IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 CRL.A.No. 143 of 2006() ----------------------- SC.527/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT: ACCUSED. ---------------------- JOSSY, S/O. AMBROSE, AGED 26 YEARS, THAIPARAMBIL VEETTIL, MUKKATHEPADAM BHAGOM, EROOR DESOM, NADAMA VILLAGE. BY ADV. SRI.K.V.SABU RESPONDENT: COMPLAINANT. --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr. A. No.143 of 2006 ------------------------------------------------------------------ Dated 20th November 2009 Judgment Balakrishnan Nair, J. The accused in SC No.527/04 on the file of the VIth Additional Sessions Court, Ernakulam, is the appellant. 2. The brief facts of the case are the following : Mahesh, the deceased in this case, along with PW1 was attending the preparations for the marriage of one of their friends. It appears, the liquor stored in the house exhausted and therefore, they went to the nearby liquor shop in a motor bike, to purchase beer. Simultaneously, for the very same purpose, two others also came in two bicycles. One of them had previous acquaintance with the deceased Mahesh. He tried to introduce Mahesh to the second man, who came in the bicycle. The latter was disinterested to know who was Mahesh. The said attitude led to a quarrel between Mahesh and the second man, who is the accused in this case. PW1 was the person, who accompanied the deceased and PW2 was the friend of the deceased, who came in the bicycle along with the accused. PWs 1 and 2 separated the quarrelling persons. After purchase of the Cr. A.No.143/06 2 liquor, again the quarrel erupted and finally, the accused took MO1 knife from his bicycle and inflicted multiple injuries on the deceased. PW1, realising the gravity of the situation, rushed to reach the house, where the preparations for the marriage were going on, to tell his friends about the incident. But, on the way, he met with an accident and fell down from his motor bike. While so, he was seen by PW6, who is a cousin of Mahesh and he told PW6 about the incident. Some persons, who gathered there, took PW1 to the hospital and PW6 and others took Mahesh to the Hospital. Mahesh soon breathed his last. Based on the information lodged by PW1, PW18, the SI of Police recorded Ext.P1 F.I. statement and registered Ext.P1(a) F.I.R. The incident took place at about 1 am., in the night on 7.1.2001. PW19 Circle Inspector of Police prepared Ext.P3 scene mahazar, held the inquest and prepared Ext.P2 inquest report. He sent the dead- body for autopsy, got the motor bike and the bicycles examined by the Scientist and got the scene plan prepared by the Village Officer. He questioned the witnesses and finally, the accused was arrested on 29.01.2001. Based on his confession statement, PW19 recovered MO1 knife and also MOs 2 and 3 clothes worn by the accused on the date of the incident. PW19 completed major part of the investigation. PW20, the Cr. A.No.143/06 3 successor Circle Inspector of Police completed the investigation and filed the final report before the Additional Chief Judicial Magistrate's Court, Ernakulam. The learned Magistrate committed the case for trial to the District and Sessions Court, Ernakulam, as the offence disclosed was under S.302 IPC. The learned Sessions Judge made over the case to the VIth Additional Sessions Judge, Ernakulam. 3. The accused pleaded not guilty to the charge framed against him by the Trial Court. The Prosecution, to prove its case, examined PWs 1 to 20 and marked Exts.P1 to P19. MOs 1 to 15 were also identified and marked. On questioning under S.313 Cr.P.C., the accused denied the circumstances, which appeared against him in the evidence and added that he was falsely implicated in the case. The Trial Court, after hearing both sides, found the appellant guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.5,000/- (Rupees Five Thousand only) and in default, to undergo simple imprisonment for a further period of six months. 4. Heard. We were taken through the deposition of the witnesses and the exhibits produced in this case. From the evidence of PW16, the doctor, who conducted autopsy and Ext.P10 Cr. A.No.143/06 4 postmortem certificate, it is proved beyond doubt that the death of Mahesh was homicidal. The doctor has also expressed the view that the fatal injuries could be caused by MO1 knife. 