IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 CRL.A.No. 2150 of 2006() ------------------------ SC.163/2005 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT: ACCUSED NO.1: --------------------------- USEPH @ KODUVALLY RAFEEQUE, S/O.ABDULLA, AGED 36, KODUVALLY HOUSE, NOCHAD, PAYYOLI. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON 08/10/2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 2150 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October, 2010 JUDGMENT Joseph Francis, J. This appeal is filed by the first accused in S.C. No. 163 of 2005 on the file of the Additional Sessions Court, Fast Track Court (Adhoc- I), Kozhikode. That was a case charge sheeted by the Circle Inspector of Police, Payyoli against accused 1 and 2 under Sections 324, 449, 302, 109 and 120 B r/w. 34 of I.P.C. 2. The prosecution case is briefly as follows. Accused 1 and 2 are husband and wife. Deceased Ibrayi is the elder brother of the first accused Useph. The allegation is that on 23.8.2001 at about 2.15 a.m., in furtherance of common intention, both the accused trespassed into the house of deceased Ibrayi in pursuance of the criminal conspiracy between both the accused, intentionally committed murder of Ibrayi and while doing that Crl.A.No. 2150 of 2006 2 act, the first accused has caused hurt to PW1 - wife of deceased Ibrayi and PW3 - daughter of Ibrayi. PW1 gave Ext.P1 F. I. Statement before the police, on the basis of which crime No. 191 of 2001 of Payyoli police station was registered and investigated. After completing the investigation, charge sheet was laid before Judicial First Class Magistrate, Payyoli, from where the case was committed to the Sessions Court, Kozhikode. Subsequently the case was made over to the Additional Sessions Court (Fast Track Adhoc-1) Kozhikode for trial and disposal. 3. In that court, on the side of the prosecution PW1 to PW21 were examined, Exts. P1 to 14 were marked and Mos 1 to 10 were identified. Exts. D1 to D4(a) were marked on the side of the defence. Learned Additional Sessions Judge, on considering the evidence, found that the second accused has not committed any offence and therefore the second accused was acquitted. The first accused was found guilty and he was convicted and sentenced to undergo Crl.A.No. 2150 of 2006 3 imprisonment for life and to pay a fine of Rs.50,000/- in default to undergo R.I. for 3 years under Section 302 of I.P.C. and to undergo R.I. for 2 years under Section 324 of I.P.C. and to undergo R.I. for 5 years and to pay a fine of Rs.5,000/-, in default to undergo R.I. for one year under Section 449 of I.P.C. The sentences shall run concurrently. Against that conviction and sentence the first accused filed this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant submitted that there is inordinate delay in registering the F.I. Statement, which is fatal to the prosecution case besides the suppression of original F.I. statement. Learned counsel for the appellant submitted that the motive for the commission of offence was not satisfactorily proved by the prosecution. Learned counsel for the appellant submitted that according to the prosecution case the incident which occurred on 5.8.2001 is the motive for the commission of the offence. But neither Crl.A.No. 2150 of 2006 4 in the F.I. statement nor in the further statement PW1 has not stated those facts to the police. The learned counsel for the appellant submitted that the evidence on record will show that the identity of the accused has not been properly established. 6. The learned counsel for the appellant submitted that Pws. 1 to 3 are highly interested and partisan witnesses and therefore they are not reliable witnesses. The learned counsel for the appellant submitted that PW21, the Investigating Officer, has stated that the finger print of the first accused was taken, but the same was not sent for expert opinion, which casts serious doubt about the correctness of the prosecution case. The learned Public Prosecutor supported the judgment of the court below. 