Shaiju vs State Of Kerala on 27 November, 2012

[Cites 14, Cited by 0]

Kerala High Court

Shaiju vs State Of Kerala on 27 November, 2012

Appeal against the judgment of conviction and order of sentence against accused Nos.2 and 3 for the offence punishable under Sections 341 and 302 read with 34 IPC in Sessions Case No.499/2007, dated 27.11.2012, of the Ist Additional Sessions Judge, Thrissur.

2. Altogether five accused persons were tried for the offence under Sections 143, 147, 148, 341 and 302 read with Section 149 IPC on account of the death of one Honey who succumbed to cut and stab injuries while at the Hospital at 9.45 p.m. on the ill fated day, i.e. 06.11.2003. The alleged incident happened by 8.30 p.m. The accused persons, armed with deadly weapons like dagger, knife etc., formed themselves into an unlawful assembly with the common object of murdering Honey and in furtherance of that common object accused Nos.1 and 2 inflicted cut and stab injuries on him and succumbed to the injuries on the same day at 9.45 p.m. Crl.Appeal No.1440 of 2012 2

3. The prosecution examined PW1 to PW3, three occurrence witnesses, besides PW4 to PW18. PW14 is the Secretary of an Association for Human Rights and the deceased Honey was an active worker of that Association. He was examined to prove the dying declaration made by the victim while he was taken to the hospital along with PW4 and PW6. PW5 is an attestor to Exhibit P15 inquest report and witness to the recovery of MO2 to MO5 clothes of the deceased. PW4 is also an attestor to Exhibit P14 seizure mahazar under which MO1 knife was recovered based on Exhibit P14(a) disclosure statement. Exhibit D1 contradiction was marked. PW6, PW7, PW11, PW12 and PW13 were turned hostile to the prosecution, besides the three occurrence witnesses PW1 to PW3.

4. Offence against accused No.1 has abated on his death and trial was proceeded against accused Nos. 2 to 5. Accused Nos.4 and 5 were found not guilty of any offence and hence acquitted by the learned Sessions Judge. Accused Nos. 2 and 3 were found guilty of offence under Sections 341 and 302 read with Section 34 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for one month Crl.Appeal No.1440 of 2012 3 for the offence under Section 341 IPC and imprisonment for life and to pay a fine of Rs.25,000/- each, in default, to undergo rigorous imprisonment for one year for the offence under Section 302 IPC, with a direction to release Rs.40,000/- out of the fine amount to the legal heirs of deceased Honey under Section 357(1)(b) Cr.P.C. with a further direction to run the substantive sentences concurrently by its judgment dated 27.11.2012. This appeal is preferred by accused Nos.2 and 3 against the said judgment of conviction and order of sentence.

5. The prosecution mainly relied on the oral evidence tendered by PW1 to PW3, the occurrence witnesses, and also the ocular evidence adduced through PW14. The medical evidence adduced through PW9 and recovery of material objects, MO6 knife based on the confession statement of accused No.1, MO1 knife based on the confession statement of accused No.2, MO6(b) knife based on the disclosure statement of accused No.3 and MO11 knife based on the disclosure statement of accused No.5 and the dying declaration proved through PW14 were also relied on by the prosecution to bring home the guilt of accused Nos. 2 and 3 for the offence under Section 302 IPC and 341 IPC with the aid of Section 34 IPC. Crl.Appeal No.1440 of 2012 4

