Kerala High Court
Joy @ Yousef @ Mathew @ Brandy Joy @ Babu @ ... vs State Of Kerala on 8 April, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937
CRL.A.No. 1195 of 2012 ()
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AGAINST THE JUDGMENT IN S.C.NO.146/2011 of ADDL. SESSIONS COURT (AD HOC) I,
KALPETTA, DATED 08-04-2012
APPELLANT(S)/ACCUSED:
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JOY @ YOUSEF @ MATHEW @ BRANDY JOY @ BABU @ KAREEM,
AGED 60/2012,
S/O.THOMAS @ KUNHAN, C.NO.193,
CENTRAL PRISON, VIYYUR.
BY ADV. SMT.REENA ABRAHAM (STATE BRIEF)
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
REP.BY THE CIRCLE INSPECTOR OF POLICE, MANANTHAVADY,
(CR.134/2005 OF VALLAMUNDA P.S)
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Bb
P.BHAVADASAN & RAJAVIJAYARAGHAVAN V, JJ.
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Crl.A.No.1195 of 2012
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Dated this the 11th day of February, 2016
J U D G M E N T
RAJA VIJAYARAGHAVAN V, J.
1. The hunter became the hunted in this case of murder. Shaju, the deceased, had a penchant for hunting. Shaju though a crop sprayer, was in possession of a country made unlicensed rifle which was serviceable.
2. On 16/06/05, the deceased along with PW7, after finishing their work in the plantation of PW6 decided to go hunting in the forest area of Wayanad. The deceased carried his rifle and necessary ammunition.
3. Late in the evening they spotted a shed right in the middle of an estate and found fire burning inside the kitchen. They entered and while they were spending time Crl.A.No.1195 of 2012 : 2 : inside, they heard sounds outside. The accused Shaju, who was the watcher of the estate where the shed stood had just returned back to his shed, with his friend PW2 - Manoj Thomas, after concocting a heady brew of country made liquor. After the initial session during which the accused questioned the intruders, they got acquainted and decided to share the food and country made liquor. The accused had an eye on the country made rifle and he disclosed his intentions to PW2. He expressed his desire to appropriate the same, one way or the other.
4. After consuming arrack, the accused borrowed the gun of the deceased and along with PW7 went outside for hunting. The deceased and PW2 did not accompany them. They went to sleep.
5. PW2 was woken up from deep sleep by a knock on the door and he found the accused standing alone. He was told that PW7 is coming behind and will reach anytime soon. Crl.A.No.1195 of 2012 : 3 : PW2 went back to sleep and he was woken up sometime later, on hearing the sounds of a deep groan. He lighted his torch and he saw the deceased lying under the cot in a pool of blood. He also had occasion to see the accused standing with a dagger in his hand which was drenched in blood.
6. The terrified witness was told that the deceased was on his way and he need not be disturbed. After a short while thereafter they left the shed and PW2 was told not to divulge the incident to anyone. He was also told that the accused had stabbed PW 7 while they were out in the forest.
7. More or less at the same time, PW7 who had sustained stab injuries at the hands of the accused, reached his house and he was rushed to the Medical College Hospital by PW8 - Thankachan, his brother.
8. The relatives and friends of Shaju were searching for his whereabouts and they contacted PW7 who was in the Crl.A.No.1195 of 2012 : 4 : Hospital. They were told by PW7 about the incident and he also informed them that he genuinely feared for the life and well being of the deceased.
9. On receiving the said information from PW7, PW1 Varghese who is a neighbor of the deceased along with PWs 4 and 5 went in search of Shaju to the estate shed. They found the decaying body of the deceased lying inside the shed.
10. He rushed to the Vellamundu Police Station and gave Ext.P1 First Information Statement, based on which, Ext.P14 First Information Report was registered by PW18, the Sub Inspector of Police, Vellamundu Police Station.
