Shajahan @ Shajimon vs State Of Kerala on 18 February, 2019

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Kerala High Court

Shajahan @ Shajimon vs State Of Kerala on 18 February, 2019

The appeal under consideration has been preferred by the appellant calling in question the judgement of conviction and order of sentence passed by the 3 rd Additional District and Sessions Judge, Palakkad by which the appellant herein was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for one year. It was also directed that the fine amount if realized, shall be given to the parents of the deceased as compensation under Section 357(1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.').

2. Prosecution case, in short, is as under:

On 18/08/2009 at about 05.30 p.m., the appellant herein due to his enmity towards Anjisha for her refusal to marry him, inflicted stab injuries on the abdomen and also inflicted cut injuries on her neck with a knife which resulted in her death and Crl,Appeal No.82/15 -:3:- hence he is charged with offence under Section 302 of IPC.

3. To prove their case, prosecution examined PW1 to PW15 as witnesses, marked Exts.P1 to P20 and identified MO1 to MO21 articles. During 313 examination, the appellant stated that he is innocent and that the case against him is a false one. No evidence is adduced from the side of the defence.

4. Learned counsel appearing for and on behalf of the appellant Sri.Lavaraj M.G. contended that the appellant is innocent in this case. He is falsely implicated. Evidence of PW1 is not believable. The version in FIS and the deposition in Court varies in material particulars. It casts doubt on the credibility of the witness. Alleged recovery of dress is not proved and it will in no way connect the appellant with the crime. Even assuming for the sake of argument that the appellant was present at the place of occurrence, it can be seen from evidence that he was in a state of intoxicity and affected by poisoning and that he was not able to know the nature of the acts he was doing. The case of the prosecution is not proved beyond reasonable doubt. Court below erred in convicting the appellant. He argued for an acquittal by extending benefit of doubt.

Crl,Appeal No.82/15

-:4:-

5. In reply, the learned Special Government Pleader for Offences against Women and Children Smt.S.Ambika Devi argued that prosecution proved the case against the appellant beyond reasonable doubt. There is direct evidence in the case. PW1 deposed that she had seen the overt acts of the appellant which resulted in the injuries on the body of her friend Anjisha that ultimately led to her death. PW4 and PW5 corroborate her version in all material particulars. No omission or contradiction is brought out in the evidence of these crucial witnesses. Medical and forensic evidence fully corroborates the ocular version. Court below is perfect in arriving at its conclusion and this Court need not disturb the same, she pleaded. She relied on the decision of the Apex Court in Sukhwinder Singh v. State of Punjab (2014 (12) SCC 490) to emphasize that unnecessary weightage should not be given to minor errors or lapses in cases in which substratum of the prosecution case is strong and substantiated by reliable evidence and lapses in investigation should not persuade the Court to reject the prosecution case.

6. Having heard both counsels in detail and on perusal of entire records, the question to be considered by us is whether the Crl,Appeal No.82/15 -:5:- trial Court was justified in arriving at its present conclusion.

7. Evidence available in this case, in brief, are as follows:

PW1 is cited as an eyewitness to the incident. PW2 is the mother of the deceased. She identified MO7 to MO9 which belonged to the deceased. PW3 is an attestor to Ext.P2 inquest report. PW4 is the person who rushed to the spot on hearing the cry of PW1 and helped the injured to be taken to hospital. He is an attestor to Ext.P3 by which MO10 and MO11 dresses of the appellant were seized. PW5 deposed as to how MO6 knife came to the possession of the appellant. PW6 stated that MO6 belongs to him and that he handed it over to PW5. PW7 is an attestor to Ext.P4 scene mahazar. He also identified MO13 to MO16 articles which were seized from the place of occurrence. PW8 is the Doctor who conducted the autopsy of the victim and he issued Ext.P5 post-mortem report. PW9 is the Doctor who examined the appellant and issued Ext.P6 certificate. PW10 is the Assistant Vehicle Inspector who issued Ext.P7 report stating that the motor cycle bearing Registration number TN 37-K-5817, was in a running condition. PW11 is the Village Officer, Thekke Desom who prepared Ext.P8 scene plan. PW12 took the appellant to the Crl,Appeal No.82/15 -:6:- hospital soon after the incident from the place of occurrence. PW13 did the scene guard duty till the arrival of the Investigating Officer. PW14 is the Sub Inspector of Police, Chittur. Based on Ext.P1 FIS of PW1, he registered Ext.P1(a) FIR. He seized the dresses (MO10 and MO11) worn by the appellant and Ext.P9 is the property list prepared for the same. PW15 is the Circle Inspector of Police, Chittur who conducted the investigation. He prepared inquest report, scene mahazar, seized material objects as detailed in paragraph 19 of the judgment of the lower Court. He completed the investigation and laid the charge-sheet before Court.

