IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 CRL.A.No. 1362 of 2006(C) ------------------------- SC.172/2005 of SESSIONS COURT, THALASSERY CP.63/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... APPELLANT: -------------- RAJAN, CONVICT NO.3029, CENTRAL JAIL, KANNUR. BY ADV. K.LAKSHMI NARAYANAN[STATE BRIEF] RESPONDENT: --------------- THE STATE OF KERALA. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** Crl.Appeal No.1362 of 2006 ***************************** Dated this the 4th day of March, 2010 JUDGMENT BASANT, J. Was the court below justified in placing reliance on the oral evidence of the occurrence witnesses PWs 1 to 3? ii) Did the court below err in placing reliance on the extra judicial confession allegedly made by the appellant to PW10-his brother and PW11-his sister in law? iii) Is the accused entitled to the benefit of doubt? Is there any justification in the claim/attempt to bring the case within the four walls of exception 4 to Section 300 I.P.C? These are the questions that are raised by the young counsel Sri.K.Lakshmi Narayanan, who has been requested by the Court to render assistance to the appellant as a State Brief Counsel. 2. The appellant/accused faces the sentence of imprisonment for life under Section 302 I.P.C. He has further been sentenced to pay a fine of Rs.25,000/- and in default to undergo R.I for a period of 6 months. 3. The crux of the charge raised by the prosecution against the appellant-Rajan is that on 21.10.2002 at about 9 p.m Crl.Appeal No.1362 of 2006 2 in the courtyard of the house of the deceased Shaji, who is none other than the nephew of the appellant, the appellant intentionally inflicted a fatal injury with M.O1 knife on the lower abdomen of the deceased, to which the deceased Shaji succumbed at the scene of the occurrence itself. Thereby the prosecution alleged that the appellant had committed the offence punishable under Section 302 I.P.C. 4. Investigation commenced with the registration of Ext.P1(a) F.I.R at 00.30 hours on 22.10.2002 on the basis of Ext.P1 F.I statement, the incident having allegedly taken place 3 ½ hours earlier at 9 p.m on 21.10.2002. We straightaway note that the F.I.R Ext.P1(a) had reached the learned Magistrate at 12.15 p.m on 22.10.2002. Investigation was completed by PW14, a Sub Inspector who filed the final report raising the charge under Section 302 I.P.C against the appellant. 5. The case was committed to the Court of Session in accordance with law. The learned Sessions Judge took cognizance of the offence. The accused denied the charge that was levelled against him under Section 302 I.P.C. Thereupon the prosecution examined PWs 1 to 14 and proved Exts.P1 to P11. M.Os 1 to 3 were also marked. No defence evidence - oral or documentary was adduced. Crl.Appeal No.1362 of 2006 3 6. The court below on an anxious consideration of all the relevant inputs came to the conclusion that it was absolutely safe to place reliance on the oral evidence of PWs 1 to 3 as also the extra judicial confession made to PWs 10 and 11. Accordingly the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. 7. This appeal has been preferred by the appellant through prison authorities. He evidently is an indigent and as directed by this Court, Sri.K.Lakshmi Narayanan has rendered legal assistance to the appellant. 8. We have heard arguments of the learned counsel for the appellant Sri.K.Lakshmi Narayanan and Sri.Mohammed Anzar, the learned Public Prosecutor. The learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on the following grounds: i) The court below erred in accepting and acting upon the oral evidence of PWs 1 to 3; ii) The court below erred in accepting and acting upon the oral evidence of alleged extra judicial confession tendered by PWs 10 and 11; iii) At any rate, the court below ought to have conceded the benefit of doubt to the appellant/accused; Crl.Appeal No.1362 of 2006 4 iv) The conviction and sentence under Section 302 I.P.C is not justified at all. 9. An appellate judgment is and has to be read in continuation of the judgment of the trial court. In that view of the matter, it is unnecessary for us in this appellate judgment to re-narrate the oral and documentary evidence adduced before the court below in detail. Suffice it to say that the learned counsel has taken us exhaustively through the oral evidence of PWs 1 to 14 and Exts.P1 to P11 as also 313 statement of the accused. The accused, it appears, took up a defence of total denial. When the witnesses were in the box, suggestions were made that the deceased must have fallen and suffered the injury. No right of private defence was claimed or even remotely suggested. In fact, the specific stand taken at the end of the 313 examination is one of alibi that he was not available at the scene and was available elsewhere at the time when the deceased could have sustained injury. 