Kerala High Court
Biju Madhavan @ Manikuttan vs State Of Kerala on 2 March, 2021
Equivalent citations: AIRONLINE 2021 KER 908
Author: K. Vinod Chandran
Bench: K.Vinod Chandran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
CRL.A.No.822 OF 2016
AGAINST CP NO.22/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RANNI
AGAINST THE JUDGMENT IN SC NO.145/2014 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - IV, PATHANAMTHITTA
CRIME NO.59/2000 OF VECHOOCHIRA POLICE STATION , PATHANAMTHITTA
APPELLANT/ACCUSED:
BIJU MADHAVAN @ MANIKUTTAN,
C.NO.574, CENTRAL PRISON,
THIRUVANANTHAPURAM-12.
BY ADV. M. DINESH (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DGP,
HIGH COURT OF KERALA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.02-2021, THE COURT ON 02-03-2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.822 of 2016 2
JUDGMENT
Dated this the 2nd day of March, 2021 K. Vinod Chandran, J.
An intemperate rash act of striking a person on the forehead with the most unlikely of objects as weapon; a plumb bob ['thookkukatta' used by masons as a vertical reference line] resulted in the victim succumbing to the injuries after 15 days in the hospital. The accused, according to prosecution, perpetrated the act by reason of a grudge against the victim, for having beaten the brother of the accused. The case built up by the prosecution is amply supported by the direct evidence of three eye witnesses, who recited the incident in tandem.
2. The learned Counsel for the petitioner argued that there was no recovery of weapon proved before Court. There was also undue delay in registration of the FIR. The incident occurred on the night of 05.05.2000. Despite the victim being admitted to Government Medical College Hospital [MCH], Kottayam there was no intimation given to the Police. The FIR was registered only after two days, on 07.05.2000. It is also argued that the eye- witnesses cannot be believed, since admittedly there was power failure at the time when the incident occurred. A2 was acquitted and there is no cause to find A1 guilty of Crl.Appeal No.822 of 2016 3 the offence alleged. The learned Counsel would seek to bring the offence, if at all found proved, under one of the Exceptions available under Section 300 IPC so as to modify the punishment to that under Section 304 IPC. It is also pointed out that the victim died after 15 days, which itself would indicate that the injury caused could not have led to the death of the victim and in any event, it clearly indicates that the accused, if at all, is found guilty of the act, did not have the intention to inflict an injury, which could cause death.
3. The learned Public Prosecutor would seek to sustain the conviction and sentence passed on the accused. Even if the recovery of weapon is eschewed, there is direct evidence to show that the accused had hit the head of the victim with a hard object, causing a single wound, which turned fatal. The direct evidence of three eye-witnesses is enough to convict the accused under Section 302 and there is no question of any of the Exceptions being applied, argues the Public Prosecutor.
4. PW1, the brother-in-law of the deceased, gave the First Information Statement, Ext.P1 on 07.05.2000. The incident occurred in the public road near a junction with a number of shops, at around 8.15 pm on 05.05.2000. The victim was taken to the hospital and he remained an in-patient till his death on 20.05.2000. Surprisingly, there was no intimation to the Police by the MCH a Government Hospital where the victim was admitted, a few Crl.Appeal No.822 of 2016 4 minutes after midnight on 05.05.2000. PW1 came to know of the incident as per the FIS on 07.05.2000 morning when he was at his house, where he was staying along with his wife, son, mother-in-law and two brothers-in-law, one of whom is the victim, the deceased. On being informed of the incident, he immediately rushed to the hospital, where he was told that the victim was in the ICU. One Kunju, who was available in the hospital as a bystander, who is one of the persons who brought the victim to the hospital, informed him about the incident in which the victim suffered injury. On such hearsay, it was informed to the Police that while the victim along with two others were standing near the junction, A2 called the victim aside when A1 charged on the victim threatening to kill him and struck him on the head with a knife. In the witness box PW1 spoke as in the FIS and also spoke about an earlier scuffle, the victim had with the brother of the accused, which incident, according to him, motivated the accused.
5. PW2, PW3 & PW7 are the eye-witnesses. PW2 has a vegetable shop in the Koothattukulam Junction, near which the incident occurred. He deposed that the victim, along with Roy and Kunju, was standing near the shop of Sivadasan, when he crossed the road to borrow money from one Appachan. Then A1 & A2 approached from the direction of the shop [presumably a toddy shop, as is spoken of in the vernacular]. A2 called the victim on the pretext of wanting to speak to him, when the victim responded that Crl.Appeal No.822 of 2016 5 he could speak from where he is standing. Hearing the response, A2 slapped the victim on the cheek. When Roy and Kunju were trying to hold back A2, A1 charged at the victim screaming loud that he will kill him and struck the victim on the left side of the head with something. The victim having suffered a bleeding injury, ran into the hotel of Vijayan crying aloud that Manikkuttan had stabbed him. Then someone tied the bleeding head of the injured with a towel and A1 & A2 fled from the scene, in the direction of the hospital, on the road leading to Mannadisala. He spoke of having seen the incident in the light of the lamp kept in PW7's [Vijayan] hotel. PW2 also spoke of the accused having a grouse against the victim for reason of an earlier tiff between the victim and the brother of the accused.
