Kerala High Court
Babu vs State Of Kerala on 28 January, 2020
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 28TH DAY OF JANUARY, 2020 / 8TH MAGHA, 1941
CRL.A.No.516 OF 2016(B)
[AGAINST THE JUDGMENT DATED 11.12.2015 IN SC 70/2015 OF
THE COURT OF ADDITIONAL SESSIONS JUDGE, MANANTHAVADI]
CRIME NO.1218/2013 OF Mananthavady Police Station, Wayanad
APPELLANT:
BABU
S/O.KRISHNAN, C.NO.34/15,
CENTRAL PRISON, KANNUR
BY ADV. SRI.JOSEPH JERARD SAMSON RODRIGUES (STATE
BRIEF)
RESPONDENT:
STATE OF KERALA
BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 20.01.2020, THE COURT ON 28.01.2020 DELIVERED THE
FOLLOWING:
Crl.A.No.516 of 2016
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JUDGMENT
Dated this the 28th day of January,2020 N.ANILKUMAR, J Appellant is the accused in S.C.No.70/2015 on the file of the Additional Sessions Judge, Mananthavady in Crime No.1218/2013 of the Mananthavady Police Station for the offences punishable under Sections 449 and 302 of the Indian Penal Code, 1860 (for short 'the IPC'). By judgment dated 11.12.2015, the learned Additional Sessions Judge, Mananthavady convicted and sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 449 of IPC and imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine to undergo rigorous imprisonment for two years for the offence punishable under Section 302 of IPC. The above sentences were ordered to run concurrently.
Crl.A.No.516 of 2016
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2. The brief facts giving rise to the instant appeal are as follows:-
On 29.12.2013 at about 3 a.m., the accused trespassed into the house of the victim Giri and stabbed him to death with MO2 knife. The prosecution alleged that the wife of the accused had illicit relationship with the victim. Out of the above said enmity, with an intention to do away with the aforesaid Giri, the accused purchased MO2 knife from the shop of PW14 at Kannur and proceeded to Mananthavady by Tamil Nadu State Transport Corporation stage carriage bus conducting service between Kannur and Ootty. After reaching Mananthavady, the accused proceeded and reached the house of the deceased and stabbed him with MO2. The deceased cried aloud. On hearing the cry of the deceased, PW4-the wife of the deceased and PW28-his mother, who were sleeping in separate rooms in the very same house, had opened the door and saw the accused stabbing the deceased. On seeing PW4 and PW28, the accused had escaped from the scene of incident. Thereupon, Crl.A.No.516 of 2016 :-4-:
PW4 informed the occurrence to PW5, a neighbour, residing close to the residence of the deceased. PW5 informed the occurrence to PW6, another neighbour. Pws.5 and 6, with the help of PW7 and others, took the deceased to Mananthavady District Hospital for treatment. On examination, the Doctors declared him brought dead.
3. On getting the information regarding the occurrence, PW1, who is the brother of the deceased, reached the hospital and subsequently went to the Police Station and lodged Ext.P1 First Information Statement before PW22-the Sub Inspector of Police, Mananthavady. On the strength of Ext.P1 statement lodged by PW1, PW22 registered Ext.P1(a) FIR for the offences punishable under Sections 449 and 302 of IPC against the accused.
4. Investigation was taken over by PW31, on 29.12.2013, who was holding the additional charge of Circle Inspector of Police, Mananthavady Police Station. He conducted inquest on the body of the deceased and prepared Ext.P15 Crl.A.No.516 of 2016 :-5-:
inquest report. Column No.11 in Ext.P15 is regarding the apparent cause of death. It is stated that the accused sustained injuries with a sharp edged weapon and succumbed to the injuries. Column No.16 in Ext.P15 is pertaining to the opinion of the Panchayathdars as to the cause and manner of death. It is stated therein that the accused stabbed the deceased on 29.12.2013 early morning and deceased succumbed to the injuries.
