Kerala High Court
Vasudevan vs State Of Kerala on 16 January, 2012
Bench: R.Basant, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933
CRA.No. 978 of 2007 (B)
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SC.52/2005 of ADDL.DISTRICT COURT-I,MAVELIKKARA
CP.101/2004 of J.M.F.C., MAVELIKKARA
APPELLANT(S)/APPELLANT:
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VASUDEVAN,
C.NO.1446,
CENTRAL PRISON,
TRIVANDRUM.
BY ADV. PREMOD.B(STATE BRIEF)
RESPONDENT(S):
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR.
BY PUBLIC PROSECUTOR SRI. GIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.BASANT & P.Q.BARKATH ALI, JJ.
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Crl. A. No. 978 of 2007
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Dated this the 16th day of January, 2012
O R D E R
Basant, J.
(i) Was the court below justified in accepting and acting upon the oral evidence of PW1 and PW2?
(ii) Is the accused entitled to the benefit of any doubt in the totality of circumstances?
(iii)Does the impugned judgment warrant appellate interference on any count?
These are the points raised for our consideration by Adv.Pramod.V, who has been appointed to render legal aid and assistance to the appellant.
2. The prosecution alleged that the appellant on 23/7/2003 at 8.15 a.m. at the scene of the crime to the north of the road leading eastwards from the IOB junction at Olaketti Ambalam, on account of prior animosity, had inflicted fatal injury with MO1 knife on deceased Anil alias Anian. He allegedly succumbed to the injury suffered while CRA 978/2007 2 he was being removed to the hospital in the taxi car driven by PW8. Investigation commenced with Ext.P1 FI statement lodged by PW1, allegedly an eye witness to the occurrence. Investigation was completed and final report was filed by PW12. The learned Magistrate, after observing all legal formalities committed the case to the Court of Session. The learned Sessions Judge took cognizance of the offence under Section 302 IPC alleged against the appellant. The appellant denied the charge that was framed against him by the learned Sessions Judge. Thereupon the prosecution examined Pws.1 to 12 and proved Exts.P1 to P16. MOS 1 to 7 were also marked.
3. The accused in the course of cross examination of the prosecution witnesses and later when examined under Section 313 Cr.P.C. denied all circumstances that appeared in evidence and which were put to him. He took up the defence of total denial. In the course of cross examination of Pws.1 and 2 Ext.D1(a portion of Ext.P1 FI statement) and Ext.D2(a Case Diary contradiction in the statement of PW2) CRA 978/2007 3 were marked. No other evidence was adduced by the defence.
4. The learned Sessions Judge, on an anxious consideration of all the relevant inputs, came to the conclusion that the evidence of PWs. 1 and 2 can be safely accepted. The learned Sessions Judge drew inspiration for the version of Pws.1 and 2 from the contents of Ext.P1 FI statement. Inspiration was drawn for their testimony from the medical evidence about the nature of injuries tendered by PW9 and Ext.P6 Post Mortem certificate issued by him. The evidence of Pws.1 and 2 was further supported by the evidence of PW8, held the learned Sessions Judge. The evidence of motive spoken to by PW7 was also accepted. The learned Sessions Judge further accepted the evidence of recovery of MO1 weapon of offence from the possession of the appellant by PW10. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment, holding the appellant guilty of the offence of murder punishable under Section 302 IPC. A sentence of imprisonment for life CRA 978/2007 4 and a fine of Rs.25,000/- was imposed. In default, the appellant was directed to undergo RI for a period of 3 years.
5. Before us, the learned counsel for the appellant Sri.Pramod and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant contends that the court below erred grossly in accepting and acting upon the oral evidence of Pws.1 and 2. Their evidence is inconsistent with the earlier statements of theirs before the Police and in Ext.P1. The evidence of Pws.7 and 8 are not convincing. The court below erred in placing reliance on the evidence of alleged recovery of MO1 from the appellant by PW10. In any view of the matter, benefit of doubt must have been conceded to the appellant, contends the leaned counsel for the appellant.
