IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 CRL.A.No. 36 of 2007() ---------------------- SC.377/2004 of ADDL.SESSIONS COURT, THODUPUZHA .................... APPELLANT(S): ACCUSED ---------------------- LINU JACOB, S/O. PONNACHAN @ JACOB GEORGE, KAVIL VEEDU, SAVIKKANAM BHAGAM, CHETTUKUZHI KARA, ANAKKARA VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.RENJITH B.MARAR SRI.DILEEP P.PILLAI SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): COMPLAINANT --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------------------- Crl.A. No. 36 of 2007 ----------------------------------------------- Dated this the 20th day of September, 2010 J U D G M E N T Gopinathan, J. The Additional Sessions Judge, Thodupuzha in S.C.377/04 convicted the appellant for offence under Sections 302 and 324 IPC and sentenced to imprisonment for life and a fine of Rs.25,000/- for offence under Section 302; and simple imprisonment for six months for offence under Section 324 IPC. Both sentences were ordered to run concurrently. Assailing the above conviction and sentence, this appeal was preferred. 2. The appellant was prosecuted by the Circle Inspector of Police, Kattappana, who was examined as PW16, with an allegation that at 8.15 p.m. on 14/09/02, the appellant stabbed to death Saji, the brother of PW1 with M.O.1 knife and also PW2 was inflicted simple hurt with same knife. 3. The prosecution case is that at about 8.00 p.m. on Crl.A.36/07 -2- 14/09/02, Ponnachan, the father of the appellant after having intoxicated with liquor arrived in front of the provision shop run by PW1 at Sabukkada in Savikkanam in Anakara Village. He started uttering abusive words. The mother of the appellant reached there hearing the uttering of abusive words and attempted to take home her husband. But she could not succeed. A little later, the appellant reached there. Though he also persuaded his father to go home it was in vain. Thereupon, the appellant slapped his father and then his mother. Deceased Saji, who was standing in front of the shop of his brother PW1, slapped the appellant asking whether he had beaten his parents. Somehow or other, the gathered people including PW4 sent home the appellant and his parents. While going back the appellant stated to the deceased that he would take him. A little later, by about 8.15 P.M. the appellant along with his parents came back. The father of the appellant started Crl.A.36/07 -3- uttering abusive words. Late Saji slapped the father of the appellant stating that “didn't he go home and that he did return there to make problems” ? Pursuant to this, the appellant caught Saji and engaged in scuffle and Saji was pushed a little away from the shop of PW-1 and then the appellant inflicted three stab injuries on Saji with M.O.1, a deadly knife. PWs.2 and 3 were standing by the side of Saji. After inflicting stab injury on Saji, the appellant waived MO1 knife against PW2. The knife hit PW2 at his head and sustained injury. Saji having sustained stabs ran to the shop of PW1 stating that the appellant stabbed him and fell down collapsed. PWs.1 to 4 after fetching a vehicle rushed Saji to St. John's Hospital, Kattappana. The Doctor after examining Saji, declared dead. PW1 immediately rushed to Vandanmedu Police Station where PW15 was working as Assistant Sub Inspector of Police. He narrated the incident. PW15 recorded Ext.P1 First Information Statement given by Crl.A.36/07 -4- PW1 at 11.00 P.M. On the basis of Ext.P1, PW15 registered a case as Crime No.188/02 against the appellant for offence under Section 302 IPC. The investigation was taken over by PW16, the Circle Inspector of Police, Kattappana. 4. PW16, on the next day rushed to the St.John's Hospital, Kattappana and prepared Ext.P7 inquest report wherein PW9 is an attester. At the time of preparation of inquest report, clothings found on the body which were marked as MOs.2 to 5 were seized. After sending the body for postmortem examination to Medical College Hospital, Kottayam, PW16 proceeded to the spot of occurrence and prepared Ext.P3 scene mahazar wherein PW5 is an attester. From the spot of the occurrence two pairs of slippers, blood stained soil and sample soil which were marked as MOs.6 to 8 were seized. During further investigation, the appellant was arrested at 10.00 a.m. on 17/09/02 for which Ext.P22 arrest memo, Ext.P23 Inspection Memo and Ext.P24 arrest Crl.A.36/07 -5- notice were prepared. The dresses worn by the appellant, which were identified as