7. PW1 - Muneera is the wife of deceased Ibrayi. She is an eye witness to the occurrence, who gave Ext.P1 F.I. statement before the police. PW1 deposed that at the time of occurrence she and her family residing at Pallikkara. PW1 and deceased Irbrayi have three children. Crl.A.No. 2150 of 2006 5 PW1 deposed that immediately after the marriage, they were resided together in the house of Ibrayi situated at Nochad. First accused is the brother of Ibrayi and the second accused is his wife. After sometime they constructed a house of their own and shifted their residence. Both these accused have no children at the time of the incident. Even prior to the incident, these accused usually came to the house of Ibrayi and resided together one or two days. 8. On 5.8.2001 both of them came to the house at about 7.30 p.m. The husband of PW1 came at 11.00 p.m. on that day. After having their food, PW1 and her youngest son gone to their tharwad house situated very nearby. The present house has only one bedroom and both the accused and the two children of PW1 slept in the bedroom. Ibrayi slept in the verandha. In the midnight their second daughter Foumy came to the tharwad house and stated that the first accused is trying to kill Ibrayi. Then PW1 went there and found blood oozing from the face of Ibrayi. Further, the first accused was Crl.A.No. 2150 of 2006 6 pointing a knife to Ibrayi shouting that he will kill him. On enquiry she could understand that when Ibrayi was trying to take the child for urinating, accidently he fell down on the body of the second accused, the wife of the first accused. At that time, she resisted and the first accused made a blow with a torch to Ibrayi. Then both the accused gone from the house at that time. At night itself they have gone to the hospital and doctor treated Ibrayi. Subsequently the accused have got vengeance to Ibrayi and their family. After a week, the house of PW1 and Ibrayi was gutted in fire during night. They thought that that also was done by the accused. 9. PW1 deposed that on 22.8.2001, while Pws. 1 to 3 and deceased Ibrayi were lying in the bed room near to the kitchen, at about 2 a.m. she heard the cry of her husband and she woke and then her husband uttered that “ “ and she saw her husband lying in a pool of blood. Then PW1 saw the first accused Useph standing near her husband with a 'koduval' in his Crl.A.No. 2150 of 2006 7 right hand and a knife and a torch in his left hand. PW1 deposed that she saw the first accused in the light of the kerosene lamp burning in that room. PW1 stated that after she woke up, the first accused inflicted a cut injury on the right shoulder of the right hand of her husband with the 'koduval' and when she tried to save her husband the first accused inflicted a cut injury on the middle finger of her right hand and PW3 Foumy sustained a cut injury on her right leg below knee. PW1 identified MO1 as the 'koduval' used by the first accused to inflict the cut injury. PW1 also identified MO2 as the knife, which was found in the hands of the first accused. She deposed that after some time on hearing the hue and cry the first accused ran away with the second accused, who was waiting outside the house. 10. PW1 deposed that immediately after the occurrence, Ibrayi, PW1 and PW3 were taken to the Medical College Hospital, Kozhikode and on examining Ibrayi, the doctor declared that Ibrayi is no more. PW1 deposed that prior to this incident, the accused tried to Crl.A.No. 2150 of 2006 8 kill them by way of setting fire to their house after locking the house. Due to that fear deceased Ibrayi has kept a butcher's knife underneath his pillow. On the date of incident, he has kept that underneath the pillow, that was seized by the police, which was identified and marked as MO3. The hawai chappal worn by the deceased, which was kept in the room, was marked as MO4. The kerosene lamp kept in the room was seized by the police, which was identified as MO5. Deceased Ibrayi has got injuries to his head, chest, both legs and right shoulder. After the incident, even now the children are crying at night due to fear with regard to this incident. Further at the time of incident, deceased was wearing a red lunki, which was also stained with full of blood and was seized by the police. 