IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 CRL.A.No. 1059 of 2007() ---------------------------------- SC.728/2004 of ADDL.SESSIONS COURT, THODUPUZHA CP.53/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .................... APPELLANT(S): /ACCUSED ------------------------------------------ THOMAS @ MOODADI THOMMAN, EDAMANACHIRAYIL (THERAYIL) HOUSE, VENMANI KARA, KANJIKKUZHI VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): STATE ------------------------------------ CIRCLE INSPECTOR OF POLICE, KANJIKUZHI, STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- Crl.A.No.1059 of 2007 (B) ----------------------------------------------- Dated this the 10th day of January, 2011. J U D G M E N T Balakrishnan, J. The appellant was convicted by Addl.Sessions Judge, Thodupuzha for offence punishable under S.302 I.P.C. and was sentenced to undergo imprisonment for life and also to pay a fine of Rs.10,000/- in default whereof to undergo rigorous imprisonment for six months. 2. Brief facts necessary for the case can be stated thus: The incident took place on 12.2.2004 at about 7 p.m. About three or four months prior to the date of the occurrence there was a property transaction in which the property belonging to the deceased Joby was agreed to be exchanged with the property belonging to one Anayadi Ravi. Besides an amount of Rs.50,000/- was also to be paid by Ravi to the Crl.A.1059/2007 2 appellant, to equalise the value. The accused later realized that Ravi cheated him as there was dispute regarding the boundary of the property belonging to Ravi which was to be exchanged in favour of the accused. The accused wanted to back out from the contract for which he sought the assistance of deceased Joby. He did not oblige. The son and brother-in-law of the accused were sent to meet deceased Joby to tell him that Joby had to contact the accused. The deceased Joby did not agree to meet the accused. That incident took place at about 12 noon on 12.2.04. In the evening the deceased was seen at a place called Venmony City. Then accused asked Joby why he did not meet the accused. Without responding to the same, Joby left the place. In the evening at about 7 p.m. the deceased Joby and one Raju, Reji etc. gathered at a place near the pump house which is near a forest junda. The accused reached there. From there the accused Crl.A.1059/2007 3 stabbed the deceased on his chest causing a fatal injury. Sibi and another person went to fetch a jeep from Venmony City where they saw the elder brother of the deceased. He was informed of the incident. He also reached the place of incident in the jeep from where the Joby was taken in the jeep but en route to the hospital, Joby breathed his last. He was taken to the hospital. The doctor pronounced Joby dead. The elder brother of the deceased thereafter went to the police station and lodged the First Information Statement, based on which, the F.I.R. was registered. After conducting inquest on the next day, the dead body was taken to the hospital for post-mortem examination. The Circle Inspector took over investigation. In the course of investigation accused was arrested by P.W.16, the S.I. of Police, Kanjikuzhi and was produced before the J.F.C.M.-I, Idukki on 15.2.04. He was later released on bail. The investigation was continued by Crl.A.1059/2007 4 another Circle Inspector and thereafter charge-sheet was laid against the accused, alleging commission of offence under S.302 I.P.C. 3. The accused denied the charge. To prove the charge P.W.1 to P.W.19 were examined and Exts. P1 to P27 were marked. The material objects M.O.1 to M.O.11 were identified and marked. Exts.D1 to D2 are the portions of the statements marked by the defence as contradictions. 4. Learned Sessions Judge placed implicit reliance on the evidence of P.W.5 who gave evidence in support of the prosecution. The evidence given by P.Ws.2, 3, 4 and 6 was also relied upon to corroborate the testimony of P.W.5. The statement given by the deceased to P.W.1 and P.W.3 as to the stab injury sustained by him which was the cause of death was also relied upon by the learned Sessions Judge to accept the prosecution case. The evidence relating to the motive aspect put forward by the prosecution was also Crl.A.1059/2007 5 accepted by the trial Judge. Thus the learned Sessions Judge found the accused guilty, convicted and sentenced as stated above. 