Case: Krishnan And Anr Vs. State Of Kerala

The judgment datedpassed by the Division Bench of the Kerala High Court in D.B. Criminal Appeal No. 281 of 1983 preferred by the State of Kerala against the order of acquittal datedpassed by the Session Judge, Manjeri Division, in Sessions Case No. 29 of 1981 is impugned in the instant appeal. It may be stated here that against the said order of acquittal the wife of the deceased preferred revision petition before the High Court being Criminal Revision Petition No. 119 of 1983. Anotice was also issued by the High Court to the accused, after admitting Criminal Appeal No. 281 of 1983, to show cause against proposed enhancement of their sentence. By the impugned judgment datedthe High Court disposed of all the said matters by a common judgment.It may also be stated here that Accused 1, Krishnan being Appellant 1 in this appeal, has died during the pendency of this appeal. This appeal now relates only to Accused 2,The deceased, Madavan, was the younger brother of Accused 1, Krishnan, and Accused 2 Vijaykumar is the sisters son of both the deceased and the said Accused 1. The prosecution case in short is that on account of enmity arising out of property dispute, both the accused with a common intention to kill the said Madavan, were waiting for him under a tamarind tree onat 9.30 p.m. When Madavan being accompanied by PW 1, nephew of the deceased, was coming back to his home after lodging a complaint in the Changaramkulam Police Station on account of missing of a pump set of the deceased reached a place called Parappadikkal, both the accused, who were hiding behind a tamarind tree, jumped out in front of the deceased saying that they had been waiting for the deceased. Thereafter, Accused 2 Vijaykumar inflicted a stab injury on the forehead of the deceased with a knife. When PW 1 caught hold of Vijaykumar in preventing his further attempt to give stab injury on the deceased and made him put down his knife on the ground, the first accused proceeded towards the deceased who was trying to escape and gave successive dagger blows and thereafter ran towards the paddy field cutting across the road. When PW 1 let loose the grip of the second accused and proceeded to rescue the deceased, the second accused also ran away after throwing away the said knife near the place of incident. Hearing the noise made by PW 1 and the accused at the time of the incident, PW 4 Velayudha Kurup and PW 3 Ramakrishnan also reached the place of occurrence. Although the wounds of the deceased were tied with the shirt of PW 1, he died at the spot. The FIR was lodged with the Changaramkulam Police Station by PW 1 by 11.30 on the same night and the case was registered against both the accused under Section 302 read with Section 34 IPC. The Circle Inspector of Police, PW 12, took up the investigation on the next day and proceeded to the place of occurrence and prepared a report (Ex.The dead body was sent to the hospital forThe house of Accused 1 was searched and MOs 5 to 7 were taken into custody and he was arrested. The second accused was arrested onThe material objects which were seized during investigation were sent to the Chemical Examiner and the Chemical Report was obtained (Ex.The trial court did not accept that the prosecution case was proved beyond reasonable doubt and therefore acquitted both the accused. The reasons indicated by the learned Sessions Judge for passing the order of acquittal in favour of the accused may be indicated asPW 1 is an interested witness and the incident happened during a dark night and there was no occasion for PW 1 to identify the assailants. PW 1 also did not do anything to prevent Accused 1 from stabbing the deceased PW 3 had flashed a torchlight which only indicates that it was a dark night2. There was delay in sending a copy of the FIR to the Ilaka Magistrate and the delay was not explained by the Investigating Officer PW 123. There is contradiction in the depositions of PW 1 and PW 34. MO 1 which is said to have been used by Accused 2, appellant Vijaykumar, had no sign of bloodstain which indicates that the said weapon was not used5. Theexamination reveals that undigested rice particles were found out in the stomach of the deceased. Since the deceased had not taken any food after 3.30 p.m., such undigested rice particles could not have been found if the deceased had died at 9.30 p.The High Court, however, did not accept the reasoning of the learned trial Judge and after giving detailed reasons as to why the view taken by the trial court cannot be accepted on the face of the evidence adduced in the case, it set aside the order of acquittal passed in favour of the accused and as aforesaid, convicted both the accused for the offence of murder and sentenced each one of them to suffer lifeSo far as the case of the defence that there was no light when the incident had taken place at about 9.30 p.m. and there was no chance to identify the assailants is concerned, the High Court has held that according to the calendar the moon was to rise at 9.45 p.m. on the day of the incident. Hence, at about 9.30 p.m. when the incident had taken place, it was not a moonlit night but it has been indicated that from the evidence it transpires that it was not a cloudy night and the incident had taken place in an open field and the cluster of banana plantation was 15 metres away from the place of incident. So, there was sufficient light to identify