MOs.9 and 10, were seized for which Ext.P6 seizure mahazar wherein PW7 is an attester was prepared. During the course of interrogation the appellant stated that he had hidden the knife among the roofing sheets of the cattle shed of his grand-father Jose. On the basis of the information so given by the appellant, PW16 accompanied by the appellant, went to the cattle shed and recovered M.O.1 knife, which was kept in between roofing sheets of the cattle shed, on the strength of Ext.P5 recovery mahazar wherein PW6 and PW7 are attesters. Ext.P15 is the statement given by the appellant before PW16 which led to the recovery of M.O.1. M.O.11 is the sheath of M.O.1. On getting the correct address of the appellant Ext.P14 report was prepared. Since it was revealed that PW2 sustained simple hurt with MO1 knife at the hands of the appellant, Ext.P16 report was filed reporting that he was proceeding Crl.A.36/07 -6- with the investigation after incorporating Section 324 of the IPC also. Thereafter, he filed Ext.P17 report stating that M.O.1 and M.O.11 were retained in the Police Station for the purpose of investigation. In Ext.P13, the place of occurrence was shown as Vandanmedu village. On finding that the place of occurrence is in Anakkara Village he filed Ext.P18 report to that effect. The material objects seized were forwarded to court along with Ext.P19 list of properties. He prepared Ext.P24 forwarding note to the court to send the material objects for chemical examination. After examining the material objects, Ext.P25 report was submitted by the Chemical Examiner. PW-16 had also got the photographs of the dead body as well as the scene of occurrence taken. The photographs were marked as Ext.P11 series and Ext.P12 series. After completing the investigation, he laid the charge sheet before the Judicial First Class Magistrate's Court, Nedukandam. The learned Magistrate took cognizance as Crl.A.36/07 -7- C.P.11/03. On finding that the offence is exclusively triable by a Court of Session, the case was committed to the Court of Session, Thodupuzha. From there it was made over to the trial Judge. 5. The trial Judge, on appearance of the appellant heard either side and having convinced that there are materials to send the appellant for trial for the offences alleged, framed charge for offences under Section 324 and 302 IPC. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. During trial, PWs. 1 to 16 were examined. Exts.P1 to P25 and M.Os. 1 to 11 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 Cr.P.C. He denied the incriminating evidence and further stated that PWs. 2 to 4 assaulted his father. When the appellant objected the same he was also assaulted and pushed him to a distance of 10 to 30 ft. While he was Crl.A.36/07 -8- attempting to run away from the spot, deceased Saji took a knife and waived to stab. The appellant caught hold of the knife and there was scuffle as a result of which both of them fell down and he escaped from the spot of occurrence. Thereafter, prosecution and the appellant were heard. Having found that the appellant was not entitled to an order of acquittal under section 232 Cr.P.C. he was called upon to enter his defence. On his side, a witness was examined as DW-1. DW-1 has given evidence supporting the statement given by the appellant when questioned under Section 313 Cr.P.C. The learned Sessions Judge after hearing prosecution and the appellant arrived at a conclusion of guilt, consequent to which, the appellant was convicted and sentenced as above. 6. The factum of death is not disputed by the appellant. But the defence is that the injury was accidental. PWs. 1 to 4 are harmonious that Saji sustained stab injury at Crl.A.36/07 -9- Sabukkada near the shop of PW-1. According to PWs. 1 to 4, soon after sustaining the stab, Saji rushed to the shop of PW-1 stating that he was stabbed by the appellant and fell down collapsed. Immediately they broke open a coconut and gave water and shifted the injured to St.John Hospital at Kattappana where he was declared dead. Leaving the dead body at the hospital, PW-1 rushed to PW-15 and gave Ext.P1 First Information Statement at 11.00 p.m. wherein also it is stated that Saji died of stab injuries. 7. PW-11 had given evidence to the effect that he was working as Assistant Professor, Forensic Medicine, Medical College Hospital, Kottayam and on 16-9-2002 he conducted autopsy on the body of Saji, aged 29 years and noted the following injuries. 