IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 1303 of 2005 ------------------------------------ SC.151/2000 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CP.24/1999 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANTS: ---------------------- SASIDHARAN @ SASI, S/O. CHOTHI, C.NO.9049, CENTRAL PRISON, TRIVANDRUM-695 012. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: ------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON 04/08/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1303 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2009 JUDGMENT Basheer, J: Appellant was tried for the offence punishable under Section 302 of the Indian Penal Code on the charge that he committed murder of one Haridas, brother of PW1, on Oachira-Thamarakulam public road at about 7.30 p.m. on September 20, 1998 by stabbing him on the left side of his neck with M.O.7 knife due to previous animosity. 2. The court below found the appellant guilty of the charge and accordingly convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for two years. The above order of conviction and sentence is under challenge in this appeal. 3. The prosecution case may be briefly noticed: 4. The animosity or feud between the appellant on one side and deceased Haridas, his brothers and cousins on the other dated back to 1995. It appears that a criminal case was pending against Haridas, his brothers and cousins for allegedly assaulting the accused. Similarly, a case against the accused was also pending for an assault made by him on Haridas and others. Both these cases were admittedly pending Crl.A.No.1303 OF 2005 :: 2 :: before the criminal courts. According to the prosecution, the appellant carried a grudge against Haridas because of the existing feud. 5. On September 20, 1998 at about 7.30 p.m. while PW1 was going towards the shop of Krishnankutty Kurup situated very near to the scene of occurrence, he saw deceased Haridas rushing towards him crying aloud “Kaithakkara Sasi stabbed me with a knife”. Haridas fell on the ground in front of PW1. Hearing the cry PW2, PW5 and Sukumaran Nair (CW5) came running to the scene. PW1 saw a deep wound on the left side of the neck of deceased Haridas. Blood was oozing out from the wound. PW1, the witnesses mentioned above and some others carried Haridas to the nearby residential compound of Santhamma. Haridas asked for some water. Santhamma brought water and gave it to Haridas. The wound was tied or packed with three towels (thorthu). According to PW1, he had put the head of Haridas on his lap after he was carried to the courtyard of Santhamma. Haridas was taken to the hospital in the car of Vijayakumar. Though PW1 did not go with Haridas to the Hospital, PW2, PW5 and CW5 went along with them in the car of Vijayakumar. PW1 followed them in another car to Government Hospital, Kayamkulam. The doctor who examined Haridas in the Government Hospital at Kayamkulam advised Crl.A.No.1303 OF 2005 :: 3 :: that he be taken to the Medical College Hospital at Alappuzha. By that time, PW1 also reached the Government Hospital at Kayamkulam. He also followed the others to Medical College Hospital at Alappuzha. The doctor, after examining Haridas, informed that he had already breathed his last. PW1 went to Mavelikkara Police Station and gave Ext.P1 First Information Statement. PW11, Sub Inspector who recorded Ext.P1 first information statement, registered the crime. The FIR was marked in the case as Ext.P1(a). PW12 conducted the investigation of the case. The accused was arrested in the course of investigation by PW11 on the next day of the incident. M.O.7, knife was recovered on 22nd September, on the basis of the information furnished by the accused himself on the day of his arrest. Charge sheet was laid by PW12 after completing the investigation. 6. PWs1 to 12 were examined on the side of the prosecution. Exts.P1 to P18 and M.O.1 to M.O.8 were also marked on its side. Ext.D1 contradictions in the statement of the witnesses were marked on the side of the defence. As mentioned earlier the court below, after a careful evaluation of the oral and documentary evidence on record, held that the prosecution had succeeded in proving the charge against the appellant/accused. Crl.A.No.1303 OF 2005 :: 4 :: 7. Sri.Grashious Kuriakose, learned counsel for the appellant, contents that the evidence adduced by the prosecution in support of the so called dying declaration is so artificial and unbelievable that the court below ought not to have placed any reliance on the same. He points out that the evidence of PW1, 2, and 5 in this regard was contradictory to each other. It is further pointed out by the learned counsel that the alleged recovery of M.O.7 knife is totally illegal and vitiated. Since the prosecution case revolved around the so called dying declaration, the court below ought to have taken due care to see whether the evidence of PWs1, 2, and 5 was credit-worthy and acceptable. 