the assailants who are closely known. The High Court has also indicated that there was no unusual conduct on the part of PW 1 in not preventing Accused 1 from stabbing the deceased because he was already engaged in a tussle for preventing Accused 2 from dealing the second blow. The High Court has also indicated that there was no delay in lodging the FIR. On the contrary, the FIR was lodged within two hours after the incident but the copy of the FIR could not be sent to the Ilaka Magistrate immediately because there was a transport strike on the next day. So, there was dislocation of the transport and after the end of the strike, the copy of the FIR was sent to the Ilaka Magistrate. The presence of small particles of rice in the stomach of the deceased, according to the High Court, cannot raise any doubt as to the time of the incident as alleged by the prosecution witnesses. The High Court has referred to a number of decisions of this Court for the purpose of holding that although the rice is likely to be digested within 3 to 4 hours,of rice even thereafter is not any sure indication that the incident had not taken place beyond 3 to 4 hours after taking rice as a meal by the deceased. The High Court has indicated that deposition of PW 1 gets corroboration from the deposition of PW 3 who had also said that PW 1 was engaged in a tussle with Accused 2 Vijaykumar, and Accused 1 after inflicting dagger injuries on the deceased had run away. The High Court was of the view that the prosecution case was proved beyond any doubt and the order of acquittal was wholly unjustified in the facts of the case and evidence adduced. Therefore, it set aside the order of acquittal

Reasoning:
11. After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with thejudgment passed by the High Court in convicting AppellantSo far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying a known person from a close distance. That apart, it should be kept in mind that there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW 1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far asis concerned. PW 1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence, there was no difficulty for PW 1 to identify AccusedHis deposition gets corroboration from the deposition of PW 3 who had seen Vijaykumar at the place of occurrence. PW 3 had not seen Vijaykumar causing any injury on the deceased because by the time PW 3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW 1 and his knife had fallen on thePresence of a few rice particles in the stomach of the deceased does not in any way raise any serious doubt about the time of the incident and also the presence of PW 1. In Modis Medical Jurisprudence and Toxicology, several instances have been cited by Mr Modi that although normally 3 to 4 hours are taken to get rice digested, such digestion may take place even long thereafter in some cases. The High Court has also referred to a few decisions where this Court has not disbelieved the prosecution case about the time of death because of the presence of undigested food particles by indicating that presence of undigested food particles after usual hours of digestion is not a decisive factor for discarding the time of death. In the instant case, there is clear and cogent evidence against both the accused. The absence of any bloodstain on the knife of Appellantcan be reasonably explained. It is in evidence that he had thrown the knife. The injury caused by him was not on any vital part of the body and it had only caused a superficial injury on the forehead. It is not unlikely that a little bloodstain on the knife had been wiped off when the knife was thrown in the field. In our view, the evidence adduced in the case has clearly established the complicity of both the accused in causing the murder of the deceased. So far as Appellant 2 is concerned, the argument of Mr Lalit that his intention to murder has not been established, cannot be accepted. It has been rightly contended by Mr George that Accused 2 being a teacher was not supposed to carry a dagger at night and to accompany Accused 1 also carrying a dagger and wait in the darkness for the deceased. The appellant had given out by proclaiming that they had been waiting for the deceased. It is Accused 2 who first opened the attack by jumping and it is not unlikely that as he jumped, he could only cause the injury on the forehead of the deceased. Even if he would have wanted to cause further injury on the deceased, he could not have done so because he was prevented by PW 1. By that time, Accused 1 chased the deceased and stabbed him on a number of occasions thereby causing his death. In the aforesaid facts, it can be reasonably inferred that Vijaykumar had shared the common intention with Accused 1. In our view, there was no unusual conduct on the part of PW 1 by not attempting to prevent Accused 1. From his evidence, it is quite evident that when Accused 2 intended to cause further injury on the person of the deceased, he tried to prevent Accused 2 and while he was engaged in a tussle with Accused 2, Accused 1 stabbed the deceased. PW 1 also deposed that he also proceeded towards the deceased to save him from Accused 1 after overpowering Accused 2 but by that time, Accused 1 had given fatal blows to the deceased and runWe, therefore, find no reason to interfere with the conviction and sentence passed against Appellant 2, the surviving appellant in this appeal.