IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 CRL.A.No. 688 of 2007() ----------------------- SC.54/2005 of I ADDL. DISTRICT & SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): --------------- VARGHESE @ VARUTHUKUTTY, S/O.CHACKO, PATTALATH VEDU,CHERIYAKADAVU DESOM, KATTIPARAMBU BAGAM,PALLURUTHY VILLAGE. BY ADV. SRI.T.RAJESH SMT.L.AJITHA KUMARI RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY CI OF POLICE, MATTANCHERRY, KANNAMALI POLICE STATION, THORUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- Crl. Appeal No.688 OF 2007 ------------------------------- Dated this the 3rd day of December, 2011 J U D G M E N T Basant, J. Was it safe for the court below to place reliance on the oral evidence of PWs. 2 and 3 ? Does the totality of circumstances generate any reasonable doubt in the mind of the court against the case of the prosecution ? These are the two questions strenuously raised before us by the learned counsel for the appellant, Smt.L.Ajitha Kumari. 2. The appellant has been found guilty, convicted and sentenced under Sections 447 and 302 IPC. He has been sentenced to imprisonment for life and to pay a fine of Rs.25,000/- under Section 302 IPC. Under Section 447 IPC, he has been sentenced to pay a fine of Rs.500/-. Default sentences have also been imposed. 3. The prosecution alleged that the appellant out of animosity towards the deceased, a paternal cousin of his, caused his death by stabbing him with M.O.1 knife in front of the house of the deceased on the night of 9.12.2003 between 8.45 and 9.00 Crl.Appeal No.688 of 2007 2 p.m. The investigation commenced with the registration of the crime on the basis of Ext.P1 FI statement lodged by PW.1, a neighbour and brother of the deceased. PW.14 conducted the investigation and submitted the final report/charge sheet before the learned Magistrate. The learned Magistrate after observing legal formalities committed the case to the Court of Sessions. The learned Sessions Judge took cognizance of the offences alleged against the appellant. The appellant denied the charges levelled against him and thereupon the prosecution was directed to adduce evidence in support of its case. 4. The prosecution examined PWs.1 to 14 and proved Exts.P1 to P18. M.Os. 1 to 7 were also marked. 5. Pws.2 and 3 are eye witnesses to the occurrence. PWs.1 and 4 had reached the scene immediately after the deceased suffered injuries. PW.5, the wife of the accused though hostile gave evidence broadly supporting the case of the prosecution. The prosecution also relied on the evidence of recovery of M.O.1 weapon on the basis of information furnished by the appellant to PW.14 investigating officer in the confession statement allegedly given by the appellant. Crl.Appeal No.688 of 2007 3 6. The accused denied all circumstances that appeared in evidence and which were put to him in the course of his examination under Section 313 Cr.P.C. He took a fairly definite stand that as he was returning to his house on that night, the deceased Babu in a drunken state was standing near the house of the deceased. The deceased allegedly attacked the appellant. The appellant in fear ran away. The appellant/accused pleaded that he did not know what had actually transpired. No defence evidence was adduced. It is seen that Ext.D1 was marked before the Court and that evidently has no connection with the facts in issue. It only shows that PW.3, the wife of the deceased had obtained some amount consequent to the death of her husband from the Commissioner for Fisherman's Welfare. 7. The learned counsel for the appellant contends that the court below should not have placed any reliance on the interested oral testimony of Pws.2 and 3. The court below should not have drawn inspiration for such testimony from the other circumstances available in this case. The evidence of Pws.1 and 4 should not have been relied on by the learned Crl.Appeal No.688 of 2007 4 Sessions Judge to draw support for the oral evidence of Pws.2 and 3. Similarly, the counsel contends that the evidence of PW.5, the wife of the deceased who had turned hostile or the evidence of recovery of M.O.1 should not have been put to any use by the court below. The court had erred in relying on those circumstances to draw inspiration for the oral evidence of Pws.2 and 3. 8. Pws.2 and 3 are of course closely related to the deceased and interested to that extent. They are the brother of the deceased and the wife of the deceased. The incident took place at about 8.45 p.m. and the wife of the deceased PW.3 is the most probable and natural person who could have been present to witness the incident which took place just in front of her house - partly on the sit out/verandah in front of her house. Therefore, there is no merit in the contention that PW.3 could not have witnessed the incident. Similarly, a perusal of Ext.P7 scene mahazar along with Ext.P9 scene plan must convince the court that PWs.1 and 2, brothers of the deceased who have their houses adjacent to the house of the deceased where the incident took place are the best and the most natural witnesses who Crl.Appeal No.688 of 2007 5 could have witnessed the occurrence. 