Kerala High Court
Vinayachandran vs State Of Kerala on 11 June, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941
CRL.A.No. 707 of 2014
AGAINST THE JUDGMENT IN SC 615/2012 of ADDITIONAL DISTRICT
& SESSIONS COURT ,ALAPPUZHA. DATED 29-05-2014
AGAINST THE ORDER/JUDGMENT IN CP 53/2011 of JUDICIAL
MAGISTRATE OF FIRST CLASS -II, CHERTHALA
CRIME NO. 194/2011 OF Poochakkal Police Station, Alappuzha
APPELLANTS/ACCUSED 1 & 2:
1 VINAYACHANDRAN
THARAYIL VEEDU,WARD NO 8 AROOKUTTY
PANCHAYATH,AROOKUTTY VILLAGE,
ALAPPUZHA DISTRICT 688535.
*2 YASODHAMMA
THARAYIL VEEDU,WARD NO 8,AROOKUTTY
PANCHAYATH,AROOKUTTY VILLAGE,
ALAPPUZHA DISTRICT 688535. *(DIED) RECORDED AS
PER JUDGMENT DATED 11.06.2019 IN CRL.APPEAL
NO.707/2014
BY ADV. SHERLY MOL THOMAS (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
OF KERALA,ERNAKULAM
BY ADV.SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.03.2019, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.707/14
-:2:-
JUDGMENT
Shaffique, J.
The appeal on hand challenges the verdict passed by the Additional Sessions Court, Alappuzha in S.C. No.615 of 2012 with C.P. No.53 of 2011 of Judicial First Class Magistrate Court -II, Cherthala arising out of Crime No.194 of 2011 of Poochakkal Police Station by which appellants Vinayachandran and Yasodamma were found guilty for offence under Sections 447, 114 and 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) in default to undergo simple imprisonment for six months and also sentenced to suffer simple imprisonment for three months under Section 447 of I.P.C. No separate sentence is awarded for offence under Section 114 of I.P.C. The sentences were directed to run concurrently.
2. 1st accused is the son of 2nd accused. The 2nd accused used to quarrel with the deceased Sathi. Due to this hatred, both Crl.Appeal No.707/14 -:3:- accused with the intention of murdering Sathi, trespassed into the courtyard of Tharayilveedu in which Sathi was residing and thereafter the 1st accused stabbed on the chest and abdomen of Sathi with a dagger. Sathi died due to the said injuries. Both accused were charged for offence under Sections 447, 114 and 302 read with Section 34 of I.P.C.
3. Prosecution examined PW1 to PW22 as witnesses, Exts.P1 to P30 documents were marked and MO1 to MO10 material objects were identified. On questioning under Section 313 of the Code of Criminal Procedure Code, 1973 (for short 'Cr.P.C.'), both accused denied all incriminating circumstances levelled against them and pleaded innocence. DW1 is examined from the side of defence.
4. Learned counsel for the appellants Smt.Sherlymol Thomas who was appointed from the panel of State brief lawyers by this Court submitted that the appellants are innocent. Prosecution miserably failed to prove the case. PW1, PW6 and PW8 are unworthy of credit. Their evidence is contradictory and concocted. Ext.P14 and Ext.P15 are the wound certificates of the Crl.Appeal No.707/14 -:4:- accused. It shows that the accused were beaten by the crowd mercilessly. The appellants reached the spot hearing the cry of the deceased. The alleged recovery of weapon is not as per law and it was a planted one. There is substantial delay in filing FIR. The real culprits were not booked. She pleaded to acquit both the accused by extending benefit of doubt.