6. PW3 is a butcher having a shop in the very same junction. He had come to the spot to take money from Vijaya Hotel for the meat supplied by him. PW7 is the proprietor of Vijaya Hotel, into which the victim ran after being stabbed. PW3 & PW7 recited the incident in the exact manner as did PW2. PW3 stated that it was PW7, who tied the injury on the head of the victim with a towel. He also spoke of the people gathered there having sent the victim in a jeep and A1 & A2 having fled the scene. He identified the accused on the dock and also spoke of the earlier incident involving the victim and brother of the accused. PW7 admitted that the incident occurred when there was a power failure, but the area was Crl.Appeal No.822 of 2016 6 fairly lit from the petromax lamp kept in front of his hotel. There was also a gaslight kept inside the hotel. It is stated that there was intermittent power failure on that day but the area was well lit from the petromax and the emergency lamps in the other shops. He spoke of the incident just as the other eye-witnesses did. He further deposed that the injured ran into his hotel and came to him and he saw a bleeding wound on the victim's forehead. He also categorically stated that while running into his shop the victim was crying: "Manikuttan stabbed me", Mannikuttan being A1. He tied the wound with a towel and along with Roy, who was standing there, put the victim in PW5's jeep, which was parked near the shop of PW5. PW2,PW3 & PW7 are very credible witnesses, who spoke of having witnessed the entire incident, and spoke in tandem. There is nothing to disbelieve the witnesses.
7. PW4 signed on Ext.P2, the Scene Mahazar and PW6 signed on Ext.P3, the Inquest Report. Both of them identified their signatures and affirmed the contents. PW8 is yet another witness who signed on Ext.P3 Inquest Report. PW5 is again a person having a provision shop at the scene of occurrence. He affirmed that the victim was taken in his jeep to the MCH, Kottayam. He had not seen the incident, but saw the injured victim being brought to his jeep and before that he heard sounds and screams. PW9 is the Village Officer who prepared the Scene Plan, Ext.P4. PW10 Assistant Sub Inspector registered the FIR.
Crl.Appeal No.822 of 2016 78. PW11 is the sister of the deceased. She categorically deposed that she knew A1 for long and A1 had come to their house a few days back asking for the deceased. It is also her evidence that A1 threatened on that day to kill her brother. The deceased had not been going out of the house for reason of the threat levelled and on the fateful day their mother was in the hospital and her brother had to go out to get provisions.
9. PW12 is the Doctor who conducted the postmortem on the deceased. It is quite disturbing that though the object used as weapon was recovered, the Doctor was not confronted with the same. The injuries in the postmortem report have also not been spoken of by the Doctor. In this context, it is to be noticed that none of the eye-witnesses were also shown the weapon, though they deposed that they were shown the object used as a weapon by the Police. The most disconcerting fact is that the Doctor who was not shown the weapon was not even asked to depose on the specific injuries and a bland statement that the cause of death was due to head injury alone was elicited. The Prosecution fumbled and the Sessions Judge failed miserably in conducting the trial in a proper manner.
10. For verifying the injuries, we are unable to look at Ext.P6 Postmortem Report since the Doctor who conducted the Postmortem did not state the details of the injury recorded in the report. AIR(2001)SC 3031 [Munshi Crl.Appeal No.822 of 2016 8 Prasad v. State of Bihar] found that though the postmortem report records the findings of the Doctor who conducted the postmortem that document by itself is not substantive evidence. It is the Doctor's statement in Court which has credibility of a substantive evidence and not the report, which "in normal circumstance ought to be used only for refreshing the memory of the witness or to contradict the witness in the box" (sic.Para 6). AIR 2011 SC 2296 [State of U.P v. Mohd. Iqram] deprecated the High Court for having relied on observations in the postmortem report which was not spoken of by the Doctor either in his examination in chief or cross-examination. Our own High Court in 2018(1) KLT 565 [Raju v. State of Kerala] held "it is trite law that when a Doctor is examined, all necessary particulars relating to the injuries seen in the body, especially ante-mortem injuries, the cause of death and all other particulars had to be recorded in evidence" (sic). We would have faced a serious lacuna but for the fact that the Doctor who attended to the victim from the date of his admission to the date of his death in the MCH had graphically deposed on the injuries and the cause of death with reference to the case records produced marked as Ext.P7 series. There was serious lapse on the part of the Sessions Judge on this aspect.
