IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 CRL. A. No. 2007 of 2005(D) ------------------------------------- JUDT. DT.18.7.2005 IN SC.742/2004 of COURT OF SESSIONS KOZHIKODE .................... APPELLANT/ACCUSED: ----------------- SHOUKATHALI, CONVICT NO.2508, CENTRAL JAIL, KANNUR. BY ADV. RANI DIOTHIMA (STATE BRIEF). RESPONDENT/STATE: --------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI. P.N. SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl. Appeal No.2007 of 2005 ------------------------------ Dated this, the 2nd day of November, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C. No. 742 of 2004 on the files of the Sessions Court, Kozhikode. The case of the prosecution in brief is as follows: The appellant/accused was living along with his parents. He was in the habit of taking liquor and smoking ganja. He used to harass his parents and brothers for money. Because of the incessant harassment, the members of the family shifted residence from the house where the appellant was staying. Even thereafter, the deceased who was the younger brother of the appellant used to come there and take bath in the bathroom of the house of the appellant. On the fateful day, 10.7.2002 at about 5 p.m., the appellant stabbed his younger brother Dirshad Ali when he came for bath in the house of the appellant. PWs. 1 and 2, saw the deceased Crl.Appeal No.2007/05 - 2 - running out from the house shouting that Shoukath has stabbed him. They also found the appellant chasing the deceased with a blood stained knife in his hand, shouting that he would kill him. The deceased fell down in the pathway in front of the house of PW.1 and thereupon, the appellant ran away. PWs.1 and 2 came to the scene. It was found that the deceased was lying drenched in blood. PW.1 went and called PW.7, who is a member of the local Grama Panchayat. In the meantime, a large number of people assembled there. On finding that the injured has breathed his last, PW.1 along with others went to the police station and lodged the first information statement, Ext.P1. The Circle Inspector of Police, PW.12, recorded the first information statement and registered Ext.P1(a) F.I.R. In the meanwhile, the appellant came to the police station carrying the blood stained knife used by him for stabbing the injured. Thereupon, the Circle Inspector of Police arrested him and seized MO.4 knife under a mahazar. PW.12 visited the scene and ascertained whether the injured was dead, with the assistance of a doctor from a local hospital. Thereafter, the body was taken to the mortuary of the Crl.Appeal No.2007/05 - 3 - Medical College Hospital. He made arrangements for guarding the scene as by that time the sun set and therefore inquest or preparation of scene mahazar could not be done. He completed the substantial part of the investigation, including preparation of scene mahazar, conducting inquest, arranging post mortem examination of the dead body, questioning the witnesses etc. PW.8, the doctor conducted autopsy and issued Ext.P6 post mortem certificate. He gave the opinion that the injured died because of the injury No.1 mentioned in Ext.P6. PW.13 completed the investigation and laid the charge before the Judicial First Class Magistrate Court - V, Kozhikode. 2. The learned Magistrate committed the case for trial by the Sessions Judge as the offence disclosed was exclusively triable by a Court of Sessions. The accused pleaded not guilty to the charge framed against him under Section 302 of the Indian Penal Code. The prosecution, to prove its case, examined PWs.1 to 13, marked Ext.P1 to P9 and produced MO. 1 to MO.7. The learned Sessions Judge, after hearing both sides, found the appellant guilty and sentenced him to undergo imprisonment for Crl.Appeal No.2007/05 - 4 - life and also to pay a fine of Rs.20,000/-(Rupees Twenty Thousand) and in default he was directed to undergo rigorous imprisonment for one year. It was also provided that the fine shall be paid as compensation to the wife and children of the deceased. 3. We heard the learned counsel for the appellant. According to the learned counsel, there is no witness who has seen the stabbing of the deceased by the appellant. The case is sought to be proved based on circumstantial evidence. There is no motive for the appellant to commit the crime. In the absence of direct evidence, it is quite unsafe to find the appellant guilty of the offence, it is submitted. The learned Public Prosecutor, on the other hand, supported the judgment under appeal. 4. The evidence of PW.8, including Ext.P6 post mortem certificate would show that the death of the deceased was caused by injury No.1, which can be caused by MO.4 knife. So, it can be safely concluded that death of Dirshad Ali was homicidal. The point to be considered is, who is the culprit, who inflicted the fatal injury. PWs.1 and 2 are residing in the Crl.Appeal No.2007/05 - 5 - neighbourhood. PW.1 would swear that while he was sleeping in his house after lunch, he heard a cry from the nearby house and he immediately opened the door and came out. He saw the deceased running out of the house where the appellant was residing, crying out that the appellant stabbed him. He also deposed that he also saw the appellant chasing the deceased with a blood stained knife shouting that he would kill him. Soon the injured fell down in the pathway in front of the house of PW.1 and thereupon the appellant ran away. Same is the version given by PW.2, who is also residing in the neighbourhood. Both of them identified MO.4 knife and also MO.1 “thorthu” (bath towel) which was worn by the deceased at the relevant time. They also identified the MO.3 shirt and MO.2 lungi, worn by the appellant. Though these witnesses were cross examined by the appellant extensively, nothing has been brought out to discredit their version. No suggestion was even attempted to be made that they have some ill-will or animosity to falsely implicate the appellant in the crime. We find that they are truthful witnesses and their version can be safely believed and acted Crl.Appeal No.2007/05 - 6 - upon. PW.3, the elder brother of the deceased has spoken to the effect that there was ill-will and animosity between the appellant and the deceased. PW.4 is an attestor to Ext.P2 seizure mahazar, prepared while the investigating officer seized MO.4 knife when the appellant appeared before the police station. PW.5 is an attestor to Ext.P3 mahazar for seizing MO.3 shirt and MO.2 dhothi worn by the appellant. PW.6 is the attestor to Ext.P4 inquest report. PW.7 is the attestor to Ext.P5 scene mahazar and he also identified MO.1 'thorthu' which was worn by the deceased at the relevant time. The F.S.L. report would also show that MO.4 knife contained human blood. The learned counsel for the appellant pointed out that the size of the wound (injury) No.1 in Ext.P6 post mortem certificate does not tally with the size of MO.4 weapon noted in Ext.P2 mahazar. For various reasons, the size of the weapon and the size of the wound need not tally. There could be minor differences in the measurement of the weapon and also the wound. Such insignificant discrepancies are not sufficient to discard the evidence of the prosecution. In this case, the case of the prosecution is sought to be proved by the Crl.Appeal No.2007/05 - 7 - direct evidence of PWs.1 and 2. Therefore, those discrepancies are of no consequence. We notice that the case of the prosecution spoken to by PWs. 1 and 2 is supported by the materials on record, including Ext.P6 post mortem certificate. Therefore, we are of the view that trial court has rightly found the appellant guilty and convicted him. No valid ground has been raised before us to take a different view. In case, the Government exercises the power of commutation under Section 433 of the Code of Criminal Procedure, the appellant shall be given the benefit of set off under Section 428 Cr.P.C. Subject to the above direction, the Criminal Appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)