5. On the other hand, learned counsel for the State Sri.K.B.Udayakumar argued that prosecution proved the case beyond reasonable doubt. The victim was a widow residing alone in her house. 2nd accused provoked the deceased and thereafter both the accused trespassed into the property of the deceased and the 1st accused stabbed her. It is evident from the deposition of PW1, PW6 and PW8. Of course, there is no eyewitness to the actual stabbing. But the circumstances which lead to the death of Sathi is clearly spoken to by witnesses. Their version is credible and cogent. Weapon of offence is recovered at the instance of 1 st accused. It is stained with human blood of same group as that of the victim. The words spoken to by the deceased at the time of incident is forming part of the same transaction and it is Crl.Appeal No.707/14 -:5:- admissible in evidence under Section 6 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). Court below is fully justified in convicting both appellants. He sought for dismissing the appeal.
6. There is no direct evidence to the incident. Prosecution evidence, in brief, is as follows:-
PW1, PW6 and PW8 deposed to the crucial circumstances that led to the death of Sathi. PW2 is an attestor to Ext.P2 inquest report. PW3 is an attestor to both Ext.P2 inquest report and Ext.P3 seizure mahazar of MO2 dhothi of the 1 st accused. PW4 is an attestor to Ext.P2 inquest report. He also deposed that he had taken the deceased in his autorickshaw to the hospital where Sathi died. He identified MO3 and MO4 as dresses worn by the deceased at the relevant time. PW5 also is a neighbour of the deceased and the appellants. PW7 is an attestor to Ext.P4 body receipt. PW9 is an attestor to Ext.P2 inquest report and he deposed that there was a quarrel between the deceased and the appellants for which he talked with both parties and tried to settle the matter. PW10 is another neighbour. PW12 is an attestor to Crl.Appeal No.707/14 -:6:- Ext.P5 scene mahazar. PW13 is an attestor to Ext.P6 recovery mahazar of MO1 dagger. PW14 is an attestor to Ext.P3 mahazar. PW15 identified MO5 kerchief. He also deposed some of the prior transactions that aggravated the enmity between the deceased and appellants. PW16 is the son of the deceased who is an attestor to Ext.P7 kaichit for receiving gold ornaments of Sathi. PW17 Dr.Joseph Mathew proved Ext.P8 intimation letter. PW18 Dr.Sreekumari conducted autopsy of the victim and issued Ext.P9 post-mortem certificate. PW19 is the Village Officer, Arookkutty who issued Ext.P10 site plan. Based on Ext.P1 FIS given by PW1, PW20 the then S.I. of Police, Poochakkal registered Ext.P11 FIR. PW21 is the then Panchayath Secretary, Arookkutty who proved Ext.P12 ownership certificate of house of the 2 nd accused and Ext.P13 ownership certificate of the deceased. PW22 is the then C.I. of Police, Cherthala who conducted the investigation and laid the charge-sheet. Ext.P6 is the mahazar prepared at the time of recovering MO1 dagger based on Ext.P6(a) disclosure statement of 1st accused. Ext.P29 is the FSL report. DW1 is the sister of the 1st accused and daughter of the 2 nd accused. She stated that the Crl.Appeal No.707/14 -:7:- house of the accused was completely destroyed by the local people and that the accused were severely beaten up by tying to a tree. Exts.P14 and P15 are the inspection memos of 1 st and 2nd accused respectively.
7. Questions to be decided by us can broadly be stated as follows:
(a) Whether the death of Sathi was a homicide as found by the trial Court?
(b) Whether prosecution proved the case against the appellants beyond reasonable doubt that 1st accused committed the overt acts that resulted in the death of Sathi and that the 2nd accused acted as an abettor and connived to commit the said offence?
8. Coming to the first question, there is not much quarrel on the fact that the death of Sathi was a homicide. Ext.P2 is the inquest report. Ext.P8 is the intimation letter issued by PW17 Dr.Joseph Mathew to police. Apart from oral evidence of children and neighbours of the deceased, PW18 is the Doctor who conducted the autopsy of the victim. She issued Ext.P9 Crl.Appeal No.707/14 -:8:- certificate. She deposed that she had noted the following ante- mortem injuries on the corpse of Sathi:
"1. Incised penetrating wound 4.5 x 1 cm, horizontally oblique on the front of chest, its upper inner end being 4 cm to the left of midline and 11cm below collar bone. Both ends of the wound were sharply cut. The wound track penetrated the chest cavity through the 4th left inter costal space (3.5 x 1cm) pierced the pericardium (4.5x0.2 cm) perforated the left ventricle of heart cutting through the inter ventricular septum (wound of entrance 3.8x0.5 cm and wound exit 1.5x0.5 cm) 6 cm above the apex, cut the back aspect of pericardial sac 1.5x0.5 cm and punctured the inner aspect of left lung (0.7x0.2x0.8 cm). The wound was directed backwards and downwards for a minimum depth of 6.8 cm.
Pericardial cavity contained 10 ml of blood and left chest cavity contained 750 ml blood. Left lung collapsed.
2. Incised penetrating wound 4.2x1 cm, oblique on the front of abdomen its lower inner end being 4 cm to the right of midline and 7 cm above pubic bone. Loops of jejunum were seen protruding out through the wound after herniating through a wound on the transverse emsocolon (4x0.5 cm) located 10 cm above in the lying position. The wound was directed upwards, backwards and to the left for a depth of 10 cm."
According to her, Sathi died due to penetrating injury sustained to chest. Injuries on the victim could be caused by MO1 dagger. Injury nos.1 and 2 noted in Ext.P9 are sufficient in the ordinary Crl.Appeal No.707/14 -:9:- course of nature to cause death. She deposed that the victim even after sustaining injuries could speak. From the above evidence, it is rather clear that Sathi's death was a homicide.
9. Next question is regarding overt act allegedly committed by the 1st accused and the involvement of the 2nd accused in it. To ascertain the factual reality, it is necessary to go through the evidence of key witnesses in detail. PW1 Shylaja is a neighbour of both the deceased and the appellants. She stated that the incident happened on 22/03/2011 at 06.15 P.M. and she heard loud cry of Sathichechi. "എന വനയന യശ ദ മയ കട കത ന ലശ ഓടവ ശയ ". It is her version that she reached the northern area of Sathichechi's house and her daughter, Lakshmichechi, Mini and Asma followed her. They saw Sathichechi lying with her face upward directing her head towards south. Blood was pumping out from her chest. 1st and 2nd accused were standing near Sathichechi. There was a dagger in the hands of 1 st accused. Seeing the same, all of them cried aloud saying "നമനട സത ശ ചനയ യശ ദ മയ വനയന കട കത ന ശ ." To a question put to her by the prosecutor, she stated that 2nd accused had told 1st accused "അവൾ Crl.Appeal No.707/14 -:10:- തടണകന!ട നമക ശ$ ന!ട ." Both the accused moved towards south and went to their house. 1st accused was holding the dagger. Thereafter Sajeevan, Sajeesh, Anoop, Renjith and all tightened the wound on the chest portion and took Sathi to hospital. She identified both accused in Court. To a question by the learned Prosecutor, she replied that the deceased and the appellant used to quarrel with each other. She gave Ext.P1 FIS to the police. She identified MO1 dagger. She had shown the place of occurrence to the police. During cross-examination, she stated that the appellants and the deceased were in the habit of quarrelling with each other. 1st accused usually starts the quarrel and the 2nd accused ignites the same. She reiterated that at the time when they reached the spot, both 1 st and 2nd accused were standing there. 2nd accused was standing to the north of 1 st accused and both of them were standing east to Sathi. Apart from 1st and 2nd accused, there was nobody there at that time. Sathi was lying down with stab wounds. She further clarified that all other witnesses reached the spot simultaneously. At the time of seeing the accused, there was no injuries on them. During cross- Crl.Appeal No.707/14 -:11:- examination by the 2nd accused, she further affirmed that at the time of reaching the spot, she saw both accused there and Sathi was lying there. 1st accused was holding MO1 dagger in his hand.
10. PW6 Mini deposed that she is a neighbour of deceased Sathi. Her house is to the west of Sathi. The incident happened on 22nd March, 2011 at 06.15 P.M. Both Sathi and herself came back from workplace and went to their respective homes. By the time she reached her home, she heard noise from Sathichechi's house. The quarrel was between Sathichechi and Yasodamma (2 nd accused). As she was about to cook some rice in her kitchen, she heard a loud cry saying "എന കത ന ലശ ". She understood that it was the cry of Sathichechi and she left the pot there and ran towards the east. She entered into the compound of Sathichechi. PW1 and Lakshmichechi were already there. Asma was also with her. They saw Sathichechi lying in a pool of blood. She was lying near her house towards east. 1 st accused was standing near Sathichechi with a knife in his hand. 2 nd accused told 1st accused to accompany her for Sathi would have died. Thereafter, both the accused went out of the compound. All of them including PW6 Crl.Appeal No.707/14 -:12:- cried aloud. Since they were afraid of the accused, they reached near Sathi after both the accused had left the place. Sathichechi was taken to hospital by Hariharan, Sajeevan and others. To a question put by the learned Prosecutor, she replied that the 2 nd accused exhorted the 1st accused to stab the victim. She identified MO1. She identified both accused in Court. During cross-examination, she stated that PW1 and daughter of PW1 reached the spot first. Then Lakshmi chechi reached. Thereafter PW6 and Asma reached there. The accused were standing near Sathi. She also stated that the house of accused is close to the house of the deceased. She admitted that her statement regarding exhortation made by 2nd accused to 1st accused to kill the deceased and the alleged incident of pouring of water over property coupled with cursing words were hearsay information. During trial, a suggestion was put by the counsel for the 2 nd accused that the 2nd accused had stated only the words "വ ട ശ$ര ട അവൾ തടനണട " and nothing else and to the same PW6 replied in the affirmative.
11. PW8 Lakshmi is another neighbour. She is a fish Crl.Appeal No.707/14 -:13:- vendor. On 22/03/2011, she came back to her house after work by 06.00 P.M. As she reached in front of her house, she saw 2 nd accused and the deceased entering into an altercation between them. She enquired about the same to Sathichechi for which she replied that the 2nd accused had poured water over her property and told that they would be destroyed. It is her version that she heard a voice saying "അവന& നവശചകശണട " which she ignored. Thereafter, she heard a loud cry of Sathi saying "യശ ദ മയ വനയന കട കത ന ലശ ." She rushed to the spot. PW1 and daughter of PW1, Asma and Mini were there. She saw Sathi lying in a pool of blood in front of Sathi's house. At that time dagger was found in the hands of Vinayan (1 st accused) and Yasodamma (2nd accused) was standing there. All the witnesses cried aloud and Hariharan, Saneesh, Sajeevan and Renjith came there and had taken the injured to hospital. After sometime, she came to know that Sathichechi is no more. To a suggestion whether 2 nd accused told 1st accused to move to their home as Sathi would have died, before the hue and cry, she stated in the affirmative. She identified MO1 dagger. MO3 and MO4 are the dress of the Crl.Appeal No.707/14 -:14:- victim. To a question as to how Sathichechi died, she replied that because of the instigation of 2nd accused, the 1st accused had stabbed her to death. Nothing material is brought out during cross-examination to discredit her version regarding the aspects she deposed in her evidence.
12. In addition to these witnesses, other witnesses also deposed regarding presence of these witnesses at the spot at the relevant time. On perusal of entire evidence on record, it can be seen that the following aspects are established by the prosecution beyond reasonable doubt:
i. The deceased and the 2 nd accused were in the habit of quarrelling with each other.
ii. The 1st accused and 2nd accused entertained enmity towards the deceased owing to the said quarrel.
iii. On 22/03/2011 at about 06.15 P.M., the deceased and the 2nd accused entered into a quarrel for which PW1, PW6 and PW8 are witnesses.
iv. Within a short while PW1, PW6 and PW8 who are neighbours of the parties heard a loud cry from the deceased saying Crl.Appeal No.707/14 -:15:- that both the accused were killing her.
v. PW1, her daughter, PW6, PW8 and others reached the spot and saw Sathi lying in a pool of blood and both the accused were standing near to Sathi. 1st accused was standing there with MO1 dagger in his hand.
vi. PW1, PW6, PW8 and others cried aloud and they saw both accused going away from the place of occurrence towards east. 1st accused was holding MO1 dagger in his hands. vii. PW1 deposed that at the time when they saw the deceased with fatal wounds, there was nobody there at the spot other than 1st and 2nd accused.
viii. PW17 is the Doctor who prepared Ext.P8 intimation certificate regarding death of Sathi to police. His evidence shows that Sathi was brought dead to the Hospital. ix. PW18 is the Doctor who conducted autopsy of the victim and she issued Ext.P9 post-mortem report. She deposed that the victim died due to penetrating injury sustained to the chest. Injury nos.1 and 2 noted in Ext.P9 is sufficient in the ordinary course of nature to cause death. MO1 dagger Crl.Appeal No.707/14 -:16:- could be used as weapon of offence to inflict the said injuries.
x. MO1 dagger was recovered at the instance of the 1 st accused based on his confession statement from his house under a cot.
xi. MO1 dagger and MO2 dhothi of the 1st accused was stained with human blood belonging to 'A' group. The blood group of the deceased is proved to be 'A' group.
13. Learned counsel for the appellants argued that if at all this Court is inclined to believe the version of PW1, PW6 and PW8, the case at hand would only fall under Section 304 Part II of I.P.C. There is no proof for intention or premeditation. Overt act is not deposed to by witnesses. The appellants are neighbours of the victim. She relied on the verdict of the Apex Court in Lavghanbhai Devjibhai Vasava v. State of Gujarat [(2018) 4 SCC 329] and the decision of this Court in Babu v. State of Kerala [2018 (2) KLT SN 66] in which one of us were a member to support her contention.
14. All circumstances mentioned above prove the Crl.Appeal No.707/14 -:17:- involvement of the 1st accused in the case beyond reasonable doubt. He entertained enmity with the deceased which his mother also had. The circumstances unerringly points to the guilt of the 1st accused. No interference is warranted as far as 1st accused is concerned.
15. During the pendency of the appeal, the second accused died on 21/09/2016 and the appeal against her stands abated, No steps had been taken to implead the legal heirs. Even otherwise, there is no allegation of any specific overt act as far as 2nd accused is concerned. Only thing that came out from evidence is that she used to quarrel with the deceased and it was on a daily basis. But that apart, nothing is brought out in evidence to show that the 2nd accused had any intention to murder the victim. There is no convincing evidence before this Court to hold that there was pre-meditation or prior meeting of minds between accused. It is pertinent to note that PW1, PW6 and PW8 has only hearsay information regarding the incident which happened in the morning. Also, it can be seen that they were suggested by the prosecution to elicit the statement inculpating 2 nd accused with Crl.Appeal No.707/14 -:18:- 'theory of exhortation' to kill Sathi. It is proved that both accused trespassed into the property of the victim. But there is no evidence to show that 2nd accused instigated the 1st accused to commit murder of Sathi. Considering the facts and circumstances of the case as a whole, we are of the view that only the 1 st accused is liable to be punished for murdering Sathi. Prosecution failed to prove that the 2nd accused had common intention to commit murder of Sathi. Of course, 1 st accused deserves no leniency as his acts are heinous. We also do not find much force in the argument that FIR was lodged with delay as no prejudice is proved to be caused to the accused. A widow who is a neighbour was brutally stabbed to death. Medical evidence shows that her small intestine had come out. Injuries are on the vital parts and that too using MO1 dagger which is a dangerous weapon. Offence under Section 302 is clearly made out as far as 1 st accused is concerned.
In the result:
(i) The appeal filed by first accused is dismissed confirming the conviction and sentence under Sections 302 and Crl.Appeal No.707/14 -:19:- 447 of I.P.C.
(ii) The appeal filed by the 2nd accused shall stand abated.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge