IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 CRL.A.No. 2239 of 2007(D) ------------------------- SC.44/2007 of SESSIONS COURT, ERNAKULAM CP.6/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT : APPELLANT ----------------------- KRISHNA KUMAR, C.NO.1673, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.V.P.JOLY[STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.2239 of 2007 ***************************** Dated this the 21st day of December, 2011 JUDGMENT BASANT, J. Did the court below err in accepting the evidence of the child witness PW1 about the occurrence proper? Is the appellant entitled to any reasonable doubt on the basis of the totality of inputs available in this case? These are the questions that are raised before us by the learned counsel for the appellant Sri.V.P.Jolly in this appeal. 2. The appellant, a young man aged about 25 years, has been found guilty, convicted and sentenced under Section 302 I.P.C to undergo the sentence of imprisonment for life. According to the prosecution, at 8.30 p.m on 10.02.2006, on the pathway leading to the house of the deceased, the appellant inflicted multiple stab injuries on the deceased with M.O.1 knife on account of prior animosity with the intention of causing his death. He succumbed to those injuries shortly after the occurrence. Crl.Appeal No.2239 of 2007 2 3. The crime was registered on the basis of Ext.P1 F.I statement lodged by PW1, a cousin of the deceased, in front of whose house the incident had allegedly taken place. Investigation was completed and final report was filed by PW12. When the case was committed to the court of session, the appellant denied the charge framed against him by the learned Sessions Judge. Thereupon the prosecution examined PWs 1 to 12 and proved Exts.P1 to P10. M.Os.1 to 10 were also marked. 4. In the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the accused denied all circumstances which appeared in evidence and which were put to him. According to him he had nothing to do with the incident in which the deceased suffered injuries. He admitted his presence in the locality on that night. According to him, he was being implicated out of animosity by PW1 and other relatives of the deceased. He did not adduce any evidence - oral or documentary. 5. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that the prosecution has eminently succeeded in establishing the offence under Section 302 I.P.C against the appellant. Accordingly, the Crl.Appeal No.2239 of 2007 3 learned Sessions Judge proceeded to pass the impugned judgment. 6. Before us the learned counsel for the appellant Sri.V.P.Jolly and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant contends that the evidence adduced by the prosecution should not have been accepted and acted upon. At any rate, the appellant is entitled to the benefit of doubt, it is urged. 7. The learned Prosecutor on the contrary submits that the prosecution evidence eminently establishes the charge against the appellant. No reasonable doubt is generated and this Court must concur with the conclusions of the court below, argues the learned Public Prosecutor. 8. We have considered all the relevant inputs. We deem it unnecessary in this appellate judgment to re-narrate the oral and documentary evidence relied on by the prosecution. This appellate judgment is and must be read in continuation of the impugned judgment of the trial court. We need only observe that we have been taken in detail through the oral evidence of PWs 1 to 12 and the contents of Exts.P1 to P10. The charge framed by the court below and the answers given by the Crl.Appeal No.2239 of 2007 4 appellant when he was examined under Section 313 Cr.P.C have also been read to us in detail. We will specifically advert to relevant materials, if necessary, at the appropriate stage in the course of discussions. 9. The prosecution relied on various pieces of evidence to drive home the charge against the appellant. We may enumerate them below: i) Evidence of motive; ii) Res gestae evidence of the utterances of the deceased immediately after he suffered the injuries; iii) The evidence of PW2, a child witness, who ocularly perceived the incident; iv) Evidence available that the appellant was available at/near the scene of the crime at the relevant time; v) Evidence of the dying declaration made by the deceased; vi) Presence of blood stains on M.Os.2 and 3 clothes worn by the appellant at the relevant time; vii) Surrender of the appellant before the police; viii) Recovery of M.O.1 on the basis of Ext.P6(a) information furnished by the appellant to the Investigating Crl.Appeal No.2239 of 2007 5 Officer; ix) Purchase of M.O.1 from PW5 by the appellant on that morning. 10. The learned Public Prosecutor contends that all the above pieces of evidence are perfectly acceptable and when accepted, they firmly and beyond doubt establish the charge against the appellant. The appellant disputes the above pieces of evidence/circumstances. 