6. The learned Prosecutor, on the other hand, contends that the court below was eminently justified in accepting and acting upon the evidence of Pws.1 and 2. The evidence of Pws.1 and 2 is well supported by all the other evidence available in this case. In these circumstances, the appellant CRA 978/2007 5 cannot claim the benefit of any non-existent doubts, contends the learned Prosecutor.
7. We have considered all relevant inputs. At the risk of repetition, we say that an appellate judgment is intended to be read in continuation of the judgment of the trial court. In this view of the matter, we do not deem it necessary to re-narrate the oral and documentary evidence placed before the learned Sessions Judge. Suffice it to say that the oral evidence of PWs.1 to 12 and the contents of Exts.P1 to P16 and Exts.D1 and D2 have been read to us in detail. We have also been taken through the charge framed by the learned Sessions Judge and the answers given by the appellant when he was examined under Section 313 Cr.P.C. We shall refer to the relevant materials specifically, if necessary, in the course of our discussion.
8. This is a case, where the prosecution relied on oral evidence of Pws.1 and 2 about the incident proper. We narrate below the pieces of evidence relied on by the prosecution in support of the charge:
CRA 978/2007 6
(1) Evidence of motive spoken to by PW7 and supported broadly by the evidence of PWs.1 and 2.
(2) The oral evidence of Pws.1 and 2 about the precise incident.
(3) The dying declaration allegedly made by the deceased after he suffered the stab injury spoken to by PWs.1 and 2.
(4) The evidence of PW8 that the deceased suffered injuries at the scene of the crime and that the accused, the deceased and PW1 were removed to the local hospital in the taxi car of PW.8.
(5) The evidence tendered by PW1 and PW.10 that the appellant was detained at the hospital and was taken into custody by PW10 at the hospital.
(6) Recovery of MO1 from the person of the accused by PW10.
CRA 978/2007 7
9. At the outset, we note that we have the evidence of PW.9 Doctor and Ext.P6 Post Mortem certificate revealing to us clearly the nature of the injuries suffered by the deceased. The evidence establishes beyond the pale of controversy that the deceased succumbed to the injuries inflicted on him with a weapon like MO1. Not a semblance of a doubt lingers in our mind on that aspect of the prosecution case.
10. It must further be noted that it is clear as day light that the incident had taken place at the scene of occurrence located in Ext.P4 scene mahazar, the visual representation of which is given in Ext.P2 scene plan.
11. From the IOB Junction, there is a road going eastwards and this incident is alleged to have taken place on the northern side of the said road. The blood mark seen at the scene of the occurrence read along with the evidence of PWs. 1, 2, and 8. The evidence of Pws.1,2,8 and 7 leaves no trace of doubt in the mind of the court that the incident had taken place at the spot located in Ext.P4 scene CRA 978/2007 8 mahazar/Ext.P2 scene plan. On this aspect also we find no scope even for a remote doubt.