11. On 21.06.2005, PW21, the Circle Inspector of Police, Mananthavady Police Station took over investigation and he conducted the inquest over the dead body of Shaju and prepared Ext.P9 inquest report. He seized MO3 series Crl.A.No.1195 of 2012 : 5 : items found on body of the deceased. The body was sent for autopsy to PW14, the Medical Officer, Department of Forensic Medicine, MCH Kozhikode, who issued Ext.P11 postmortem certificate. On 22.06.2005, the Investigating officer, based of the information given by PW2 recovered MO1 and MO2 as per Ext.P3 seizure mahazar. On the next day, at 4.30 p.m., Ext.P2 scene mahazar was prepared by him. Thereafter, Ext.P21 report incorporating Sec.302 and Sec.324 of the IPC was dispatched to court and on 27.07.2005, Ext.P22 report was submitted adding Sections 307 of the IPC and offence under the Arms Act. Later, the address of the accused was submitted before court as per Ext.P23 report. It was revealed on investigation that PW7 had sustained stab injuries at the hands of the accused. But, in spite of the efforts made by PW21, he was not able to seize the concerned medical records from the Medical College Hospital, Kozhikode. Since the accused was absconding, the police were not able to be arrest him. Later, on 13.02.2010, the accused was arrested by PW20, Crl.A.No.1195 of 2012 : 6 : the Circle Inspector of Police, Manathavady from Arrekkode. Though search was conducted to recover the knife used by the accused to inflict stab injuries on the deceased and PW7, it did not turn out to be fruitful. He obtained Ext.P16 certificate from the office of the Revenue Divisional Officer as per which it was revealed that the accused was not granted any Arms license. A report was obtained from the Forensic Science Lab that MO1 country made rifle was serviceable. The other material objects which were sent for chemical examination yielded Ext.P18 report. Later, the address and other details of the accused was furnished before court as per Ext.P19 report. Finally, on conclusion of investigation, final report was laid before the jurisdictional magistrate.
12. The court below before which the final report was laid, took cognizance of the offence. On finding that the offences are exclusively triable by Court of Sessions, the case was made over to the Sessions Court, Wayanad. The Crl.A.No.1195 of 2012 : 7 : case was thereafter made over to the Court of Additional Sessions Judge (Ad hoc) I, Kalpetta under S.209 of the Cr.P.C. after following the necessary procedures.
13. The said court, on receipt of records and on appearance of the accused, framed charge under S.397, 307, 302, 324 and 201 of the IPC and S.3 r/w S.25 (1B) (a) of the Arms Act. To the charge, the accused pleaded not guilty and claimed that he be tried. The prosecution examined as many as 21 witnesses as PWs 1 to 21 and had Exts.P1 to P24 marked. MOs 1 to 4 were produced and identified. Exts.D1 and D2, were marked on the side of the defence.
14. At the close of prosecution evidence, accused was questioned with regard to the incriminating materials arising out of the prosecution evidence under S.313 (1)(b) of the Cr.P.C. The accused denied the incriminating circumstances and maintained that he was innocent. Finding that the Crl.A.No.1195 of 2012 : 8 : accused could not be acquitted under S.232 of the Cr.P.C., he was asked to enter upon his defence but no evidence was adduced.
15. The learned Sessions Judge, placing implicit reliance on the evidence of PW2 and to a certain extent to that of PW7, came to the conclusion that the prosecution was able to establish the guilt of the accused for the offence under S.324 and 302 of the IPC beyond reasonable doubt and accordingly, he was convicted and sentenced under S. 302 of the IPC to undergo Imprisonment for life and and to pay a fine of Rs 10,000/ and in default to undergo R.I. For one year. He was also sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, and in default to undergo S.I. for three months for the offence under S.3 r/w S.25 (1B) (a) of the Arms Act. He was also convicted and sentenced to undergo R.I. for 7 years for the offence under S.397 of the IPC and to undergo Simple imprisonment for one year for the offence under S.324 of Crl.A.No.1195 of 2012 : 9 : the IPC. The sentences were ordered to run concurrently. The above findings are assailed in this appeal.