11. According to the prosecution, there was motive for the appellant against the deceased. PW1 has spoken about this motive. This motive finds expression in Ext.P1 F.I statement lodged by PW1 at 10 p.m on 10.02.2006 before the police, the incident having taken place at 8.30 p.m earlier on the same day. According to PW1, the motive arose from two circumstances. Father of the appellant was assaulted by the deceased and some others. The deceased had allegedly tendered evidence implicating the appellant in a theft case. One of these - assault on the father of the appellant, is not mentioned in Ext.P1. But in Ext.P1 the other motive is specifically mentioned. We find absolutely no difficulty to accept the case of the prosecution that there was strain in the relationship between the appellant and Crl.Appeal No.2239 of 2007 6 the deceased. Even the appellant does not really dispute this fact as the very plank on which his defence is built is that the relatives of the deceased have falsely implicated him in this crime because of their anterior disputes and animosity. It is hazardous for a court to speculate whether sufficient motive for murder was there. Sufficiency of motive cannot be calibrated by a court. Suffice it to say that the prosecution has eminently succeeded in establishing the strained relationship between the appellant and the deceased. The nature of the defence set up by the appellant reveals that the appellant also does not seriously dispute this circumstance. 12. Secondly the prosecution relied on the res gestae evidence of the utterances of the deceased immediately after he suffered the injury, which utterances were perceived by PWs 1, 2 and 3. PW1 is his cousin; PW3 is his brother and PW2 is the son of the deceased. All 3 of them clearly state that when the deceased sustained the injuries, he had shouted that he was stabbed by “Krishna Kumar”, the accused. The evidence of PWs 1, 2 and 3 on this aspect get support inter se. We also have support for that evidence from the contents of the prompt Ext.P1 F.I statement. Such utterances of the deceased when he Crl.Appeal No.2239 of 2007 7 suffered the injuries is part of the same transaction and though the deceased is not available for cross examination, such utterances are admissible under Section 8 of the Evidence Act. We are satisfied that the oral evidence of PWs 1, 2 and 3 satisfactorily establishes that the deceased had, while receiving the injury, uttered aloud that he had received such stab at the hands of the appellant. Obviously he was wanting to attract the attention of persons nearby whose support he required very badly at that juncture. The evidence about such utterances of the deceased is thus found to be perfectly admissible in law and absolutely acceptable. 13. We then have the evidence of PW2. PW2 is a child witness. He is shown to be aged only 12 years at the time of occurrence. When he was examined in court, he was about 13 years old. Oath was administered to him, it is obvious, after the court was satisfied that he is capable of tendering evidence. According to the prosecution, PW2 was ill. His father (the deceased) and his mother had taken him to the hospital. While they proceeded to the hospital, the house was locked and the key was left with Manu, the brother of PW2. When the parents along with PW2 returned to the house, Manu was not available. He Crl.Appeal No.2239 of 2007 8 had locked the house and had gone away to the nearby temple where a festival was being celebrated. The deceased, PW2 and his mother therefore had to wait in the house of PW1. The deceased had gone in search of Manu. He had met his brother PW3 and his brother had promised to search in the temple compound and return with Manu. The deceased was thereafter returning to the house of PW1. P.Ws 1, 2 and others were in the house. PW2 appears to have perceived some noise and he then came to the gate of the house. It looks that he had perceived auditorily, the voice of his father and that is what prompted PW2 to come to the gate. When PW2 came to the gate, the incident was in progress and PW2 allegedly saw the appellant inflicting injuries on his father at the final spot where the deceased was found lying at the end of the incident. 14. To us it appears that the contents of Ext.P1 is really crucial and inspiring. Even in Ext.P1 we find that PW1 had narrated to the police that hearing some noise, PW2 - the minor child, had gone to the gate of his house to open the same for his father. That PW2 was in a better position to perceive the incident than PW1 and others in the same house is clearly indicated from the contents of Ext.P1. It is true that PW2 is a child witness. It Crl.Appeal No.2239 of 2007 9 is true that he is interested in the deceased. But all the same, we do not find any semblance of doubt on the acceptability of the version of the prosecution that PW2 had seen the incident going by the contents of the earliest F.I statement Ext.P1. If there were any intention to maliciously foist and create false evidence, it is very unlikely that the burden to speak about the incident would have been allotted to PW2 a child witness, when other relatives like PW1 and the wife of the deceased were admittedly available in the house. We do accept that the possibility of a better concoction is no insurance about the acceptability of a crude concoction. But in the facts and circumstances of this case, we are of the opinion that the evidence of PW2 inspires confidence. We find no reason to doubt or suspect the testimony of PW2. 15. An argument is built by the learned counsel for the appellant that it was not necessary for the prosecution to rely on the oral evidence of the child witness PW2. He draws our attention to the contents of Ext.P1 to urge that another adult witness had also allegedly witnessed the occurrence, ie. the mother of the deceased. The prerogative of the prosecutor to choose his witnesses is beyond controversy. We are unable to Crl.Appeal No.2239 of 2007 10 agree that in the choice of the Prosecutor to examine PW2 and not CW10, the mother of the deceased, the Prosecutor is guilty of any unfair preference. That is no reason to approach the evidence of PW2 with any amount of dissatisfaction. Suffice it to say that the oral evidence of PW2 did inspire confidence in the mind of the trial court and we find no reason to interfere with the discretion exercised by the trial court to place reliance on the oral evidence of PW2. 16. The prosecution next relies on the evidence of witnesses like PWs3 and 4 who speak about the presence of the appellant at or near the scene of the crime. PW3, brother of the deceased, had allegedly seen the appellant proceeding along the pathway where the incident took place. According to PW3, he had proceeded in a hurry forward when PW3 along with Manu was proceeding along the same pathway. A couple of moments later, he heard the cries of the deceased that he was stabbed by Krishna Kumar, the appellant. When PW3 along with Manu rushed to the scene of the crime, he allegedly saw the accused proceeding in a hurry northwards. Thus the prosecution alleges that PW3 had seen the appellant, both before and after the occurrence at about the scene of the occurrence. PW4's Crl.Appeal No.2239 of 2007 11 evidence was relied on by the prosecution further to assert that the appellant was available in the locality at about the time of the offence. PW4 had seen him coming from the lane leading to the house of the deceased. That evidently was at a point farther away from the scene of the crime. 17. In fact, a perusal of the answers given by the appellant in his 313 examination clearly shows that he admits his presence in the locality. He admits his presence in the temple premises where the festival was going on. In these circumstances, there is not much of dispute about the availability of the appellant at about the scene of the crime at the relevant time. We find that the court below has committed no error in accepting and acting upon the evidence of PWs 3 and 4 to come to the conclusion that the appellant was available near the scene of the occurrence at the relevant time. 18. Fifthly the prosecution relies on the evidence of dying declaration made by the deceased to PWs 1 and 2. When people reached the injured/deceased they asked him what had happened and it is then that he allegedly stated that he was stabbed by the appellant herein. PWs 1 and 2 speak about this. This version is supported by the contents of Ext.P1 F.I statement. Crl.Appeal No.2239 of 2007 12 We find absolutely no reason not to accept and act upon the oral evidence of PWs 1 and 2 on this crucial and vital aspect. We agree that the court below has committed no error in choosing to accept and act upon the oral evidence of PWs 1 and 2 about the Dying declaration made by the deceased. 19. The prosecution then relies on the conduct of the appellant surrendering before police. That is the version even of the appellant. In his 313 examination, he states that on coming to know of the crime, he had appeared before the Commissioner of police from where he was taken to PW12, the Investigating Officer. On this aspect, we find there is no serious dispute at all. When the F.I.R was registered, the appellant was pictured as the accused and if the appellant thereafter appears before the police, that cannot be reckoned as a very crucial circumstance in favour of either the appellant or the prosecution. 20. According to the prosecution, PW12 after arresting the accused and interrogating him came to know of the presence of M.Os.2 and 3 clothes worn by the accused at the relevant time in the house of the appellant. He proceeded to the house of the appellant and seized M.Os.2 and 3 clothes worn by the appellant under Ext.P5 seizure mahazar. PW9 is an attestor to the said Crl.Appeal No.2239 of 2007 13 seizure mahazar. We have the evidence of PW2 as well as PW5 that the deceased on that day was wearing M.Os.2 and 3. M.Os.2 and 3 clothes of the appellant were forwarded to the chemical examiner and the chemical examiner under Ext.P9 had reported that M.Os.2 and 3 contain human blood and the human blood belonged to `A' group, which is same group as that of the deceased. The accused offers no explanation for the presence of human blood of `A' group on his clothes. We find no reason to disbelieve the evidence of PWs 2 and 5 that those were the clothes worn by the deceased on the date of occurrence. We find no reason not to accept the evidence of PW12 that those clothes were recovered from the house of the appellant. Ext.P9 confirms that they were blood stained with ` A' group human blood. 21. As against all these, the learned counsel for the appellant argues that in Ext.P5 recovery mahazar presence of blood stains is not described by PW12, the Investigating Officer. That circumstance cannot be held to be very crucial. PW12 obviously wanted the presence of blood stains on M.Os.2 and 3 to be ascertained competently by referring the matter to the scientific expert. In these circumstances, absence of description in Ext.P5 seizure mahazar of blood stains on M.Os.2 and 3 Crl.Appeal No.2239 of 2007 14 cannot be held to be vital or crucial. We are satisfied that this circumstance is proved satisfactorily and is a formidable one against the appellant. 