6. PW9 who conducted post-mortem examination on the body of the deceased has noted 17 ante-mortem injuries including eight incised wounds besides the lacerated wounds, contused abrasions, linear abrasions etc. PW9 has deposed that injury Nos.8 and 10 noted in Exhibit P18 post mortem certificate were fatal injuries. Injury No.8 is an incised wound 3x2x2 cm transverse over left side of front of neck with rounded inner and 5cm outer to midline 2cm above root of neck - other end sharp cut - cutting muscles underneath and front wall of left internal jugular vein. Other soft tissues, hyoid bone, cartilages and vertebrae of neck intact. Injury No.10 is incised penetrating wound left side of back of chest with skin part 3x1 cm, transverse with 0.4cm broad inner and 30cm below shouldertop and 9cm outer to midline, coursing frontwards, inwards and downwards for 5cm to open into left chest cavity cutting muscles, nerves and pleura through 10th intercostal space, entering into abdominal cavity cutting left dome of diaphragm through an incised perforating wound 1x1x0.3cm to end in spleen causing an incised wound 1x0.1x1 cm Spleen (60g) pale, 300g clotted blood in left cavity and 700g in abdominal cavity. 300 cc fluid blood in left chest Crl.Appeal No.1440 of 2012 5 cavity and 600 cc in abdominal cavity. The cause of death is stated to be due to bleeding from injuries on neck, chest and abdomen.

7. Though all the three witnesses, PW1 to PW3, cited by the prosecution as occurrence witnesses, turned hostile to the prosecution, the learned Sessions Judge relied on the portion of their evidence found to be truthful regarding the presence of A1 Arjunan, A2 Shaiju, A3 Rajesh and another person of white complexion with slim stature and tonsured head, stopping the bicycle ridden by the victim and the quarrel picked up creating a tensed situation, by which, all the occurrence witnesses, PW1 to PW3, felt that some untoward incident would be happened and left the place without witnessing what actually happened there. Hence, the theory of "last seen together" was applied by the learned Sessions Judge based on the legal position settled in Salim v. State of Kerala [2012 (2) KLT 66] drawn by a Division Bench of this Court and the decision drawn in Shyamal Gosh v. State of West Bengal reported in 2012(3) KLT 97 (Case No.99 SC). The decision drawn by a Division Bench of the Madras High Court in Easwaran @ Shanmughavel v. State [2010 Crl.Appeal No.1440 of 2012 6 Crl.L.J.3180] was also considered by the learned Sessions Judge while applying the theory of "last seen together". Before applying the theory of "last seen together", it is necessary to look into the oral evidence tendered by the occurrence witnesses, PW1 to PW3, one by one.

8. PW1 turned hostile to the prosecution. During cross examination he admitted that he had seen accused Nos.1 to 4 with the deceased by 9.30 p.m. on the ill fated day. According to him, the victim came in Peringottukara Junction in a car and alighted there and proceeded to the office of Head-load Workers Union. Then he took a bicycle and came back to the junction and proceeded towards east. Then four persons by name Arjunan, Shaiju, Rajesh and a slim person with the head tonsured, approached the victim. Accused No.1 stopped the bicycle and had some exchange of words with the victim. It is at that time PW1 took his auto rickshaw and went away from the place. After some time, the father of the deceased came to his house with a request to remove his son Honey to a nearby hospital in his auto rickshaw. He had also admitted that he left the place on seeing all the four accused persons with the deceased. He had also admitted that somebody has made a Crl.Appeal No.1440 of 2012 7 comment that there will be a fight. It is after that he left the place in his auto rickshaw. He turned hostile to the prosecution disputing Exhibit P1 portion of statement that he had witnessed the alleged incident of stabbing by accused No.1 (Arjunan) on the body of deceased. The portion of evidence that he had seen the victim in the company of accused Nos. 1 to 4 just before the commission of offence and there was a tensed situation between the victim and accused Nos. 1 to 5, would be relevant.

9. PW2, another occurrence witness to the alleged incident, also turned hostile to the prosecution. PW2 had spoken about the time in which the victim came to the junction. According to him, it is at about 8.00 p.m. He is also in agreement with the version given by PW1 that the victim came to the junction in a car and alighted there and proceeded towards the office of the Head-load Workers Union. From there he took a bicycle and came towards north to the junction. Then proceeded towards east. Then he came back to the junction from the east. It is at that time Arjunan, Shaiju, Rajesh and one slim person with tonsured head stopped him and picked up quarrel. He had also admitted the enmity Crl.Appeal No.1440 of 2012 8 between accused persons and the victim in connection with the attack at the shop of CW14, Vincent, in which Honey was a witness. He had also deposed that on seeing the heated discussion and quarrel between the accused and the victim, he felt that something bad will happen. So immediately he left the place. He was declared hostile and cross examined.