9. It is argued first of all that PWs. 2 and 3 are interested. They are certainly interested in the deceased, they being the brother and wife of the deceased. The interestedness of such close relatives can safely be reckoned as one sure indication that they are unlikely to point the accusing finger at a person who is not really responsible for the commission of the crime. If they had actually witnessed the occurrence and were able to identify the assailant, it is quite unlikely they would spare the real assailant and point the accusing finger at any one else. There can be no dispute about the identity of the accused in this case. PWs.1, 2 and 3 are persons very closely and intimately known to the accused. The possibility of an error in identification can be discounted as virtually impossible. This has to be read along with the case of the appellant in the course of Section 313 examination wherein he virtually admits the incident between him and the appellant at the relevant time. 10. The evidence available before court through PW.13, Ext.P10 and Ext.P11 clearly indicates that there was some strain in the relationship between the appellant on the one Crl.Appeal No.688 of 2007 6 hand and the family of PW.1 on the other. The dispute was about the parking of a fishing boat belonging to PW.1 on the sea wall by the side of the house of the appellant. This had led to Ext.P10 complaint. Suffice it to say that adequate inputs are available to safely sail to the conclusion that there was some strain in the relationship between the appellant on the one hand and PW.1 and his brothers on the other. The evidence of motive set up by the prosecution is thus established beyond doubt. 11. The evidence of PW.2 and 3, eye witnesses, has to be approached in this background. We get support of the evidence of Pws.2 and 3 from the oral evidence of PW.1. PW.3 is the wife of the deceased and she was available by the side of the deceased when he suffered the injuries. She speaks about the manner in which the injury was suffered. PW.2, the brother of the deceased had heard the cry and from his house adjacent to the scene of occurrence, he had looked at the scene of the incident and had seen the incident. PW.1 who occupies another adjacent house, on hearing the cries had come out of his house to see the deceased with injuries along with PW.3, his wife, at Crl.Appeal No.688 of 2007 7 their house and the accused moving away from the scene of occurrence. We find absolutely no reason to disbelieve the evidence of PWs. 1 to 3. 12. If any further support or inspiration should be looked for, we have that in abundance. The contents of Ext.P1 FI statement lodged within two hours of the occurrence substantially supports the present version of PWs. 1 to 3. 13. The learned counsel for the appellant contends that no independent witnesses have been examined by the prosecution. It is true that PWs. 1 to 3 are the ones who have primarily tendered evidence. They are related to the deceased. We have one sample of an independent witness in PW.4. Even Ext.P1 shows that PW.1 when he found the accused showering abuses on PW.1 and family wanted PW.4, allegedly a friend of the appellant to speak to him and stop him from continuing the indiscretion. PW.4 tendered evidence in tandem with that version in Ext.P1. PW.4 claims to be a friend of the accused. His proved conduct as revealed from the contents of Ext.P1, the evidence of PW.1 and the evidence of PW.4 eminently confirms that he was a friend of the accused. Their age difference - about Crl.Appeal No.688 of 2007 8 two decades, is pressed into service to contend that the theory of friendship between PW.4 and the appellant is artificial and unnatural. We find no merit in this contention in the light of the totality of inputs available. 14. If further assurance be necessary for the oral evidence of PWs. 1 to 4, we have the same also from the indisputable evidence of PW.5, the wife of the appellant. Her evidence reveals certain fundamental parameters of the prosecution case. The accused was showering abuses on the deceased on that evening. This is confirmed by PW.5. There was an incident that took place on the relevant date at the relevant time. That is again confirmed by the evidence of PW.5. Her evidence further confirms that her husband/the appellant- accused did not come home on that night, though even admittedly he was available near the scene of the crime when the crime must have taken place. That again confirms the oral evidence of Pws.1 to 4. 15. The medical evidence tendered by PW.8 and Ext.P6 postmortem certificate confirm the ocular account tendered by PWs. 2 and 3 about the overt act of the appellant - Crl.Appeal No.688 of 2007 9 of inflicting the only injury on the deceased with M.O.1. Thus, corroboration by medical evidence is also available for the ocular version of PWs. 2 and 3. 16. Finally, the prosecution relies on the evidence of recovery of M.O.1 by PW.14 Investigating Officer. According to PW.14, the accused after his arrest gave a confession statement. On the basis of the information received from that confession statement which is incorporated in Ext.P8 seizure mahazar as Ext.P8(a), the Investigating Officer proceeded to the place where the accused had allegedly thrown away the weapon of offence. A search was conducted and M.O.1 weapon was recovered from the place where it was said to have been thrown by the appellant by PW.14 as pointed out by the appellant. M.O.1 was seized under Ext.P8 seizure mahazar in the presence of PW.10, an attestor. This evidence of recovery also eminently supports the oral evidence of PWs. 2 and 3. 