22. The prosecution relies on the recovery of M.O.1 on the basis of Ext.P6(a) information furnished by the appellant to PW12 Investigating Officer in the course of interrogation when he allegedly made a confession statement. Primarily we have the evidence of PW12 on this aspect. Ext.P6(a) is the relevant portion of the confession statement. We have Ext.P6 seizure mahazar duly attested by PW10. The contents of the contemporaneous Ext.P6 seizure mahazar eminently supports the oral evidence of PW12. Not a semblance of doubt remains in our mind that M.O.1 was recovered on the basis of Ext.P6(a) information furnished by the appellant. 23. The evidence of the expert suggests that the injuries found on the deceased described in Ext.P3 could all be inflicted with a weapon like M.O.1. M.O.1, Ext.P9 shows, had blood stains on it, again belonging to human `A' group. No explanation is offered for such recovery. We are satisfied that the evidence of recovery of M.O.1 under Ext.P6 by PW13 on the basis of Ext.P6(a) information furnished by the accused can safely be Crl.Appeal No.2239 of 2007 15 accepted. 24. To connect M.O.1 with the appellant, the prosecution examined PW5 to confirm that M.O.1 was purchased by the appellant from PW5 earlier on that morning. After arrest of the appellant, the accused was interrogated and evidently such interrogation had led the police to PW5. PW5 identified the appellant as the person who had purchased M.O.1 knife from his shop on 10.02.2006. We find nothing inherently improbable in PW5 identifying the appellant on 12.02.2006. Even though an attempt is made to contend laboriously that, that evidence of identification of the appellant by PW5 is inherently improbable, we find absolutely no justification in that contention given the fact that PW5 had spoken on oath of that circumstance. The police were led to PW5 evidently after the interrogation of the appellant and PW5 was called upon to remember the purchase of M.O.1 by the appellant two days prior to the date on which he had sold M.O.1 to the appellant. There is absolutely no improbability in the evidence of PW5. His cross examination does not at all reveal that there is any justification for any prudent mind not accepting the evidence of identification of the appellant by PW5. Crl.Appeal No.2239 of 2007 16 25. We do, in these circumstances, come to the conclusion that the prosecution has succeeded in establishing all the above circumstances and the evidence tendered clearly point to the guilt of the appellant. 26. We must refer to one contention laboriously advanced by the learned counsel for the appellant. The learned counsel brings to our notice the description of the scene of occurrence. With the help of Ext.P10 scene plan, the learned counsel for the appellant advances an argument that if the entire incident had taken place at spot 1 identified in the scene mahazar and described in Ext.P10 scene plan, it was very unlikely and improbable that two chappals could have been found on the pathway further to the east of the said spot of occurrence. The presence of blood marks further eastwards after the place of occurrence on that lane is inconsistent with the version of the prosecution, contends the learned counsel for the appellant. At the first blush this did sound to be impressive and we hence did delve deeper into that aspect. We must note that no one has a case that PW2 had witnessed the entire incident. The attention of PW2 was attracted to the scene of occurrence when he heard some untoward noise which he perceived to be that of his father. Crl.Appeal No.2239 of 2007 17 He then came to the gate to open the same. It is not the case of the prosecution that the entire incident was perceived by PW2. It is possible that some incident may have preceded before PW2 actually perceived the same after he reached the gate. In these circumstances, the mere fact that two slippers and certain blood stains were found further to the east of the spot of occurrence on that pathway/lane cannot succeed in generating any reasonable doubt in the mind of the court. 27. The number and nature of injuries inflicted, the part of the anatomy, where the injuries are inflicted and the nature of injury No.1 to which according to the expert, PW7, the deceased succumbed clearly reveal that the intention of the offender was to cause the death of the victim. At any rate, injury No.1 was intentionally inflicted, it is evident. That injury is sufficient in the ordinary course of nature to cause death. In these circumstances, certainly under clause thirdly, if not under clause firstly of Section 300 I.P.C, the offence revealed is certainly the offence of murder punishable under Section 302 I.P.C. 28. No other contentions are raised. We are satisfied, in these circumstances, that it would be absolutely safe to concur with the conclusion of the Sessions Court about the complicity of Crl.Appeal No.2239 of 2007 18 the appellant. This appeal therefore fails. 29. This appeal is, in these circumstances, dismissed. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/