 conducted autopsy on the body of the victim and he issued Ext.P10 postmortem certificate. The following external injuries were noted in the certificate: (1) incised wound in front of left ear size 2½ inch length. (2) Incised wound on the right mammary area 1½” size (skin deep) not penetrating to the chest wall. 15. No fracture was seen on opening the skull. The injury near the left ear had cut the superficial temporal and transverse facial artery. The opinion as to cause of death was recorded thus: “Death is due to hemorrhage resulting in shock as a result of injury to the artery in the face.” 16. It is contended by Sri.Grashious Kuriakose, learned counsel for the appellant, that the court below ought not to have placed implicit faith and reliance on the interested testimony of PWs1, 3 and 4 who are the near relatives of the deceased. He also assails the alleged recovery of M.O.3. He contends that the court below, in any view of the matter, was not justified in holding the appellant guilty under Section 302 IPC even assuming the Crl.A.No.1171 OF 2005 :: 10 :: prosecution story that the appellant had inflicted a wound on the deceased with M.O.3 knife can be believed. Learned counsel points out that going by the evidence of PW1 and 3 it can be seen that the appellant had stepped out of the veranda the moment he was asked to do so by PW1. If in fact the appellant had the intention to commit murder of the deceased, he would not have done so. The fact that he stepped out of the veranda and came on to the courtyard indicates that he had no vicious intention or that he had ever intended to cause the death of the deceased. 17. In this context, it may be noticed that from the trend of cross examination of witnesses, it can be seen that the defence had tried to project a case that the incident could not have taken place in the courtyard of the house as alleged by the prosecution. According to the learned counsel, the incident might have taken place on the narrow pathway leading to the house when the deceased had followed the appellant, while he was going away from the house of the deceased. Learned counsel points out that the investigating agency had not found any blood mark in the courtyard. 18. We are unable to agree with the above preposition. It may be true that the investigating agency had not detected or found any Crl.A.No.1171 OF 2005 :: 11 :: blood mark in the courtyard. The specific case of PW1 was that the moment his son sustained the wound on the neck, he had immediately taken him inside the house holding on to the wound firmly, in order to prevent any blood loss. It is pertinent to note that the appellant did not have a case that he was not present at the scene of occurrence or he had not visited the house of the victim on the fateful day. Though a curious and vague attempt was made in the course of cross examination of the material witnesses by trying to suggest that the appellant was in the habit of chewing betel leaves and that the appellant had always been carrying M.O.3 knife for the purpose of cutting areca to enable him to chew betel leaves, the attempt had miserably failed. 19. The evidence on record clearly indicates that the appellant was present at the scene of occurrence with M.O.3 knife with him. It did also come out in evidence that the appellant was involved in an altercation with the deceased at the scene of occurrence. Learned counsel for the appellant tried to argue for the position that the prosecution had failed to establish by any cogent evidence that there was previous animosity between the appellant and the deceased. However, the evidence of PWs1 and 3 in no uncertain Crl.A.No.1171 OF 2005 :: 12 :: terms clearly establishes that the appellant had gone to the scene asking for the deceased. He had brandished the knife and threatened that he would take out the intestine of the deceased. 20. We have carefully perused the evidence of PWs1 and 3 who are rustic villagers. Their oral testimonies are quite natural, totally trustworthy and plausible. As mentioned by us earlier, the defence could not in any way cause any dent in their credibility. This witness had without any hint of exaggeration or embellishment narrated the incident. Having carefully perused the testimonies of these two witnesses, we do not find any reason to disbelieve them. Similarly, we find the evidence of other witnesses, especially, that of PW5 who witnessed recovery of M.O.III knife totally trustworthy. 21. In this context, we may also mention that the evidence of PW11, doctor, who examined the injured at the first point of time had noted that he was informed by the persons who took the injured to him that he had been assaulted by the appellant and the other two accused. We do not find any reason to discard the evidence of this witness who issued Ext.P9 wound certificate. 22. In short, the evidence adduced by the prosecution in this case is by all standards totally trust worthy and reliable. The court Crl.A.No.1171 OF 2005 :: 13 :: below, in our view, was justified in holding the appellant guilty under Sections 448 and 302 IPC. Though learned counsel for the appellant has made a very impassioned plea to alter the conviction from Section 302 to Section 304 IPC, we do not find any justification to do so. The nature of the wound apart from the fact that the said wound was inflicted at a vital part of the body, leave alone the manner in which the injury was inflicted would clinchingly show that it was a premeditated assault. In that view of the matter, we do not find any ground to interfere with the order of conviction and sentence. The appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes