IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 CRL.A.No. 175 of 2007() ----------------------- SC.1312/2004 of II ADDL.SESSIONS COURT, KOLLAM .................... APPELLANT(S): ACCUSED. ---------------------- BINOY, S/O.FRANCIS, KALLUVILA KIZHAKKETHIL VEEDU, MATHILIL CHERRY, THRIKKADAVOOR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl. A. No. 175 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 31st day of October, 2011 JUDGMENT Ramkumar, J. In this appeal filed under section 374(2) Cr.P.C. the sole accused in S.C. No.1312/2004 on the file of the II Addl. Sessions Court, Kollam challenges the conviction entered and the sentence passed against him by the trial court for the offence punishable under section 302 IPC. PROSECUTION CASE 2. The case of the prosecution can be summarized as follows:- On 25-5-2001 at about 6.30 p.m. Jackson (CW11), the elder brother of the accused, had been assaulted by the deceased. On account of the enmity arising out of the said assault, on the same day at 9.15 p.m. from the southern portion of the Kollam – Ahchalummoodu public road, running east – west and situated to the east of Crl.A.175/2007 2 the Nambarathu Junction in Thrikkadavoor Village the accused came in front of the shop of CW8 (examined as DW1). After calling aside 20 year old deceased (Binu) who was standing there engaged in a conversation, the accused took him to the place of occurrence situated about 15 metres to the west of the shop of CW8. Then asking deceased Binu whether the deceased had grown enough to beat his brother, the accused took out a knife from the right hand side pocket of the pants worn by him. Then catching the deceased by the collar of his shirt, the accused stabbed him on the chest and abdomen with the said knife. Binu who sustained injuries fell on the road. By the time Binu was rushed to the District Hospital, Kollam, he succumbed to the injuries sustained by him. The accused has thereby committed the offence punishable under section 302 IPC. Crl.A.175/2007 3 THE TRIAL 3. On the accused pleading not guilty to the charge framed against him by the court below, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 14 witnesses as PWs.1 to 14 and got marked 18 documents as Exts.P1 to P18 and 5 material objects as MOs.1 to 5. 4. After the close of the prosecution evidence, accused was questioned under section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He made a further statement as follows:- He is employed as a Painter. On the date of occurrence after day's work he got down at Nambarathu Junction and was going to his house. There was a power failure. It was also drizzling at that time. When he reached the place of occurrence, deceased Binu and 5 or 6 Crl.A.175/2007 4 persons identifiable by sight came to him and asked him whether he and his brother were the local rowdies. One of them caught hold of him. Then there was a push and pull and a commotion. During the scuffle which ensued Binu took out a knife and attempted to stab him. He some how or other wrenched the knife and on the reasonable apprehension that they will cause grievous hurt to him or even kill him he brandished the knife. Accidentally one of them sustained injury. He then took to his heels and some how escaped from there. It was subsequently that he learnt that Binu had died. Knowingly or intentionally he has not done any harm. He is totally innocent and he has not committed any offence. 5. Since this was not a case of no evidence for the prosecution within the meaning of section 232 Cr.P.C., the trial court did not record an order of acquittal at that stage. Crl.A.175/2007 5 The accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support thereof. 6. He examined DW1 who was none other than CW8 given up by the prosecution. He also got marked Exts.D1, D2 and D3 series which are the case diary contradictions of some of the prosecution witnesses. 7. The learned Addl. Sessions Judge after trial as per judgment dated 12-1-2007 found the accused guilty of the offence punishable under section 302 IPC and sentenced him to undergo imprisonment for life. It is the said judgment which is assailed in this appeal by the accused. THIS APPEAL 8. We heard Senior Adv. Sri.P.Vijaya Bhanu, the learned counsel appearing for the appellant, and Advocate Sri.Roy Thomas, the learned Public Prosecutor. 9. The only point, which arises for consideration in this appeal, is as to whether the conviction entered and the sentence passed against the appellant for the offence Crl.A.175/2007 6 punishable under section 302 IPC are sustainable or not. The Point: WITNESSES FOR THE PROSECUTION 10. A) PW1 (Rajesh @ Udayan) is the first informant who proved Ext.P1 F.I. Statement. He is also an occurrence witness. B) PW2 (Babu) is another occurrence witness. Ext.D1 is his case diary contradiction. C) PW3 (Abhilash) is also an occurrence witness who was present during the inquest. He identified MOs.1 to 3 of which, MOs.1 and 2 are the garments of the deceased and MO3 is the pants allegedly worn by the accused. Ext.D2 is his case diary contradiction. D) PW4 (Sinu) is a Barber in whose barbershop there was an altercation between CW11 (Jackson), the brother of the accused, and the deceased. Ext.D3 series are his case diary contradictions. E) PW5 (Cleatus) was cited by the prosecution to prove that the accused and PW6 were employed in his Crl.A.175/2007 7 painting workshop and on the date of occurrence the accused had taken away the alleged weapon from his workshop. This witness, however, turned hostile to the prosecution. Ext.P2 series are his case diary contradictions. F) PW6 (Stantely) is the yet another occurrence witness. Since this witness