1. Incised wound 7.5 x 3.5 cm. oblique on the right side of the front of chest. Its upper inner and 7 cm. outer to midline and 13.5 cm. below clavicle. Its lower side has a side cut of 3.5 x 3 cm. size. The margins of the wound were contused. The wound entered the chest cavity cutting the 6th & 5th cervical Crl.A.36/07 -10- cartilage. The wound terminated inside the heart after cutting the right atrio ventricular junction. The wound in its course cut the front margin of right lung. The wound was directed backwards, downwards and to the left for a total depth of 8 cm. Right long was collapsed. Right chest cavity contained 200 ml. of blood. 2. Incised wound 6 x 2 cm. oblique on the right side of front of abdomen. Its lower inner and 3 cm. outer to umbilicus at the same level. Margins of the wound were contused. The wound entered the abdominal cavity pierced the margin of the liver, Pyloric end of stomach and terminated in the 2nd lumbar vertebra cutting it for a depth of ½ cm. The wound was directed backwards, downwards and to the left for a total depth of 9 cm. 3. Incised wound of 5.5 x 2.5 cm. oblique skin deep on the front of right upper arm 8 cm. above elbow. 4. Contused abrasion 3.5 x 1.5 cm. on the outer side of the left knee. 5. Contused abrasion on 1.5 x 1 cm. on the outer side of right thigh 16 cm. below iliac crest. 6. Contused abrasions 4.5 x 1 cm. on the front of right thigh 12 cm. above right knee. 7. Multiple contused abrasions 10 x 7 cm. involving right side of forehead and on and around right malar eminence. Crl.A.36/07 -11- 8. Multiple small abrasions 9 x 4 cm. on and around the back of right elbow. 9. Contused abrasions 7 x 1.5 cm. on the front of right knee. It was further deposed that injuries 1 to 3 could be caused with a weapon like M.O.1 and the injuries 4 to 9 could be caused by a fall. It was further deposed that the death was caused due to injury No.1 and 2 and that Ext.P9 is the postmortem certificate. Ext.P9 would corroborate with the evidence of PW-11. PW-11 was not much cross examined regarding the cause of death. In the above circumstance, we find no reason to disbelieve the evidence of PW-11 regarding the cause of death. On reappraisal of the evidence of PWs. 1 to 4, 11 and 15 coupled with Ext.P1, P9 and P11 we find that the death of Saji was due to injuries caused with a weapon like M.O.1. We concur with the learned Additional Sessions Judge on that aspect. 8. The question then arises as to how Saji sustained Crl.A.36/07 -12- injuries with M.O.1. PW-1 had deposed that at about 8.00 p.m. on 14-9-2002, Ponnachan father of the appellant after consuming liquor had been uttering obscene words. A little later mother of the appellant also arrived there and they attempted to take home Ponnachan. But they could not. Thereupon the appellant beat his father. Seeing this, Saji who was sitting inside the shop went to the appellant and asked whether he was beating his father. The appellant also beat his mother. According to PW-1, Saji also beat the mother of the appellant. There was push and pull and somehow or other, PW-3 and 4 sent the appellant home with his parents. While going home, the appellant stated to Saji that he would take him. By about 8.15 p.m. the appellant and his parents returned back and there was quarrel. But, he did not listen to. A little later Saji rushed to him stating that he was stabbed by the appellant and fell down. PW-1 along with PWs. 2 to 4 lifted him to the Crl.A.36/07 -13- hospital where he was declared dead. 9. PW- 2 had deposed that at about 8.00 p.m. in September 2002 Ponnachan after being got intoxicated had been uttering obscene words. The appellant and his mother reached there. The appellant beat Ponnachan when he failed to send Ponnachan home. Thereafter, the appellant beat his mother also. Seeing this deceased Saji beat the appellant asking whether he would beat his father. PW-4 somehow or other sent home the appellant along with the parents. Fifteen minutes later, appellant returned along with parents. Seeing this, Saji slapped Ponnachan at his cheek asking whether he had again reached there to make quarrel. Thereupon, appellant and Saji engaged in a push and pull and Saji was pushed to a distance of about 20 ft. PW-2 and 3 followed them. While so, the appellant took a knife and stabbed Saji thrice. The appellant then waived the knife against him and it fell on his head and he Crl.A.36/07 -14- sustained injury. Saji, having sustained stab, ran to the shop and fell down. PWs. 1 to 4 lifted him to St.John's Hospital, Kattappana where he was declared dead. 10. PW-3 had given evidence almost corroborating with the evidence adduced by PW-2. PW-4 was also cited as a witness to the occurrence, but he did not support the prosecution in full. However, he had deposed about the first incident and then deposed that 15 minutes later the appellant returned along with his parents. Then Saji beat Ponnachan asking whether he had reached there again to make quarrel. Following that there was wordy exchanges between the appellant and the deceased and they moved a little away from the shop and that soon Saji ran to the shop stating that the appellant stabbed him. He had also deposed that Saji was taken to the hospital and the doctor, after examining Saji declared dead. 11. The defence, as we mentioned earlier is that Saji Crl.A.36/07 -15- was the aggressor and Saji when waived the knife the appellant caught him and there was scuffle and both of them fell down and somehow or other Saji might have sustained injury. The nature of injury deposed by PW-11 corroborated by Ext.P9 would show that injury No.1 pierced the chest cavity cutting the 6th and 5th cervical cartilage and the wound terminated inside the heart after cutting the right atrio ventricular junction. It entered the chest cavity to a depth of 8 cms. The description of M.O.1 contained in Ext.P5 would show that M.O.1 has a total length of 36 cms. and the handle portion measures 24 cms. The blade portion measures 12 cms. of which at the tip a portion measuring 7 cms. is double edged. There is no case that the injury noted in Ext.P9 could not be caused with a weapon like M.O.1. The second wound would show that it entered the abdominal cavity to a total depth of 9 cms. cutting the liver, pyloric end of stomach and terminated in the 2nd lumbar vertebra Crl.A.36/07 -16- cutting it for a depth of ½ cms. The third injury is on the upper arm of the injured. The depth and location of the injuries would suggest that it was not an accidental injury while fighting for the weapon. All the three incised injuries were on the right side of the victim. Even if the defence story is believed, if the victim was having the knife at his right hand, there is no possibility for having sustained such a deep injury on the chest cavity as well as on the abdominal cavity and hand on the same side. There is no suggestion that the deceased was a left hander. If the deceased was holding knife in his right hand, the injury, if caused during scuffle or fall, should be on the left side. Here, it is on the right side. We, on a critical analysis of the evidence of Pws.2 and 3 and the evidence of PW-11 coupled with Ext.P9, especially regarding depth, location and number of injuries, find that the defence story that the victim sustained injury when fell down while fighting for the Crl.A.36/07 -17- weapon is a remote possibility. On the other hand, the number, depth and location of injuries support the prosecution case that the injuries were made voluntarily and repeatedly with much force so as to cut vital parts. 12. Though the appellant had a case that he caught Saji while Saji attempted to stab him, there is no such suggestion to PWs-2 and 3 during the cross examination. There is no suggestion to PWs. 1 to 4 that M.O.1 knife was belonging to Saji. On the other hand, according to PW-1, while the appellant returning after the first quarrel, he declared that he would take Saji. According to PW-2, it was stated by the appellant that he would see the victim. Though there is some contradiction regarding the correct words told by the appellant while going home he had gone home with vengeance. The evidence of PWs. 1 to 4 would show that in fact it was with much effort the father of the appellant was sent home from the spot where the father of Crl.A.36/07 -18- the appellant was uttering obscene words after being intoxicated. The evidence of PWs. 1 to 3 also would show that the effort of the appellant to take his father home was unsuccessful and the appellant had to handle physically. In the normal course, the appellant after having gone home would not have returned with parents unless he had nursed some grudge against the victim. The very consistent case of PWs. 1 to 3 is that the victim was stabbed to death because of the grudge that the appellant was nursing following the assault by the victim on the appellant. On a critical analysis of the evidence of Pws.1 to 4 with particular reference to what had happened at the scene, we find little reason to reject the prosecution case that the appellant returned back to the spot to wreak vengeance. It is also pertinent to note that there is no suggestion to any of the witnesses during the cross examination that at the time of the first quarrel either Saji or the appellant was armed with Crl.A.36/07 -19- any weapon. So every possibility is that the appellant had come back with M.O.1. Evidence of PWs. 1 to 4 would show that Saji remained there after the 1st instance. He had not gone anywhere to fetch any weapon. In the light of the evidence of PWs. 2 and 3 we find little merit in the statement of the appellant made when questioned under Section 313 of the Cr.P.C. and the evidence of DW-1. 13. DW-1 claims to have witnessed the incident while he was driving a mini lorry through the spot of occurrence. That story itself is not at all convincing. 14. PWs. 1 to 4 had deposed that they could witness the incident through the electric light emerging from the nearby houses and with the light of the petromax kept in front of the shop of PW-1. Though in cross examination some attempt was made to make it appear that there were trees standing in and around of the nearby house blocking the light, the defence could not succeed in the attempt. Crl.A.36/07 -20- Ext.P3 scene mahazar and Ext.P12 (series) photographs did not mention any tree standing in between the adjacent houses or the shop building of PW-1 blocking light to the spot of occurrence. So the evidence of PWs. 2 and 3 that they could witness the appellant stabbing Saji in the light emerging from the nearby houses and the shop of PW-1 is convincing. PWs 2 and 3 are very specific that they had seen the appellant stabbing at the victim with M.O.1. The three injuries found on the body of the victim tallies with the evidence of PWs. 2 and 3. The evidence of PWs. 1 and 4 would show that soon after sustaining stab injury Saji rushed to the shop of PW-1 stating that the appellant stabbed him. It is also pertinent to note that injury No. 1 and 2 are very severe causing the cutting of the heart, lung, stomach, liver etc. The death would have been very rapid. In the event the victim fell down in the process of fight for weapon and sustained injury accidentally in the lying Crl.A.36/07 -21- position, there is little possibility for he having got up from the spot and running to the shop of PW-1. So the nature of the injury would also persuade us to disbelieve the defence suggestion as well as the defence evidence given by DW-1. The statement of the victim soon after he sustained injury that the appellant stabbed him is very relevant and supports the evidence of PWs. 2 and 3. Statement of Pws.1 and 4 that the deceased stated that the appellant stabbed also is relevant under Section 8 of the Evidence Act. In the light of the above evidence, on a critical reappraisal, we find that it was the appellant who inflicted injury 1 to 3 on Saji which caused death in the manner stated by PWs. 2 and 3 and not in the manner deposed by DW-1. 15. The recovery of M.O.1 on the basis of the so-called statement given by the appellant was also relied upon by the prosecution under section 27 of the Evidence Act. Going by the Evidence of PW-16 we find that the appellant had not Crl.A.36/07 -22- given any statement whereby he had stated that M.O.1was kept by the appellant at the spot from where it was recovered. The authorship of the concealment of the knife was not stated by the appellant. So the recovery of M.O.1 would not be relevant under Section 27 of the Evidence Act. In fact the learned Sessions Judge had also not relied upon Ext.P15 or the evidence of PW-16 regarding the authorship of the concealment to arrive a conclusion of guilt. However, the fact that the appellant was aware of the place where M.O.1 was hidden is relevant. Even if the prosecution had not succeeded to establish that it was the appellant who had concealed M.O.1 in between the roofing sheet of the cattle shed, in the light of the evidence of PW.2 and 3 we find that the prosecution had succeeded to establish that the injury was inflicted by the appellant with M.O. 1 and the appellant was aware of the place where M.O.1 was kept after the crime. Crl.A.36/07 -23- 16. The learned counsel appearing for the appellant Sri.Renjith B.Marar argued that even with the available evidence on record there is little material to conclude that the injury was inflicted with intention to cause murder. According to the learned counsel, what could be inferred