Vishnu vs State Of Kerala on 4 January, 2019

[Cites 10, Cited by 0]

Kerala High Court

Vishnu vs State Of Kerala on 4 January, 2019

This appeal has been filed by the appellant challenging the verdict of the Sessions Judge of Thrissur in S.C. No. 496 of 2012 by which he was found guilty for the offences under Sections 143, 147, 148 and 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and also for offences under Sections 341, 324 read with Section 149 of IPC and was sentenced to undergo imprisonment for life and a fine of `1,00,000/- (Rupees One Lakh only) in default of which to undergo simple imprisonment for two years for the offence u/s 302 of IPC, rigorous imprisonment for six months for offence u/s 143 of IPC, rigorous imprisonment for one year u/s 147 of IPC, rigorous imprisonment for two years for offence u/s 148 of IPC, rigorous imprisonment for one month u/s 341 r/w S.149 of IPC, rigorous imprisonment for two years for offence u/s 324 r/w S.149 of IPC with default stipulation of simple imprisonment for six months. Accused nos. 2 to 5 were also sentenced to above offences except for S.302 of IPC and no appeal is preferred by them.

Crl.Appeal No.223/14

-:3:-

2. The prosecution case is that, accused persons, five in number, including the appellant formed into an unlawful assembly on 19.01.2012 at about 10.00 p.m., with weapons such as knife and they restrained wrongfully the deceased Sharon who was travelling in a motor cycle and that one among them stamped on the motor cycle and manhandled deceased Sharon and that the appellant herein using a knife, stabbed on the chest of the deceased Sharon and subsequently, the deceased succumbed to injuries.

3. Prosecution examined PWs 1 to 19 as witnesses, marked Exts. P1 to P47 and identified material objects MO1 to MO8. When the incriminating evidences were put to the accused, they denied them and pleaded innocence. Defence examined DW1 to DW3 and marked Exts.D1 to D9 contradictions.

4. The learned counsel appearing for and on behalf of the appellant submitted that the case of the prosecution is fabricated and the whole truth is not presented before the Court. The appellant and his friends were attacked by the deceased and his team and they sustained injuries. There was violent scuffle and the deceased and his party got injured in the said scuffle. The Crl.Appeal No.223/14 -:4:- version of PW1 is not at all believable. The incident is not proved beyond the shadow of reasonable doubt. None of the other accused were found guilty for offence under Section 302 r/w S.149 of IPC which shows that there was no common object at all as alleged by the prosecution. Defence has a case that the present FIR before Court is not the originally lodged one. First FIS and FIR have been suppressed. Even the place of occurrence has been shifted. Only one incident happened and police made it into two separate ones and falsely implicated the appellant for this grave offence. The entire case is an afterthought of political conspiracy and hence the appellant who was only 19 years at the time of offence is entitled to the benefit of doubt and hence be acquitted.

5. On the other hand, the learned Public Prosecutor argued that the evidence of eye-witnesses clearly proves the guilt of the appellant. Medical evidence and other scientific evidence also corroborates the ocular version. Prosecution has successfully proved the case against the appellant beyond reasonable doubt. The trial Court committed no error in convicting the appellant based on available evidence. Motive Crl.Appeal No.223/14 -:5:- behind the crime was political rivalry between CPI(M) and RSS. The deceased was an RSS worker and the appellant was a CPI(M) worker. The weapon for committing the crime was recovered based on the information given by the appellant and it was stained with human blood. All the available evidence would conclusively show that the appellant inflicted the fatal injury on the deceased with intention to cause his death and it resulted in his death. Hence, no interference is needed.

6. At the very outset, it can be seen that the Court below found accused nos. 2 to 5, not guilty under Section 302 r/w 149 of the IPC. Only the appellant herein (A1) was found guilty for the offence u/s 302. Prosecution allegation is that the case at hand was a political murder. The appellant belongs to CPI(M) and the deceased belongs to RSS.

7. PW1 is the star witness for the prosecution. He deposed that the house of the deceased is adjacent to his house and the incident happened on 19/01/2012 at about 10 p.m. According to him, on the same day, at 8.45 p.m., deceased Sharon and himself reached his house after attending RSS sakha. It is his version that his father asked him to purchase medicine Crl.Appeal No.223/14 -:6:- for him since he was suffering from gastro acidity. After taking bath and changing dress, he went along with Sharon in the motor bike of Sharon to Mullassery Block Centre. According to him, Mullassery Village Office situates in front of the Block Centre. It is his testimony that when they reached in front of the Village Office, some persons blocked their vehicle. They were five in number and he identified Rahul (A2) as the one who exhorted others to "kill Sharon." It is his deposition that Nikhil (A3) kicked on their bike and they fell down on the road side. They were proceeding west to east direction. He deposed further that Vishnu (A1, the appellant herein) stabbed on the chest of the deceased with a knife on his hand. There was profuse bleeding from the chest of Sharon. He also identified Sreekhil (A4) as the one who kicked and beat Sharon thereafter. According to PW1, A3 Nikhil dragged him to and fro. Shaji (A5) did not allow Sharon to even move by keeping him still with his legs over Sharon's legs. Both Sharon and PW1 cried aloud. At that time, Vishnu (A1) with the knife and other assailants went towards the Block Centre. Hearing the cry, his friends Shyju (CW2), Cyril (CW3), Gokul (CW4), Vipish (CW5) and Sabari (CW6) came to the spot from Crl.Appeal No.223/14 -:7:- Althara side. It is his deposition that there, CWs 2 to 6 had a quarrel with the assailants. PW1 called his neighbour Sudhakaran (CW15) over phone and informed the matter. By 10.15, they shifted Sharon to St. Joseph's Hospital, Pavaratty in a car. It is his version that on the way, the injured Sharon was telling "എന കതയത വഷ ആണ. ഞൻ ഇപ ൾ മരക . എന അമപയയ ന ങപ യ പ കനകളണ ". From St. Joseph's hospital, he was referred to Amala Hospital and admitted there. Thereafter, PW1 and CW4 went to the police station by 2.30 a.m., and lodged Ext.P1 FI Statement. He deposed that he witnessed the incident in the street light and local lights. He identified MO1 as the knife used by the appellant to stab the deceased. He also deposed that he identified the assailants in police station. It is also his version that since he was having only minor injuries, he was not admitted in hospital. He identified MO2 to MO5 dress worn by the deceased at the time of incident. He also identified MO6 and MO7 as the dress worn by the appellant at the time of commission of offence. According to him, the motive for the crime is political rivalry between CPI(M) and RSS. The assailants belong to CPI(M) and the deceased and PW1 belong to RSS.

Crl.Appeal No.223/14

-:8:-

8. During cross-examination, PW1 admitted that the next day of the date of incident was the martyrdom day of one Mujeeb Rahman of CPI(M). He deposed that distance from his house to the place of incident is about 1 k.m. and he further deposed that Mullassery Block panchayath is about 15 metres away from the block centre. According to him, the entire place in question is known as Block Centre. He deposed that when police questioned him, he had not given statement about the dress of the appellant. He also admitted that he had not given any identifying features of the knife to the police. He also stated that neither Sharon nor himself sustained any injury by the alleged kicking or beating. He further deposed that Mullassery Block Centre and Mullassery Village Office are distinct and they are in two different buildings and they have front doors in different directions. He also deposed that he saw the assailants before reaching the Village Office. He had no case to the police that five people stopped them while allegedly going to buy the medicine which fact he admitted. He further deposed that he saw only the assailants and the knife used but not the dress of the appellant. He also admitted that he had not given a statement to police earlier detailing the dying Crl.Appeal No.223/14 -:9:- declaration allegedly made by the deceased on their way to hospital. He also deposed that other than Sharon and his parents, nobody else knew that they were going to buy medicine on the night of incident.

9. PW2 Vijayan is an attestor to Ext.P2 inquest report.

10. PW3 is the then Village Officer of Mullassery. He prepared scene plan and it is marked as Ext.P3.

11. PW4 is the mother of the deceased.

12. PW5 is an attestor to Ext.P4 scene mahazar. He deposed that one Haridas and PW1 were present at the time of preparing Ext.P4.