8. There is no dispute about the fact that death of Anjisha was a homicide. PW8 deposed that the following injuries were noted by him at the time of autopsy on the corpse of the deceased:

"1. Incised wound 9x3x3.5cm, on front and left side of neck, obliquely placed with right lower end at 2.5cm above right collar bone and 2cm outer to midline. The left upper end was 7cm to the left of midline and 6.5cm above left collar bone. The wound had beveling upwards. From the left upper end, an incised wound 3x1x1.2cm, extended to left side of neck and then to upper aspect of left shoulder. The outer end of this Crl,Appeal No.82/15 -:7:- extension was at 2cm outer to root of neck and 5cm above collar bone. From the right lower end, superficial incised wound 4x0.2cm was seen extending upwards and to right the upper outer end of which was at 3 cm above right collar bone and 5cm outer to midline. The edges of the wound showed multiple side cuts of size 0.2x0.2 to 0.8x0.6cm, in serrations like manner caused by sawing like action. The wound cut the subcutaneous tissues and strap muscles of neck underneath including the left sterno-mastoid muscle. All the blood vessels underneath on left side of neck including the carotid artery and jugular veins on left side were cut. The wound was directed upwards and backwards and with convexity to left and downwards.

2. Incised penetrating wound, 5x2.5cm, transversely oblique on front of abdomen, left lower end 7cm below left costal margin and 3.2cm to the left of midline. The right upper end was 0.5cm outer to midpoint of right border of umbilicus. From the right upper end, the wound continued upwards and to right as an incised wound 4.5x1.6.1.5cm, progressively becoming shallower to its right upper end at 3cm below outer border or pit of stomach and 2cm outer to midline. The wound penetrated the abdominal wall with depth in the abdominal wall measuring 2.5cm. On the coils of ilcum, there was an incised wound 1.8x0.2cm. Coils of intestine were protruding through the wound.3. Multiple contused abrasions over an area of 2x1.5cm, on back and outer aspects of left forearm, 1cm above wrist."

According to him, the cause of death was due to cut injuries sustained to the neck (injury no.1). He also stated that the Crl,Appeal No.82/15 -:8:- injuries found on the body of the deceased are possible to be caused by using MO6 knife as weapon of offence. The evidence of PW8 read with Ext.P5 and Ext.P2 clearly shows that Anjisha met with a homicidal death.

9. The question is whether the Court below was justified in concluding that the prosecution had proved their case against the appellant that he is the one who inflicted the fatal injuries on the victim on the date and place of incident as alleged by them. Prosecution cites PW1 and PW4 as crucial witnesses who threw sufficient light to the actual incident. They relied on PW5 and PW6 to prove the circumstances under which the weapon of offence was procured by the appellant two days prior to the incident.