11. PW2 - Ameen and PW3 - Foumy are children of PW1 and deceased Ibrayi. They are also eye witnesses to the occurrence and they also gave more or less similar version regarding the occurrence as given by PW1. PW4 was a neighbour of deceased Ibrayi. After Crl.A.No. 2150 of 2006 9 hearing the hue and cry from the house of Ibrayi, himself as well as his neighbours have gone there and found that Ibrayi was lying in a pool of blood and has sustained injuries to all over his body. Suddenly they took him as well as PW1 and 3 to the Medical College hospital, Kozhikode in a jeep. After examination by the doctor, Ibrayi was found dead. 12. PW18 is the Medical Officer, Forensic Department, Medical College Hospital, Calicut. On 23.8.2001 he has conducted postmortem examination on the body of Ibrayi aged 38 years involved in this case. On examination the following antemortem injuries were noted: External 1) Incised wound with contused margin (chop wound) 23 cms. Long obliquely placed, upper outer & back end 9.5 cm. below top of right shoulder & was placed on the outer aspect of front of right upper arm, Crl.A.No. 2150 of 2006 10 upper end of which showed tailing upwards for a length of 4.5 cm. Lower inner front end 5 cm above & inner aspect of elbow with maximum gaping 5 cm. at the middle of injury. Maximum depth was 5 cm. at the middle of wound progressively getting shallower towards both ends. The wound had cut biceps muscle for its full thickness at the middle of injury, at the same site brachial artery and median nerve were cut. Right humerus showed a cut at the depth of the injury for a length of 3 cms at the same site and direction. Outer border of wound in its lower part showed a skin tag 5 cm. long x 1.5 cm. 2) Superficial incised wound almost transversely placed 5 cm x 1.5 cm. on the front aspect of right forearm. Outer end at midline of forearm and 2.5 cms below elbow. 3) Incised wound 1.5 cm in front of right upper arm 2.5 cm. outer to axilla and 11 cm below top of right shoulder and parallel to injury No.1 Crl.A.No. 2150 of 2006 11 4) Incised wound 4 x 2 cm on back of right middle finger with overhanging flap of sking upper end was at middle of middle finger exposing bone. 5) Incised wound 6 x 2 cm on back of right ring finger cutting the bone at a level of knuckle (1.5 cm x 1 cm x full thickness) with an overhanging flap of skin. Bone cut showed bewelling upwards. 6) Incised wound 6 x 3 x 3 cm deep, vertical, on the front and inner aspect of left patella and communicating with joint cavity of knee. 7) Incised wound oval shape 8 x 4 cm at back of head at midline transverse lower border 17 cm above the root of neck. Skin and soft tissue were chipped off. 8) Abrasion 5 x 0.2 cm oblique on outer aspect of right upper arm & parallel to tailing of injury No.1 and 2 cm inner to it, upper right end of this injury was 4.5 cm below right shoulder top. Crl.A.No. 2150 of 2006 12 9) Abrasion 4 cm x 0.3 cm. almost transverse outer end touching the lower half of injury No.8. The right upper end was 7 cm below top of shoulder. 10) Abrasion 0.5 x 0.3 cm over back of knuckle of right thumb. 11) Two abrasions 1 below other each 1 x 1 cm, 1.8 cm, apart at outer aspect of right knee. 12) Abrasion with minimal graze (6 x 4 cm) at left shoulder blade region of upper back of chest and 10 cm below top of shoulder and 16 cm left of back midline. 13) Abrasion with minimal graze 4 x 4 cm. at outer back aspect of left buttock 12 cm below iliac crest and 14 cm outer to gluteal cleft. Other findings: Skull intact. Brain 1100 gm pale. Neck structures intact. Air passages contained nucus. Lungs 300 gms. each both pale. Heart 250 gms. Crl.A.No. 2150 of 2006 13 normal. All coronaries are patent. Liver 900 gm pale. Biliary passages patent. Kidneys 100 gms each both pale. Spleen 100 gms. Stomach with content weighed 150 gms contained cooked rice and curry. No unusual smell. Mucosa normal. Urinary bladder empty. Genitalia normal and penis circumcised. All other organs were pale otherwise normal. Cotton gauze socked with blood (dried) preserved for grouping. The opinion as to cause of death is that deceased died of cut injury to the right upper arm involving major blood vessels. The certificate issued by him was marked as Ext.P14. Injury No.1 was most grievous injury and the death was due to this injury. All the incised wounds noted in Ext.P14 including No.1 can be caused by a weapon like MO1 chopper.” 