10. Wherever necessary, we shall advert to the relevant pieces of evidence. In these circumstances, we are not attempting to re-narrate the oral and documentary evidence afresh in this appellate judgment. Crl.Appeal No.1362 of 2006 5 11. The prosecution primarily relied on the oral evidence of PWs 1 to 3. They are sisters of the appellant/accused. The deceased is the son of one of them, ie. PW2. PWs 1 and 3 are the sisters of PW2 as well as the appellant/accused herein. The prosecution sought to draw inspiration for the oral evidence of PWs 1 to 3 from the contents of the prompt F.I statement-Ext.P1 and the F.I.R which was promptly registered and which had reached the learned Magistrate with no delay whatsoever. The contents of Ext.P1 eminently support the oral evidence of PWs 1 to 3, points out the learned Public Prosecutor. The learned Public Prosecutor further points out that the oral evidence of PWs 1 to 3 is further probabilised and supported by the evidence of motive tendered by PWs 1 to 3 and PW4 as also the evidence of recovery of M.O1 knife and M.Os 2 and 3 clothes worn by the accused. M.O1 is recovered as per Ext.P4 recovery mahazar on the basis of the confession statement allegedly made by the accused after his arrest on 23.10.2002 to PW14. Ext.P4(a) is the relevant statement admissible under Section 27 of the Evidence Act extracted in Ext.P4 seizure mahazar. PW6 is an attestor to that seizure mahazar. M.Os 2 and 3 are clothes worn by the accused at the time of the occurrence and they are seized under Crl.Appeal No.1362 of 2006 6 Ext.P7 seizure mahazar. PW12 is an attestor to that seizure mahazar. 12. We have been taken through the oral evidence of PWs 1 to 3. The court below has accepted the same. We take note of the fact that the oral evidence of PWs 1 to 3 is supported by the contents of prompt Ext.P1 F.I statement as also the medical evidence tendered by PW9 about the injury suffered by the deceased described in Ext.P6. We are further of the opinion that the recovery of M.O1, which as per the medical evidence, could have been used to inflict injury described in Ext.P6, on the basis of the alleged confession statement made to PW14 by the accused also affords support for the oral evidence of PWs 1 to 3. The evidence of motive spoken to by PW4 also supports the evidence of PWs 1 to 3. Intrinsically and on broad probabilities, we find nothing that can persuade us to approach the oral evidence of PWs 1 to 3 with any amount of doubt, distrust, suspicion or reservation. 13. The learned counsel for the appellant has marshelled several facts, which according to him, must induce in the mind of the Court the necessity or requirement to approach the evidence of PWs 1 to 3 with doubt, care, caution, suspicion and reservation. First of all it is contended that PWs 1 to 3 are Crl.Appeal No.1362 of 2006 7 closely related to the deceased. We must promptly note that though it is true that PWs 1 to 3 are closely related to the deceased, they are also closely related to the appellant, they being his sisters and he being their youngest brother. In these circumstances, we are not persuaded to agree that the oral evidence of PWs 1 to 3 deserves to be approached with any amount of doubt or suspicion on that score. 14. The learned counsel points out that at the courtyard where the incident had taken place or even in the veranda where the body was taken and placed after the incident, no blood marks have been seen. We have gone through the scene mahazar and the inquest report. We find that there is no indication of the presence of blood either at the scene of the crime or at the veranda where the deceased was shifted after the incident. Only one injury is seen suffered and that is described in Ext.P6. Intestines had come out through that opening on the anatomy and we do note that in the nature of the injury, it may not be reasonable to expect too much of external bleeding. Ext.P6 indicates that there was profuse internal bleeding. We have also indications to suggest that immediately after the suffering of the injury by the deceased that entry wound was tied with clothes. In these circumstances, if there was not much of external Crl.Appeal No.1362 of 2006 8 bleeding, we are unable to reckon that as a circumstance which can generate any reasonable doubt against the testimony of PWs 1 to 3. 