Sulfikkar vs The State Of Kerala on 21 March, 2019

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Kerala High Court

Sulfikkar vs The State Of Kerala on 21 March, 2019

The appeal is filed by the accused in Sessions Case No.108/11 of the Additional District and Sessions Judge-V, Kollam by which he was convicted and sentenced to undergo imprisonment for life and to pay a fine of `25,000/- for the offence u/s 302 of IPC. In default of payment of fine, he has to undergo rigorous imprisonment for 5 months.

2. The deceased in the case is Latheef who suffered stab injuries on 3/12/2008 at 9.40 p.m. While he was taken to the hospital, he died. The prosecution allegation is that the accused and deceased were members of NDF. The accused shifted his affiliation to another political party and joined Kerala Congress (Mani group). There was altercations between them and on 3/12/2008, due to the said enmity, the accused came with a knife and inflicted stab injuries on the left side of the chest, left thigh and other parts of the body of the deceased. Though the deceased was taken to St.Joseph Hospital, Anchal, he died. Crime Crl.Appeal No.1078/14 -:3:- No.351/08 was registered by the Station House Officer of Kulathupuzha Police Station and final report was filed before the Judicial First Class Magistrate Court, Punalur which was made over to the Sessions Court. The charges were framed. The accused denied having committed the crime. To establish the prosecution case, PW1 to PW15 were examined. Prosecution relied upon Exts.P1 to P20 documents and MO1 to MO13 were the material objects produced and identified. The defence placed reliance on Exts.D1 to D3 and the oral testimony of DW1 to DW3. After completing the procedural formalities, the trial Court convicted the accused as stated above.

3. We heard the learned counsel for the appellant Sri.R.Rajesh and Sri.S.U.Nazar, the learned Senior Public Prosecutor who appeared on behalf of the State.

4. Learned counsel for the appellant argued that there is absolutely no evidence to prove the complicity of the accused to the crime. Court below had relied upon irrelevant materials and evidence to convict the accused and on a reappreciation of the evidence, it would be clear that the accused is not involved in any offence. On the other hand, the learned Public Prosecutor Crl.Appeal No.1078/14 -:4:- while supporting the judgment of the trial Court contended that the prosecution had proved the case beyond all reasonable doubt. The case rests on the oral testimony of eyewitnesses which is again supported by the recovery of material objects and the scientific evidence adduced in the matter and therefore he sought for confirming the conviction and sentence.

5. Before proceeding further, it will be useful to scan the evidence in the case. PW1 is an eyewitness. He is a Gate Watcher at M/s Bharath Nursing Home, Kulathupuzha. The incident occurred on 3/12/2008 between 9.30 p.m and 9.45 p.m near Kulathupuzha Panchayat Stadium at the public road. PW1 deposed that the incident happened within a distance of 10 metres away from his place of job. The accused came with a knife and the victim was told that if he is beaten, he would kill him. The accused took out a knife from the pocket of his pant and stabbed on the left side of chest. A scuffle occurred between them. The accused thereafter stabbed the deceased on the left thigh and left side of chest. The deceased started bleeding and the accused ran towards east with the knife. The wound on the chest of deceased was tied with a towel and he was taken to a hospital. Crl.Appeal No.1078/14 -:5:- Later PW1 had come to know that the deceased died. He also identified MO1 knife, the towel used for tying the wound of the deceased as MO2 to MO4, the chappals of the deceased as MO5 series and his pant and shirt as MO6 and MO7.

6. PW7 is another eyewitness. He knew the deceased as well as the accused. He deposed that, at about 8.00 p.m., there was an altercation between the accused and the deceased. Both of them were members of NDF. Later the accused joined Kerala Congress. Deceased assaulted the accused. Accused went back home. He came after sometime and stabbed the deceased. PW7 was standing beside him talking to Firoz. The accused was uttering that "You will not live after beating me". One stab was inflicted on left side of the chest. Blood spilled out. Victim sat down. Thereafter he stabbed on the abdomen and thigh several times. PW7 tried to interfere. The accused brandished his knife so that nobody could interfere. Thereafter, he ran away. Deceased was walking up and down. He was taken in a jeep to the hospital. A towel was used to tie the wound in the abdomen. He identified MO1 knife and MO2 to MO4 towels used for bandaging the wound of the deceased.