13. PW6 is an attestor to Ext.P5 seizure mahazar of MO1 knife allegedly used by the appellant.

14. PW7 deposed that on 19/01/2012, he attended RSS sakha at Puvathur along with Shyju, Siril, Gokul and Sabari and it was over by 09.30 p.m. On their way back, as they reached near a Banyan tree at Changaramkumarath, they heard a cry from the side of Block Centre and they ran towards that direction. They saw the appellant coming running with a knife and behind him Rahul, Sreekhil, Nikhil and Shaji were also coming. They heard Crl.Appeal No.223/14 -:10:- PW1 saying that the appellant stabbed Sharon. There was a scuffle between them and the assailants and it continued for 2-3 minutes. He identified MO1 as the knife held by the appellant and he also identified the appellant and A2 to A5.

15. PW12 is the then Medical Officer at Amala Institute of Medical Sciences, Thrissur. He produced case sheet of Sharon and it is marked as Ext.P9. Wound certificate is marked as Ext.P10. He further deposed that injury on the deceased could be caused with MO1.

16. PW13 is the then Assistant Motor Vehicle Inspector, Guruvayoor. He inspected KL-46/1569 Hero Honda Motor Cycle and issued Ext.P11 report.

17. PW14 is the then thoracic Surgeon at Amala Institute. He deposed that the injury inflicted on the abdomen of Sharon was sufficient in the ordinary course of nature to cause death and MO1 could be used to cause such an injury.

18. PW15 is the then Assistant Professor and Deputy Police Surgeon at Government Medical College, Thrissur. He conducted the post-mortem of the deceased and issued Ext.P12 post- mortem certificate. The following injuries were noted by him: Crl.Appeal No.223/14 -:11:-

"1. Needle puncture mark noted on right infra-clavicular fossa, right elbow and back of right hand (Mentioned in injury NO. 6 in KPF 102).

2. Sutured and as well as stapled surgical incised wound 3.2 x 1 cm (transverse) on outer aspect of right side of chest in the right 4 th intercostal space. (For intercostal drainage). Infiltration of blood was noted in the surrounding soft tissues. It entered the chest cavity. Mentioned as injury No.4 and 5 in KPF 102.

3. Sutured surgical incised wound 26 cm long was noted on the front midline of abdomen sutured by interrupted sutures (mentioned on injury No.2 in KPF 102). On opening 7 blood soaked surgical mops were seen insitu inside the peritoneal cavity (pressure packing).

4. Surgical incised wound 1.2x0.8 cm (sutured) on the right side of front of abdomen, 8 cm above the anterior superior iliac spine, 10.5 cm outer to midline (surgical drainage wound) and entering the peritoneal cavity".

19. He further deposed that incised wound 26 cm long was noted on the front midline of abdomen sutured by interrupted sutures. On opening 7 blood soaked surgical mops were seen insitu inside the peritoneal cavity. He further deposed that stab injury having a measurement of 8 x 2.5 cm (vertically placed) on the right side of front of chest, upper end (blunt cut) was placed 20 cm below top line of shoulder and 6.5 cm outer to midline, the lower end was sharp cut (it was found sutured and the original Crl.Appeal No.223/14 -:12:- nature of the external wound could have been modified by surgical manipulation). The wound track was found to pass through the chest wall muscles and through the right side of chest wall through the 4th and 5th ribs and intervening intercostal muscle with an incised wound 7x0.3 cm (vertical), 7 cm outer to midline. The 4th rib showed on a additional cut 5 cm outer to midline. Subsequently the wound track passed through the free outer border of the middle lobe of right lung producing a vertical incised wound 3.5x0.5 cm (full thickness). The right lung was collapsed with 2 litres of fluid blood in the right chest cavity (right haemopneumothorax). Subsequently the wound track passed through the right dome of diaphragm, which showed an incised wound 6 x 3.5 cm (Antero-posteriorly placed). Subsequently the stab injury was seen passing into the right lobe of liver on the upper back aspect (entry wound was 6x1cm) and passing 12 cm through this substance of liver exited on the front aspect 10.5x2cm (vertical incised wound). Subsequently the wound track had passed into the site of attachment of the right psoas major muscle (incised wound 3x0.2 cm) and stopped after hitting the transverse process of the lumbar vertebra. The total minimum Crl.Appeal No.223/14 -:13:- depth (as assessed from the skin wound to the termination of the wound track passing through the chest wall, right chest cavity, liver and psoas major muscle measured 23 cm). The liver wound was packed with 7 surgical blood soaked mops (see above). The wound track was directed from above downwards and slightly backwards and from right to left. It is further opined that the deceased had died due to haemorrhagic shock due to massive haemorrhage due to injury to right lung and liver due to stab injury sustained to right side of chest and further deposed that injuries could be caused by weapon like MO1.