12. We now come to the evidence of motive. The prosecution primarily relied on the oral evidence of PW7, the wife of the deceased. No one has a case that there was any long standing enmity between the appellant and the deceased. All indications suggest that they were friends. There was some monetary transaction between the deceased and the appellant. On that morning, there was a demand for return of money by the deceased to the appellant. A quarrel ensued. It is the case of the prosecution that after the deceased left his house, there was a quarrel between them earlier on that morning and this was the precise bone of contention, that is return of money by the appellant to the deceased. PW7 stated that after the said quarrel, the appellant had gone to the house of the deceased. The deceased was not present there at that time. The appellant told PW.7, the wife of the deceased that the deceased had beaten the appellant and that he will CRA 978/2007 9 suffer for that indiscretion. We have been taken through the evidence of PW7 in detail. We find it absolutely safe to place reliance on the oral evidence of PW7. There is absolutely no reason to approach the evidence of PW7 with any amount of doubt, suspicion or distrust. The evidence of PWs.1 and 2 further confirm that there was a quarrel and altercation between the deceased on the one side and the appellant on the other. They have no direct knowledge about that incident. However, they came to know that there was some incident earlier on that morning. The prosecution had cited CW4 as a witness to prove that earlier incident. The prosecution did not think it necessary to examine CW4. We have the evidence of PW1 that the appellant had gone to a tea shop where PW1 was available enquiring about the deceased shortly prior to the incident. PW2 also speaks about the information that he collected from the tea shop about the quarrel. To sum up it is established beyond any trace of doubt that tension was high between the appellant and the deceased on that morning and that the appellant CRA 978/2007 10 had conveyed his threat to the wife of the deceased, i.e. PW7. On this aspect of the matter also, we find absolutely no room for any doubt or suspicion. The non-examination of CW4 on which much is attempted to be made by the defence counsel does not in any way persuade us to squander the evidence that is already available through PWs.7, 1 and 2 about the strain in the relationship between the appellant and the deceased prior to the occurrence on that morning. Satisfactory evidence of motive - strain in the relationship between the appellant and deceased is thus available beyond doubt.
13. We now come to the oral evidence of Pws.1 and 2. Their ocular account is attempted to be supported by the contents of Ext.P1 FI statement. According to the prosecution, the incident had taken place at about 8.15 a.m. on 23.7.2003. From the scene of the crime, the deceased was rushed to the local hospital in the taxi car of PW8. By 9.10 a.m., when they reached the hospital, the deceased was declared dead. According to PW1, he thereafter went CRA 978/2007 11 to the house of the deceased and his relatives and conveyed information to them. He returned to the hospital. From there he was taken by the police to the local police station, i.e. Kurathikkadu police station. There at 11.00 a.m. on 23.7.2003, Ext.P1 FI statement was lodged by PW1. Ext.P7 FIR was registered on the basis of Ext.P1 and Ext.P7 FIR is seen to have been received by the local Magistrate at 10.30a.m. on 24.7.2003.
14. PW1, in Ext.P1 had asserted that he had witnessed the incident including the planting of the stab proper with MO1 knife by the appellant on the deceased. In court, he appears to have modified his stand and it was his assertion on oath that he had only seen the deceased after he suffered the stab. It is his specific case that he saw the appellant attempting to attack the deceased again and he then allegedly intervened and deterred the appellant. According to PW2, he had seen PW1 running towards the scene of the occurrence. He asserted that he had seen the appellant stabbing the deceased with MO1. He saw the CRA 978/2007 12 further attempt of the appellant to stab the deceased again and PW1 intervening to deter the appellant from continuing the attack. Thus in its core, the evidence of PWs.1 and 2 shows that they were present at the scene of occurrence. Their evidence convincingly reveals that the deceased had suffered the injury at the hands of the appellant. Attempt is made to pick holes in the evidence of PWs.1 and 2. It is pointed out that PW1 who now asserts that he had seen the appellant at the tea shop making enquiries about the deceased had not stated so in Ext.P1. We have carefully considered this contention. We do not reckon that as a crucial omission. In Ext.P1, PW1 has narrated the story from the point of time when he was proceeding along the road at the scene of the crime from west towards east. The fact that he did omit a detailed narration of what happened earlier at the tea shop, a little prior to the incident, according to us, is of no crucial relevance. That cannot arouse any doubt, suspicion or distrust against the testimony of PW1.
CRA 978/2007 13
15. We have carefully gone through the evidence of PW1. PW1 does not appear us to be an untrustworthy witness. Ext.P1 was not stated by him on oath. The evidence in court was tendered by him long later. A proportionately higher degree of care and solemnity, it is evident, was given by him when he tendered evidence on oath in court. In court, he did not assert that he saw the appellant planting the first stab on the appellant. According to him, by the time he reached the scene, the stab had already been planted. He did not specifically assert that he had seen he actual planting of the first stab. The obvious inference possible is that the stab was planted when he was moving towards the appellant and deceased. This does not militate against the assertion of PW1 that it was the appellant, who stabbed the deceased. His evidence further shows that the appellant further attempted to attack the deceased and he intervened to deter the appellant. No other person was available at the scene.