Crl.Appeal No.1078/14

-:6:-

7. PW8 is another eyewitness. He also deposed that the incident occurred on 3/12/2008 at 9.40 p.m. The deceased was an auto driver and he is a reporter of Thejus Daily. He knew the accused. The accused was a NDF worker and he changed his affiliation to Kerala Congress (Mani Group). On the same day, at about 7-7.30 p.m., there was a quarrel between accused and deceased regarding the same and the accused was beaten up by the deceased. Accused went home and by about 9.40 p.m, he came to market junction. He was talking to the deceased and by saying "you have beaten me" "you need not live", he inflicted a stab injury on the left side of chest. There was a scuffle between them. Again with the same knife, the accused stabbed him on the left side of the thigh several times. The persons nearby were threatened by brandishing the knife and he ran way. He also identified MO1 knife. Along with the knife, a file was recovered which is identified as MO8. He identified MO5 the chappals of the deceased, the shirt and pant of the deceased as MO6 and MO7 and the towels used for bandaging the wound of the deceased as MO2 to MO4. He further identified MO9, the pant the accused was wearing at the time and the shirt the accused was wearing Crl.Appeal No.1078/14 -:7:- as MO10. Though these eyewitnesses were cross-examined at length, nothing has been brought out to discredit the said witness. There is no material omission or contradiction.

8. PW6 has given the FIS. He knew about the death of the deceased. He also deposed that accused resigned from NDF and joined Kerala Congress (Mani group) and due to the said incident, accused and deceased became on inimical terms. At about 8 pm on the date of incident, there was an incident by which the deceased had beaten up the accused. The accused went to his house, came back with a knife and committed murder of the deceased. Knowing about the incident, he had given Ext.P5, FIS.

9. The crime was registered by PW13 Sub Inspector of Police, Kulathupuzha Police Station as Crime No.351/08 u/s 302 of I.P.C. The FIR is Ext.P10.

10. Investigation was conducted by PW14 and PW15. PW14 prepared Ext.P12 inquest report and the articles were produced before Court. PW2 was the Scientific Assistant of DCRB, Kollam. She visited the scene of occurrence and collected certain material objects which were packed, labelled, sealed and handed over to the investigating officer. On 12/5/2009 while working as Crl.Appeal No.1078/14 -:8:- Scientific Assistant at FSL, Thiruvananthapuram, she identified material objects and Ext.P1 is the FSL report.

11. The house of the accused was searched by PW14. Ext.P14 is the search list. PW9 is an attestor to scene mahazar which is marked as Ext.P6 and PW10 is an attestor to the recovery of the knife and it is marked as Ext.P7.

12. The postmortem was conducted by PW11, Assistant Professor in Forensic Medicine and Ext.P8 is the postmortem certificate. He noticed the following ante-mortem injuries:-

"1. Incised penetrating wound 5.7 cm long and 2.5 cm wide horizontally placed on left side of front of chest. Its inner end was 8.5cm outer to midline and 14 cm below collar bone. Both ends were sharply cut. Its outer end had an abrasion 2.4 cm long and 0.7 cm wide at its widest inner part. The wound was directed obliquely backwards and to the right and entered the left chest cavity by cutting the third left intercostal space (4x1.5cm). The fourth rib on left side was cut longitudinally for a length of 3cm from the outer end of the wound in the intercostal space. The upper lobe of left lung was cut (3.5x0.5x1.8cm) involving its full thickness near its lower margin. Left chest cavity contained 200 ml blood. The wound entered the pericardial cavity by cutting the pericardium 2.5x0.8 cm, and terminated in the myocardium by cutting the outer wall of left ventricle (2.5x0.5x1.4cm), 8.5 cm above the apex. The wound had a total minimum depth of 10.5 cm. The pericardial cavity Crl.Appeal No.1078/14 -:9:- contained 50ml blood. Left lung partially collapsed.

2. Incised wound 5.5x2.5x3 cm, muscle deep, vertically placed on outer aspect of left thigh, its lower end was 15cm above the upper border of knee. Both ends of the wound were sharply cut.

3. Incised wound 4.5x2x7.5 cm obliquely placed on the inner aspect of left thigh, its upper front end 11cm below the level of root of penis. Both ends were sharply cut. It was directed obliquely backwards, downwards and to the left. The muscles on the inner aspect of thigh were partially cut.

4. Abrasion 3x1.5cm obliquely placed on right side of back of chest, its inner upper end 6cm outer to midline 8cm below shoulder.

5. Abrasion 5x0.4cm obliquely placed on left side of back of chest, lower inner end 15cm outer to midline 14 cm below shoulder.

6. Abrasion 1x0.8cm on left side of back of chest, 9 cm outer to midline 30cm below shoulder.

7. Superficial incised wound 10x0.2 cm to 0.3 cm wide obliquely placed on outer aspect of left side of chest, upper back end 17cm below armpit.

8. Curved abrasion 5.5x0.3 cm, its convexity upwards, on outer aspect of left side of chest, its front end 11cm below armpit and 3cm above the back end of injury No.(7).