5. Pursuant to Ext.P15, PW31 prepared Ext.P4 mahazar and recovered MO3 chappals and MO4 bulb from the scene of occurrence. PW22 located the accused from Methiyadukka at Kasaragod and produced before PW31.
Accordingly, accused was arrested in accordance with law. On being questioned in Police custody, the accused confessed by way of Ext.P3(a) that the knife was concealed on the back side of Father GKM High School, Kaniyaram and he would show the same if he was taken to the place. Accordingly, PW31 proceeded to the place as led by the accused and recovered MO2 knife. Crl.A.No.516 of 2016
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PW31 prepared Ext.P3 mahazar. PW31 further seized Mos.5 and 6 dress worn by the accused on the date of occurrence. PWs.4 and 28 identified MOs.5 and 6 before court. Thereafter, the deadbody was sent for postmortem examination to PW23. The Doctor, who conducted the postmortem examination, collected nail clippings, blood samples etc. from the body of the deceased and entrusted to PW15 for further action. PW15 received the same by way of Ext.P8 mahazar and sent the materials for chemical examination. PW31 questioned the witnesses, recorded their statements and filed the final report before court.
6. On committal, on the basis of the materials from record, the trial court framed charges against the accused under Section 449 and 302 of IPC for which he pleaded not guilty.
During the trial, prosecution examined Pws.1 to 31 series and marked Exts.P1 to P30 series and MOs.1 to 12 on prosecution side. On the basis of the evidence on record, the accused was questioned under Section 313(1)(b) of Cr.P.C. On being Crl.A.No.516 of 2016 :-7-:
questioned under Section 313 Cr.P.C. the appellant stated that he was falsely implicated in this case.
7. The learned Sessions Judge who conducted the trial did not deem it fit and proper for recording an acquittal under Sectin 232 of Cr.P.C. The accused was called upon to enter on his defence and adduce evidence which he might have in support thereof.
8.Heard Sri.Joseph Jerard Samson Rodrigues, State Brief appointed by this Court for the appellant and Sri.S.U.Nazar, the learned Senior Public Prosecutor.
9. PW23 is the Associate Professor and Deputy Police Surgeon, Forensic Medicine, Government Medical College, Kozhikode. On 29.12.2013, he had conducted the postmortem examination on the body of the deceased and issued Ext.P12 postmortem certificate noting 17 ante mortem injuries. Out of the aforesaid injuries, injury Nos.3 to 5 are relevant. All other injuries are either aberrations or minor incised wounds. Injury Nos.3 to 5 are stated as hereunder:-Crl.A.No.516 of 2016
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"3. incised punctured penetrating wound 4cm long, gaping (1.5cm)on the left side of upper abdomen, obliquely placed with a right lower end and left upper end. Omental fat was seen protruding out of the injury . The margins were sharply cut. The left upper end was pointed. The right lower end was square cut with marginal abrasion. The inner end was 2cm left of midline and 24cm below the suprasternal notch (16cm above umbilicus). The upper and lower margin of the injury showed a small mark, side cut, 2.7cm outer to the square cut inner end. The injury entered the abdominal cavity sharply cutting and piercing the anterior abdominal wall transfixing the stomach. The anterior wall of stomach showed a sharp cut 3x1cm and the posterior wall of stomach showed a sharp cut 2x1cm and the injury extended deeper piercing and transfixing the aorta (1.5x1cm on front and 1x0.5cm on back wall respectively ) just above the celiac trunk. The wound terminated by piercing the retro peritoneum and cutting sharply the front aspect of left side of lumbar vertebra for a length 2cm (cut measured 2x0.2x1cm), transversely, oblique with a right lower end. The total minimum depth of the injury was 12cm . The injury was directed backwards and slightly downwards. Peritoneal cavity contained blood and blood clots.
