IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.A.No. 1862 of 2005 --------------------------------- SC.211/2004 of SESSIONS COURT, ERNAKULAM CP.35/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT: ACCUSED NO.1 ----------------------------------------- SAKTHIDHARAN @ KARUMADI KANNAN, AGED 27 YEARSS, KALATHIPARAMBU VEEDU, PALLURUTHY DESOM, RAMESWARAM VILLAGE. BY ADV. SRI.JAIJI ITTEN SRI.PRAMOD JAIJI RESPONDEN ): COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009 , THE COURT ON 27/05/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1862 OF 2005 - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2009 JUDGMENT Basheer, J: Appellant was tried along with another for the offence punishable under Section 341 and 302 read with Section 34 IPC. The court below, at the conclusion of the trial, found the appellant guilty under Section 302 IPC and he was accordingly convicted and sentenced to undergo imprisonment for life. Accused No.2 was acquitted. The order of conviction and sentence as against the appellant is under challenge in this appeal. 2. The prosecution case may be briefly noticed. 3. PW2, Vijayan, is engaged in the sale of food articles in a mobile bunk shop commonly known as 'thattukada' in the vernacular. His usual place of business is Kaloor near Desabhimani junction in Cochin city. PW3 had been assisting PW2 in his business during the relevant period. On January 24, 2003, late in the evening, PW2 had commenced his business. At about 9.30 p.m. deceased Rafeeque came to the bunk shop and requested for a plate of tapioca and beef. PW2 told him to wait for a short while, since he was a regular Crl.A.No.1862 OF 2005 - D :: 2 :: customer and there was some other customers to be attended to. Rafeeque sat down on the stool which was normally being used by PW2. At that time, the two accused came in a motor bike and asked PW2 to give them 20 dosas. PW2 informed them that it cannot be given immediately and they may have to wait for sometime. Accused told him that they would come back after sometime. They asked PW2 to get the dosas ready by that time. Shortly thereafter, the two accused came back and asked for dosa. At that time only 16 dosas were ready. This infuriated the two accused and they questioned PW2. Accused No.2 abused PW2 for the delay by uttering some obscene words. PW2 while trying to pacify the accused told them that he had to attend to other customers also. Anyhow, PW3 gave the parcel of dosa to the accused. While the two accused were walking towards the bike parked in front of the 'thattukada', the deceased who had been sitting on the stool asked them why they had abused PW2. At that juncture, accused No.2 caught hold of the shirt collar of the deceased and they were engaged in a fight. By that time, accused No.1 had sat on the bike waiting for accused No.2. On seeing this scuffle, accused No.1 got out of the bike. He took out a knife from his hip pocket and rushed towards the deceased. On seeing accused Crl.A.No.1862 OF 2005 - D :: 3 :: No.1 with the knife, deceased wriggled himself out of the grip of accused No.2 and ran away towards north. Accused No.1 followed him with the knife. The deceased halted and turned back. By the time, accused No.1 had reached near him. Immediately accused No.1 stabbed the deceased on the right side of his chest. According to the prosecution, deceased ran into an autorikshaw parked near the place of incident and got inside. The driver of the auto, after informing the incident to a nearby press of a newspaper, took the deceased to the hospital where he was declared dead. 4. PW1, the brother of the deceased, reported the matter to the police. PW11 had recorded Ext.P1 F.I.Statement at 3 a.m. on January 25, 2003. PW13 conducted investigation, in the course of which, the accused were arrested and M.O.1 weapon was recovered. Charge sheet was laid later. 5. The learned Sessions Judge, after a careful evaluation of the oral and documentary evidence on record, found that the oral testimony of PW2 and 3 who witnessed the incident was trustworthy and sufficient enough to prove the charge levelled against the appellant. However, the court below found that the prosecution had not succeeded in proving the charge against accused No.2. Crl.A.No.1862 OF 2005 - D :: 4 :: 6. It is contented by learned counsel for the appellant that the court below was not justified in holding the appellant guilty of the charge under Section 302 IPC solely on the basis of the testimony of PW2 the owner of 'thattukada' and PW3 his assistant-helper. According to the learned counsel, PW2 and 3 could not have witnessed the incident as alleged. Though there were several other customers who had been taking food at the 'thattukada', the prosecution had not chosen to examine anybody else. Since PW2 and 3 would have been engaged in their business activity, some of the customers who had been taking food would have been in a better position to see the alleged incident. It is further contended by the learned counsel that the alleged recovery of the weapon of offence was by itself suspect and unacceptable. It is the further contention that even assuming the appellant was responsible for the crime the offence under Section 302 would not be attracted. He could have been, if at all, convicted only for the lesser offence of Section 304. 