16. Since the appeal was preferred by the appellant from jail, counsel Smt.Reena Abraham was appointed as State Brief.
17. We have heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor.
18. Smt.Reena Abraham, the learned counsel appearing for the appellant meticulously took us through the evidence let in by the prosecution and pointed out that the conclusions on the basis of which the findings were entered into by the learned Sessions Judge are clearly unsustainable, against logic and reason, based on surmises and conjectures, and clearly erroneous. According to the learned counsel, the learned Sessions Judge had completely banked on the evidence of PW2 to hold that the version of Crl.A.No.1195 of 2012 : 10 : the prosecution was true. The said witness only sees the scenes after the murder and if his version was actually true, there was no reason why he did not divulge this fact to the law enforcement agencies. In respect of an incident which took place on 16.6.2005, the law was set in motion only on 21.6.2005. This would clearly reveal that the authorship of the murder was wrongly placed on the accused. The prosecution, in order to connect the accused with the shed, alleges that the accused was the watchman of the Kolippad estate. No person was examined nor any evidence adduced to prove this vital fact. This was projected as yet another reason to doubt the prosecution case. The learned counsel then attacked the evidence of PW7 and submitted that the non production of the medical records in respect of the injuries sustained by the witness at the hands of the accused would demolish his version and thus bring down the edifice of the prosecution case. The said witness, though injured, does not disclose this fact to the Police at the earliest point of time. According to the learned counsel, Crl.A.No.1195 of 2012 : 11 : these fatal flaws in the versions of the witnesses will only show that the prosecution has not placed the true facts before court. The prosecution alleged that the accused had used a knife to stab the deceased and PW7. The said knife has not been recovered which is yet another fatal setback to the prosecution case according to the learned counsel. To bring out that PW2 was not speaking the whole truth, it was pointed out by the learned counsel, that his evidence did not tally with the findings of the Investigating officer at the time of preparation of the scene mahazar. PW2 had stated that the accused had kicked open the kitchen door from outside to make it appear that somebody had broken inside the building by force. This was falsified by the findings recorded by the investigating officer when the scene mahazar was prepared. The learned counsel also referred to Ext.P2 scene mahazar to bring out the fact that the evidence let in by the prosecution witnesses clearly conflicted with the factual situation at the scene of crime. It was also submitted by the learned counsel that there is no question of attracting Crl.A.No.1195 of 2012 : 12 : S.397 of the IPC owing to non recovery of the knife at the instance of the accused. It was finally submitted that no offence under S.25(1B)(a) of the Arms Act will be attracted in the facts and circumstances as the weapon in respect of which no records were available, was actually possessed by the deceased himself and not the accused.
19. Per contra, the learned Public Prosecutor would submit that PW2 has given a graphic description of the incident which occurred late in the night of 16.06.2005. There is absolutely no reason to doubt the version of PW2 and his version is corroborated by the evidence of PW7. It was pointed out by the learned Public Prosecutor that, in spite of searching cross examination, neither PW2 nor PW7 could be discredited by the defence and their evidence. It is further submitted that the accused, after the incident, had absconded and he had surfaced only in the year 2010. Certain lapses pointed out by the learned counsel appearing for the defence, which according to the learned prosecutor Crl.A.No.1195 of 2012 : 13 : are too trivial and will not throw any shadow of doubt on the case of the prosecution. It is finally submitted by the learned Public Prosecutor that, the learned Sessions Judge has properly appreciated the prosecution evidence and the findings entered are based on materials and there is no reason warranting any interference.
20. As far as the cause of death of Shaju is concerned, there cannot be any dispute. Ext.P9 is the inquest report prepared over the dead body of Shaju. PWs 4 , 5 and 6 have identified the body which was found inside the shed on 21.06.2005. It was PW14 who had conducted autopsy over the dead body and he had issued Ext.P11 postmortem certificate which reveals the following injuries:
INJURIES (ANTEMORTEM) "1. Incised wound 4.5x2cm (gaping), enters to the chest cavity, transversely placed on the front and left side of the chest, inner end 7cm outer to midline and 15cm below collar bone. The wound enters to the chest cavity by cutting (incised wound) sternum, 5th intercostals muscle. Incised wound over the pericardium anterior part (4x1.6cm) passes Crl.A.No.1195 of 2012 : 14 : through right ventricle anterior part 4x1.6cm, whole thickness tricuspid value and right atrium (2x0.5cm) and ends by cutting the pericardium at the back aspect. The wound directed upwards and to the right side. Left side of the chest cavity contained 100ml of fluid and 250mg of clotted blood. Inner end of the incised wound showed sharp edge and outer end showed blunt edge. Total minimum depth 6cms.
2. Incised wound 3.5 x 1.5cm (gaping) enters to the chest cavity by cutting intercostals muscle, obliquely placed with protrusion of lung tissue over the left side of back of chest, right upper end 10cm outer to midline back and 22 cm below root of neck and cuts the left bronchus, upper part of lower lobe and lower part of upper lobe of lung through and through. The wound directed upward and to the right. The right upper end showed sharp edge and left lower and outer end showed blunt edge. Total minimum depth 8 cms."
21. In Ext.P11, PW14 has reported that the deceased had died due to stab injuries to the chest which had perforated the heart and lungs. He has also recorded in Ext.
P11 that the postmortem hypostasis could not be made out due to decomposition. He had noted the presence of Maggot's 0.3 to 0.5cm long crawling over the entire body. The evidence of PWs 2 to 5 as well as that of PW14, the Doctor and also the investigating officer who conducted the inquest over the dead body would reveal in unmistakable Crl.A.No.1195 of 2012 : 15 : terms that it was Shaju who had met homicidal death as a result of stab injuries to the chest which had perforated the heart and lungs.