10. PW1 Dhanya is the occurrence witness. She is a friend and schoolmate of the victim. She knew the appellant as well. She deposed that the incident happened on 18/08/2009 at 05.30 p.m. She identified the appellant in Court. She stated that, on the date of incident, in the evening, the deceased and herself were on their way home and they came in a bus from Chittur hospital junction to Kannakkanpara and alighted there. At that time, they saw the appellant standing at the bus stop by the side Crl,Appeal No.82/15 -:9:- of a motor cycle. She deposed that both herself and Anjisha began to walk to their home through Themparamada road. As they walked about 100 metres, the appellant came through their back side in the motor cycle in high speed and proceeded forward. As both PW1 and Anjisha walked about 200 metres further, they saw the appellant standing near a transformer. It is her version that on seeing them, the appellant came towards them in the motor cycle and hence both of them moved to the side of the road. The appellant pushed aside the bike in front of them and advanced towards them. He took a knife which was hidden in his waist and caught hold of the hair of Anjisha and stabbed her on the stomach with the said knife (MO6). Out of fear, PW1 ran from there screaming. After running 10 to 20 steps, she turned back and saw the appellant cutting the neck of Anjisha with the knife. She ran towards the nearby coconut garden and called people whom she found there for help. They reached the spot again and had seen Anjisha and the appellant lying on the road. Some water was given to the injured and she was taken to hospital in an autorickshaw. PW1 returned to her home and later by 07.00 p.m., she gave Ext.P1 FIS to PW14 and Crl,Appeal No.82/15 -:10:- based on the same Ext.P1(a) FIR was lodged. She identified MO1 to MO5 as the items belonging to the deceased and also identified MO6 knife used by the appellant to inflict the injuries on the victim. According to her, the reason for the commission of the crime was that the victim refused to marry the appellant as she rejected his proposal. She stated that she had given statement to police on the next day and also before the learned Magistrate later. During cross-examination, nothing is brought out as material omission or contradiction. On the other hand, PW1 described features of the weapon used, affirmed that she had given Ext.P1 FIS to police and also stated that whatever she was speaking to are true as she had witnessed the incident.

11. PW4 deposed that on the date of incident, at about 05.30 p.m., while he was conversing with one Radhakrishnan, he saw PW1 running towards them crying and asking for help. He also stated that they followed her and reached the place of occurrence and had seen Anjisha lying on the road with injuries on her neck and abdomen. They also had seen the appellant lying by the road side. He gave water to the injured in a lunch box found there from a nearby paddy field. He arranged an Crl,Appeal No.82/15 -:11:- autorickshaw and had taken Anjisha to hospital. On the way, she was shifted to a car and was taken to Government Hospital, Chittur. He deposed that he saw the knife (MO6), bag and other articles at the place of occurrence. He identified the dresses of the appellant seized by the police at the time when he was taken to the hospital to where the deceased was taken. There is nothing material brought out in evidence to disregard the version of this witness regarding the conduct of the appellant, the plight of the deceased and the words spoken to by PW1 to the witnesses which forms part of the same transaction.

12. PW5 is another witness examined by the prosecution to prove how MO6 knife had come into the hands of the appellant. PW5 deposed that the knife involved in the incident belonged to PW6 Sunil. He entrusted MO6 with him when he left the place in connection with the death of his grand mother. It is his version that two days prior to the incident, the appellant approached him and requested for a knife stating the purpose for the same as cutting and repairing cable of his vehicle. Accordingly, he handed over the knife which is identified by him as MO6 involved in this case. He informed PW6 that he had Crl,Appeal No.82/15 -:12:- handed over the knife to the appellant. The appellant did not return the knife. He also stated that as he reached at the place of occurrence, he saw the appellant lying on the road and also found MO6 knife there. He identified the appellant and MO6 knife in the Court.

13. PW6 Sunil deposed that he knew both the deceased and the appellant from their childhood as they are neighbours. MO6 belonged to him and that he had entrusted the same to PW5. On the date of incident at about 6.00-06.15 p.m., he heard about the incident and reached the spot. He found the appellant lying there. He also had seen the knife (MO6) lying near to the appellant. The appellant was lying unconscious. He understood that the knife found there was his. It is his version that he contacted PW5 over phone and asked about the knife. PW5 told him that he had given the knife to Shajahan (appellant herein) for repairing cable of his vehicle. PW5 reached the spot within 5 minutes. PW6 identified the appellant and MO6 knife in Court.