16. Coming to the evidence of PW2, he has CRA 978/2007 14 consistently asserted that he had seen the first stab. According to him, he was proceeding behind PW1. He had seen the deceased reaching the scene of occurrence on his bicycle. He had seen the first stab being planted by the appellant on the deceased. He had further seen the subsequent attempt of the appellant to attack the deceased. He had seen the intervention by PW1 and the appellant being deterred by PW1 against continuation of the attack. The evidence of PWs.1 and 2 deserves to be read in tandem. We have no hesitation whatsoever to take the view that the evidence of PWs.1 and 2 together clearly establishes that the deceased was attacked by the appellant. The first stab, which PW2 asserts to have perceived and PW1 does not specifically admit to have seen clearly, is thus proved convincingly. The further attempt of the appellant to continue the attack and the interference by PW1 to deter the appellant is also convincingly proved. Not a semblance of doubt is aroused in the mind of the court about the acceptability of the oral evidence of PWs.1 and 2. A careful CRA 978/2007 15 reading of the cross-examination of PWs.1 and 2 exposes the hollowness of the challenge against the oral evidence of PWs.1 and 2. They are not shown to have any motive to falsely implicate the appellant. We are in these circumstances of the opinion that the oral evidence of PWs.1 and 2 is intrinsically acceptable.
17. PWs.1 and 2 speak about the dying declaration made by the deceased. Disputes are raised about the precise words used by the deceased. This dying declaration is referred to in Ext.P1 also. Both PWs.1 and 2 speak about this dying declaration. The innocuous inaccuracies in the precise words used by the deceased notwithstanding, evidence of PWs.1 and 2 about the dying declaration made by the deceased has the fragrance of truth and the evidence about the dying declaration clearly shows that the deceased had conveyed PWs.1 and 2 that he had suffered the stab injury at the hands of the appellant. On that aspect also we find no trace of doubt whatsoever.
18. It is in this context the evidence of PW8 becomes CRA 978/2007 16 relevant and crucial. Information was passed on to PW8, a local taxi driver who parks his vehicle at the I.O.B. Junction, about the injury suffered by a person at the scene of the crime. PW8 came with his car and carried PW1, the injured/deceased, and the appellant in the same car to the hospital. It is the case of PWs.1 and 2 that the appellant was forced to enter the car of PW8. The evidence of PW8 clearly shows that the appellant had travelled in the car along with PW1 and the deceased from the scene of the crime to the hospital. The evidence of PW8 thus convinces us of the acceptability of the evidence of PWs.1 and 2 that the appellant was present at the scene of the crime, when the deceased suffered the injuries. It is relevant in this context that the appellant now attempts to make a blanket denial and disputes even the presence of the appellant at the scene of the crime. He has no explanation that he has also present at the scene only as a witness and had travelled with the deceased to the hospital to help him. His case is that the evidence of PW8 deserves to be rejected lock stock CRA 978/2007 17 and barrel. PW8 is not even suggested to have any motive against the appellant.
19. According to the prosecution, when the appellant, the deceased and PW1 were carried to the hospital in PW8's car, MO1 was available with the appellant. The evidence of PW8 clearly shows that a blood-stained weapon ((PW1) also appears to be a very cautious witness. He does not assert that MO1 was the weapon that was available in the car, but admits only of the presence of a similar weapon) was available in the car. We find no reason to discard the evidence of PWs.1 and 8 on this aspect. The evidence clearly suggests that when PW1, the deceased and the appellant moved in the car of PW8 from the scene of the crime to the hospital at Kayamkulam, MO1 weapon was available in the car.