5. The appellant contends that the prosecution has miserably failed to prove the motive suggested by them and so the court should not have accepted that part of the evidence to conclude that the prosecution case stood established. The evidence given by P.W.5 should not have been accepted by the learned Sessions Judge since he also did not actually see the accused stabbing the deceased, but even according to him he only saw the accused pulling out the knife from the chest of the deceased. The prosecution has not offered any explanation for the non- examination of one Subash, though he was cited by the prosecution as C.W.14. The fact that the incident, according to the prosecution, took place at 7 p.m. and so it was not possible for the witnesses to see the incident Crl.A.1059/2007 6 properly was also not considered by the learned Sessions Judge. It is further contended that the court below should have found that the theory of giving a dying declaration to P.W.1 and others is quite artificial introduced by the investigating agency to lend support to its case. 6. We have heard Sri.Unnikrishnan Alapatt, the learned counsel for the appellant and also the learned Public Prosecutor. The following points arise for consideration. 1. Whether the accused stabbed deceased Joby with M.O.2 knife with the intention of causing his death or with the intention of causing such bodily injury as the accused knew to be likely to cause the death of Joby. 2. Whether the injury inflicted on the deceased Joby was sufficient in the ordinary course of nature to cause death and whether the accused intended to inflict such an injury. Crl.A.1059/2007 7 3. Whether the verdict of guilt under S.302 is unsustainable on any of the grounds urged by the appellant. Points 1 to 3: 7. P.W.14 is the doctor who conducted the post- mortem on the body of deceased Joby between 2 p.m. and 3 p.m. on 13.2.2004. The incident took place on 12.2.2004 at about 7 p.m. Ext.P.15 is the post-mortem certificate which shows the following ante mortem injuries: 1. Incised penetrating wound 3.2 x 1.5 c.m. obliquely placed on the right side of the front of chest. Its lower inner end showed splitting of tissues, which was 16 c.m. below the inner end of collar bone. The other end was sharply cut. The right chest wall was penetrated by cutting the cartilagenous part of 6th rib and the wound entered the right chest cavity. The inner border of middle lobe of right lung was pierced through and by cutting the pericardium the wound was seen terminated on the front wall of right ventricle of heart at a site just below the triventicular junction. The wound was directed backwards and upwards for a total minimum depth of 5 c.m. Pericardial cavity contained 300 ml. of blood and chest cavity contained 1.2 litre of blood with clots. The right Crl.A.1059/2007 8 lung was collapsed. 2. Linear abrasion 8 c.m. long oblique on the right side of front of chest 6 c.m. outer to mid-line and 13.5 c.m. below the collar bone. 3. Two contusions, each measuring 1 x 0.6 x 0.5 c.m. and 1x 0.5 x 0.8 c.m. placed one below the other 1 c.m. apart on the left side of front of chest, the former one being 8.5 c.m. below arm pit. 4. Superficial incised wound 2 c.m. x 0.5 c.m., long oblique on the left palm between the index finger and thumb. 5. Superficial incised wound 2 x 0.5 c.m. long oblique on the middle of left palm 5 c.m. below wrist.” 8. M.O.2, which was alleged to be the knife with which the fatal injury was stated to have been caused was shown to the doctor. He testified before court that injury No.1 could be caused by M.O.2. It was further testified by him that death was due to the penetrating injury (Injury No.1) involving heart and lung. It is thus proved that the fatal injury must have been caused by stabbing with M.O.2 or with a knife like M.O.2. Hence it is proved that Joby had a homicidal death. Crl.A.1059/2007 9 9. Ext.P1 is the First Information Statement given by P.W.1 who is the brother of the deceased Joby. The evidence given by him would show that he was at Venmony city at about 7 p.m. on the day of incident i.e. on 12.2.2004. It was sworn by him that P.W.5 who reached Venmony city told him that Joby was stabbed by the accused Thomman and so P.W.5 had been to the city to fetch a jeep so as to take the injured from the place of incident to the hospital. On hearing this P.W.1 also went to the place of incident in the jeep. There he saw his brother Joby lying in a prone position. It was further testified by him that deceased was conscious at that time and when enquired the deceased told that he was stabbed by Moodadi Thomman (the accused therein). Thereafter, P.W.5 and others