15. The learned counsel for the appellant then contends that none of the witnesses has actually stated in court that they had seen the weapon with which the injury was inflicted. There was not sufficient light, argues counsel. Evidence shows that there was no source of light inside the house and all of them had to depend upon the moon light that was available. Parties are so well known to each other and closely related. There is no case for anyone that any other person was present. In these circumstances, we are not persuaded to agree that want of light at the scene of crime or the inability of PWs 1 to 3 to assert that it was M.O1 knife which was available with the accused at the scene of the crime are sufficient to generate any reasonable doubt against the oral evidence of PWs 1 to 3. 16. The learned counsel for the appellant submits, hairsplitting the evidence of PWs 1 to 3 that there are indications to suggest that the deceased had proceeded towards the accused and it was then that he suffered injuries. We have gone through the evidence of PWs 1 to 3. We have gone through the contents of Ext.P1. We have taken note of the evidence of PW4 as also Crl.Appeal No.1362 of 2006 9 PWs 1 to 3 about the nature of motive allegedly entertained by the appellant against the deceased. There was some quarrel about the mutation of name of the head of the family in the ration card. Mother of PWs 1 to 3 was originally shown as the head of the family. She is no more. The deceased wanted the name of the eldest female member, ie. PW2, his mother, to be shown in the fresh ration card to be issued. The accused took objection to this course and that was the bone of contention between them. The evidence of PWs 1 to 4 clearly point to the existence of such motive for the appellant against the deceased. 17. Abundant indications are there to show that there was such rancor in the relationship between the parties and that the accused had come to the scene uttering threatening words. The deceased had taken objection to it. It is in that background that we have to consider the evidence that the deceased went towards the accused. The deceased was unarmed. There is no contention contra. In the given circumstances, if the deceased had proceeded towards the accused, that cannot by any stretch of imagination be held to deliver to the accused an opportunity to advance a contention that he had acted in private defence. At the first instance we note that the accused has no such case at all. Even assuming that he has not taken up such a case of Crl.Appeal No.1362 of 2006 10 private defence, if from the nature of materials available such a plea arises, we are bound to consider the same. It is in this context that we hold that the right of private defence is not shown to be available to the accused at all in the facts and circumstances of this case. 18. PWs 10 and 11 are the brother and sister in law of the appellant. They are of course the maternal uncle and uncle's wife of the deceased. The evidence of PWs 10 and 11 shows that the accused had made statementS to them owning the responsibility for the death of the deceased. This is not a case where crucial reliance need be placed on the oral evidence of PWs 10 and 11 to come to a conclusion about the complicity of the appellant. Suffice it to say that we agree that the oral evidence of PWs 10 and 11 can afford a lot of support and confirmation for the oral evidence of PWs 1 to 3. Even without the evidence of PWs 10 and 11, we have already found the evidence of PWs 1 to 3 to be, absolutely acceptable and worthy of credence. 19. The learned counsel then contends that the injury could have been suffered by the deceased by a fall. We have the evidence of PW9 which shows that the possibility/probability of such an injury resulting from a fall is virtually non existent. We Crl.Appeal No.1362 of 2006 11 find no merit in the contention that the theory of fall is sufficient and can be made use of by the court to discard the evidence of PWs 1 to 3. 20. It is contended that the evidence of recovery under Section 27 of the Evidence Act cannot be believed at all. We agree that the recovery of M.Os 2 and 3 under Ext.P7 is of not crucial significance as even blood is not found to be present in M.Os 2 and 3. We do not hence reckon the recovery of M.Os 2 and 3 in Ext.P7 as a relevant circumstance for any purpose in this case. But the oral evidence of PW14 read along with Ext.P4, P4(a), the oral evidence of PW6 and the production of M.O1 clearly show that such evidence of recovery is absolutely reasonable and can be accepted. That blood was not found in M.O1 is not reckoned by us as crucially relevant. The indications are there aplenty that the blood stained knife was thrust into soil and it was from such place, that it was recovered. Absence of blood marks on M.O1 is not reckoned to be crucial and significant by us in these circumstances. 