20. It is the case of the prosecution that at the hospital the appellant was detained by the people who gathered information about his indiscretion from PW1. We have the evidence of PW1 on this aspect. His evidence on CRA 978/2007 18 this aspect is eminently supported by the evidence of PW10 Head Constable from the Kayamkulam Police Station who went to the hospital and detained the appellant. The hospital at Kayamkulam comes within the jurisdiction of the Kayamkulam Police Station and it is hence that PW10 proceeded to the hospital on information about the detention of the appellant and about the incident in this case. According to PW10, as the crime was not committed within the jurisdiction of the Kayamkulam Police Station, he passed on the information to the Kurathikad Police Station, but detained the appellant at Kayamkulam police station. It is the case of PW10 that the appellant had MO1 in his possession when he took the appellant and detained him. He had taken MO1 from the possession of the appellant and had kept it at the Kayamkulam Police Station to be handed over to the police officials of Kurathikad Police Station along with the appellant.
21. We now consider the evidence of PW10 and PW1 on the aspect of detention of the appellant at the CRA 978/2007 19 Kayamkulam Hospital and of his being removed to the Kayamkulam Police Station with MO1. This version gets support from the contents of Ext.P1 itself. Much is attempted to be made out of the omission on the part of PW10 to prepare a mahazar in the presence of witnesses for the seizure of MO1 from the possession of the appellant. PW10 stated that as he was not investigating the crime and he expected the police officials of Kurathikad Police Station to do the needful in connection with the investigation, he did not formally prepare a seizure mahazar to seize MO1. The course adopted by PW10 may not be faultless, but at any rate we find no reason to reject the evidence of PW1 and PW10 on this aspect in an omnibus manner on the sole ground that PW10 did not prepare the seizure mahazar for seizure of MO1 from the possession of the appellant.
22. The learned counsel for the appellant wants to rely on the evidence of PW1 who stated that MO1 weapon was available at the scene, when they left with the deceased to the hospital at Kayamkulam from the scene. This CRA 978/2007 20 evidence is inconsistent with the evidence tendered by PW8 and the evidence of PW10 and PW1 about the availability of MO1 with the appellant when he reached the hospital, it is contended. A careful reading of the evidence of PW1 must suggest to the court that PW1 was not correctly and precisely recalling the unimportant details connected with the incident. The court below, in these circumstances, according to us, did not misdirect itself in not placing crucial and paramount significance to the evidence of PW1 that MO1 was available at the scene, even when he along with the deceased and the appellant left for the hospital at Kayamkulam. It is pointed out that the evidence of PW1 in cross-examination further shows that the said weapon (MO1) was available when he reached the scene of the crime again along with the police. We do not attach much significance to this evidence of PW1 which is in direct conflict with the evidence of PWs.8, 10 and 12. Moreover, we do not think it necessary to place crucial reliance on the recovery of MO1 from the possession of the appellant by CRA 978/2007 21 PW10. Even if that part of the evidence was eschewed, a safe and firm conclusion regarding the guilt of the appellant appears to be eminently possible.
23. Challenge is raised against the genuineness of Ext.P1 F.I.S. Here again an attempt is made to capitalize on the inadequate memory of PW1 and his statement that he did not sign Ext.P1 statement prior to 3.30 p.m. on 23-7- 2003. We find absolutely no merit in this attempt. We have the evidence of PW11 about the precise time at which Ext.P1 F.I.S. was recorded. Inherently Ext.P1 inspires confidence. The fact that it had reached the learned Magistrate at 10.30 a.m. on 24-7-2003 also suggests to us that the alleged delay in the registration of Ext.P7 F.I.R. on the basis of Ext.P1 F.I.S. is of no consequence. We do not attach any crucial significance to this part of the testimony of PW1 - about the presence of MO1 at the scene even when they left for the hospital and of his having signed Ext.P1 F.I.S. only after 3.30 p.m., which statement is in direct conflict with the contents of Ext.P1, the signature in CRA 978/2007 22 which is admitted by PW1 unambiguously.