10. PW3 also turned hostile to the prosecution denying Exhibits P10 to P13 statements recorded under Section 161 Cr.P.C. But, he admitted that there was street light at the junction and identified accused Nos. 2 to 5. He joined hands with the version as narrated by PW1 and PW2 that he also left the place fearing that something bad will happen in between the accused and the deceased who were in inimical terms when he had seen them together by stopping the bicycle driven by the victim and picking up quarrel with him. He had also deposed about the enmity existed in between the accused and the victim as there was a quarrel in the shop room of Vincent by Arjunan, Rajesh and Shaiju who committed trespass into the shop room of Vincent and attacked him and it has resulted in a criminal case in which the deceased had given evidence against these three accused persons. Crl.Appeal No.1440 of 2012 9

11. Going by the oral evidence tendered by PW1 to PW3 and the place of occurrence as advanced by the prosecution it is clear that the alleged incident was happened in a public place, at a junction. It is not at all a secluded place or an uninhibited area or a lonely place. The alleged incident was happened in a public place having heavy traffic and having various shops and institutions such as office of Head-load Workers Union. The site plan exhibited as P21 would show that the incident happened at the junction in front of a closed shop room noted as 'A' in the plan. The next door is a jewellery, an STD booth and a bakery. The surrounding shop rooms are in occupation for a tea shop, tailoring shop, another shop, Nagarjuna Vaidhyasala, KSEB office, Studio, another shop, Hotel, medical shop, Union office, Chithra medicals and Kottekatt Enterprises which would show that the alleged incident was happened in a public place and a commercial site at 8.00 p.m. and the accused and deceased were found together in that place. So it is too dangerous to apply the theory of "last seen together", when they were found in a busy public place surrounded by so many shops and institutions during working hours. But, the facts that accused Nos.1 to 5 Crl.Appeal No.1440 of 2012 10 picked up quarrel with the victim by stopping his bicycle by 8 pm. on the ill fated day; that there existed enmity in between the accused and the victim; that they have approached the victim and stopped his bicycle and picked up quarrel with him had given an impression to all the occurrence witnesses, PW1 to PW3, and others who had witnessed it that something bad would happen there; that they had seen the victim and the accused at 8 p.m. on the ill fated day and the accused sustained very serious injuries just after that and succumbed to the injuries by 9.45 p.m., within 1.15 hours, and that the alleged incident was happened in and around the time in which the accused met the victim would sufficiently bring home the guilt of the appellants, accused Nos.2 and 3., as there is no other possibility of having inflicting injuries on the victim by any other person within that short span of time and if any other person had inflicted injury on the victim, it might have been noticed by the accused persons who were present in the place of occurrence and it would be a fact within the special knowledge of the accused persons. So, there is no possibility of having any other hypothesis rather than the complicity of the accused persons in the commission of offence. Crl.Appeal No.1440 of 2012 11