7. As mentioned earlier, PW1, the brother of the deceased, had come down to Cochin on receipt of information about the incident. He reported the matter before the Police at 3.00 a.m. Ext.P1 is the First Information Statement and Ext.P1(a) is the First Information Crl.A.No.1862 OF 2005 - D :: 5 :: Report registered by PW11, S.I. of Police. 8. PW2, the owner of 'thattukada' deposed before the court that at about 9.30 p.m. deceased Refeeque who was a regular customer at the 'thattukada' had come and requested for tapioca and beef. He was requested by PW2 to wait for sometime, since some other customers who had come earlier, had to be attended to. Deceased Rafeeque occupied the stool which was usually being used by PW2. A little later, food was served to Rafeeque. While Rafeeque was having his food, the two accused came there on a motor cycle. The bike was parked in front of the 'thattukada' and near the place where Rafeeque had been sitting. The accused asked for 20 dosas. PW2 told that it may take some time. The accused informed PW2 that dosa can be got ready by the time they came back after sometime. Accordingly, two accused came to the bunk shop again a little later. At that time only 16 dosas were ready. The accused questioned PW2 in an angry tone about the delay and asked him why omlet was also being prepared simultaneously before completing preparation of dosa. PW2 pacified them saying that he had to attend to other customers also. At that time, one of the two accused abused PW2 in filthy words. By that time, PW3 had got the dosas ready. The parcel was handed over to Crl.A.No.1862 OF 2005 - D :: 6 :: the accused. The accused took the same and proceeded towards the bike. When they reached near the bike, deceased Rafeeque who had been sitting there, asked them why they had abused PW2. Thereupon accused No.2 abused the deceased in a filthy language and caught hold of him which resulted in a scuffle between the two. By that time, accused No.1 had reached near the bike and sat on it. On seeing the scuffle, he got out of the bike and took a knife from the back pocket of his pant. When Rafeeque saw this, he pushed accused No.2 away and ran towards north. Appellant/accused No.1 followed him. Rafeeque ran for a short distance and tuned back. By that time, accused No.1 had reached near Rafeeque. Accused No.1 stabbed Rafeeque on the right side of his chest. 9. PW2 identified both the accused, particularly, accused No.1 who had inflicted the stab on the chest of the deceased. He also identified M.O.1 knife which was used by the appellant. According to PW1, Rafeeque ran towards an autorikshaw parked near the place of incident and got inside. The driver took the deceased to hospital. PW2 stated that after a short while he and PW3 stopped the business and took the mobile bunk to a nearby residence and parked there. When they went to the hospital, they could not find Rafeeque there. Crl.A.No.1862 OF 2005 - D :: 7 :: They came back. On the next day Police came and questioned him. In cross examination, this witness stuck to his version given in the chief examination. The defence could not discredit this witness in any manner. 10. PW3 corroborated the version given by PW2. He also identified the two accused, particularly, the appellant/accused No.1. PW3 stated that the appellant got out of the bike and ran towards the deceased with the knife in his hand. The deceased saw the appellant coming towards him, he ran for a short distance, and stopped and looked back, the appellant caught up with him and stabbed him on the right side of his chest. 11. In short, the evidence of PWs2 and 3 clearly revealed the involvement of the appellant in the crime. The oral testimony of these two witnesses unambiguously shows that the appellant had used M.O.1 knife which he had carried with him in order to inflict the stab injury on the chest of the deceased. 12. PW9, the doctor who conducted postmortem issued Ext.P6 certificate in which he noted the following injuries: 1. Horizontally placed stab wound 3 x 1.2 cm on right side of chest 11.5 cm. below right nipple at 7 O'clock position. The outer end of the wound was contused and Crl.A.No.1862 OF 2005 - D :: 8 :: broader and superficial layer of skin stripped for 0.5cm. The inner end of the wound sharply cut. The margins of the wound was regular. The wound was directed upwards and to right piercing through the 7th inter costal space in the anterior axillary line piercing through lower lobe of right lung and injuring the under surface of the right upper lobe for a total depth of 9 cm. The nature of the wound suggest that the weapon had twisted while withdrawing. 2. Abrasion 1 x 0.1cm. Vertically placed 0.5 cm. right to injury No.1. 3. Curved leniar abrasion with convexity downwards for a length of 6 cm. right left nipple. 