11. PW13 is the Doctor of the MCH, Kottayam, who is the Head of the Department of Neurosurgery. She treated the victim when he was admitted to the MCH, Kottayam on the alleged assault to head on 05.05.2000.
Crl.Appeal No.822 of 2016 9The admission is said to have been made on 06.05.2000 at 12.10am. The witness deposed that the victim had a major head injury, for which an operation was conducted on 06.05.2000. Her deposition clearly indicated the injury caused and also the cause of death; the victim having died when under her medical care. There was laceration of the scalp with expressed fracture of the temporal parietal region. There was also laceration of the dura and underlying brain. As for the procedures conducted on him, it is stated to be 'fractured bone removal' and 'evacuation of infra cerebral clot from the lacerated brain' on 06.05.2000. The patient was in the neurosurgery ICU and was 'aphasic'. He had later, developed tachypnia and tracheotomy was done [which is the surgical wound noted as the second injury in the Postmortem Certificate]. As a supportive measure, tube feeding was done, but the patient deteriorated and died at 10.15am on 20.05.2000. The record of the deceased victim kept in the MCH, Kottayam was produced as Ext.P7 series. Both the Doctors, the one who conducted Post-Mortem and the other one who treated the victim, clearly opined that the injury could be caused by a blow with a heavy object. PW13 Doctors also denied the suggestion that the injury could be caused by a simple fall. It was her opinion that only a fall from a height with high velocity could cause the injury seen on the victim.
12. PW14 is the Investigating Officer [for brevity, 'the I.O.'], who stated that initially the FIR Crl.Appeal No.822 of 2016 10 was registered under Section 323 read with 34 I.P.C. It is stated that though a search was made at A1's house immediately after the incident on 07.05.2000 [Ext.P10 Search Memo], no weapon was recovered. The I.O. has clearly stated that he could not enquire with the victim, since he was unconscious and continuing in that stage, died on 20.05.2000. After which, the offence was altered and investigation was carried out under Section 302 IPC, with intimation to Court. A1 surrendered before the JFCM Court, Ranni and he was procured on police custody on 25.05.2000. Ext.P14 is the confession statement made by the accused with respect to the weapon used by him. As per the statement of the accused, the weapon was thrown away in a drain on the pathway leading to his house. Though the weapon was recovered in the presence of two witnesses, none of the witnesses were examined. The marking of the object as MO1 was through the I.O., which again, we see from the deposition, was an afterthought of the Prosecution, at the end of the chief-examination. The prosecution clearly erred in not having examined the witnesses with respect to the recovery mahazar and having not shown the eye-witnesses the object used as weapon to inflict the single fatal injury on the victim.
13. As we noticed, the prosecution was not conducted properly and the learned Sessions Judge was also not careful and cautious. The weapon has been marked through the I.O. and the same was not shown to the eye-witnesses or even to the Doctor, who conducted the Crl.Appeal No.822 of 2016 11 postmortem and opined that death was caused due to the head injury. Ideally, the weapon ought to have been shown to the Doctor to get his opinion as to whether the same could have caused the fatal injury. The Mahazar witnesses were also not examined, thus creating a cloud over the recovery under Section 27 of the Indian Evidence Act, 1872. We notice Kathi Bharat Vajsur v. State of Gujarat [(2012) 5 SCC 724], wherein the Hon'ble Supreme Court held that the mere fact that the eye-witnesses did not recognise the weapon used would make no difference to the prosecution story.
14. In the present case, three witnesses have spoken about the incident, in which A1 had suddenly approached the victim and hit/stabbed him on the head with an object. That object was a hard object capable of causing a serious injury is evident from the injury sustained by the victim as spoken of by the Doctor. A plumb bob is a weight with a pointed tip at the bottom, which is the weapon recovered. We have noticed the injury which eventually led to the death of the person, who was hospitalised for about 15 days after having sustained the injury. In the context of the ocular evidence, which we find to be eminently believable, we do not think the recovery of weapon or its identification by the eye-witnesses are imperatively relevant to establish the guilt of the accused. Further the cry of the victim, that A1 had stabbed him, as Crl.Appeal No.822 of 2016 12 spoken of by PWs.3, 4 and 7 is a dying declaration under Section 32 of the Evidence Act. The injury suffered led to the death of the victim and though the death occurred about 15 days after the infliction of injury; it was the last spoken words of the deceased which is clearly indicative of the cause of his death.
15. Admittedly, there is a delay in registration of the FIR, which has not prejudiced the accused in any manner, in view of the peculiar circumstances that arise in this case. The incident occurred on 05.05.2000 at 8.15 pm. and the injured-victim was immediately taken to the MCH, Kottayam. When he was admitted at the MCH, just past midnight, he was not conscious. Normally the hospital would intimate the Police about all medico-legal cases brought to the hospital.
16. Ext.P7 series is the case records of the MCH, Kottayam produced by PW13 Doctor. The Out Patient ticket shows the clinical history to be: 'Alleged assault-hit on the head by a known individual at around 8.15 pm on 05.05.2000 at Koothattukulam'. There is no intimation made to the Police as seen from the records, which contributed to the delay in lodging the FIR. The persons who accompanied the victim also were in the hospital, since the victim was immediately taken for surgery. As the Doctor opined, the victim, on admission, was 'aphasic', which means: 'the loss of ability to understand or produce speech, because of brain damage'.
Crl.Appeal No.822 of 2016 13The learned Counsel for the appellant has pointed out from page 21 of the medical records that on 10.05.2000, the patient became conscious and was obeying commands. However, it is to be noticed that on the very same date the Doctor has again noted that the patient continues to be 'aphasic'. So, the victim was unable to communicate anything during the periods spent in the hospital.
17. Coming back to the aspect of delay, PW1, the brother-in-law of the victim, came to know of the incident only on the 07.05.2000, morning. As is natural he immediately rushed to the hospital, where the victim was admitted. Kottayam is at a distance of about 40 kilometeres from Koothattukulam. PW1, after ascertaining the condition of the victim, had come back to Koothattukulam and registered the FIR at 2.30 p.m. on 07.05.2000. We think that the delay occasioned, in the circumstances was not fatal to the prosecution case nor did it result in any prejudice to the accused.
18. The learned Counsel has also prayed for a lesser sentence as available under Section 304, which is the punishment for culpable homicide not amounting to murder. The act does not come under any of the Exceptions under Section 300. The incident as narrated by the eye- witnesses indicate that there was no grave and sudden provocation by the deceased victim and there is no case set up of private defence. The accused is not a public servant nor was he aiding a public servant and there was Crl.Appeal No.822 of 2016 14 no sudden quarrel between the accused and the deceased victim and much less any question of a consent arise. On the other hand there is clear indication that the accused had been planning and had a clear intention to murder the victim. He carried a weapon, though an unlikely object, sufficient to cause a fatal injury especially when the blow was levelled to the head. Though only a single injury was caused it felled the victim and left him comatose for fifteen days before death delivered him from the misery. There cannot be a contention that when: "the death is on account of a single blow, the offence is under Section 304 and not Section 302."[sic-para 21 of Pulicherala Nagaraju @ Nagaraja Reddy v. State of A.P(2006(11) SCC 444)].
19. A motive is spoken of by PWs.2, 3, 5 & 7, the people of the locality, which arises from the grudge the accused entertained against the deceased for reason of an earlier tiff the deceased had with the brother of the accused. The sister of the accused PW11 spoke of a specific instance where the accused came in search of the victim to their house- and threatened to kill him. The deceased was in the company of two others, when A1 & A2 came there without any cause. Though A2 called the victim aside, he refused to go, upon which A2 slapped him on the cheek. The victim avoided a confrontation. When the people gathered were attempting to hold back A2, A1 deliberately charged on the victim threatening that he will be killed and hit/stabbed him on the head with an Crl.Appeal No.822 of 2016 15 object held in his hands. The victim panicked and ran into the shop of PW7 at the same time crying aloud that he was stabbed by the accused. The inflicted wound was bleeding profusely, which prompted PW7 to tie the head of the victim with a towel. The persons gathered there immediately carried the victim to the jeep and took him to the hospital, when the accused, A1 & A2, fled the scene. Based on the ocular evidence of PW2, PW3 & PW7 and the medical evidence of PW12 & PW13, it is evident that the accused, to wreck-vengeance, attacked the victim and stabbed him on the head with an object causing an injury, which was sufficient in the ordinary course of nature to cause death. The death having visited the victim after 15 days does not in any manner mitigate the gravity of the offence committed by the accused nor can it be a factor for awarding a lesser punishment as applicable to culpable homicide not amounting to murder. With respect to the ground of the offence being covered under the Exceptions under Section 300 as has been rightly found by the trial Court; it is covered by the decisions of the Hon'ble Supreme Court in Virsa Singh v. State of Punjab [1958 SCR 1495] & Pulicherla Nagaraju @ Nagaraja Reddy. The intention of the accused is very clear from the fact that the accused while lunging at the victim, yelled aloud that he will kill the victim. This was specifically spoken of by the eye-witnesses. It is further accentuated by the lone injury, causing death, inflicted by one single blow to the head with an object causing Crl.Appeal No.822 of 2016 16 lacerations on the dura (the covering of the brain under the cranium) and the underlying brain.
We find no merit in the appeal and the same stands dismissed affirming the conviction and sentence passed by the trial Court. The parties shall suffer their respective costs.
Sd/-
K.VINOD CHANDRAN, JUDGE Sd/-
M.R.ANITHA, JUDGE sp //True Copy// P.A. To Judge