13. PW15 was the lecturer in Surgery, Medical college Hospital. On 23.8.2001 at 4.30 a.m. he has examined PW1 Muneera, 29 years, brought by Moidu, Satheesan and others. The alleged Crl.A.No. 2150 of 2006 14 history was told by the patient as follows: On examination patient was conscious and oriented. The injuries noted are cut injuries 1 x 0.5 cm x 0.5 cm on right middle finger tip in the dorsal side. No other injuries noted. The certificate issued by him was marked as Ext.P11. 14. Learned counsel for the appellant invited our attention to the decision reported in Ramgopal v. State of Maharashtra (AIR 1972 SC 656) in which it was held that: “If in a criminal case motive as a circumstance is put forward it must be fully established like any other incriminating circumstance.” Crl.A.No. 2150 of 2006 15 That ruling is not applicable to the facts of the present case. In that case the evidence adduced from the side of the prosecution was of a circumstantial nature. In a case based on circumstantial evidence proof of motive is relevant. The present case is not based on circumstantial evidence, but based on direct testimony of the eye witnesses. 15. The learned counsel for the appellant submitted that in Ext.P1 F.I. statement the alleged motive is that the first accused used to come to their house with certain women, which was not liked by the deceased. Learned counsel for the appellant submitted that in the remand report it is stated that the motive of the occurrence is that on 5.8.2001 the deceased ravished the second accused, who was sleeping in his house. Learned counsel for the appellant further submitted that when deceased Ibrayi was taken to the hospital in the incident occurred on 5.8.2001 it was stated to the doctor that Ibrayi sustained the injury due to some property disputes. But in the cross Crl.A.No. 2150 of 2006 16 examination PW1 has stated that there was no property dispute between the deceased and the first accused. As already stated, since the present case is based on direct evidence, the proof of motive is irrelevant. 16. When the first accused was questioned under Section 313 Cr.P.C. he has stated that he is innocent and that he was falsely implicated due to enmity and misunderstanding. 17. The learned counsel for the appellant submitted that in Ext.P1 F.I. statement the time of alleged incident is stated as 1 a.m. on 23.8.2001, but when she was examined before the court as PW1, she stated that the time of occurrence is at 2.15 a.m. Since PW1 is a rustic uneducated woman, who may not have sense of time, the slight variation regarding the time of occurrence is not a reason to doubt her testimony. Learned counsel for the appellant submitted that in Ext.P1 F.I. statement PW1 has no case that she saw the first accused inflicting injuries on the body of deceased Ibrayi. But when she was examined Crl.A.No. 2150 of 2006 17 before Court as PW1 she has stated that she saw the first accused inflicting cut injury on the right shoulder of the deceased. In Ext.P1 F.I. statement, which was recorded on 23.8.2001 at 7.45 a.m., it is stated that kerosene lamp was burning in the room. In Ext.P11 wound certificate it is stated that PW1 was examined by the doctor on 23.8.2001 at 4.30 a.m. In Ext.P11 it is stated that PW1 sustained the injury when she attempted to save her husband from the attack of the first accused, who was using 'koduval' at 2.15 a.m. on 23.8.2001. 18. In the statement given by PW1 before the doctor, she has stated the involvement of the first accused in the occurrence and in Ext.P1 F.I. statement also she has stated about the involvement of the first accused. More over, Pws. 1 and 3 have sustained injuries in the occurrence. Therefore, the presence of Pws. 1 and 3 at the time of occurrence cannot be doubted. Since the occurrence took place in the house of deceased Ibrayi, Pws. 1 to 3, who are the wife and children, Crl.A.No. 2150 of 2006 18 are natural witnesses and they cannot be treated as interested witnesses. 19. The learned counsel for the appellant invited our attention to the decision reported in State (Delhi Admn.) v. V.C. Shukla (AIR 1980 SC 1382), in which it was held that: “A witness who could go to the extent of making intentionally false statement cannot be relied upon for the purpose of convicting the accused. In the present case, it is true, that there are some improvements made by Pws. 1 to 3 in court and there are some variations in their earlier and latter statements. But those discrepancies do not materially affect the veracity of Pws. 1 to 3 and do not create any infirmity. 