14. Learned counsel for the appellant argued by quoting the deposition of PW1 that she stated that she had given Ext.P1 following the persuasion of the family members of the deceased. Crl,Appeal No.82/15 -:13:- He argued vehemently that this aspect casts serious doubt on the evidence of PW1 and that she was tutored by the relatives and others. But we do not find such a thing in her evidence. Of course, she stated that the relatives of the deceased also came to her house and only after that she had gone to give Ext.P1 FIS. But she clarified the said statement by deposing that she was not persuaded by anyone and that she was asked only to state the incident to the police.

15. The learned counsel for the appellant submits that there is discrepancy in the statement of PW1 in the FIS and also in her evidence. In the FIS she stated that she ran for help and when she came back, she saw the accused stabbing the deceased on her neck, whereas in evidence, her version was that while she ran away from the scene, when she looked back, she saw the accused stabbing the deceased on her neck. We do not think that the aforesaid discrepancy can result in discarding her evidence in its entirety. First of all, no contradiction had been brought out in evidence. Even otherwise, PW1's evidence is categoric that she saw the accused stabbing the deceased on her abdomen and even assuming that she had not seen stabbing on Crl,Appeal No.82/15 -:14:- her neck, when she came back with PW4, the deceased had already suffered a wound on her neck and the said injury was the cause of death. The accused was lying in the scene of occurrence itself. Therefore, there is no material to discredit the evidence of PW1. The evidence of PW4 corroborates the version of PW1. The presence of the appellant at the scene of crime is proved beyond any doubt. MO6 is also seen near the appellant. Evidence of PW5 and PW6 shows how MO6 had come into the possession of the appellant.

16. Learned counsel for the appellant further submitted that the appellant was only 28 years old at the time of commission of offence. He is now 38 years. He pleaded for leniency (if at all found guilty) and contended that his case will not fall under Section 302 of IPC. He argued that the appellant had no pre-meditation. He himself was poisoned. He strongly argued that the Court below is not justified in convicting the appellant for murder.

17. But in our anxious perusal of the entire evidence, we do not think the above-said argument of the defence has any basis. Of course, it is in evidence that on examination by PW9, Crl,Appeal No.82/15 -:15:- the appellant was found to have consumed organo phosphoric poison. There is nothing to show that the appellant was in a state of involuntary intoxication. No benefit can be claimed by the appellant for the voluntary intoxication he had subjected himself. The evidence on record shows each and every detail of the acts of the appellant in unequivocal terms. The version of PW1 is fully reliable. Her evidence is categoric. Her evidence proves that the appellant was waiting for the victim. He proceeded in his bike by overtaking them in high speed and again waited near the transformer for the victim to come at a handy place. Presence of bike is also proved. PW4 deposed that he had taken the bike of the appellant for arranging an auto for taking the injured to hospital. The appellant procured MO6 knife from PW5 two days prior to the incident. He kept the said knife with him. He caught hold on the hair of the unarmed, hapless 18 year old girl and stabbed on the abdomen which is a vital part of the body. He did not stop his attack as he with the same knife cut her neck. Medical evidence shows that it was so brutal that most of the major blood vessels were cut. Intention of the appellant is none else but to commit murder of the victim. Pre-planning and pre- Crl,Appeal No.82/15 -:16:- meditation is evident on record. Motive assumes not much relevance in this case as the case of the prosecution is proved beyond doubt by direct evidence. Minor discrepancies and omissions pointed out by the appellant are of negligible impact on the cogent evidence adduced by eye-witnesses. No interference is called for in the finding of the learned Sessions Judge as this is a deliberate and calculated murder.

Appeal deserves only dismissal and we do so.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                 A.M.BABU

Rp               //True Copy//                      JUDGE

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