21. Counsel argues that there was no concealment of M.O1 to justify admission of Ext.P4(a) statement allegedly made to PW14 by the appellant. We are unable to accept the contention that there was no concealment. It was an open Crl.Appeal No.1362 of 2006 12 residential compound of PW10. It was there that the knife was concealed by thrusting blade into the soil at the foot of a coconut tree. Information to be admissible under Section 27 of the Evidence Act, the concealment need not be complete. That M.O1 was recovered on the basis of the information furnished by the appellant about its disposal at the place described in Ext.P4 is clearly brought out from the evidence. Otherwise, except by a thorough search it could not have been traced. We are of the opinion that the recovery of M.O1 under Ext.P4 on the basis of Ext.P4(a) statement given by the appellant to PW14 in the presence of PW6 is absolutely reliable and the same can be used to draw inspiration for the oral evidence of PWs 1 to 3. 22. The above discussions lead us to the conclusion that the court below was absolutely justified in coming to the conclusion that the injury on the deceased was suffered by him when it was inflicted by the appellant at the time, date and venue as alleged by the prosecution with M.O1. 23. That death has resulted from the injury described in Ext.P6 is evident. The oral evidence of PW9 and Ext.P6 clearly show that the injury suffered had caused serious damage to vital parts inside the body. It had pierced the mesentery of small intestine. It had transacted the root of the mesentery. It had Crl.Appeal No.1362 of 2006 13 terminated by puncturing the abdominal aorta. There was profuse internal bleeding and the abdominal cavity contains 2000 ml of blood including clot. 24. We have no hesitation to accept the assertions of PW9 that the deceased had died on account of the penetrating injury suffered on the abdomen involving the aorta. We do note that the learned Public Prosecutor and/or the court had not alertly elicited evidence from PW9 as to whether this injury was sufficient in the ordinary course to cause death. But going through the nature of the injury, it can safely be held that the injury described in Ext.P6 is sufficient in the ordinary course to cause death. It is not invariably essential in all cases to expect the medical expert to repeat such statement. A perusal of the nature of the injury clearly shows that it is an open and shut case where the court can safely come to the conclusion that the injury was sufficient in the ordinary course of nature to cause death. We have already held that the injury was suffered by the deceased at the hands of the accused. The injury had resulted in and led to instantaneous death. The offence would clearly fall within the four walls of culpable homicide defined under Section 299 I.P.C. Under clause 3 of Section 300, the offence gets aggravated to one of murder defined under Section 300 and Crl.Appeal No.1362 of 2006 14 punishable under Section 302 I.P.C. Viewed objectively, the injury suffered is sufficient in the ordinary course of nature to cause death. The manner of infliction suggests that it was an intentional infliction of injury. There is nothing to suggest, indicate or assume that this injury was not intended by the offender or that this was an accidental or unintended injury. The offence therefore clearly falls within clause thirdly of Section 300. 25. The accused has really raised no defence. He had raised the plea of alibi and that has not even been attempted to be substantiated. That does not absolve the courts of their responsibility to consider whether the offence of murder can slide back to the offence of culpable homicide not amounting to murder under any one of the exceptions enumerated under Section 300 I.P.C. Other exceptions have no relevance whatsoever. It is only the fourth exception which can be said to have any relevance. We are unable to find any circumstance that would justify the inclusion of the case of the appellant in the fourth exception under Section 300 I.P.C. The offence of murder defined under Section 300 I.P.C and punishable under Section 302 I.P.C is thus clearly established. Crl.Appeal No.1362 of 2006 15 26. No other grounds are raised or do arise for consideration. We concur with the conclusion of the court below that the appellant is guilty of the offence punishable under Section 302 I.P.C. 27. The sentence imposed is absolutely reasonable and we find no reasons to interfere with the sentence imposed. 28. In the result: a) This Criminal Appeal is dismissed; b) The impugned verdict of guilty, conviction and sentence under Section 302 I.P.C are upheld. 29. Registry shall communicate copy of this judgment forthwith to the appellant/accused, the prison authorities and the court below. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-