8. As has been noticed already, PW1 saw his brother rushing towards him crying aloud that he had been stabbed by the appellant. According to PW1, deceased Haridas was carried to the nearby residential compound of Santhamma. PWs2, 5 and one Sukumaran Nair (CW5) along with PW1 had carried Haridas to the courtyard of Santhamma. In cross examination, this witness stated that the distance between the place of occurrence and the place from where he heard the cry of Haridas was hardly 3 meters. He heard the cry first and immediately he saw his brother Haridas running towards him with Crl.A.No.1303 OF 2005 :: 5 :: the bleeding injury on his neck. PW1 was categoric that he definitely heard Haridas crying aloud that the appellant had stabbed him. 9. PW2 in his evidence deposed that he had gone to the shop of Krishnankutty Kurup to buy a cigarette. When he started to proceed towards his residence after buying cigarette, he heard a cry “I am stabbed” from the southern side. He immediately turned back and walked towards the direction from where the noise came. He saw PW1, PW5 and Krishnankutty Kurup carrying Haridas to the courtyard of Santhamma’s residence. Haridas asked for water which was brought by Santhamma and given to Haridas. He saw a wound on the left side of the neck of Haridas which was bleeding profusely. The wound was bandaged with the help of three towels by him, PW5, PW1 and Sukumaran Nair (CW5). This witness also spoke about how the victim was carried to Kayamkulam hospital and then thereafter to Medical College Hospital at Alappuzha. This witness also asserted that he had heard deceased Haridas crying aloud that the appellant had stabbed the deceased. He had a further case that while proceeding to the hospital, CW5 had asked Haridas as to what had happened. Though this witness admitted that he did not hear what the deceased replied, he stated that CW5 told him that Haridas was stabbed by the Crl.A.No.1303 OF 2005 :: 6 :: appellant. This witness had a further case that he along with PW5 and Sukumaran Nair had gone to Mavelikkara Police Station on their way back from the Medical College hospital. They had informed the police about the incident. The police had recorded what they had stated. But according to this witness while they were coming out of the police station, PW1 reached there. 10. PW5 deposed that he was standing in front of his father’s shop (Krishnankutty Kurup), when he heard somebody crying aloud “Kaithakkara Sasi stabbed me”. Immediately, he saw deceased Haridas running towards PW1 who was buying some articles from his father’s shop. This witness also spoke about the latter part of the incident in tune with what PW1 and PW2 had spoken already. Therefore, it is not necessary to repeat the same version again. According to this witness, while deceased Haridas was being taken in the car to the hospital, CW5 had asked Haridas as to who had stabbed him. PW5 stated that he heard Haridas saying that appellant stabbed him. 11. PW4 is the mother of PW5 and wife of Krishnankutty Kurup, the shop owner referred to above. She is residing about 35 kms. away from the scene of occurrence. This witness stated that between 7 and Crl.A.No.1303 OF 2005 :: 7 :: 7.30 p.m. on the day of the incident, while she was standing in the courtyard of her house, she saw somebody passing through the road in front of her house. Since the person appeared to be a stranger to that area, she asked who it was. When the initial reply was not satisfactory, she called that person back in order to find out who it was. PW4 stated that it was the appellant. She talked to him for sometime and found out that for the last two to three years appellant had been residing in Kollam about 30-40 kms away. Appellant told PW4 that he was going in the direction of her husband’s shop. According to PW4, immediately after the appellant left the place, she suspected that there was some possibility of mishap since she knew that the relationship between the appellant and deceased Haridas was not cordial at all and also that Haridas might be available near her husband’s shop. Therefore, she went inside and took her torch in order to go to the shop of her husband. As she was getting out of the house, she saw the appellant going back from the direction of her husband’s shop and running towards the backside of her house. When she reached on the road, she saw Haridas lying on the ground with his head on the lap of PW1. She saw a deep wound on the left side of the neck of Haridas which was bleeding profusely. She also saw Santhamma giving water to Haridas. Crl.A.No.1303 OF 2005 :: 8 :: PW4 further spoke about how deceased Haridas was taken in the car of Vijaya Kumar to the hospital, etc. 12. It is contended by learned counsel for the appellant that the evidence of PW1, 2, 4 and 5 is totally artificial and unbelievable. Admittedly, none of them had seen the appellant committing the crime. The only common aspect spoken about these witnesses about the involvement of the appellant is the so called dying declaration by which the deceased had allegedly implicated the appellant. Learned counsel submits that the presence of PW1 at the scene of occurrence was totally improbable. 