Abdul Rahim vs State Of Kerala on 30 November, 2012

[Cites 3, Cited by 1]

Kerala High Court

Abdul Rahim vs State Of Kerala on 30 November, 2012

The accused came up with this appeal challenging the judgment of conviction and order of sentence passed against him under Section 302 IPC in Sessions Case No.2034/2011 by the Ist Additional Sessions Court, Kollam, dated 30.11.2012.

2. It is a case wherein an employee attached to a canteen, who was employed just five days before the alleged incident, met with a sad death in the hands of accused by receiving a stab injury by 9.45 p.m. on 22.08.2009. The prosecution has examined PW1 to PW12, got marked Exhibits P1 to P15 and identified MO1 to MO3 series. The alleged incident happened within the canteen attached to Nair's Hospital, Kollam. PW1 is the canteen Manager who came to the place of occurrence on getting information regarding the alleged incident. PW2 and PW3 Crl. Appeal No.589 of 2013 2 are the two eye witnesses to the alleged incident. PW4 is the licensee of the canteen who is a witness to the inquest report exhibited as P2. PW5 is the witness to scene mahazar exhibited as P3. PW6 is the witness to recovery of MO1 knife under Exhibit P4 mahazar. He is a canteen helper. PW7 is the relative of the victim who received the body after the post-mortem examination. PW8 is the Doctor who prepared Exhibit P5 wound certificate. PW10 is the Doctor who conducted post-mortem examination and issued a certificate exhibited as P7. The cause of death is stated to be due to ante-mortem injury No.4. PW11 is the Sub- Inspector of Police who recorded the FIS on 22.08.2009 based on which Exhibit P9 FIR was registered. PW12 is the Investigating Officer.

3. The post-mortem examination on the body of the deceased was conducted by PW10 and issued Exhibit P7 post- mortem examination report. The findings of Exhibit P7 post- mortem examination report are the following:-

"1. Incised wound 3x0.5x0.5cm obliquely placed on Crl. Appeal No.589 of 2013 3 right side of forehead, its lower inner end on inner end of right eyebrow.

2. Incised wound 1.5x0.5x0.5 cm, obliquely placed on right side of forehead, its lower outer end joining the lower inner end of injury No.1.

3. Incised wound 1x0.3x0.2 cm on nose 1.5cm below its root.

4. Incised penetrating wound 6x2 cm obliquely placed on right side of front of trunk, its upper inner end being 5 cm to right of middle and 26 cm below the top of breast bone. The abdominal cavity was seen penetrated and right lobe of liver transfixed for a depth of 6 cm (entrance: 4x0.8 cm and exit: 2x0.8cm). The wound was directed backwards and to the left for a total depth of 7 cm. Abdominal cavity contained 2000ml of fluid blood and 150gm of blood clot.

5. Abrasion 3x0.3 cm covered with loose black scab oblique on left side of front of abdomen 13 cm outer to umbilicus.

Air passages were pale and contained aspirated stomach contents. Lungs (Right:250gm; Left:290gm) were pale and voluminous. Stomach (750gm) was full with pieces of banana, green gram tuberous and other unidentifiable food particles in yellow viscid fluid having a strong alcohol like smell, mucosa pale. Sub endocardial bleeding was noted in left ventricle of heart. Crl. Appeal No.589 of 2013 4 Spleen seen shrunken with wrinkling of its capsule. Urinary bladder was full with clear urine. All other internal organs were pale, otherwise normal. The cause of death was due to penetrating injury sustained to Abdomen (Injury No.4)."

4. The allegation is that on 22.08.2009 by 9.45 p.m. the accused, while working in the canteen attached to Nair's Hospital, Kollam, inflicted stab injuries on the victim, one Sadasivan. The other workers who were present in the canteen took the injured to the hospital and then to District Hospital, Quilon, wherein he succumbed to the injuries by 10.30 p.m. on the same day. The stab injuries were on the front of chest. There are two eye witnesses to the alleged incident, PW2 and PW3. The prosecution has also examined PW1, the canteen Manager, who came to the place on getting intimation through telephone and thereon he had given FIS before the Police. While in the box he had identified MO1 knife used for the commission of offence. It is CW2, Vijayan Pillai, who intimated PW1 with respect to the alleged incident through telephone. CW2 Vijayan Pillai and CW3 Maniyan were examined as PW2 and PW3. They have deposed in tune with the Crl. Appeal No.589 of 2013 5 main substratum of the prosecution case. Both are eye witnesses to the alleged incident and they are in agreement with respect to the genesis of the alleged incident and how it happened and identified MO1 knife used for the commission of offence. Both of them are in agreement with the time, place and the way in which the alleged incident happened and identified the accused who inflicted stab injuries on the victim. PW2 had deposed that the accused is one Shaji @ Rahim and he had seen the accused inflicting stab injuries on the victim. The genesis of the incident was also spoken by PW2 and PW3 that the accused approached the victim and demanded an amount of Rs.20/- due to him from the victim. But, it was refused by the victim by asking the accused to bring somebody and that they will discuss the matter. But, immediately the accused took a knife and stabbed on the victim. PW2 and PW3 are also in agreement that it was not happened in a sudden provocation without any pre planning. They deposed that the accused approached the victim by holding a knife in his hand and it was concealed by keeping his hand on Crl. Appeal No.589 of 2013 6 his backside with the knife and asked the victim to give him the amount due. It was resisted by the victim stating that he is not prepared to give the amount unless somebody interfere in the matter. All on a sudden, the accused inflicted a stab injury on his trunk. Again he attempted to stab on the victim, which was prevented by both PW2 and PW3. They had also identified the lunki and shirt of the accused as MO3 series and dhothi and underwear of the deceased as MO2 series, besides the identification of MO1 knife used for the commission of offence. Both the eye witnesses had undergone a lengthy cross examination and nothing was brought out to discredit their oral evidence and no instance of any enmity or hatredness was either suggested or brought out during cross examination. Their ocular evidence further stood as supported by the medical evidence adduced through PW10 and Exhibit P7 post mortem examination report. The cause of death is stated as due to injury No.4. The possibility of having the injuries noted as ante-mortem by the user of MO1 knife was also spoken by PW10. Exhibit P9 FIR was Crl. Appeal No.589 of 2013 7 registered immediately after the alleged incident, based on Exhibit P1 FIS, dated 22.08.2009, and it was received by 2.00 p.m on the next day by the concerned Magistrate. There was no inordinate delay, much less any delay in registering the FIR which supports the ocular version given by PW2 and PW3 and gives sufficient corroboration.

5. The version given by PW2 and PW3 further stood as corroborated by the ocular version of PW1 who had given Exhibit P1 FIS. He is the canteen manager who rushed to the place of occurrence on getting telephonic message from PW2 (Vijayan Pillai) who was present in the canteen and witnessed the alleged incident.

6. MO1 knife was recovered under Exhibit P4 mahazar witnessed by PW6, canteen helper, and there is nothing to doubt about the genuineness of the recovery of MO1 knife, but it cannot be brought under Section 27 of the Evidence Act as it was not concealed by the accused to a place known to him alone. But, the identification of MO1 knife, both by PW2 and PW3, as the Crl. Appeal No.589 of 2013 8 weapon used for the commission of offence and the detection of human blood on that weapon would give sufficient corroboration to the oral evidence tendered by PW2 and PW3, two eye witnesses to the alleged incident.

7. The presence of human blood found on the dress worn by the accused (lunki and shirt) identified as MO3 series, on chemical examination, would give further corroboration to the ocular evidence of PW1 and PW2, the two occurrence witnesses. The medical evidence adduced and the chemical analysis report of the dress worn by the accused are consistent with the prosecution case and the oral testimony of PW1 and PW2.

8. It was submitted by the learned counsel for the appellant that the alleged incident cannot be brought under the purview of Section 302 IPC as there is no premeditation and it was happened on a sudden provocation. It was also submitted that there was no intention to kill the victim by the accused as there was only one stab injury on the victim. But, going through Exhibit P7 post-mortem examination report and the oral evidence Crl. Appeal No.589 of 2013 9 of PW10, it is clear that the one stab injury inflicted is on the vital part of the victim, i.e on the right side of front of trunk, which pierced through the body to a length of 7cms touching and causing injuries to the vital organs, which is well evident from Exhibit P7 post-mortem examination report. The force applied, the nature of weapon used and the place wherein the injury inflicted are relevant factors to test whether the assailant had intended to cause injury sufficient to cause death in its ordinary course. The incised penetrating wound having a depth of 7 cm by the user of a sharp edged knife and the place wherein the injury was inflicted would sufficiently show that his intention was to cause death of the victim. Further a premeditated commission of offence is well evident from the fact that the accused approached the victim with a sharp edged knife in his hand by holding his hand on his backside to conceal it from the notice of the victim and asked the victim to pay the amount due to him, which comes to Rs.20/-, and inflicted a stab injury on the chest of the victim. The high force applied by him while stabbing is Crl. Appeal No.589 of 2013 10 well evident from the fact that the injury pierced through his body to a depth of 7cm causing injuries to the internal organs. He had also attempted to inflict another stab injury on the victim which was ward off by the interference of PW2 and PW3. This would sufficiently show that he had committed the offence with an intention to cause death to the victim or injuries which would in the ordinary course cause death to the victim. Hence, it would come both under the purview of first and second limbs of Section 300 IPC, a premeditated commission of offence with an intention to kill the victim, and it would come under the purview of intentional homicide with full knowledge. Hence, we could not find any merit in the submission made by the learned counsel for the appellant in that behalf. Hence, we are of the considered view that there is no reason for any interference to the finding of guilt of accused under Section 302 IPC and the conviction thereunder.

9. The sentence awarded being the lesser one does not call for any interference by this Court and hence the appeal lacks in Crl. Appeal No.589 of 2013 11 merits, deserves only dismissal and we do so.

In the result, the appeal is dismissed.

A.M.SHAFFIQUE (JUDGE) P. SOMARAJAN (JUDGE) DMR/-

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