Thankachan vs State Of Kerala on 14 December, 2018

[Cites 7, Cited by 0]

Kerala High Court

Thankachan vs State Of Kerala on 14 December, 2018

Equivalent citations: AIRONLINE 2018 KER 939

The appeal at hand is preferred by the sole accused in S.C. No.6/2012 on the file of Additional Sessions Judge, Pathanamthitta by which he 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 an amount of `20,000/- (Rupees Twenty Thousand only) as fine in default of which to undergo simple imprisonment for one month.

2. The prosecution case is that, on 03/11/2010 at 05.30 p.m., at Ittiyappara, on Ranny-Erumely road, near MHB vegetable shop situated on the west of the said road, the accused/appellant stabbed on the upper part of the left side of front of the chest of Baby, S/o Thomas, Mazhavancheril Veedu, Madathumpadi, Chellakkadu, Pazhavangadi Village and thereby caused penetrating injury with a knife and caused his death.

3. Prosecution examined PWs 1 to 13 as witnesses, marked Exts.P1 to P15 and identified MO1 to MO3.

4. Prosecution evidence in brief are as under: PW1 is the brother-in-law of the deceased. He gave Ext.P1 F.I. Statement to PW13 and based on which Ext.P1(a) FIR is registered. PW13, the Crl.Appeal No.1717/13 -:3:- then C.I. of Police took over the investigation and he conducted the inquest on the body of the deceased and prepared Ext.P3 inquest report. PW13 reached the scene of occurrence along with PW10, the Scientific Assistant and prepared Ext.P7 scene mahazar. Samples collected by PW10 were seized by PW13 and they were sent to Court vide Ext.P8 form. Exts.P9 to P11 are memos prepared at the time of formally recording the arrest of the accused/appellant. MO1 knife was recovered from the possession of the accused/appellant through Ext.P2 seizure mahazar. It is produced before Court vide Ext.P13 form. Ext.P14 is the form prepared for forwarding MOs 2 and 3 to the Court. PW5 is the Doctor who conducted the post-mortem examination of the deceased. Ext.P4 is the post-mortem report issued by him. PW7 is the then Village Officer who prepared Ext.P6 scene plan. Ext.P15 is the Forensic Science Lab reports proved through PW13. PW13 completed the investigation and laid the charge-sheet.

5. During 313 examination, the accused/appellant denied all incriminating circumstances and pleaded innocence. No evidence was adduced from the side of defence.

6. The learned Counsel appearing for and on behalf of the appellant Sri.Manju Antony argued that the appellant is Crl.Appeal No.1717/13 -:4:- totally innocent in this case. There is absolutely no evidence to connect the appellant with the crime. The appellant and the deceased were friends. Even according to the prosecution, there is no motive for the crime. PW2 and PW8 cannot be believed as they are falsely deposing before Court. PW2 is admittedly an autorickshaw driver. It can be seen that he never tried to take the injured to hospital inspite of him allegedly witnessing the incident, which improbabilizes his presence. So is the evidence of PW8 and it is not credible. There is absolutely no pre-meditation on the part of the appellant. There is no intention at all. Only one wound is seen on the deceased. Prosecution failed to prove to whom MO1 belongs. The alleged seizure is not admissible. Also, there is inordinate delay in lodging FIR and sending it to Court, examining witnesses etc. All these aspects cast doubt about the prosecution version. The Court below erred in finding the appellant guilty and hence he may be extended the benefit of doubt and be exonerated. He cited the following decisions of the Apex Court to support his arguments:-

(i) Harjinder Singh v. Delhi Administration (AIR 1968 SC

867) was cited to show that prosecution must first establish that an injury is caused, and that the nature of such injury in Crl.Appeal No.1717/13 -:5:- the ordinary course of nature is to cause death and then comes the most vital aspect to be proved i.e., whether there was intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If both are found against the offender, then alone the offence of murder is satisfied.

(ii) Surain Singh v. State of Punjab [(2017) 5 SCC 796], Jagtar Singh v. State of Punjab (AIR 1983 SC 463), Athul Thakur v. State of Himachal Pradesh [(2018) 2 SCC 496] and Ranjitham v. Basavaraj and Others [(2012) 1 SCC 414] were relied to emphazise circumstances under which the offence would fall under S.304 Part II of IPC.

7. The learned Senior Public Prosecutor Sri.S.U.Nazar argued that the case against the appellant is proved by the prosecution beyond reasonable doubt. There is direct evidence of ocular witnesses. The deposition of PW2 and PW8 inspire full confidence and they are probable and natural witnesses. They had no animosity towards the appellant. They specifically spoke about the overt act. The recovery of weapon also is a corroborating circumstance against the appellant. MO1 knife belongs to the appellant. The injury inflicted was on the very vital Crl.Appeal No.1717/13 -:6:- part of the body and it went to a depth of 9 c.m. The nature and depth of stab shows the intention of the appellant. Court below is fully justified in arriving at the present conclusion and hence no interference is required in the case. He relied on the decision of the Apex Court in Gurmail Singh v. State of Punjab [2011(4) KLT Suppl. 54 (SC)] to show that injury causing to the vital part of the body which lead to instantaneous death shows intention to kill the victim.

8. Prosecution placed before the trial Judge the following evidence to prove the guilt of the appellant:-

(i) Oral evidence of PWs 2 and 8 about the incident who are eyewitnesses.

(ii) Corroboration offered by the oral evidence of PWs 1, 4 and 11 to the ocular version of PWs 2 and 8.

(iii) Corroboration afforded by Ext.P1 FIS lodged by PW1.

(iv) Corroboration afforded by medical evidence of PW5 and 6 and Exts.P4 and P5.

(v) Recovery of MO1 knife from the possession of the accused/appellant.

(vi) Apprehension of the accused/appellant from the scene of occurrence.

Crl.Appeal No.1717/13

-:7:-

(vii) Expert evidence tendered by PW10.

9. Court below elaborately looked into the challenges posed by the defence upon the prosecution evidence. The following aspects were raised by the defence:-

(1) Prosecution failed to establish the identity of the accused. (2) Delay in examination of witnesses renders their evidence untrustworthy.

(3) Presence of PW2 is doubtful in view of the fact that he did not bring the victim to hospital in his autorickshaw. (4) Delay in registration of FIR raises doubt about the prosecution case.

(5) Delay in sending FIR to the Court also casts doubt on the prosecution story.

(6) Prosecution failed to establish the motive of the accused/appellant to commit the crime.

10. It can be seen that the trial Court analysed each aspect noted above and came to its present conclusion. The question is whether the Court below was justified in arriving at the said finding in the light of available evidence.

11. PW6 is the then Medical Officer at Taluk Hospital, Ranny. She issued Ext.P5 wound certificate of the deceased. She Crl.Appeal No.1717/13 -:8:- noted the following injuries on the body of the victim: Patient was seen with socked blood in the shirt, dresses. Deep wound was seen in the upper left chest (? Stab wound) below the clavicle bone.

12. PW5 is the Doctor who conducted the autopsy of the deceased. He issued Ext.P4 post-mortem certificate. According to him, the cause of death is penetrating injury sustained to the chest (Injury No.1). Medical evidence coupled with Ext.P3 inquest report would prove that death of Baby was a homicide.

13. The whole case rests primarily on the evidence of eyewitnesses to the incident PW2 and PW8.

14. PW2 is an autorickshaw driver. He is familiar with both the appellant and the deceased. It is his version that, on 03/10/2010, at or about 05.30 p.m., while he was standing in front of MHB vegetable shop at Ranny, he saw the appellant stabbing the deceased on the left side of the front of the chest using MO1 knife. He further deposed that after getting the stab, the deceased moved forward and fell down on the side of the road. He identified appellant as the person who stabbed the victim. According to him, Fire Force officials took the injured to hospital. He is an attestor to Ext.P2 seizure mahazar of MO1 Crl.Appeal No.1717/13 -:9:- knife. He also identified MOs 2 and 3 as the dress worn by the deceased at the relevant time.

15. PW8 is a salesman in MHB vegetable shop at Ranny. According to him, the incident happened in front of the said shop. He is also familiar with both the appellant and the deceased. According to him, on 03/11/2010 at about 05.30 p.m., Dikky (Nickname of the appellant/accused) stabbed on the chest of the deceased Baby using MO1 knife. He identified MO1 as the weapon used and the appellant as the aggressor.

16. As far as the evidence of these two witnesses are concerned, there is nothing to disbelieve their version. They are natural and probable witnesses who were available at the place. Their evidence corroborated each other in all material particulars. Nothing is brought out in evidence to show that they had not witnessed the incident. Appellant does not have a case that these witnesses had any grudge against him. Under such circumstance, we hold that the evidence of PW2 and PW8 is believable.

17. The MO1 knife is seized from the appellant vide Ext.P2 mahazar and PW2 is an attestor to it. Ext.P15 FSL report proved by PW10 would show that MO1 was stained with human blood belonging to group A. These evidence prove beyond doubt that Crl.Appeal No.1717/13 -:10:- the fatal injury noted by PW5 and PW6 in Exts.P5 and P6 respectively was inflicted on the deceased by the appellant herein using MO1 knife as weapon of offence. As far as the other challenges raised by the learned counsel are concerned, we don't think it bears much relevance in the light of proved circumstances of the case.

18. It is brought out in evidence that the injury inflicted by the appellant on the deceased (injury no.1 in Ext.P4) is sufficient in the ordinary course of nature to cause death. Ext.P4 describes injury no.1 as follows: -

"1. Incised penetrating wound 3x8x0.9 cm, vertical, on the upper part of left side of front of chest, its upper sharply cut end was placed 9.5 cm outer to midline and 6 cm below top of shoulder, the other end was blunt. The structures of left second intercostal space was penetrated and terminated by making a cut on front aspect of upper lobe of left lungs 20.3x0.5 cm. The wound was directed backwards, downwards and to the right for a total minimum depth of 9.5 cm. The left lung was pale and collapsed. Left chest cavity contained 1 litre of fluid blood mixed with clots."

19. The next aspect to be considered is whether the appellant had the intention to inflict the said injury on the deceased. Admittedly, prosecution does not have a case to show the motive of the crime. Prosecution does not have a specific Crl.Appeal No.1717/13 -:11:- case as to how the incident which led to the stabbing occurred. It is also on record that both the appellant and the deceased were friends. Evidence in its entirety shows that there was no pre- meditation on the part of the appellant to cause the death of the deceased. He had no intention to cause such a bodily injury as well. Only one injury is inflicted on the victim. Nothing is brought out in evidence to prove, to whom the knife MO1 belongs. Evidence of PW2 and PW8 would show that there was altercation between the two ensued by scuffle. Considering the factual scenario of the case at hand, we are of the view that the crime will not fall under S.302 of IPC. Of course, if there was intent and knowledge, the case would have come within the sweep of S.304 Part I of I.P.C. But here, as already discussed, only knowledge could be attributed to the appellant regarding the injury he inflicted on the victim. Of course, the injury is fatal, but, taking into consideration the facts of the case, it could not be stated that the accused had the intention to cause death of the deceased especially when pre-meditation for commission of the crime is not proved in the case. The position of law is well settled in the judgment of the Apex Court in Murlidhar Shivram Patekar v. State of Maharashtra [(2015) 1 SCC 694]. Hence, Crl.Appeal No.1717/13 -:12:- the offence would only fall under Section 304 Part II of I.P.C.

In the result, the appeal is partly allowed. The conviction and sentence passed by the Court below under Section 302 of I.P.C. is hereby set aside. The appellant is found guilty under Section 304 Part II of I.P.C. and sentenced to suffer rigorous imprisonment for 10 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/-


                                               A.M.BABU

Rp               True copy                       JUDGE

                  P.S. To Judge.

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