24. A criminal trial cannot deteriorate into a mere attempt to pronounce on the absolute efficiency of the police and the absolute correctness and acceptability of all evidence adduced. Having anxiously considered all the relevant circumstances, we have no doubt left in our mind that the evidence of PWs.1 and 2 read along with the medical evidence available in Ext.P6 and the oral evidence of PW9, duly supported by Ext.P1 F.I.S., corroborated eminently by the evidence of PW8 and supported by the evidence of PW7 about the motive, can safely be accepted. Even if for the sake of arguments, we are not able to and do not place any reliance on the evidence of recovery of MO1 from the possession of the appellant by PW10, not a semblance of doubt is left in our mind about the complicity of the appellant.
25. It will not be inapposite in this context to take note of the preposterous and unreasonable denial of the appellant about his presence at the scene of the crime. CRA 978/2007 23 PWs.1 and 2 who are not shown to have any adverse interest against the appellant have spoken about his presence. PW8 has spoken about his presence. There is evidence that his bicycle was available at the scene of the crime. Denial of an indisputable circumstance by an indictee, it is trite, can also be reckoned as a formidable circumstance against the inductee. It is in this view of the matter that we take note of the unreasonable and patently false denial of his presence at the scene of the crime by the appellant.
26. A contention is strenuously raised that the shirt of the deceased is not described to be torn and that this runs counter to the theory that the injury could have been planted with MO1 by the appellant. The court below has adverted to this aspect. Considering the location of the injury, it is quite possible that that injury could have been suffered without any damage to the shirt, if at the relevant time of infliction, the shirt had moved away consequent to the shirt not being properly buttoned. That circumstance CRA 978/2007 24 cannot deliver any advantage to the appellant.
27. Having very anxiously re-appreciated all the facts and circumstances of this case, we are left with no doubt on the acceptability of the case of the prosecution that the injury on the deceased was suffered by him at the hands of the appellant with MO1 weapon. We do also have no trace of doubt about the acceptability of the evidence of PW7 about the motive which prompted the appellant. We are satisfied in these circumstances that the conclusion is safe that the deceased had succumbed to the injuries suffered by him at the hands of the appellant with MO1 weapon.
28. Coming to the nature of offence that is revealed, we do take note of the circumstance that the injury was planted on the chest. A reading of Ext.P6 and the oral evidence of PW9 shows that the lung had collapsed and the injury was a fatal one. Any one who stabs another with a weapon like MO1 on the chest can safely be assumed to have intended to cause the death of the victim. We have unmistakable evidence to show that the injury was CRA 978/2007 25 intentionally inflicted. We have further convincing unchallenged expert testimony that the injury was sufficient in the ordinary course of nature to cause death. In these circumstances, under clause thirdly of section 300 IPC (if not under clause firstly of section 300 IPC) the offence of murder defined under section 300 IPC and punishable under section 302 IPC has been clearly proved against the appellant. There is no claim for or material to support such a claim for mitigation under any one of the Exceptions to section 300 IPC.
29. The learned counsel for the appellant submits that the appellant belongs to an economically waker section of the society and the default sentence of rigorous imprisonment for three years is grossly excessive. We find merit in the contention. We are satisfied that the default sentence can be reduced to rigorous imprisonment for a period of one year. The challenge in this appeal can succeed to the above extent only.
30. In the result:
CRA 978/2007 26
a) This appeal is allowed in part.
b) The impugned judgment is upheld in all other respects; but the default sentence is reduced from rigorous imprisonment for three years to rigorous imprisonment for one year.
31. Communicate a copy of this judgment to the court below. The court below shall issue fresh warrant of commitment.
R. BASANT, JUDGE P.Q.BARKATH ALI, JUDGE mn.
CRA 978/2007 27
R.BASANT & P.Q.BARKATH ALI, JJ.
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Crl. A. No. 978 of 2007
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O R D E R
16th day of January, 2012