9. Abrasion 2.5x1.4 cm on inner aspect of left big toe, 1 cm above its tip."

13. According to him, the cause of death was due to the incised penetrating injury sustained to the chest. It could be seen that the deceased suffered four incised wounds and five Crl.Appeal No.1078/14 -:10:- abrasions. The injuries on the victim would prove that it was a case of homicide and the version of eyewitnesses that the accused stabbed the deceased several times also stand proved. The abrasions on the body might be on account of the scuffle between them. The investigation of PW14 was continued by PW15. He had questioned the witnesses and arrested the accused on 5/12/2008 and based on his confession statement, the dress of the accused was recovered as per Ext.P17 mahazar. MO1 knife and MO8 file was also recovered as per Ext.P7 mahazar based on the confession statement of the accused which is marked as Ext.P7(a). The material objects were sent to the scientific lab and Ext.P1 is the FSL report, which would indicate that item Nos. 1 to 6, 8, 9, 11 and 13 contained human blood belonging to group "O". Item Nos.15, 19 (a1), 19(a2) and 21 contains human blood. Item 1 to 3 are the dress of the deceased and 4 to 6 are the towel pieces which were used to tie the wound of the deceased. Item No.21 is the metallic knife which contains human blood. Item No.18 is a half sleeve shirt which belongs to the accused which contained blood. However, it is insufficient to determine the origin and group. From the Crl.Appeal No.1078/14 -:11:- materials placed by the prosecution and from the evidence given by eyewitnesses, it is rather clear that the accused has committed the crime.

14. The defence had examined three witnesses. DW1 has produced the attendance register Ext.D1. He stated that 15/3/2014 was not a holiday. He deposed that he was not aware of the fact that at 2.30 pm on 5/12/2008 the accused was arrested. DW3 is the Secretary of the Kulathupuzha Grama Panchayat. He deposed that PW7 Shanavas was not given any licence to conduct Vismaya Studio during the relevant time.

15. The main contention urged by the appellant is that none of the eyewitnesses can be believed. According to him, though PW1 had come to Court on 15/3/2014, he was examined only on 17/3/2014. In his evidence, PW1 stated that, on 15/3/2014 when he came, the office of the Public Prosecutor was closed. It is to disprove the same that DW1 had been examined. Further, it was argued that, according to PW1, he witnessed the incident at a distance of 10 metres, but as per Ext.P6 scene mahazar, the hospital where he is working is at a distance of 30 metres. In fact, in cross-examination he stated that the distance Crl.Appeal No.1078/14 -:12:- would be 20 metres. The distance factor is generally an approximation and cannot be stated by precision by any person unless it is properly measured. That apart, there is nothing to indicate that PW1 was deliberately not examined on 15/3/2014. That the Government Pleader's office was open does not mean that the Government Pleader was available at the relevant time. Normally, when the Government Pleader leaves office, his office would be closed. That might be the reason for the witness to have stated so. The evidence of PW1 is supported by the oral testimony of PW6, PW7 and PW8. With reference to PW7, a contention had been urged that he was not having a studio in his name as no licence was issued by the local authority. That he did not have a licence for the studio is not at all a relevant factor. The question is, whether his presence can be doubted. He might be running the studio on the licence of some other person which is quite usual and therefore the same cannot be a reason to discard his evidence. The evidence of the eyewitnesses are supported by the recovery of MO1. The fact that DW3 was not made known about the arrest of the accused within the forest area by itself cannot be a reason for discarding the arrest spoken to by the Crl.Appeal No.1078/14 -:13:- investigating officer. MO1 knife and MO8 file were recovered based on a confession statement of the accused. Ext.P7(a) is the confession statement for recovery of knife. The knife is blood- stained. Eventhough the group cannot be ascertained, it was found to be human blood, which itself is an incriminating factor.

16. The contention of the accused during 313 examination is that the police pasted blood in the dress and produced it before Court. As far as the dress is concerned, the origin of blood could not be traced. Even otherwise, in this case, the main question would be regarding the credibility of the witnesses who had witnessed the incident. The incident happened on a public road near a hospital where PW1 was working. He is a natural witness. Therefore, it is quite natural that other persons will also be there in the locality. The fact that PW6, PW7 and PW8 had some affiliation with NDF cannot be a reason to discard their evidence. The oral testimony coupled with the scientific evidence and recovery of the murder weapon which is found to be stained with human blood is established beyond reasonable doubt. This is a case in which there was a quarrel between the accused and deceased on account of political rivalry. The deceased had beaten Crl.Appeal No.1078/14 -:14:- up the accused and accused went to his house, came back with a knife and inflicted fatal injuries on the deceased which is a pre- planned murder and the accused is not entitled for any other benefit.

Hence, we confirm the conviction and sentence of the accused and the appeal stands dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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