4. Incised punctured penetrating wound 3.5cm long gaping (1.3cm) on the right side of upper abdomen obliquely placed with a right lower end and left upper end. The margins were sharply cut with the left upper end pointed and right lower end square cut. The upper and lower margin of the injury showed a small side cut, 2.7cm inner to the square cut right end. The inner end of the injury was 2cm Crl.A.No.516 of 2016 :-9-:
right to the mid-line and 23cm below the inner end of right clavicle (18cm above the level of umbilicus). Marginal skin contusion seen around the square cut outer end. The injury entered the abdominal cavity cutting and piercing the abdominal wall sharply and passed through the lower aspect of left lobe of liver transfixing it at two sites 3x0.2xfull thickness and 3.5x0.2xfull thickness. The lower margin of right lobe of liver was sharply cut 3x0.2cm involving entire thickness. The wound terminated in the sub-hepatic region. The total minimum depth of the injury was 9cm and the wound was directed backwards and downwards.
5. Incised wound 2.5cm long , gaping 0.3-0.5cm obliquely placed on the right side of back of chest with a right upper end and left lower end, overlying the shoulder blade. The margins were sharply cut.
The right upper end was square cut and lower left end was pointed with a side cut 0.3cm(involving skin and subcutaneous tissue) downwards. The upper end of the injury was 7cm below the top of shoulder and 8cm outer to mid line back. The injury pierced the chest wall by sharply cutting and chipping the upper margin of shoulder blade. The injury extended through the soft tissues for a depth 7cm transversely directed forwards."
10. PW23 opined that the deceased died due to incised, punctured penetrating (stab) injury sustained to the abdomen, transfixing a major blood vessel (aorta) resulting in internal bleeding and shock. On going through Ext.P12 postmortem Crl.A.No.516 of 2016 :-10-:
report and oral evidence of PW23, it is proved that the death of Giri is homicidal in nature. This fact is not disputed.
11. PWs.4 and 28 are the wife and mother of the deceased respectively. They were cited to prove the occurrence. PW4 stated that she was residing with her husband deceased Giri, their daughter and PW28 in a rented building at Palamottam Kunnu. According to her, Giri was preparing for a pilgrimage to Sabarimala and hence he used to sleep in the sit out room to practise celibacy. While so, on 29.12.2013, at 3 am she heard a hue and cry of Giri and immediately she opened the door leading to the sit out. PW28 followed her. When she opened the door, she saw the accused stabbing the deceased and she heard the deceased uttering the name 'Babu'. On seeing them, the accused had escaped from the premises. Immediately, she went to the house of PW5 and informed the occurrence. PW5 and others rushed therein and her husband was taken to the hospital subsequently in a police jeep. She also stated that before she opened the door, she had switched on the light in the Crl.A.No.516 of 2016 :-11-:
room and there was enough light in the room to witness the occurrence. PW4 further stated that the accused came to her house in search of the deceased twice before the occurrence. At that time, the accused introduced himself as Babu. When he visited the house earlier, she spent about ten minutes in the house. On the second occasion, when the accused came, according to PW4, he had threatened. She identified MO1 tablet used by the accused. She also identified photograph found in Ext.P2 (a) report, which was extracted from the data stored in MO1 tablet. She also identified the image of a woman in Ext.P2 photograph along with the deceased as one Reji, who was a classmate of the deceased.
12. PW28 supported the case advanced by PW4 in full. She also stated that she had occasion to see the accused twice before the incident when he came to their house in search of the deceased.
13. PWs.5 and 6 are neighbours of the deceased. According to them, on getting information from PW4, they went Crl.A.No.516 of 2016 :-12-:
to the house of the victim and saw the deadbody of the victim. They also stated that with the help of the Police, the injured was taken to the hospital where the Doctors examined the injured and declared that he was brought dead.