10. According to the Doctor, injury No.1 was sufficient to cause death in the ordinary course of nature. He further stated that injury No.1 could have been caused by stabbing with a weapon like M.O.1. He further stated that injury Nos.2 and 3 could have been caused, if the relevant part of the body came in contact with the hilt of M.O.1 knife. The doctor further stated that while withdrawing the knife from injury No.1 the knife might have been twisted too. Thus, the evidence of PW9 clearly indicated that the deceased had died on account of the fatal injury (injury No.1) sustained by him on the fateful night. 13. PW13 had effected recovery of M.O.1 knife. PW6, who was a witness to Ext.P4 mahazar prepared in connection with the seizure Crl.A.No.1862 OF 2005 - D :: 9 :: deposed before the court that M.O.1 knife was seized by PW13, Circle Inspector of Police. He deposed that he was a resident of Kuthiyathodu and a neighbour of one Santhosh, the brother in law of accused No.1. On February 11, 2003 at about 6 p.m., while he was standing near his residence, PW13 had come to the residence of Santhosh along with accused No.1. Appellant/accused No.1 had pointed out the place from where M.O.1 was recovered by the police. PW6 asserted that M.O.1 was found beneath some “fish vessels” (Dish) stacked in a shed near the residence of Santhosh. The dishes were kept in a small concrete well. Appellant had shown M.O.1 knife to the police which was seized under Ext.P4 mahazar in which he had put his signature. 14. PW7, the owner of the bike, which was used by the two accused gave evidence that he had entrusted the bike to the accused on rent and it was in the custody of the accused on the day of the incident. 15. PW8, auto driver, had taken the deceased to the hospital. PW10, Judicial Magistrate of First Class-II, Kochi had conducted T.I. parade on March 12, 2003. The accused were identified by the witnesses. The reports were marked as Ext.P7 and P9. PW12, Crl.A.No.1862 OF 2005 - D :: 10 :: Judicial Magistrate of First Class-III, Ernakulam had conducted test identification parade on February 7, 2003 in which PWs 2 and 3 identified the appellant. 16. We have referred to the material pieces of evidence brought on record by the prosecution. We have carefully considered the oral testimony of PW2 and 3 who were the prime witnesses on the side of the prosecution. As mentioned earlier, evidence of PW2 and 3 appears to be quite natural and totally reliable. These two witnesses have narrated the incident without making any apparent attempt to embellish. Their testimony was straight forward and cogent. In that view of the matter, we are satisfied that the court below was justified in relying on the evidence of these two witnesses. 17. Of course the learned Sessions Judge has acquitted accused No.2, since the prosecution could not satisfactorily establish his involvement in the crime. It is true that accused No.2 had picked up a quarrel with the deceased after collecting food parcel from PW2. But the fact that the deceased could easily wriggle out from the grasp of accused No.2 and run away, clearly indicated that accused No.2 had not restrained the deceased in any manner. Crl.A.No.1862 OF 2005 - D :: 11 :: 18. The evidence on record clearly shows that appellant had got out of the bike and taken a knife from the back pocket and rushed towards the deceased. When the deceased tried to run away, appellant had followed him with the knife in his hand. The fatal injury was inflicted when the deceased had stopped and turned back. The sequence of events clearly indicates that appellant had perpetrated the crime and inflicted the stab injury with an intention to commit murder. 19. We have referred to the above aspect in evidence elaborately, since an argument has been advanced by the learned counsel that the appellant might have inflicted the injury out of sudden provocation in the course of the fight between the accused No.2 and the deceased. We are not persuaded to accept the above argument. In our view, the appellant had inflicted the injury with a premeditated mind. He might not have come to the scene with an intention to commit murder of the deceased. But the evidence shows that he had mounted his bike and was waiting for his companion. But when he saw the fight between the deceased and the accused No.2, he had deliberately got out of the bike. He took out the knife from his back pocket and ran towards the deceased. He chased the Crl.A.No.1862 OF 2005 - D :: 12 :: accused for some distance and inflicted the injury when the victim stood there helplessly. 20. It is contended by the learned counsel that non-examination of any one of the customers at the 'thattukada' would indicate that the prosecution was trying to screen somebody we are not impressed with the above contention. PW2 and 3, in the nature of the incident that has unfolded, were the best persons to speak about the incident. They asserted that they had seen the incident. The oral testimony of these two witnesses is totally credit worthy and reliable. We have no hesitation to hold that their testimony cannot be discarded or disbelieved for any reason. No other point was raised before us. Having carefully perused the entire materials available on record, we do not find any reason to interfere with the order of conviction and sentence passed by the court below against the appellant. Appeal is dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE). jes