took Joby in the jeep so as to proceed to the hospital. On the way P.W.1and P.W.5 got down from the jeep in order to raise funds for the purpose of treatment of injured Joby. Crl.A.1059/2007 10 10. There is evidence to show that when the deceased was brought to the hospital, on examination he was found dead by the doctor. The learned counsel for the accused would submit that considering the nature of the injury the deceased must have breathed his last immediately on sustaining the wound which was penetrating into the lung cavity which actually caused rupture of the lung. But the theory that Joby must have had instantaneous death was not fully accepted by the Doctor (P.W.14) who conducted post- mortem examination. The knife point did not reach the other end of the lob. Joby was a young man aged about 23 years. P.W.14 says that death may be delayed also. There is no reason to disbelieve P.W.1 and P.W.3 who saw Joby fully conscious when they reached there from Venmony City which is only about 300-350 mtrs. away from the place of incident. Crl.A.1059/2007 11 11. It is in evidence that P.W.1 immediately went to the police station and lodged the First Information Statement which was marked as Ext.P1. There is evidence to show that the police station is about 8 K.Mtrs. away from the place of incident. It is also in evidence that the hospital is about 27 K.Mtrs. away from the place of incident. So taking note of the distance from the place of incident to the hospital and thereafter to the police station, it can be discerned that there was practically no delay in giving the First Information Statement which was recorded at 9 p.m. on the same day. Though a suggestion was put to the defence that Ext.P1 was subsequently created and ante- timed to suit the prosecution case that does not gain momentum in view of the fact that the F.I.R. was seen by the Magistrate immediately on the next day morning at 10.30 a.m. It is also pertinent to note that in the relevant column mention was specifically made regarding the Crl.A.1059/2007 12 General Diary entry made at 9 p.m. That was not challenged. Therefore the contention that Ext.P1 must have been ante-timed cannot be sustained. 12. Much reliance has been placed by the prosecution on the contents of Ext.P1, since, according to the prosecution, P.W.1 has given evidence completely in tune with the statement contained in Ext.P1. Therefore, according to the learned Public Prosecutor, Ext.P1 can be used to corroborate the evidence of P.W.1 who is the author of Ext.P1. It is also submitted by the learned Prosecutor that in Ext.P1 it was specifically stated by P.W.1 that when he reached the place of incident on getting information as mentioned earlier and when he asked, the deceased told him that he was stabbed by Thomman, the accused herein. Therefore, according to the learned Public Prosecutor, Ext.No.1, the statement given first in point of time would lend assurance to the case of the prosecution that the Crl.A.1059/2007 13 deceased was conscious at the time when he was being taken to the hospital. So much so, the contention advanced by the defence that such a statement was falsely incorporated or introduced by the police to strengthen its case has to be discountenanced. 13. P.W.5 is the main witness in this case. It was stated by him that at about 5.30 p.m. he and deceased Joby went to a place called Venmony Alackal city and from there they went to the place of incident and were sitting near the pump house near the forest junda. Ext.P14 is the scene mahazar prepared by P.W.18, the Circle Inspector at about 4.30 p.m. on 13.2.04. It was noted that the place of incident is to the south of the pump house belonging to the Kerala Water Authority and is lying immediate to the east of the forest junda. There is in fact no dispute regarding the actual place of incident. That apart, P.W.18 could see blood stained mud and grass at the place of incident. The Crl.A.1059/2007 14 chapels, blood stained mud etc, were seized by P.W.18 as per Ext.P14. It was further recorded that M.O.2 knife was found in a heap of sand. It was situated about 2.97 Mtrs. away from the place of incident. There is evidence to the effect that P.W.5 after grabbing the knife from the accused gave it to P.W.6 who threw it to that place. 