IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 CRL.A.No. 465 of 2005() ----------------------- SC.129/2003 of ADDL. SESSIONS COURT, FAST TRACT COURT-II, PALAKKAD CP.15/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT(S)/ACCUSED: -------------- GANGADHARAN, CONVICT NO.1494, CENTRAL JAIL KANNUR. BY ADV. SRI.C.K.SREEJITH SRI.SAJEEV.T.P. RESPONDENT(S)/RESPONDENT: --------------- STATE OF KERALA. PUBLIC PROSECUTOR SHRI S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. -------------------------------------- Criminal Appeal No.465 of 2005 -------------------------------------- Dated this the 13th day of January, 2009. JUDGMENT Thomas P.Joseph, J. Appellant faced trial in the court of learned Additional Sessions Judge (Adhoc-II), Palakkad on a charge of causing the death of his younger brother, Prabhakaran (hereinafter referred as 'the deceased') by inflicting injuries on him with a knife on 11.12.2002 at or by about 5.45 a.m. Learned Additional Sessions Judge found the appellant guilty, convicted and sentenced him to undergo imprisonment for life and pay fine of Rs.5,000/- under Section 302 of the Indian Penal Code (for short, 'the Code'). That conviction and sentence are under challenge. 2. Questions arising for a decision are whether appellant inflicted injuries on the deceased in the manner alleged by the prosecution and if so, what is the offence made out. 3. PW1, first informant stated that the deceased sustained injuries on the road in front of his hotel on 11.12.2002 at about 5.45 a.m. PWs 3 and 4 took the deceased to the hospital. Immediately on their reaching the hospital, medical officer examined the deceased and pronounced him dead. PW12, Circle Inspector conducted inquest on 11.12.2002 at about Crl.Appeal No.465/2005 2 10.30 a.m. (Ext.P9 is the report). PW8 conducted postmortem examination. Ext.P4 is the certificate. Evidence of PW8 and Ext.P4 refer to the injuries found on the body of the deceased. PW8 opined that deceased died due to the incised penetrating injury to the chest and neck. According to PW8, those injuries are sufficient in the ordinary course to cause the death. Evidence of PW8 or his opinion as to the cause of death are not challenged before us. 4. Case is that on account of dispute over family property, appellant was not in good terms with the deceased who was managing the properties. Appellant who was employed outside the State used to come home occasionally and pick up quarrel with the deceased. According to prosecution on account of that enmity, he stabbed the deceased in front of the tea shop of PW1 on 11.12.2002 at about 5.45 a.m. PW4 is the sister-in-law of the deceased. PW6 is the sister of appellant and deceased. According to them, appellant had been working at Visakhapattanam, Rajastan and other places, used to come home occasionally and pick up quarrel with deceased who was managing the properties demanding partition. Prosecution examined PWs 1 and 2 to prove the alleged incident. PW1 was running New Lakshmi Hotel on the northern side of the place of occurrence. He stated that the incident happened on 11.12.2002 at about 5.30 a.m. He saw the appellant stabbing the deceased with a knife (MO1) 3-4 times in front of his shop. According to PW1, after the appellant stabbed the deceased, PWs 3 and 4 came Crl.Appeal No.465/2005 3 there and took the deceased to the hospital. PW1 went to the police station and gave statement (Ext.P1) regarding the incident. PW2 claimed that he had been to the tea shop of PW1 to take tea and purchase some articles. He saw a push and pull between appellant and deceased on the road in front of the tea shop of PW1 and the appellant stabbing the deceased with a knife. PW2 was not able to identify whether MO1 is that knife. According to PW2, on seeing the appellant stabbing the deceased he asked the appellant what he is doing and then, appellant turned against him. 5. PWs 3 and 4 claimed to have come to the scene of occurrence on hearing the commotion and as requested by the deceased, taken the latter to the hospital in an autorickshaw. It is the further case of PW3 that on the way, deceased told them that the appellant had stabbed him. PW5 is the bother-in-law of the deceased and appellant. He is an attestor in Ext.P2, mahazar for alleged recovery of MO1. PW5 claimed to have seen the appellant taking MO1 from the drainage and producing the same to the police. 6. PW7 is an attestor in Ext.P3, mahazar for scene of occurrence prepared by PW12, Circle Inspector who investigated the case. PW9, Head Constable claimed that he assisted PW12 in the investigation of the case from 11.12.2002 onwards. According to him, appellant was kept at Mankara Police Station in surveillance and while so, clothes of the appellant Crl.Appeal No.465/2005 4 (MOs 3 and 4) were seized by PW12 as per Ext.P5. PW9 is also an attestor in Ext.P6, mahazar prepared by PW12 for seizure of MOs 5 to 8, clothes of the deceased. According to PW12, MOs 5 to 8 were produced before him by a Police Constable on 12.12.2002 after postmortem examination of the deceased was over. PW10, Village Officer prepared Ext.P7, sketch of scene of occurrence. PW11, Sub Inspector, Mankara claimed to have recorded Ext.P1, first information given by PW1 at Mankara Police Station on 11.12.2002 at about 8 a.m. and registered the case. Ext.P8 is the FIR. PW12, Town Circle Inspector took up investigation of the case on 11.12.2002 at about 9.30 a.m. and prepared inquest. According to PW12, he arrested the appellant who was kept in surveillance at Mankara Police Station on 12.12.2002 at about 10.30 a.m. (Ext.P10 is the arrest memo) and questioned him. On the information given by the appellant and as led by him, PW12 along with the appellant reached the place where, from among the waste materials in the drainage appellant produced MO1 which PW12 claimed to have seized as per Ext.P2. Ext.P11 is the relevant portion of the statement of the appellant which according to PW12, led to the discovery of MO1. PW12 produced the material objects in court and requested vide Ext.P12 to send MOs 1, 3 and 5 for chemical examination. Ext.P13 is the report of chemical examination where, it is certified that MOs 1, 3 and 5 contained human blood. Crl.Appeal No.465/2005 5 7. When questioned under Section 313 of Code of Criminal Procedure (for short, “the Cr.P.C.”) appellant denied his involvement in the alleged incident and claimed that he has been falsely implicated. Learned counsel for appellant contended that the FIS and FIR came into existence only after PW12 started investigation but were anti-timed. It is the contention of learned counsel that the place of occurrence as spoken by PW1 is different from what the Investigating Officer has stated in Ext.P3 and that the evidence of prosecution witnesses is doubtful and cannot be relied. It is further contended that seizure of MOs 1 and 3 to 8 is quite doubtful and at any rate, recovery of MO1 is not one under Section 27 of the Indian Evidence Act (for short, “the Act”). Learned counsel pleaded for an acquittal of the appellant. Learned Public Prosecutor contended that there is no reason to disbelieve the evidence of PWs 1 to 12. According to the Public Prosecutor, there is reference to PWs 1 to 3 even in Ext.P1 and hence also there is no reason to disbelieve them. 8. We have referred to the evidence of PWs 1 and 11 regarding the recording of Ext.P1 and registering the case. It is seen from Exts.P1 and P8 that the same reached the magistrate concerned on 11.12.2002 at about 1 p.m.. PW12 took up investigation of the case on 11.12.2002 at about 9.30 a.m. Argument of the learned counsel is that Exts.P1 and P8 came into existence only after 9.30 a.m. Learned counsel invited our attention to the version of PW1 that he had not voluntarily gone to the police station, instead, Crl.Appeal No.465/2005 6 police otherwise got information about the incident, came to the scene of occurrence and took him to the police station where he gave the statement and signed it at about 11 a.m. Counsel contended that there is no reason to disbelieve that version of PW1. 9. We do not forget that PW1 has stated that on getting some information police came to the place of occurrence and took him to the police station where he gave information regarding incident. He claimed to have and signed Ext.P1 at about 11 a.m. Question is whether basing on that evidence of PW1, it could be said that Exts.P1 and P8 came into existence only by about 11 a.m. Exts.P1 and P8 show and, in consonance with that PW11 also has given evidence that PW1 came to the police station on the day of incident at about 8 a.m. and gave information regarding the incident which PW11 recorded at the same time. PW11 completed registration of case by about 8.30 a.m. and following that, Exts.P1 and P8 were sent to the magistrate concerned. True, he has not stated about the exact time of sending Exts.P1 and P8 through the constable to the magistrate since he had to refer to the relevant General Diary for that purpose. We note that registration of the case under Section 157 of the Cr.P.C. is the official duty of the officer to whom information regarding commission of a cognizable offence is given. Regularity of official acts have to be presumed. A Division Bench of this Court had occasion to consider similar situation in Ignatious @ Jolly v. State (1992 (2) KLJ 952). There, first Crl.Appeal No.465/2005 7 informant admitted his signature in the statement but claimed that he had given that statement and signed it only on the next day and not on the day the first information statement mentioned. He also resiled from his version in the statement. This Court observed that in such situation, since recording of the first information and registration of the case are the official duty of the police officer concerned, its regularity can be presumed. Evidence show that the court of Judicial First Class Magistrate-II, Palakkad is situated about 22 kms away from Mankara Police Station. It is the case of PW11 that Exts.P1 and P8 were sent from Mankara Police Station to that court. PW1 admitted that on the morning itself he had been to the Police Station and given statement but according to him, he signed it at 11 a.m.. In these circumstance, we are not very much impressed by the version of PW1 that he signed Ext.P1 only at 11 a.m.. Exts.P1 and P8 show that first information was recorded on 8 a.m. and the case was registered at that time. 10. Next contention is that the place of occurrence is different from what is stated in Ext.P3, mahazar for scene of occurrence. This argument stems from the version of PW1. In Exts.P3 and P7 mahazar and sketch for the scene of occurrence, place of incident is stated as 75 c.m. south of the margin of the mud road on the northern side of Ottappalam-Palakkad road, ie., immediately on the southern side of the tea shop of PW1. The place of occurrence is just 75 cms away from the varandha of the tea shop of PW1. It is Crl.Appeal No.465/2005 8 stated in Ext.P3 by PW12 that he had seen blood clot and blood stained sack (identified as MO2) at the scene of occurrence. It has been held in Pookunju v. State of Kerala (1993 (1) KLT 876) and George v. State of Kerala (AIR 1998 SC 1376) that when the inquest report is marked in evidence, recitals made therein as to what the police officer saw and found are admissible in evidence even if it is not specifically stated by the police officer in his evidence. That principle would also apply in the matter of a mahazar for scene of occurrence duly proved. It is true that PW1 stated that on receiving the first stab, deceased got into the varandha of his tea shop where the appellant inflicted the rest of the injuries. It is also the version of PW1 that there was blood spattered on the varandha and the wall of the tea shop. But nothing of that sort is mentioned by PW12 in Ext.P3. PW12 has not stated in Ext.P3 that there was blood on the varandha or walls of the tea shop of PW1. According to the learned counsel if evidence of PW1 were to be believed, part of the incident occurred on the varandha of the tea shop. PW2 was specific that the incident occurred on the margin of the road as stated in Exts.P3 and P7. We have gone through the evidence of PW1 and find that at a later portion, he also stated that incident occurred on the road in front of his tea shop. We bear in mind that PW1 was giving evidence after a lapse of about two years. Therefore, some mistake here or there concerning the incident or exact spot of occurrence is quite possible. It is also possible that on getting the first stab, deceased tried to save himself by moving away from the place of the first stab. These aspects might Crl.Appeal No.465/2005 9 have persuaded PW1 to say that deceased had stepped into the varandha of tea shop. The distance from the Varandha to the scene of occurrence is only 75 cms. Even if it is thought for a moment that the deceased had stepped into the varandha of the tea shop of PW1, that does not in any way help the appellant. In the circumstances, we are not impressed by the contention that the incident occurred not at the place stated in Exts.P3 and P7 but, on the varandha of the tea shop of PW1. 11. As to the acceptability of the evidence of PWs 1 and 2, learned counsel refers to the contradictions marked in the evidence of PW1 (Exts.D1 series and D2 series) and in the evidence of PW2 (Ext.D3 series). We have gone through the evidence of PWs 1 and 2 and the contradictions. Those contradictions are not regarding the appellant allegedly stabbing the deceased. Contradictions are on the question whether PWs 1 and 2 had interfered when the appellant stabbed the deceased or tried to persuade the appellant not to do so. We are of the view that those contradictions do not affect the core of evidence given by PWs 1 and 2 that at the scene of occurrence and at the relevant time, appellant stabbed the deceased with knife. Though, PW2 was not able to identify MO1 as the weapon of offence, PW1 has identified MO1. It is true that PW1 claimed that the Investigating Officer had not shown MO1 to him at the time of interrogation. If that was not done, that is a failure on the part of PW12. Evidence of PW1 cannot be ignored or rejected for that reason. PWs 1 Crl.Appeal No.465/2005 10 and 2 have also stated that there was sufficient light at the place of occurrence from the burning electric light in front of the shop of PW1 and nearby electric post. On considering the evidence of PWs 1 and 2, we do not find justifiable reason to reject it. Though learned counsel contended that the staff of a bus who were present in the tea shop of PW1 are not cited and examined as witnesses, evidence of PW12 would suggest that they had not witnessed the incident of stabbing. Coupled with the evidence of PWs 1 and 2 there is the evidence of PW4 who is the sister-in-law of the deceased and appellant that immediately after the incident she saw the appellant near the victim, holding the knife. That evidence is not discredited by the defence. 12. We now come to the contention that seizure of MO1 is not proved by the prosecution. Learned counsel contends that even the arrest of the appellant is under mysterious circumstances and at any rate, seizure of MO1 being from a public place it cannot be brought within the mischief of Section 27 of the Act. We shall advert to that contention of the learned counsel. 13. According to PW12, he recorded arrest of the appellant on 12.12.2002 at about 10.30 a.m. as per Ext.P10, arrest memo, and on the information given by the appellant, recovered MO1 as per Ext.P2. In cross-examination PW12 stated that appellant was picked up by the Sub Inspector, Mankara Police Station (PW11) on the night of 11.12.2002. PW11 did Crl.Appeal No.465/2005 11 not say about that in his evidence probably because he was not asked. PW9 stated that he saw the appellant for the first time at Mankara Police Station on 12.12.2002 after 2 p.m. This in our view does not affect the evidence of PW12 and Ext.P10. PW9 stated that he has been assisting PW12 on the investigation of the case from 11.12.2002 onwards. We referred to the evidence of PW12 supported by Ext.P9 that he conducted inquest of the body on 11.12.2002 from 10.30 a.m. to 1.30 p.m. Recovery of MO1 as per Ext.P2 was on 12.12.2002 at about 2 p.m. What PW9 stated is that he saw the appellant for first time at Mankara Police Station after 2 p.m. on 12.12.2002. At this juncture, we note from Ext.P5 that it was at 2.15 p.m. on 12.12.2002 that PW12 seized MOs 3 and 4, clothes of the appellant at Mankara Police Station. That could be the reason why PW9 claimed that he saw the appellant for the first time on 12.12.2002 after about 2 p.m. at Mankara Police Station and particularly as there is no evidence to show that PW9 was present at the place of recovery of MO1 at 1 p.m.. Evidence of PW9 does not in any way affect recovery of MO1. Recovery of MO1 is proved by Ext.P2 and the evidence of PWs 5 and 12. 14. It is contended by the learned counsel that since recovery is from a public place, it does not come within the mischief of Section 27 of the Act. Section 27 of the Act for its applicability makes no distinction between the place of recovery being a private or public place so far as the object is not exposed to public gaze or sight by others. Evidence of PW12 and Crl.Appeal No.465/2005 12 Ext.P2 is that appellant took MO1 from among the waste materials in the drainage. There is no evidence to show that it was exposed to public gaze or sight by others. But, there is another aspect which takes the recovery of MO1 out of the purview of Section 27. Ext.P11 is the statement of the appellant which led to the recovery of MO1. But neither in Ext.P11 nor in the evidence of PW12 we could find any statement of the appellant regarding authorship of concealment of MO1. In State of Kerala v. Ammini and others (1987 (1) KLT 928) this Court pointed out that in the matter of discovery under Section 27 of the Act, evidence