12. PW14 was examined by the prosecution to prove the dying declaration alleged to have been made by the victim during the course of his journey to hospital accompanied by PW14, PW6 and PW4. PW6 did not support the ocular version given by PW14 regarding the dying declaration and turned hostile to the prosecution. But, PW4 partially supported PW14 stating that the victim had disclosed the name of assailant as Arjunan, accused No.1, before PW14. The evidence tendered by PW14 has to be scrutinized under the said circumstances. Nothing was brought out to discredit or shake the credibility of PW14 during cross examination, except a minor discrepancy noted as D2. The contradiction marked is not material and hence not sufficient to shake the credibility of PW14. He had given the entire picture of what he has experienced on the particular day. During the course of journey to the hospital, the victim has revealed him that it is Arjunan, Shaiju and Thinnan (the name Thinnan is the nick name of Rajesh - accused No.3) are the assailants. Another person was also there, but he did not know his name. All these four persons stabbed on his body. As discussed earlier, PW6 turned hostile to the prosecution. The other person who accompanied the Crl.Appeal No.1440 of 2012 12 victim to the hospital, PW4, had admitted that the victim had disclosed something to PW14 and he heard the name of accused No.1 as the assailant. This has to be read along with Exhibit P37 chemical analysis report of four knives alleged to have been recovered. Item Nos.7, 8, 9 and 13 are the knives. Human blood was detected in item Nos.7, 8 and 9, the three knives recovered. But, the quantity was insufficient to detect the grouping of the blood. The fact that human blood was detected on three knives recovered, which are item Nos.7, 8 and 9, would be relevant, especially when these material objects were identified as MO1, MO6 and MO6(b). These three items were recovered based on the disclosure statement alleged to have been made by accused Nos.1, 2 and 3. The detection of human blood stain on these three weapons used for the commission of offence, recovered under respective disclosure statements, would be relevant and it gives sufficient corroboration to the ocular evidence tendered by PW14 and the alleged dying declaration made before him by the deceased and also the ocular evidence tendered by PW1 to PW3 regarding the genesis of the alleged incident. The respective recoveries were proved by examining the Crl.Appeal No.1440 of 2012 13 independent witnesses. The recovery of MO1 knife which is found to be stained by human blood was proved through PW4 under Exhibit P14 seizure mahazar based on the alleged disclosure statement made by accused No.2 while in police custody. No explanation was forwarded by accused No.2 or other accused persons during their examination under Section 313 Cr.P.C. regarding the presence of human blood in MO1 knife and hence it is an incriminating circumstance pointing towards the guilt of accused No.2 and user of MO1 weapon by him for inflicting injuries on the deceased. The contradiction marked as Exhibit D1 is only a minor one and not sufficient to reject the ocular evidence of PW4, especially the recovery of MO1 knife at the instance of accused No.2 from the place wherein it was concealed. MO6 human blood stained knife was recovered based on the confession statement given by accused No.1 and MO6(b) knife was recovered based on the confession statement given by accused No.3 while under police custody. Independent witnesses were examined to prove the recovery and it would give sufficient corroboration to the main substratum of the prosecution case and involvement of appellants/accused Nos. 2 and 3 in the alleged Crl.Appeal No.1440 of 2012 14 commission of offence, user of weapons by the respective accused persons - MO6 knife by accused No.1, MO1 knife by accused No.2 and MO6(b) knife by accused No.3 and we could not find any reason to reject the alleged recoveries based on the respective disclosure statements given by accused Nos. 1 to 3 independently. The contention raised by the appellants that no forwarding note of the material objects were produced would not stand. Even otherwise, it is well evident from the identity of the material objects which were forwarded and discernible from Exhibit P37 chemical analysis report. So the circumstances brought out by the prosecution are complete and consistent with the guilt of accused Nos. 1 to 3 for the commission of offence inflicting injuries on the victim, resulting in his death.

13. The place wherein the injuries were inflicted and nature of weapons used, number of assailants and number of weapons used would certainly show a pre-concert and pre- planned commission of murder of the victim by the assailants

- accused Nos. 1 to 3. The fact that within two hours the victim breathed his last would show the extensive nature of the stab injuries inflicted on his body, which are well evident Crl.Appeal No.1440 of 2012 15 from the post-mortem examination report. This would bring the matter within the sweep of first and second limbs of Section 300 IPC - intentional causing of death of victim with full knowledge and hence the offence punishable under Section 302 IPC is attracted. Hence, there is no reason for any interference to the finding of guilt of accused Nos.2 and 3 for the commission of offence punishable under Section 302 IPC and the conviction thereunder.

14. The sentence awarded being the lesser one does not call for any interference by this Court. Hence, appeal fails, deserves only dismissal and we do so.

In the result, the appeal is dismissed.

A.M.SHAFFIQUE (JUDGE) P. SOMARAJAN (JUDGE) DMR/-

Unlock Advanced Research with PRISMAI

Kerala High Court