14. It was stated by P.W.5 that while he and the deceased were engaged in conversation, P.W.2, Raju also reached there and while all of them were engaged in conversation, the accused reached there. On seeing the accused coming to that place, as the accused was likely to demand for country liquor, it was removed from that place. When the accused reached there, he asked deceased Joby to give him liquor. He declined. Thereafter the accused was stated to have taken P.W.5 to a distance and asked to get him alcohol and then also P.W.5 expressed his inability as he was not having money for that purpose. While so P.W.2 Crl.A.1059/2007 15 was stated to have gone inside the forest under the pretext of answering the call of nature. It was further stated by P.W.5 that again he and the accused and others were engaged in conversation. While so, P.W.6 called deceased Joby telling him that he wanted to say something in secret and thereafter P.W.6 walked ahead to a certain distance thinking that the deceased was following him. At that time the accused and the deceased alone were at the place of incident. Suddenly, P.W.5 heard Joby screaming.................................. He rushed to that place and then the accused was seen catching hold of the collar of the shirt of the deceased and pulling out the knife from the chest of the deceased and when the accused again attempted to inflict a second stab on the deceased, P.W.5 intervened and caught hold of the hand of the accused and thus he grabbed M.O.2 from the hand of the accused. The knife was given to P.W.6 who threw it aside. Crl.A.1059/2007 16 15. The evidence given by P.W.5 gets corroboration in some material particulars from the evidence of P.W.2 Raju also. It was stated by him that at the relevant time and place when the accused was seen coming towards the place where he and others were engaged in conversation, they tried to hide or take away the liquor bottles and he went towards the forest stating that he was going to answer the call of nature. After a short-while he heard Sibi, (P.W.5) shouting …………………… ................................. Hearing this he immediately reached the place of incident. P.W.1 told that the accused stabbed the deceased. There is no dispute regarding the fact that deceased Joby was called as …………....also. Thereafter P.W.5 and P.W.2 went to fetch a vehicle. 16. The learned Prosecutor would submit that the evidence as aforesaid given by P.W.2 would support the case of the prosecution that it was the accused who inflicted Crl.A.1059/2007 17 the stab injury on the deceased. The further fact discernible is that it was only after Sibi (P.W.5) reached there he could remove the accused and deter him from inflicting a second stab. There was no case for the defence when P.W.2 was examined that there was any scuffle or exchange of blows between the accused and the deceased. There was no case for the defence when P.W.2 and P.W.5 were examined that there was any wordy altercation between the accused and the deceased. 17. It is submitted by the learned counsel for the accused that P.W.2 was in fact, cross-examined by the learned Prosecutor after seeking permission of the Court and so the evidence given by P.W.2 cannot be much relied upon. It is true that since P.W.2 did not depose with regard to the case that after getting hold of the knife it was thrown to the heap of sand, he was permitted to be cross-examined by the learned Prosecutor but on that ground Crl.A.1059/2007 18 it cannot be said that the evidence given by P.W.2 has to be totally eschewed from consideration. That part of the evidence given by P.W.2 which reconciles with the prosecution case can certainly be relied upon by the prosecution. It is not a case where the evidence given by one infirm witness is used to corroborate another infirm witness. P.W.5 has given a graphic account of the incident. As such the evidence given by P.W.2 to that extent can certainly be relied upon by the prosecution. 18. The prosecution has also relied upon the evidence given by P.W.3, who is another brother of deceased Joby. He got the information regarding the incident while he was at Venmony City, when P.W.2 went there to fetch a vehicle. He also immediately proceeded to the place of incident. When he reached there the deceased was lying in a prone position and was actually conscious at that time which corroborates the evidence given by P.W.1. It was Crl.A.1059/2007 19 stated by P.W.3 that when he enquired, Joby told him that he was stabbed by Thomman, the accused. Therefore that also would scuttle the plea raised by the defence that it was most unlikely that the deceased who had sustained fatal injury on his lungs could remain conscious so as to give a statement to P.W.1 and P.W.3 as to who inflicted the fatal injury on him. At the risk of the repetition, it has to be pointed out that this statement regarding the declaration given by the deceased as to the cause of fatal injury sustained by him was mentioned even in the First Information Statement given by P.W.1 within the shortest possible time. So much so, this piece of evidence given by P.W.3 reinforces the case of the prosecution. 