14. PW2 is none other than the brother-in-law of the deceased. He stated that he was present at the time of preparing Ext.P15 inquest report by PW31. Similarly, PW3 one of the neighbours of PW1, stated that he was also present at the time of conducting inquest by PW31. According to him, he had acquaintance with the deceased for about 20 years and PW4 is his neighbour. He further testified that deceased Giri had illicit relationship with the wife of the accused and she had occasion to see them together more than once. He had identified Ext.P2 photograph found in Ext.P2(a) report as the photograph of the deceased and the wife of the accused.
15. All the other witnesses are not material for the decision of the case. PW7 was the Police Officer on duty on 29.12.2013 in the Flying Squad. He stated that as directed by the local Crl.A.No.516 of 2016 :-13-:
Police, he went to Palamattom Colony and took the deceased to the hospital. PW8 is an attestor to Ext.P3 seizure mahazar prepared by the Police. PW24, who was the Secretary of Mananthavady Grama Panchayath, issued Ext.P13 ownership certificate to the building, where the occurrence took place. As per Ext.P13, the building belonged to one Ayyappan. Ayyappan sold the building to PW26, who let out the building to the deceased. PW30 was the Conductor of Tamil Nadu Transport Corporation bus operating on the route Kannur-Ootty. PW30 stated that the said bus used to start from Kannur at 10 p.m. and used to reach Mananthavady by around 1.30 a.m. PW27 completed the investigation and filed the charge sheet before the court.
16. Learned counsel for the appellant contended that the evidence of PWs.4 and 28 is contradictory. It is further contended that the availability of the light at the scene of occurrence is doubtful and the scene mahazar prepared is totally silent about the source of light. It is further contended that there Crl.A.No.516 of 2016 :-14-:
is no evidence to show that the accused was under the custody of PW31 at the time when the recovery was effected and therefore, no reliance can be placed on the evidence regarding the recovery of MO2 knife. Thus, it is argued that a meticulous examination of the evidence tendered by PWs.4 and 28 create serious doubt about the truthfulness and trustworthiness of the above witnesses.
17. Refuting the contentions of the learned counsel for the appellant, learned Senior Public Prosecutor Sri.S.U.Nazar submitted that the evidence tendered by PWs.4 and 28 is reliable. They had seen the accused stabbing the deceased. According to the learned Public Prosecutor, the deposition of PW23, the Doctor who conducted the Postmortem Examination and Ext.P12 Postmortem Certificate would irresistibly lead to the inference that the victim sustained stab injuries as a result of the assault made by the accused with MO1 knife. It is further submitted that PW31 arrested the accused and while in custody, he confessed that MO2 was concealed and he would show the Crl.A.No.516 of 2016 :-15-:
same if he was taken to the place where it was concealed. Accordingly, recovery was also effected. Considering the nature of the injury sustained to the deceased as well as the motive alleged by the prosecution, according to the learned Public Prosecutor, the prosecution has very well succeeded in proving that the accused committed criminal trespass into the residence of the deceased on the date of occurrence and murdered him with MO2 knife.
18. It is a fact that PWs.4 and 28 deposed before court that they found the accused stabbing the deceased with MO1 knife. Although PWs.5 to 7 took the injured to the hospital, the Doctor, who examined the injured, declared that he was brought dead. PW31 arrested the accused. While in custody, the accused confessed by Ext.P3(a) statement that MO2 was concealed by him. As led by the accused, PW31 recovered MO2 in accordance with law by Ext.P3 mahazar in the presence of PW8. Ext.P19 report of the Forensic Laboratory would show that MO2 contained blood stains. In fact, the recovery was proved Crl.A.No.516 of 2016 :-16-:
in accordance with Section 27 of the evidence Act.
19. PW23- the Doctor, who conducted the postmortem, deposed before court that injury Nos.3 and 4 noted in Ext.P12 postmortem report are fatal. He also stated that those injuries could be caused with MO2.