13. In this context, learned counsel invites our attention to the suspicious circumstances surroundings the registration of the FIR also. Learned counsel submits that PW2 had categorically stated that he had gone to the Police Station along with PW5 and CW5 on their way back from the hospital. These witnesses had reached the police station even before PW1 went there. According to PW2, the police had taken down his statement. But the said statement never saw the light of the day. Obviously therefore Ext.P1 and P1(a) FIR were concocted and manipulated by the police at a later point of time, it is contended by the learned counsel. He also pointed out that the FIR reached the Crl.A.No.1303 OF 2005 :: 9 :: court admittedly on 22nd of September, at 10.30 a.m. This, according to the learned counsel, clearly indicates that the prosecution version with regard to the registration of the crime is a concocted story. We are afraid the above contention is wholly untenable. 14. It is beyond dispute that PW1 and deceased Haridas were residents of the same locality. The fact that PW1 was at the shop of Krishnankutty Kurup is spoken to by all the material witnesses. PW1 was categoric when he stated that he saw his brother running towards him crying aloud that the appellant had stabbed him. PW2 and 5 also spoke in tune with the above version. PW5 had further stated that he heard deceased Haridas saying that appellant had stabbed him while he was being taken to the hospital. Of course PW2 admitted that he did not hear what was spoken by Haridas while he was in the car. But according to PW2, CW5 had told him that Haridas said so. 15. If we carefully peruse the evidence of PW1, PW2, and PW5, there can be no doubt as to the veracity of the depositions given by these witnesses before the court. The evidence of each of these three witnesses corroborated the versions given by the others. It is in this context that we have to appreciate the evidence of PW4. 16. It had come out in evidence that the appellant had been Crl.A.No.1303 OF 2005 :: 10 :: residing in Kollam for the last 2 to 3 years, especially, after his relationship with deceased Haridas and his family members had become strained. Admittedly, criminal cases were pending in connection with certain incidents involving these people. Therefore, the presence of the appellant in that locality and also very near to the scene of occurrence was clearly established by the evidence of PW4. The defence did not succeed in shaking the testimony of PW4 in any manner. If we consider the evidence of PW1, PW2, and PW5 along with that of PW4, it can be clearly seen that the prosecution had satisfactorily established its case beyond any reasonable doubt. 17. Lastly, it is contended by the learned counsel that the appellant ought not to have been found guilty of the charge of culpable homicide amounting to murder in as much as the evidence would indicate that the deceased was the aggressor. In this context, learned counsel invites our attention to the evidence of PW5, according to whom the scene of occurrence was about 9 meters away from the shop of Krishnankutty Kurup and at the junction where the pathway from the residence of PW4 joins the main road. According to the learned counsel there was every possibility of deceased Haridas assaulting the appellant and in the retaliatory scuffle that followed, deceased Haridas Crl.A.No.1303 OF 2005 :: 11 :: might have sustained the injury. 18. In our view, the above contention is too far fetched and wholly improbable and untenable. The fact that the appellant had been residing about 30-40 kms away in Kollam is not in dispute at all. On the contrary, Haridas was a resident of that locality. Under normal circumstances, Haridas might not have expected the appellant in that locality at that particular point of time. Therefore, the hypothesis now advanced by the learned counsel for the appellant that the appellant might have been an innocent visitor in that locality and he might have been attacked by Haridas, is too far fetched to be probable. In other words, the possibility of the appellant going to that locality in search of Haridas with a weapon like M.O.7 looks more probable. The visit of the appellant to that locality indicates that the appellant had gone there with a pre-meditated mind. In that view of the matter, we have no hesitation to hold that the court below was justified in holding the appellant guilty under Section 302 IPC. 19. Learned counsel for the appellant had in this context invited our attention to a decision of the apex court in Periyaswami and another V. State of T.N. (1997 SCC (Crl) 121)]. It is true that in this decision it has been held that benefit of reasonable doubt would go Crl.A.No.1303 OF 2005 :: 12 :: to the accused even though he does not adduce any evidence. But as has been noticed already, there is not even a whisper, leave alone any substantive evidence on the side of the defence to indicate or to even suggest that there was any act of aggression from the side of the deceased. The evidence of the witness will clearly show that there was not even a hint of any altercation or scuffle between the appellant/assailant and the victim. In that view of the matter, the above decision will not come to the aid of the appellant. Having carefully perused the entire evidence on record, we are satisfied that the order of conviction and sentence passed by the court below is eminently justified. We do not find any merit in any of the contentions raised by the appellant. Appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes Crl.A.No.1303 OF 2005 :: 13 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1303 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 4th August, 2009