and accused were colleagues allegedly employed in the painting workshop of PW5, PW6 turned disloyal to the prosecution. Ext.D3 is the case diary contradictions. G) PW7 (Peter) is a resident in the neighbourhood of the place of occurrence. He was also cited as an occurrence witness. But he also turned hostile to the prosecution. H) PW8 (Fernandez) who was the Village Officer of Thrikkadavoor Village proved Ext.P4 scene plan. PW9 (Thulaseedharan Pillai) is an attester to Ext.P5 scene mahazar prepared at 4 p.m. on 26-5-2001. I) PW10 (Manoj) is an attester to Ext.P6 inquest report prepared at 8.30 a.m. on 26-5-2001. J) PW11 (Njanapoovu) is an attester to Ext.P7 Crl.A.175/2007 8 mahazar prepared from the vicinity of the backwaters of Ashtamudi lake at Thrikkadavoor. Even though the case of the prosecution was that the accused gave Ext.P7(a) confession statement to the effect that he had thrown the knife in the backwaters, the knife could not be retrieved from the backwater even after engaging a diver. The said statement of the accused will not fall under section 27 of the Evidence Act. K) PW12 (Dr.V.Prathapan) who was the Resident Medical Officer and District Police Surgeon in the District Hospital, Kollam conducted autopsy of the dead body of Binu on 26-5-2011. Ext.P8 is the postmortem certificate. He noted an incised penetrating wound 1.7 x 1 cm obliquely placed on the front of left side of chest of Binu, the upper inner end sharply cut being 3 cm outer to midline and 5 cm below the upper end of sternum. The other end was blunt. The wound had entered into the chest cavity through the 3rd intercostal space and had transfixed the front of pericardium, right ventricle, back of pericardium, Crl.A.175/2007 9 diaphragm, the left lobe of liver and had terminated with a nick on the anterior aspect of vertebral column. He also noted that another incised wound 1 x 0.5 cm. skin deep on the front of left side of abdomen 1 cm outer to midline and just below costal margin, besides, abrasion 1.5 x 0.5 cm. on the outer end of left eyebrow. PW12 opined that death of Binu was due to injury No.1 sustained to the chest and that the injury No.1 was sufficient in the in the ordinary course of nature to cause death. L) PW13 (Anilkumar) was the Sub Inspector of Police, Anchalummood Police Station. He recorded Ext.P1 F.I. Statement given by PW1 and registered Ext.P1(a) F.I.R. at 11.30 p.m. on 25-5-2001. The F.I.R. reached the Judicial Magistrate of the First Class, Kollam at 5.45 p.m. on 26-5- 2001. M) PW14 (T.F.Xavier) was the Circle Inspector of Police, Kundara who conducted the investigation and laid the charge. He proved Exts.P9 to P18 and MOs.1, 2 and 4. He arrested the accused and filed the charge sheet. Crl.A.175/2007 10 DEFENCE WITNESS 11. DW1 (Suresh) who was originally a charge witness was given up by the prosecution, but was examined as a defence witness by the accused. He is running a pan shop at Nambarathu Junction. His pan shop is on the southern side of the road and situated opposite to Yuva Deepthi Club which is on the northern side of the road. According to this witness, he had closed his shop early that night, as there was power failure and slight drizzling. According to him, he felt something unusual in the manner in which PWs.1 to 3 were remaining there and that was also the reason for his closing the shop early that night. APPELLANT’S ARGUMENTS 12. Adv.Sri.P.Vijaya Bhanu, the learned counsel appearing for the appellant, made the following submissions before us in support of the appeal:- PWs.1 to 3 are highly interested witnesses, being the friends of the deceased. They were actually waiting in front of the Yuva Deepthi Club for the Crl.A.175/2007 11 accused to came that way. They came out with a new version while in the witness box to say that they had been watching TV from 7.30 p.m. onwards in the club and sometime before the occurrence they had come out of the club for the purpose of smoking. This was a case in which the deceased and his friends who were waiting for the accused to come that way were mounting an attack on the accused. PW5 who was examined by the prosecution to prove that the accused had taken away the weapon from his workshop did not support the prosecution. He does not say that the accused was aware of the earlier incident involving his brother Jackson (CW11) and the deceased. If so, the alleged utterances attributed to the accused while allegedly stabbing the deceased are nothing but the product of fertile imagination. The case of the accused during his examination under section Crl.A.175/2007 12 313 Cr.P.C. has been amply probabilized by the testimony of DW1. He is none other than the prosecution witness who, however, was given up by the prosecution. He had smelt some trouble from the manner in which the deceased and PWs.1 to 3 were waiting in front of his shop. He could gather that from the conversation between the deceased and PWs.1 to 3. This probabilizes the defence version that the parties of the deceased were the aggressors. The accused who was assaulted by the deceased and his friends was lawfully exercising the right of private defence available to him in such a situation. May be, he had exceeded the exercise of the said right. At any rate, he did not deserve a conviction for murder punishable under section 302 IPC. JUDICIAL EVALUATION 13. We are unable to agree with the above submission Crl.A.175/2007 13 made on behalf of the appellant. The place of occurrence is the southern portion of the Kollam-Anchalammodu public road running east-west. Kollam is towards west and Anchalammodu is towards the east. Nambarath Junctin is some distance away on the western side of the place of occurrence, there is a house by name “Chithirasree” situated to the north of the place of occurrence. About 6.3 k.m. to the north east of the place of occurrence. There is an electric post and also the house of one Joseph. The building of Yuva Deepthi Cultural Association is situated on the northern side of the main road at a distance of about 29 metres away from the place of occurrence. Going by the testimony of DW1 his pan shop is on the southern side of the road and located opposite to the Yuva Deepthi Club building. PWs.1 to 3 have by and large given a consistent version regarding the occurrence. PW4 is a Barber having his shop at Mathilil. Sometime in the evening of 25-5-2001 while Jackson (CW11), the elder brother of the accused, was in the said barber shop, the deceased had entered the shop. Crl.A.175/2007 14 At that time the power failed. Then Jackson made a remark that the power failed because of the ominous entry of the deceased. This resulted in a wordy altercation between Jackson and the deceased. No doubt, the version of PW4 to the police was that there was even a push and pull between Jackson and the deceased. But the fact remains that when the quarrel between the two became intolerable, PW4 asked both of them to get out of his shop. Thus, the deceased and Jackson parted company in an unpleasant tone. 14. The occurrence as reported by PW1 is as follows:- The people of that locality used to visit Yuva Deepthi Club for reading and recreation purposes. But, smoking was not allowed in the club. So, on the date of occurrence for that purpose PWs.1 to 3 and the deceased came out of the club and were standing near the pan shop of DW1. At about 9 p.m. the accused came there and called deceased Binu aside, telling him that he wanted to ask Binu something. After Crl.A.175/2007 15 proceeding for distance about 15 metres to the west of the shop of DW1, the accused asked the deceased as to whether he would beat his brother Jackson. So saying he held the deceased by the collar of his shirt and took out a knife from the right hand side pocket of his pants and stabbed Binu on the chest and abdomen. (The above verbal utterances made by the accused while stabbing indicate that he was aware of the barber shop incident which had taken place in the evening). On the accused stabbing the deceased, he fell with his face downwards and simultaneously shouting loudly that he was stabbed “എന കത”. 15. PWs.2 and 3 have substantially corroborated the version of PW1 regarding the incident. No doubt, they are friends of the deceased. But from that alone they cannot be dubbed as interested witnesses. Similarly, no sort of enmity towards the accused has been attributed to them. Both the Crl.A.175/2007 16 occurrence witnesses as well as the the accused belong to that locality. The evidence adduced by PWs.1 to 3 shows that the deceased was unarmed and that it was the accused who was carrying the weapon. According to these witnesses, there was no tussle or even any altercation before stabbing the deceased. Since DW1 had closed his shop earlier than usual, he has not seen the occurrence. Merely because he felt that the deceased and PWs.1 to 3 were remaining there unusually even after the power failure and ignoring the inclement weather, it cannot be straightaway assumed that they were waiting there for mounting an attack on the accused or that they were the aggressors. 16. It is true that the prosecution has not produced the weapon of offence. According to PWs.1 to 3, after inflicting the injuries on the deceased, the accused ran towards west carrying the knife in his hand. Even though the prosecution attempted to effect a recovery of the weapon so as to bring it under section 27 of the Evidence Crl.A.175/2007 17 Act, pursuant to Ext.P7(a) confession statement by the accused to the effect that he had thrown the knife in the backwater of Ashtamudy lake, the said attempt did not succeed due to the failure on the part of the prosecution to retrieve the knife from the backwaters even after engaging a diver. But failure to recover the knife or produce the same before the court is not always fatal to the prosecution case, if the direct ocular evidence given by the eye witnesses to the occurrence is otherwise credible. We see no reason to disbelieve the testimony of PWs.1 to 3 in this context. In fact, the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility did not entertain any hesitation in accepting their testimony. In the absence of any defect in the findings of the trial Judge, based on an appreciation of the evidence, this Court sitting in appeal will be loath to disturb the said finding. We therefore do not find any substance in the defence evidence put forward by the appellant to contend for the position that the deceased and party were the aggressors and that the Crl.A.175/2007 18 fatal injuries were sustained by the deceased in the course of a scuffle during which the appellant was forced to wrench the weapon from the hands of the deceased and brandished the same at the deceased. The injury No.1 inflicted on the vital part of the body is indicative of a forceful and intentional stab, from which a conclusion that it was something short of murder cannot be drawn 17. In the result, this appeal fails. We confirm the conviction entered against the appellant. The sentence imposed on the appellant also cannot be said to be excessive or unduly harsh particularly when the lesser of the two penalties alone has been imposed by the learned Sessions Judge. 18.This appeal is accordingly dismissed confirming the conviction entered and the sentence passed against the appellant. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.