19. This words uttered by the deceased Joby “.............................................” according to the prosecution is relevant and admissible under S.6 of the Evidence Act. The conditions for admissibility of such a statement are: Crl.A.1059/2007 20 the proximity of time, proximity of place and the continuity of action. While examining whether the declaration is so connected with the fact in issue as to form part of the same transaction, all the surrounding circumstances obtaining in each case have to be taken into consideration. In the instant case the aforesaid statement came straight from the mouth of the victim who sustained the stab injury on his chest, that too, immediately on getting the stab injury. Similarly, the statement or declaration made by P.W.5 who immediately reached the scene............................................. is also admissible in evidence u/s.6 of the Evidence Act, since here also there is proximity of time, proximity of place and continuity of action. The intention conveyed or communicated thereunder by the words spontaneously came out from the witness is also very clear. The mind of the witness was so acted with the event which took place in his immediate presence that at the spur of the moment the Crl.A.1059/2007 21 possibility of even a faintest element of a wicked idea creeping into his mind is to be ruled out. There was no scope for deliberation or fabrication since the evidence is to the effect that it was a statement or declaration made by the witness immediately on reaching the scene where he found his friend having been stabbed by the accused with M.O.2 knife. 20. It was held by the Apex Court in Sukhar v. State of U.P. (AIR 1999 S.C. 3883) cited by the learned Prosecutor: “....The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which Crl.A.1059/2007 22 constitute the offence or at least immediately thereafter”... Therefore, the declaration made by the victim as well as the declaration or statement made contemporaneously by P.W.5 inspires confidence in the mind of the Court. 21. The learned Public Prosecutor is right in his submission that the declaration and statement as aforesaid forming part of res gestae, proved to have been made contemporaneously, would strengthen the prosecution case. 22. Sri.Unnikrishnan, the learned counsel for the defence has vehemently argued that PW2 Raju who used to sell country liquor on behalf of deceased Joby has to be treated as an interested witness and so his evidence cannot be relied upon. Though PW2 was cross examined in extenso his evidence that he was present at the place of incident and that his attention was drawn to the scene in the manner referred to Crl.A.1059/2007 23 above could not be properly assailed. 23. PW6, Joseph Scaria who was also called as Baby did not fully support the prosecution but he has given an entirely different version. He was permitted to be cross examined by the learned Public Prosecutor. His statement was that there was a scuffle between the accused, PW5 and the deceased and so he went there and tried to intervene in the matter and then he saw Joby falling down and thereafter trying to rise up and then the accused fell down. This is really a distorted statement. Those portions of the statement which were contradictions were marked by the prosecution as Exts.P4 and P5. When other witnesses were examined the defence had no case that there was any scuffle between the accused and deceased Joby. This apart, the accused himself had no such case when examined under Section 313 Cr.P.C. 24. The statement given by PW5 that he heard the deceased calling .......................................................... being a Crl.A.1059/2007 24 statement given by the deceased so proximate in time, proximate in place having continuity in action do certainly amount to res gestae evidence and as such it is relevant and admissible. 25. Similarly the statement given by PW2 that his attention was drawn when PW5 called ….........................................……. also was proximate in time and place and conveyed the very same intention and since it also had the continuity of action, it is also