20. The occurrence in this case took place inside the house of the deceased around 3 a.m. PWs.4 and 28 were present at the residence. PW4 adduced evidence to show that the deceased was preparing to go for Sabarimala pilgrimage for which he was practising celibacy. The reason for his sleep outside their bedroom was also explained by PW4. The fact that the occurrence took place inside the residence of the deceased is proved through the oral evidence of PWs.4,24,26 and 28.
21. PWs.4 and 28 stated before court that they had twice seen the accused before the occurrence when the accused came to their house in search of the deceased. PW4 further stated that on the second occasion of his visit, he had spoken to them in a threatening voice which is sufficient reason for the witness to Crl.A.No.516 of 2016 :-17-:
note the accused. The accused was not a stranger to PW4 and PW28. Under the circumstances, Test Identification Parade is not mandatory in this case. Further PWs.4 and 28 testified that the deceased uttered the word Babu (the name of the accused) at the time of occurrence. It has come out in evidence that the victim had prior acquaintance with the accused and therefore it was quite natural for the victim to utter the name of the assailant when he was assaulted unexpectedly. The utterance made by the deceased at the time of incident is also a relevant circumstance.
22. Scene mahazar prepared by PW31 cannot be treated as a substantive evidence to prove the prosecution case. PW4 stated before court that when she heard the hue and cry of the deceased, she woke up from sleep and switched on the light in the centre room and opened the door to the sit out where the deceased was sleeping. PWs.4 and 28 stated that they saw the incident in the light from the centre room. Merely because the scene mahazar prepared by the investigating officer is silent Crl.A.No.516 of 2016 :-18-:
regarding the source of light, the same itself is not a ground to discard the reliable evidence by PWs.4 and 28.
23. The prosecution alleged that the accused murdered Giri on account of illicit relationship between deceased Giri and the wife of the accused. PW3 adduced evidence to show that Giri was keeping an illicit relationship with the wife of the deceased. Ext.P2(a) is a photograph which was retrieved from the data in MO1 tablet used by the deceased. Ext.P2 is the photograph of the deceased and the wife of the accused. PW4 identified the picture as the picture of the deceased and one Reji, who was the classmate of the deceased. On a perusal of Ext.P2 photograph, it is difficult to hold that the deceased was maintaining an illicit relationship with the wife of the accused. However, it was brought out that the accused was a person of a highly suspicious nature and doubted the character of his wife prior to the occurrence in this case. This is a case where the prosecution adduced reliable evidence to prove house trespass and murder on the strength of direct evidence. PWs.4 and 28 Crl.A.No.516 of 2016 :-19-:
are natural witnesses to prove the occurrence. We find no reason to disbelieve their presence at the residence of the deceased at the time of occurrence. The motive assumes importance where the prosecution is based on circumstantial evidence to prove the offence. As indicated earlier, in this case, the motive is irrelevant. There are other reliable evidence to support the prosecution case.
24. In the present case, the injury sustained to the deceased is sufficient in the ordinary course of nature to cause death. There is nothing to show that the injuries were caused accidentally or negligently. We are satisfied from the forensic evidence that the deceased was assaulted by the accused within his residence. PWs.4 and 28 saw the accused stabbing the deceased. We are satisfied that PWs.4 and 28 saw the occurrence from the electric light inside the house, which was switched on by PW4 immediately after hearing the hue and cry of the deceased on the date of occurrence. We are further satisfied that accused was carrying MO1 knife with an intention Crl.A.No.516 of 2016 :-20-:
to cause the death of the victim. Express and implied malice were proved by the prosecution. The victim died within a short time due to the injuries suffered by him.
25. For all the foregoing reasons, we are of the view that the judgment and the order of conviction passed by the trial court was based upon proper appreciation of evidence and circumstances proved by the prosecution.
Resultantly, we uphold the judgment of conviction and order of sentence passed by the court below for the several reasons stated above. The appeal is dismissed.
sd/-
A.HARIPRASAD, JUDGE sd/-
N.ANIL KUMAR, JUDGE MBS/