20. Learned counsel for the appellant submitted that PW17, who was the Sub Inspector of Police, Payyoli, stated that he got information about the occurrence at 3 a.m. in the same night and he Crl.A.No. 2150 of 2006 19 went to the place of occurrence at 5 a.m. and he enquired about the occurrence with the local people. The learned counsel submitted that the F.I.R. prepared on getting the first information is suppressed by the prosecution. But this argument cannot be accepted in view of the fact that PW17 has stated that no crime was registered as information received was to the effect that there was an altercation between the brothers and he went to the Medical College Hospital, Kozhikode and reached there at 7.45 a.m. and recorded Ext.P1 F.I. statement given by PW1. 21. Learned counsel for the appellant submitted that Pws. 2 and 3 are child witnesses and their testimony cannot be accepted as true as there is every chance of their being tutored. When PW2 was examined before the trial court, he was aged 14 years and at the time of occurrence he was aged 10 years and was studying in Vth standard. When PW3 was examined before the court below she was aged 13 years and was studying in the VIth standard. Pws. 2 amd 3 gave Crl.A.No. 2150 of 2006 20 evidence with regard to the occurrence in accordance with their earlier statements given before the Investigating Officer. Their testimony cannot be rejected since they withstood the stiff cross examination. PW2 deposed that at the time of the occurrence he woke up on hearing the cry of his father Ibrayi and PW3 Foumi and then he saw the first accused inflicting cut injury on the body of his father by using MO1 'koduval'. PW2 gave similar version to the Investigating Officer. It is true that when PW1 gave Ext.P1 F.I. statement before the police, she had no case that she actually saw the first accused inflicting cut injury on the body of deceased Ibrayi with MO1 'koduval'. Therefore that portion of the testimony of PW1 that she saw the first accused inflicting cut injury on the body of deceased by MO1 'koduval' cannot be accepted as true. 22. Pws. 1 and 3 gave evidence that on hearing the cry of Ibrayi, they woke up and they saw the first accused standing near Ibrayi with MO1 'koduval' in his hand and at that time Ibrayi had Crl.A.No. 2150 of 2006 21 sustained injuries and when the first accused dashed the koduval, PW1 sustained injury on her hand. Since the testimony of PW2 that he saw the first accused inflicting cut injuries on the body of Ibrayi with MO1 koduval is corroborated by the testimony of Pws. 1 and 3 and the medical evidence, we are of the view that the learned Additional Sessions Judge is fully justified in finding that the first accused caused the death of Ibrayi by inflicting cut injuries on the body of the deceased with MO1 'koduval'. 23. The next question to be considered is as to what are the offences committed by the first accused. The evidence on record shows that the deceased died due to the cut injury caused to the right upper arm involving major blood vessels inflicted by the first accused by using MO1 'koduval'. The upper arm is not such a part of the body, an injury on which must result in death. It would be proper to hold that the first accused did not have the intention of either causing death or causing such bodily injury as was likely to case death of the Crl.A.No. 2150 of 2006 22 deceased. But the first accused could safely be credited with knowledge that he was by his act likely to cause death of the deceased. The first accused, therefore, committed an offence not under Section 302 I.P.C., but under Section 304 Part II I.P.C. 24. Since the first accused inflicted injuries on the body of Pws. 1 and 3 by using MO1, the first accused is guilty of the offence punishable under Section 324 I.P.C. as found by the trial court. As the first accused trespassed into the house of deceased Ibrayi, the first accused has committed the offence punishable under Section 449 I.P.C. as found by the trial court. 25. Considering the facts and circumstances of the case, we are of the view that sentencing the first accused to undergo R.I. for a period of 8 years under Section 304 Part II I.P.C. , R.I. for one year under Section 324 I.P.C. and R.I. for five years under Section 449 I.P.C. would meet the ends