22. The next question is as to whether the prosecution has been able to successfully establish the complicity of the accused. To achieve this purpose, the prosecution mainly relies on the evidence on PWs 2 and 7.
23. PW2 is Manoj Thomas, a close friend and associate of the accused. He testified that in the year 2005, he used to work as a tapper at Niravilpuzha. He was closely acquainted with the accused, who was working as a watcher in the cardamon estate shed of one Kunjammad Haji. The estate is situated in the middle of the forest and he has frequented the shed with the accused on previous occasions. On 16.06.2005, he along with the accused went to the shed after finishing their work and reached there at 4.00 p.m. After a short while they went outside to brew liquor and Crl.A.No.1195 of 2012 : 16 : returned back at about 7.00 p.m. They found strangers inside the shed and noticing their arrival the strangers started to leave. One of them was holding a rifle. After some initial hiccups, they got acquainted and they consumed the liquor and food which was in their possession. PW2 came to know that the names of the strangers were Shaju and Thomachan. Shaju told them that they had come to the forest for the purpose of hunting. While they were sitting as aforesaid, the accused disclosed secretly to PW2 that he would take away the gun. At about 8.30 p.m., the accused and Thomachan went out into the forest to see if they could hunt any wild animals. The accused took the gun of the deceased with him. PW2 and Shaju did not accompany them. PW2 slept on the cot inside the shed and the deceased slept on the floor. At about 9.30 p.m, hearing a knock on the door, PW2 woke up and he found the accused standing outside with the rifle. He inquired about PW7 and the accused told him that he would also reach in no time. Thereafter PW2 went off to sleep and he was Crl.A.No.1195 of 2012 : 17 : woken up from deep sleep by the ominous sounds of a deep groan. When he lit the torch, he found Shaju lying in a pool of blood under the cot and the accused was standing there with a blood stained knife. Shocked at the turn of events, when PW2 stood there thunderstruck, the accused pitilessly told him that Shaju was leaving and asked him to let him go. PW2 feared for his life but he was assured by the accused that he would be spared .He along with the accused moved out of the shed thereafter and he went to his home. While they were returning back, when PW2 asked the accused about the whereabouts of PW7 he was told that the accused had stabbed him as well. At about 12.00 a.m., he reached Valanthodu. He went and informed his wife about the incident. On the next day at about 7.00 a.m., the accused came to his house and threatened him that if he disclosed the incident to any person, he would be done away with. He was also told that MO1 gun had been concealed under a rock near his residential home. Later, he had revealed to the Circle Inspector about the place where the Crl.A.No.1195 of 2012 : 18 : rifle was concealed and based on the same, the gun was recovered. The evidence of PW9, the attestor to Ext.P3 mahazar relating to the recovery of the rifle would also corroborate the version of PW2.
24. The main criticism against the evidence tendered by PW2 is relating to his non disclosure about the incident to any other person. We find on analysis of the evidence of the said witness that the reason stated are believable. The evidence tendered by the witness on the face of it appears to be reliable to us and the same is corroborated by the other circumstances as well. We find no reason to hold that PW2 is an untrustworthy witness and the submissions on that line are rejected.
25. The prosecution also considerably relies on the evidence on PW7 to prove the circumstances surrounding the incident. He would say that on 16.6.2005 he along with the deceased went to the forest for hunting. They started Crl.A.No.1195 of 2012 : 19 : from Poyilomchalil at about 4 p.m. and reached the Kolippady estate shed at 7 p.m. There was a slight drizzle and they entered a shed and lit up fire inside the kitchen . At that time the accused and PW2 came there and when the deceased and PW 2 started to leave, they identified themselves as watchers. PW7 and the deceased were told not to fear and they were invited inside. Shaju was carrying a gun, a can of arrack and a torch. They all sat together and had food and arrack and after some time, PW7 and the accused decided to go hunting. The accused carried the rifle. Though they searched for wild animals they were not able to find any. They decided to return back and PW7 was walking in the front. While so the accused inflicted a stab injury on his back with a knife. He fell on the ground and fearing the worst he took to his heels and went to his brothers house. His brother took him to the Medical College Hospital and he underwent treatment there.
26. The learned counsel appearing for the appellant Crl.A.No.1195 of 2012 : 20 : attacked the evidence of PW7 and submitted that his version was unbelievable. To emphasize this aspect it was pointed out that through the witness claims to have sustained a serious injury, no medical records have been produced by the prosecution before court. It was also submitted that if in fact the witness had sustained an injury on his back there was no reason for him to refrain from informing the matter to the police. He also did not take any steps to ascertain whether Shaju had met with some hazard as well.