5. The next point to be considered is whether it is established beyond reasonable doubt that it was the appellant, who committed the offence. PW1 would depose before the Court that he, along with Mahesh came to the liquor shop to purchase beer. While so, PW2 and the accused came there. PW1 did not have any previous acquaintance with them. But, Mahesh was familiar to PW2 and so, the latter tried to introduce Mahesh to his friend, the appellant. The disinterest shown by the appellant towards befriending Mahesh, led to exchange of unpleasant words, quarrel and altercation between them. PWs 1 and 2 separated them, but after some time, again they picked up a quarrel. While so, suddenly, the accused went to his bicycle, came back with a knife and inflicted multiple injuries on the chest and stomach of the deceased Mahesh. PW1 was frightened by watching the stabbing. Initially, he ran away from there for some distance. On finding that PW2 and the accused went away, he came back and on seeing that the condition of Mahesh was very bad, he rushed to the house, where the marriage preparations were going on, Cr. A.No.143/06 5 from where they came to purchase liquor, in his motor bike. On his way, he met with an accident and he fell down. Among the on- lookers, he found PW6, the cousin of the deceased Mahesh. PW6 was appraised of the situation and the said witness rushed to Mahesh and took him to the hospital. Some persons, gathered there, took PW1 also to the hospital. The Sub Inspector of Police recorded his statement and prepared Ex.P1 F.I. Statement. 6. PW2 also corroborated the version of PW1. PW2 would depose that he, along with the accused, came from a house, where preparations for the marriage were going on. They also came to purchase liquor. When PW2 tried to introduce Mahesh to the deceased, the latter showed disinterest towards befriending him. The said attitude led to exchange of words between Mahesh and the appellant, which was followed by an altercation. Initially, they were separated by PWs 1 and 2. But, after some time, they again picked up a quarrel and at the end of it, the accused took a knife from his bicycle and inflicted multiple injuries on Mahesh. Immediately, PW2 and the accused made their escape from the scene, in their bicycle. 7. PW3 corroborated the version of PW2. He speaks about PW2 and the accused going out from the house, where preparations Cr. A.No.143/06 6 for marriage celebrations were going on, to buy liquor. They returned after some time. The accused told the persons in the house that he has stabbed a person. 8. PW5 corroborates the version of PW1. He speaks about PW1 and the deceased going out to purchase liquor and after some time, getting information regarding the incident. PW6 is the cousin of the deceased, who also corroborated the version of PW1 regarding the bike accident and the information given by PW1 to PW6 regarding the stabbing of Mahesh. 9. The above versions of the witnesses would prove beyond doubt that there was a quarrel between the accused and the deceased Mahesh and at the end of it, the accused inflicted multiple injuries on the deceased, which led to his death. We find no reason to disbelieve the versions of the above witnesses. It is true, there is some contradiction between the versions of PW1 in Ext.P1 F.I. statement and his statement before Court. We find that the defence has not made any serious cross examination, confronting PW1 with the above contradiction. In Ext.P1 F.I. statement, it is stated that PW1 went to the liquor shop to get it opened and purchase a bottle of beer and at that time, PW2, the accused and the deceased were Cr. A.No.143/06 7 standing near the shop. When he returned from the counter of the shop, he found Mahesh sitting with bleeding injuries and PW2 and the accused mounting their bicycles and making their escape. What PW1 stated, while in the box, we have already noticed earlier. Even assuming there is some embellishment from the part of PW1, we think, the version of PW1 in Ext.P1 would show that Mahesh sustained injuries either at the hands of PW2 or at the hands of the accused. But, the version of PW2 would show that it was the appellant, who inflicted the fatal injuries on the deceased. So, the above contradiction in the deposition of PW1 does not affect the Prosecution case. Further, based on the confession statement of the accused, which is marked as Ext.P5(a), MO1 was recovered under Ext.P5 mahazar. The same was witnessed by PW11, who is an independent witness. The chemical analysis report Ext.P18 would show that MO1 contained human blood, which belong to 'O' group which is the blood group of the deceased Mahesh. The recovery of MO1 was from a bush, where it was stated to be thrown by the accused. We find no reason to disbelieve the said recovery. PWs 1 and 2 have identified MO1 knife. There is no reason to disbelieve the identification done by PW2 of MO1, even assuming the identification of PW1 is an embellishment. Cr. A.No.143/06 8 So, the above facts proved, would prove beyond doubt that it was the appellant, who committed the crime. We find no reason to disagree with the view taken by the Trial Court in this regard. In the result, the Criminal Appeal fails and it is accordingly dismissed. The direction that the substantive sentence and the default sentence will run concurrently, is an apparent mistake in the Judgment. The said direction is vacated. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr. A.No.143/06 9