20. PW17 is the then Sub Inspector of Police, Pavaratty Police Station. He deposed that on 20/01/2012 at 03.30 a.m., PW1 came to the police station and gave Ext.P1 FIS and Ext.P13 is the FIR for Crime No. 51 of 2012 at Pavaratty Police Station. He further deposed that at about 10.30 p.m., on 19/01/2012, he had gone to the place of incident and police was deputed to guard the place.

21. PW18 conducted inquest of Sharon and Ext.P2 is the inquest report. MO2 to MO5 and MO8 dress items of the deceased were seized by him as it was handed over to him by PW15 at the Crl.Appeal No.223/14 -:14:- time of post-mortem.

22. PW19 is the then CI of Police who conducted the investigation and laid the charge-sheet. He prepared Ext.P4 scene mahazar. The accused were arrested and Exts.P15 to P27 are relevant records of the same. Ext.P5 is the recovery mahazar of MO1 knife shown by the appellant. Chemical examination report is marked as Exts.P32 and P33. Ext.P32 is the FSL report. Item nos. 1 to 8 contains human blood. Item no.9 also contains blood which is insufficient for determining the origin.

23. DW1 is the then Sub Inspector of Police, Guruvayoor. He deposed that Anandan is an accused in Crime No. 1567 of 2012. He also deposed that the accused was remanded in that crime.

24. DW2 is the Superintendent of Taluk Head Quarters Hospital, Chavakkad. He produced Exts.D7 and D8.

25. DW3 deposed that Ext.D8 is a report in Mathrubhumi daily published by him.

26. We heard both counsels and perused the records. Our anxious consideration of the entire evidence of the case leads us to the following:-

Crl.Appeal No.223/14

-:15:-

(i) It is true that the injury caused to Sharon was sufficient in the ordinary course of nature to cause his death. It is clearly brought out in medical evidence. The evidence of PW1 also shows that the said injury was inflicted on the deceased by the appellant. MO1 knife was recovered at the instance of the appellant and it was found stained with human blood. As already stated, it can be seen that the Court below extended benefit of doubt to accused nos. 2 to 5 regarding offence under Section 302 r/w 149 of I.P.C. In our view, the version of PW1 cannot be accepted in toto, especially with regard to the genesis of incident and place of occurrence. To arrive to a right conclusion regarding the oral evidence, particularly that of PW1, grain is to be separated from the chaff.

(ii) It can be seen that apart from a mere allegation of political rivalry, the appellant's motive for the crime is not proved by the prosecution. Admittedly, both the deceased and PW1 were RSS workers and assailants allegedly belong to CPI(M).

Prosecution does not have a specific case that there was any previous enmity between the deceased and the appellant so that the assailants had reason to specifically target Sharon and attack Crl.Appeal No.223/14 -:16:- him alone, without inflicting any injury or attacking the co- passenger PW1 completely, who was also their political enemy. In the whole episode, PW1 does not have any injuries though he had a case that he himself and the deceased were pushed down from the motor bike and he was dragged in the road by one of the assailants.

(iii) It is pertinent to note one more aspect here. PW1 deposed that except himself, Sharon and his parents, nobody else could knew that he was going out for buying medicine. Prosecution does not have a case that the appellant herein also knew that the deceased would be coming at that time at the particular place in which the incident happened i.e., Block Centre. This fact improbabilize the prosecution version that the appellant was having pre-meditation due to political rivalry to kill the deceased at that point of time. Also, nothing is brought out in evidence by the prosecution to show that MO1 knife was carried by the appellant to the place of occurrence.

27. According to the prosecution, there were two incidents. In the first incident, Sharon was killed. In the second incident, accused nos. 1 to 5, and PW7 and his friends entered into a fight Crl.Appeal No.223/14 -:17:- for some minutes. Hence, prosecution case narrates about two places of occurrence. But when the evidence of PW1, PW7 and PW11 are read together, it is rather more probable that the incident might have happened at one place i.e., the place where the death of Sharon took place. The presence of motor bike of Sharon there, also probabilize it. Exts.D7 and D8 would show that the appellant also suffered injuries in the assault. If so, obviously a scuffle had occurred between the two groups, which fact is suppressed and a different story is narrated before the Court by the prosecution.

28. In this case, A2 to A5 are already acquitted for the charge of murder as the trial Court rightly appreciated the evidence and noted embellishments in the depositions of PW1, PW7 and PW11. Evidence of PW1, the occurrence witness, does not indicate that there was any previous enmity between the appellant and the deceased. There is no evidence to prove that they were acquainted in any manner. Under such circumstances, it cannot be believed that the incident occurred immediately when the deceased and PW1 came at the scene of occurrence in a motorbike. There is every possibility to infer that there was Crl.Appeal No.223/14 -:18:- some confrontation between the assailants as well as from the side of the opposite group which might have been the reason for the accused stabbing the deceased. It is settled law that in order to find an accused guilty for having committed culpable homicide amounting to murder, the exceptions are also to be considered as evident from the factual circumstances and evidence available in the case. Exception 4 to S.300 reads as under:-

"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

29. The fact that the accused had suffered some injuries which according to us would have happened in the very same incident would indicate that there was a sudden fight between two groups and in the heat of passion, the crime would have been committed. The fact that the confrontation was between two groups which were on logger-heads by itself may indicate that the accused, a youngster, aged about 19 years, had committed the crime in that confrontation. It could be seen that the deceased suffered only one stab injury and he died due to Crl.Appeal No.223/14 -:19:- hemorrhagic shock due to the injury to right lung and liver. Therefore, we have no hesitation to hold that the conviction cannot be sustained u/s 302 of I.P.C. and conviction can be sustained only u/s 304 Part II of I.P.C. The Court below had also convicted the accused/appellant u/s 341 r/w Section 149, 143, 147, 148 and 324 r/w S.149 of I.P.C. The Court below itself had found accused 2 to 5 guilty under Sections 143, 147, 148 of I.P.C. and 341 and 324 r/w S.149 I.P.C. along with the appellant. But appellant cannot be punished u/s 324 of I.P.C. as the charge against him is u/s 302 of I.P.C. There is only one victim and therefore he cannot be made liable for the offence u/s 324 of I.P.C. We have already stated that the alleged offence had been committed without any pre-meditation. Therefore, it cannot be stated that an unlawful assembly was formed intentionally with the purpose of committing the aforesaid crime and there was a common object to commit the crime. This is a solitary instance where the incident happened suddenly without any pre- meditation and on a sudden fight between the two groups.

30. Under such circumstances, the appellant cannot be punished u/s 143, 147, 148 of I.P.C., and 341 and 324 r/w S.149 of Crl.Appeal No.223/14 -:20:- I.P.C. The common object with the other accused and appellant is lacking as far as the offence of homicide is concerned.

31. In the result, the appeal is partly allowed. Conviction and sentence of the appellant by the trial Court under Sections 302, 324 & 341 r/w S.149, 143, 147 and 148 of I.P.C. are set aside.

The appellant is found guilty and convicted under Section 304 Part II of I.P.C. and sentenced to undergo rigorous imprisonment for seven years. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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