regarding concealment is important and that the Investigating Officer has to speak to the words spoken by the accused which led to the discovery or atleast the relevant statement should be separately marked in evidence and he should say that the accused told him like the marked portion. As concealment of MO1 at the place wherefrom it was seized is not owned by the appellant as spoken by PW12 or as seen from Ext.P11, recovery of MO1 cannot be brought within the mischief of Section 27 of the Act. But, we take it as a conduct on the part of the appellant relevant and admissible under Section 8 of the Act. Ext.P13, report of chemical examination shows that MO1 was stained with human blood. It is true that grouping of blood was not done but the appellant has no explanation how MO1 happened to be stained with human blood. Seizure of MO1 proved to be stained with human blood from the place pointed out by the appellant corroborates the evidence of PW1 that MO1 is the Crl.Appeal No.465/2005 13 weapon used by the appellant. PW8 who conducted the postmortem examination opined that the wounds referred to in Ext.P4 could be caused with MO1. 15. Next item of evidence relied on by the prosecution is recovery of MOs 3 and 4 as per Ext.P5. As rightly pointed by the learned counsel, none among PWs 1 to 4 identified MOs 3 and 4 as the clothes which appellant was wearing at the time of incident and therefore, connecting link between the incident and MOs 3 and 4 is not available but we take note of the fact that appellant was wearing MOs 3 and 4, stained with human blood at the time PW12 recorded his arrest on 12.12.2002 at 10.30 a.m.. 16. Though it is contended by the appellant that he had no role in the incident leading to the death of deceased, we have referred to the evidence. It is not the case of appellant and there is no evidence also, that any of the prosecution witnesses was enmical towards him for any reason whatsoever. It was suggested by PWs 1 and 2 that appellant had psychic problems. They claimed that they are unaware of any such illness for the appellant. We have considered that aspect also. Neither the evidence nor circumstances proved in this case indicate that appellant was not having the required mental capacity to know the consequence of his act. Though, motive is not of much relevance in a case resting on direct evidence, there is the evidence Crl.Appeal No.465/2005 14 of PW4 and 6 about the strained relationship between the appellant and deceased following family problems and dispute over partition of property which gave sufficient motive for the appellant to inflict stab injuries. On considering the evidence, we find no reason interfere with the finding of learned Additional Sessions Judge that appellant inflicted stab injuries on the deceased at the relevant time and place with MO1. 17. Coming to the question whether the act of appellant amounted to offence punishable under Section 302 of the Code, we refer to evidence of PW8 who conducted postmortem examination and prepared Ext.P4. It is seen that there was a number of incised, penetrating wounds on the body of deceased. We extract injury Nos.2 to 4 in Ext.P4 which is thus - “2) Incised penetrating wound 4x1.5x11.5cm, on upper part of left chest, extending to left supraclavicular fossa and lower part of left half of front of neck, obliquely placed with upper inner round cut end 4 cm above inner end of left collar bone and 4.5cm outer to midline. The lower outer end was at upper border of left collar bone 6.3 c.m outer to midline. The lower outer end was at upper border of left collar bone 6.3 cm outer to midline and the wound then continued laterally as superficial incised wound 3x0.8x0.3cm over Crl.Appeal No.465/2005 15 the collar bone to its outer sharp cut end at 11 cm above nipple and 9cm outer to midline. This end had a tailing for 0.5cm. The wound cut the subcutaneus tissues , muscles and blood vessels underneath including the jugular vein and common carotid artery on left side. The wound cut the trachea and esophagus and penetrated the right chest cavity through its apex. The superior mediastinum was penetrated and brachio-cephalic trunk on right side cut. The wound just cut the upper border or second rib on right side. Incised wound 1.5x0.3x1.2cm on apex of right lung. Right chest cavity contained 900ml of blood. Right lung collapsed. 3) Incised penetrating wound 2.2x1.6cm, on front of right chest, vertically oblique with upper inner round cut end 15cm below collar bone and