27. The prosecution had examined PW10, the Superintendent of the Medical College Hospital, to prove the treatment records of PW7. All that he was able to say was that one Thomas was admitted as an inpatient. He produced a photocopy of the admission register which was marked as Ext.P4. He also stated that the concerned library superintendent had issued Ext.P5 letter informing that the medical records relating to PW7 were not available. Similar answer was given by the head nurse of the concerned ward Crl.A.No.1195 of 2012 : 21 : as well. PW21, the investigating officer has nonchalantly replied when asked whether he had made any effort to trace out the medical records, that he had only deputed his subordinates. Though the contention of the learned counsel is having some merit, we cannot ignore the fact that some effort was undertaken by the investigating officer to obtain the possession of the medical records from the hospital. It has come out that the accused was arrested only after 5 years, in the year 2010. As is revealed from Exts.P4 to P6, the records before the Medical College Hospital were not traceable. That cannot be a reason to conclude that the evidence tendered by PW7 in respect of what had transpired on the date of incident is to be disbelieved. We also note that the testimony of PW7 in this particular regard has not been seriously challenged by the defence while he was in the box. If that be the case, we do not think that the challenge now placed by the defence with regard to the sanctity of the evidence tendered by PW7 before court in respect of the occurrence cannot be disbelieved on that Crl.A.No.1195 of 2012 : 22 : ground alone. We have gone through the evidence of PW7 meticulously. His version of the incident is supported by PW8, his brother and PW1 as well, who had lodged the FI statement. When Shaju went missing, his relatives had inquired about his whereabouts and it was then that they came to know about the incident from PW7 - Thomachan. The prosecution evidence would reveal that Shaju used to disappear every now and then and that PW1 had also received conflicting news about Shaju. It was in the said circumstances that no inquiry was directed towards the shed situated at the Kolippad estate.
28. We find that the version of PW2 as to what had transpired in the estate shed on the relevant day corroborates the version deposed to by PW7. After having considered the evidence of PWs 2 and 7 in respect of what had transpired inside the shed on the date of incident, we have no doubt in our mind that the prosecution has been able to successfully establish its case. There is absolutely Crl.A.No.1195 of 2012 : 23 : no reason to doubt his version of the incident.
29. Here the evidence of PW2 is clinching and it leaves one in no doubt regarding the manner in which the incident had occurred. PW7 corroborates the version of PW2 to a material extent. We are of the view that the court below was perfectly justified in coming to the conclusion that it was the appellant who had inflicted the injuries in the manner alleged. No other conclusion is possible on the facts and circumstances of the case.
30. The next contention raised by the learned counsel is that the offence under S.397 of the IPC will not be attracted in the facts and circumstances of the case. According to the learned counsel, since the knife alleged to have been used by the accused for inflicting the injury was not recovered at his instance, the offence is not attracted. We cannot agree. To attract S.397 of the IPC, the prosecution has to establish that at the time of commission Crl.A.No.1195 of 2012 : 24 : of the robbery, the offender had used any deadly weapon or had caused grievous hurt to any person or had attempted to cause death or grievous hurt to any person. We have already held that the evidence tendered by PW2 is eminently reliable and if that be the case the non recovery of the weapon used by the accused is having no significance. The accused was arrested about 5 years after the incident and it would be next to impossible to get hold of the weapon of offence in the said scenario.
31. In so far as the offence under S.25(1B)(a) of the Arms Act is concerned, it has come out in evidence the MO1 rifle and MO2 bullet was actually possessed by the deceased and not the accused. Thus the evidence let in by the prosecution that the accused was not holding a license to carry arms is of no significance. On facts we do not think that the offence under the Arms Act will be attracted as against the accused in the instant case. The finding rendered by the learned Sessions Judge on that count is set Crl.A.No.1195 of 2012 : 25 : aside.
32. In the result, the appeal is dismissed. The conviction and sentence as against the appellant for offence under S.302, 324 and 397 of the IPC are confirmed. The appellant shall be entitled to set off as provided under S.428 of the Code of Criminal Procedure for the period he has been in custody in this case, subject to the orders passed by the authority under S.432/433 of the Code of Criminal Procedure.
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P.BHAVADASAN, JUDGE.
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RAJA VIJAYARAGHAVAN V, JUDGE.
Bb [True copy] P.A to Judge