17. The learned counsel for the appellant submits that no independent witnesses have been examined. A perusal of the scene mahazar and Ext.P9 site plan convincingly reveals that the best persons who could have witnessed the occurrence Crl.Appeal No.688 of 2007 10 are Pws.2 and 3. They have been examined as witnesses. Even PW.1, the occupant of the adjacent house did not reach the scene in time to see the infliction proper. In these circumstances, the prosecution cannot be found fault with for not examining many others who may have come to the scene of occurrence on coming to know of the occurrence. It is in this context that production of PW.4 for examination assumes relevance. The examination of PW.4 shows that the prosecution has not withheld any witness from examination before Court with any malice or improper motive or reasons. 18. M.O.7 chappel was found at the scene of the crime. The prosecution has not adduced evidence as to the person to whom M.O.7 belongs. This inadequacy in the facts and circumstances of this case does not generate any reasonable doubt and we find no merit in the attempt to claim any advantage on the basis of that innocuous inadequacy in investigation. 19. Though M.O.1 knife was recovered, it does not contain any blood stains, argues the learned counsel. A perusal of Ext.P16 chemical examination report reveals that the weapon Crl.Appeal No.688 of 2007 11 had blood stains on it, though an authentic conclusion about presence of blood and the source of blood could not be rendered by the chemical examiner. 20. There are no blood stains on Mos. 2 and 3, clothes of the appellant, it is pointed out. The evidence clearly reveals that those clothes were washed before they were produced before the Investigating Officer and seized by him. In these circumstances, the absence of blood stains on M.Os. 2 and 3 cannot also deliver any advantage to the appellant. 21. The learned counsel for the appellant relying on the evidence of PW.5 argues that it is probable that there was an altercation between the appellant and the deceased before the injury was suffered. That is the version of PW.2 also. According to PW.2, the accused was going on showering abuses and at a certain point of time, the patience of the deceased had also come to an end and he had asked the accused to stop such utterances. It is then that the stab was planted on the deceased. We are unable to agree that that incident spoken to by PWs. 5 and 2 can deliver any advantage to the appellant on the question of complicity. There is not a semblance of material to even Crl.Appeal No.688 of 2007 12 remotely contemplate the availability of the right of private defence to the appellant/accused. 22. Finally, the learned counsel contends that the offence of murder defined under Section 300 IPC is not made out. The evidence clearly shows that there was intentional infliction of injury with M.O.1 and that injury inflicted is the only injury found on the person of the deceased described in Ext.P6 postmortem certificate. We extract that injury below:- Incised penetrating wound 8.5 cm x 2 cm gaping oblique on upper part of left chest the lower inner right and square cut and 4 cm outer to midline and 3.5 cm below collar bone. The upper left back end was sharp cut and was placed on the lower part of neck 2 cm. above collar bone and 13 cm. inner to top of shoulder. Edges of the wound showed contusion. Wound entered the chest cavity cutting the costal cartilages of 3rd rib. Inter costal muscles between 2 and 3 and 3 and 4 and cutting the pericardial sac 6 x 1 cm and entered the right ventricle just below value the pulmonary trunk. Total minimum depth of the wound 5.5 cm. The wound was directed downward back warded to the right pericardial sac contained 150 gm. Of clotted blood. Left chest cavity contained 1.5 litres of clotted and fluid blood. Left lung was collapsed. 23. We have the evidence of expert PW.8 that the injury was sufficient in the ordinary course of nature to cause Crl.Appeal No.688 of 2007 13 death. It had pierced the heart as can be seen from the description of the injury. We find it absolutely safe to conclude that the injury suffered was sufficient in the ordinary course of nature to cause death. The intentional infliction of such an injury on the deceased must certainly attract the offence of murder under Section 300 IPC. 24. The learned counsel for the appellant finally makes an attempt to contend that the appellant is entitled to the mitigative protection of explanation 4. We are unable to agree. The possession of the knife by the appellant rules out the theory of absence of pre-meditation. It cannot be said that it was a sudden fight upon a sudden quarrel. The evidence clearly indicates that the appellant-accused was itching for a quarrel and fight. By no stretch of imagination can it be held that the overt act was committed in the heat of passion. In the light of the totality of facts and circumstances of the case, we have no hesitation to turn down the prayer for mitigation under exception 4. 25. The above discussions lead us to the conclusion that the verdict of guilty, conviction and sentence imposed on Crl.Appeal No.688 of 2007 14 the appellant do not warrant any interference at all. 26. In the result, this appeal is dismissed. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj.