Raju @ Karu @ Raru vs State Of Kerala on 4 April, 2019

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Kerala High Court

Raju @ Karu @ Raru vs State Of Kerala on 4 April, 2019

This appeal is preferred by the appellant with a view to challenge the verdict of the 8 th Additional Sessions Judge, Ernakulam in S.C. No. 355 of 2012 dated 17/05/2014 with C.P. No. 12 of 2012 arising out of Crime No. 445 of 2011 of Pothanicad Police Station by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for a further period of three years. The fine amount, if realized, was directed to be paid to the parents of the deceased in equal ratio under victim compensation scheme under Section 357 (1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.').

2. The prosecution case against the appellant is as follows:

On 07/12/2011 at about 03.45 P.M., at the tar road in front Crl.Appeal No.719/14 -:3:- of the toddy shop no.32 situated at the southern side of the Chathamattam-Mullaringad public road lying in east-west direction, the appellant/accused with the intention to kill his neighbour Rajesh and with the knowledge that his act would cause death of said Rajesh, inflicted a stab injury at the right side of his abdomen using a knife in his possession and that in the very same transaction, the appellant again stabbed Rajesh at the left side of his neck and Rajesh succumbed to his injuries at Government Hospital, Kothamangalam on the same day.

3. Prosecution examined PW1 to PW14 as their witnesses, proved Exts.P1 to P18 documents and identified MO1 to MO8 as material objects. Ext.D1 is marked through PW3. During 313 examination, the appellant denied all incriminating circumstances appearing against him and he stated that he is innocent and that he is falsely implicated by the police. No evidence is adduced by the defence.

4. Learned counsel for the appellant Smt.M.R.Jayalatha argued that the appellant herein is innocent. She submitted that the trial Court ought to have noted the fact that the prosecution miserably failed to prove not only the motive for the crime but Crl.Appeal No.719/14 -:4:- also the overt acts allegedly done by the appellant. PW3 is a highly interested witness and he should not be believed. He has an eye on the property of the appellant as well. There was a dispute between them. Even according to the prosecution, the appellant fell down as a result of the aggression of the deceased. The weapon allegedly used was about 28 c.m. long. By no stretch of imagination, one could think that the said weapon was kept in the loin of the appellant and that he had no injuries on his body in spite of falling on the ground with the same in his loin. This makes improbable the version of the prosecution that the appellant was carrying weapon. PW3 stated that there was a stab on the abdomen of the victim. But no such injury is found in medical evidence. This itself shows that the prosecution witnesses are not believable. That apart, the alleged recovery is a stage show by the police. Prosecution did not have even a case that there was any premeditation for the appellant to commit the crime. Intention is not proved by the prosecution. The alleged recovery is effected from a different place than the place mentioned in the disclosure statement. The properties seized reached Court on 27/01/2012 after a gap of more than forty days. Crl.Appeal No.719/14 -:5:- Admittedly, there was a scuffle. Prosecution did not prove the genesis of the incident to the satisfaction of the Court. Forest ranger was not examined. Other eyewitnesses were also omitted from examining. She argued to acquit the appellant by extending benefit of doubt.

5. Per contra, learned counsel for the State, Sri.S.U.Nazar argued that prosecution proved the case against the appellant beyond the shadow of reasonable doubt and the Court below is fully justified in convicting the appellant for offence under Section 302 of IPC. PW3 clearly deposed the overt acts done by the appellant. His evidence is corroborated by the evidence of PW1, PW2, PW4 and PW6. MO2 weapon was recovered at the instance of the appellant and it was found with human blood. Medical evidence and other scientific evidence clearly establishes the involvement of the appellant in the commission of the offence. He pleaded to uphold the judgment of the trial Court.

6. We heard both counsel at length and perused the evidence available on record. The question to be decided by us is whether the verdict of the Court is tainted with faults which manifestly makes the conviction illegal. The evidence adduced in Crl.Appeal No.719/14 -:6:- the case, in short, are as follows:

7. PW1 who is cited as an eyewitness gave Ext.P1 First information Statement to PW11 S.I. of Police, Pothanicad on 07/12/2011 at about 06.15 P.M. He deposed in Court about the the incident. PW2 is examined by the prosecution to show that the deceased was lying at the place of occurrence with injuries on his body. PW3 is another occurrence witness, who is the star witness of the prosecution. PW4 informed the matter to police over phone. PW5, PW6 and PW7 are attestors to Ext.P2 inquest report. PW8 is an attestor to Ext.P3 scene mahazar. PW9 is the Doctor who conducted the post-mortem of the victim and he issued Ext.P4 certificate. PW10 is the Village Officer who prepared Ext.P5 site plan. PW11 is the then S.I. of Police, Pothanicad who registered Ext.P6 FIR based on Ext.P1 FIS given by PW1 on 07/12/2011 at 06.15 P.M. He arrested the appellant. Ext.P7 is the arrest memo, Ext.P8 is the arrest intimation, Ext.P9 is the inspection memo and Ext.P10 is the custody memo prepared for the same. Ext.P11 is the accident-cum-wound certificate issued from Taluk Headquarters Hospital, Kothamangalam on examining the appellant/accused. PW12 and PW13 are attestors to the Crl.Appeal No.719/14 -:7:- mahazars prepared for seizure of articles from the possession of the appellant and the recovery of weapon used for the commission of offence respectively. PW14 is the C.I. of Police who conducted the investigation. Ext.P14 is the relevant portion of the confession statement of the appellant which led to the recovery of MO1 weapon. Ext.P15 is the remand report dated 09/12/2011. Ext.P16 is the two property lists. Ext.P17 is the forwarding note of seized items and Ext.P18 is the report issued by the Chemical Analyst. After completing the investigation, PW14 laid the charge- sheet against the appellant.

8. There is not much dispute about the fact that the death of Rajesh was homicidal. Court below placed reliance on medical evidence to conclude the same apart from oral testimony as to the identity of the corpse and the nature of death. Ext.P1 discloses an information that the victim Rajesh suffered injuries and that he succumbed to the injuries. Ext.P2 is the inquest report prepared by PW14 the Investigating Officer the next day i.e., 08/12/2011. PW9 is the then Associate Professor and Deputy Police Surgeon of Forensic Medicine, Medical College Hospital, Alappuzha. He issued Ext.P4 certificate after autopsy. He deposed Crl.Appeal No.719/14 -:8:- that he had noted the following ante-mortem injuries on the victim:

"1. Abrasion 1x0.3cm over forehead vertical 0.3cm to the left of midline and 1 cm above root of nose.

2. Abraded contusion 5x1.3cm horizontally placed over right side of face, back end 2.5cm away from tragus of right ear and 0.3cm above outer angle of right eye.

3. Multiple abrasions over an area 6.3cm involving right side of face 3cm in front of ear and 5.5.cm above jaw margin.

4. Incised wound 2.2 x 0.5 cm over front of neck left side transversely placed, right end (sharp) 6.5cm above suprasternal notch and in midline. The wound was directed downwards and to the right and entered the right chest cavity close to right sterno clavicular junction. Clavicular head of sterno clavicular muscle was separated, right internal jugular vein was cut. Apex of the upper lobe of right lung showed a incised wound with depth 5cm with external measurement 1x05cm, C total minimum depth was 13 cm (Depth of wound upto the interior of chest was 8 cm). Right chest cavity contained blood clots and fluid blood weighing 1100 gm, Fluid part of the blood was 80 ml. Thyroid gland showed blood infiltration around. Trachea and oesophagus were intact.

5. Abrasion 1.5x1.5 cm over left side of chin under aspect, 0.5 cm to the left of midline.

6. Abrasion 1x0.4cm over right side of chin, 1 cm to the right of midline.

7. Lacerated wound 1.8x1x0.3cm over mucosal aspect of right lower lip 0.5cm away from right angle of mouth.

Crl.Appeal No.719/14 -:9:-

8. Superficial incised wound 1x0.2cm over front of right index finger over distal phalanx.

9. Superficial incised wound 0.6x0.2cm transverse over back of right thumb over proximal phalanx.

10. Contusions 3x3x0.5cm over front of right hand overlying thenar eminence.

11. Abrasion 1x1.5cm over right groin 14 cm to the right of midline.

12. Abrasion 1.9x0.2 cm inner aspect of right knee.

13. Abrasion 0.8x0.8 cm front of left knee.

14. Abrasion 0.6x0.4 cm back of left arm 3.4 cm above elbow.

15. Abrasion 3x0.2cm over back of left forearm 5 cm below elbow.

16. Superficial incised wound 9.5x0.5cm slightly curved towards left over front of chest right side, oblique, upper inner end 15 cm below right collar bone and 5 cm to the right of midline."

He opined that death of Rajesh was due to stab injuries he sustained to his neck entering into chest cavity. Injury no.4 is the fatal one and it is sufficient in the ordinary course of nature to cause death. The injury could be caused by MO1, the weapon of offence. In the light of these evidence, prosecution could successfully show that death of Rajesh was a homicide.

9. Trial Court is of the view that it is the appellant herein who caused the injuries that led to the death of Rajesh and that Crl.Appeal No.719/14 -:10:- too with an intention to murder him. To look into the correctness of the said findings, it is necessary to thoroughly go through the evidence on record especially that of occurrence witnesses. PW1 and PW3 are cited as prime witnesses. PW1 gave Ext.P1 FIS to PW11. He deposed that he had seen the incident. According to him, he was a dish vendor in Erattakkali Toddy shop during the relevant period. On 07/12/2011 at about 03.30 P.M. the deceased along with Paleri Appu (PW3) came to the toddy shop. The appellant was sitting in an electric post placed at the front side of the toddy shop. PW3 entered into the toddy shop and Rajesh seated on the electric post on which the appellant/accused was sitting. As PW1 was inside the shop, he heard a hue and cry from the front of the toddy shop. He came out of the shop towards the front. Then, he heard Theruvapparambil Thankappan saying loudly "Rajesh, Raru (the appellant herein) has taken the knife." Then PW1 saw the appellant stabbing at the neck of the deceased using a knife. Rajesh came to the front of PW1 and fell down. Blood was flowing out from the neck of the victim. The appellant ran towards east with blood-stained knife. Seeing the incident, PW1's blood pressure shot up and he went to his house Crl.Appeal No.719/14 -:11:- to take medicine. He identified MO1 as the knife used by the appellant to inflict injuries on the victim on that occasion. He heard from others that Sabu, who is the brother of PW1 and others had taken the victim to hospital. Later he understood that Rajesh is no more. Ext.P1 is the statement he had given to Pothanicadu police. Investigating Officer had shown him MO1 later. During cross-examination, he admitted that he is a neighbour of the deceased. The deceased was the only son of his parents. The deceased was married and had two children. He further clarified that if he was to stand longer without taking medicine at the time when his blood pressure shoots up, he would have fallen. He denied the suggestion put by the defence that the incident happened as a result of a group clash between some people. He also denied the suggestion that he had not witnessed the incident.

10. PW3 is the nephew of the appellant. He deposed that he had seen the incident. His house is situated 1 k.m. away from Erattakali toddy shop. On 07/12/2011, as he was in a shop near to his house, his friend Rajesh came there and asked him to come to Erattakali toddy shop and both of them reached the shop at Crl.Appeal No.719/14 -:12:- about 03.30 P.M. Rajesh bought two glasses of toddy out of which he had consumed one glass. Then Rajesh came out of the toddy shop and sat on the electric post lying in front of the shop. At that time, the appellant herein was also sitting on the said electric post. Besides them, Thankappan and another person were also sitting on the post. PW3 was standing at the doorstep of the toddy shop and two employees of the shop were also there inside. At that time, PW3 heard the appellant telling to Rajesh that he would chop the Forest Ranger. In reply, Rajesh told him to do as he pleases. Then the appellant told Rajesh that he would chop him also. Saying so, the appellant caught hold on the collar of Rajesh. Rajesh caught hold on the hand of the appellant and pushed him down. Immediately, the appellant raised from the ground and took a knife from his waist. Seeing the same, Thankappan told Rajesh to move away as the appellant was taking the knife. The appellant stabbed Rajesh using the said knife. Rajesh shielded the said stab with his hands but the appellant inflicted a second one at the neck of Rajesh. For two seconds, Rajesh stood motionless and he fell down. The appellant ran away from the scene. Seeing the incident, PW3 ran away. Crl.Appeal No.719/14 -:13:- Later he saw police taking Rajesh to hospital. He identified MO1 as the knife used by the appellant to inflict injuries on the victim. During cross-examination, he admitted that there was a property dispute between the appellant and himself. He also stated that the said dispute was settled amicably. Exr.D1 is marked through him. He denied the suggestion that he had not seen the incident. He further stated that there is only four cents of land in his name and that too he received from Government.

11. PW2 stated that he was the salesman of Erattakali toddy shop on the date of incident. He was actually the employee at shop no. 27 of Chathamattom toddy shop. On 07/12/2011, he reached by 08.30 A.M. in the toddy shop for his employment. At that time, the appellant was there sitting on the electric post placed in front of the shop. His helper Joy was also there in the shop. By about 09.00 A.M., the toddy tapper brought toddy and the appellant purchased one litre of toddy from PW2. The appellant consumed two glasses of toddy and he kept the remaining toddy there and left the place. Thereafter, by about 03.00 P.M., he reached the toddy shop again and sat at the electric post placed in front of the toddy shop. After sometime, Crl.Appeal No.719/14 -:14:- Thankappan came to the toddy shop. PW1 was also there in the shop. It is his version that after sometime, Rajesh and his friend reached there and bought two glasses of toddy. Out of the two glasses, Rajesh had consumed only one glass and the remaining glass he kept there. He went out of the shop. Thereupon, PW2 went to the room which was at the western side of the toddy shop to collect glasses and bottles left by consumers. He entered into the front room of the toddy shop and he saw one person lying on the road in front of the main room of the toddy shop. On enquiry, he came to know from PW1 that the appellant stabbed Rajesh. Rajesh was lying with bleeding injuries and there was blood on his head also. He tried to take the injured to the hospital but no vehicle owners were willing to co-operate. Since he was suffering from various ailments, he closed the toddy shop and left the place along with helper Joy.

12. PW4 deposed that he is engaged in agricultural activities and catering service. The incident happened on 07/12/2011. He was on his way from his home to Vazhakkulam, in his cycle. He saw Rajesh lying down in front of the toddy shop with blood spilling out from neck. He had also seen two people Crl.Appeal No.719/14 -:15:- coming from the back side of the toddy shop. He stopped the motorcycle and asked them about the matter. They pointed towards the appellant and told PW4 that the appellant had stabbed Rajesh. They replied him that they did not inform the matter to police. Hence, PW4 called the Police Control room from his mobile phone and informed the matter. Police reached the spot within 10 minutes. The appellant ran towards the east and escaped. He stated that the appellant was wearing a black dhothi and shirt and a Sabarimala pilgrimage chain at that time. He had seen police taking Rajesh in their jeep. He gave statement to police two days after the incident.

13. PW6 deposed that he is engaged in agricultural activities and real estate brokerage. On 07/12/2011 at about 01.00 P.M., he reached Erattakali toddy shop. He took food from there. By around 03.30 P.M., along with his friend Sabu, he went to his home. Sabu was a carpenter and it was for some work in his house that he had taken Sabu to his house. It is his version that at the time he entered into the shop and also at the time of leaving the shop, the appellant was there in front of the shop sitting on an electric post. At the time when PW6 was about to Crl.Appeal No.719/14 -:16:- leave the shop, Rajesh and PW3 reached there and entered into the shop. PW1 is the elder brother of Sabu. Later he came to know that somebody was stabbed in front of the shop. On enquiring to PW1, he told PW6 that the appellant Raju stabbed Rajesh. PW6 and Sabu reached the shop again. At that time, police was there. Both of them helped to shift Rajesh to the police jeep for taking him to hospital. PW6 also went to the hospital. Later, he came to know that Rajesh is dead. He is an attestor to Ext.P2 inquest report prepared by the Investigating Officer. He identified the dress worn by the appellant on that day.

14. Learned counsel for the appellant argued that PW3 is not a reliable witness because of many reasons. First of all, he has an interest against the appellant which is in connection with a property dispute. Secondly, he stated that there was a stab on the abdomen of the victim which did not find a place in the medical evidence. Thirdly, the weapon used is almost 28 c.m. long and it is humanly impossible not to get hurt while on a fall if it was kept in the loin of the appellant. She also attacked the very nature of evidence adduced by PW3 as inherently improbable. But we do not think it is true. First of all, he categorically deposed Crl.Appeal No.719/14 -:17:- in Court that the property related dispute between the appellant and himself was amicably settled much prior to the incident. PW3 further deposed that he had only 4 cents of property given by the Government. Nothing is available in evidence to show that there is any motive for PW3 to falsely implicate the appellant herein. That apart, PW3 clearly deposed about the most fatal injury inflicted on the victim by the appellant in clear and unequivocal terms. It is pertinent to note that PW3 in his evidence stated that the appellant stabbed the victim initially but it was shielded by him. Altogether 16 injuries were noted by the Doctor during autopsy. Injury no.4 is the fatal one which was on the neck of the deceased. It was sufficient in the ordinary course of nature to cause death. PW9 deposed that the said injury could be caused using MO1 as weapon of offence. Nothing is brought out in evidence to discredit the evidence of PW3 during cross- examination. Regarding injuries inflicted, it can be seen that there is not much cross-examination. Having been so, the contention that a particular injury did not find a place in medical record is no ground to disbelieve the version of the witness who is otherwise believable and spoken to the incident in clear terms. As Crl.Appeal No.719/14 -:18:- far as the allegation as to the carrying of weapon is concerned, evidence only shows that the appellant had fallen down. Nothing is brought in evidence to show that the appellant had any injury or that he had fallen in such a fashion that the weapon which was allegedly kept in his loin would naturally produce injuries on the person on his falling on the ground. These arguments are invitation to wild imaginations. But the evidence on record shows that the appellant was having a weapon with him. It is evident from the conversation of the appellant that he was planning to stab the Forest Ranger. He told it to Rajesh as well. He went on to say that he would do the same against Rajesh also. The said circumstance adds some credibility to the prosecution case put forwarded through PW3 that the weapon was with him. We do not find any reason to disbelieve PW3. The evidence of PW3 is natural and believable. Nothing is brought out in evidence to discredit his version. Absolutely there is no cross-examination on the point of stabbing. PW1 is also a witness to the previous and subsequent incidents including the actual act of stabbing on the neck of the victim done by the appellant. To that extent, PW1 corroborates the version of PW3. The presence of both the appellant, deceased Crl.Appeal No.719/14 -:19:- and PW3 is clearly spoken to by PW1, PW4 and PW6. The appellant was seen with the weapon after the incident by all these witnesses. He, thereafter, ran towards the east. Also we do not think the non-examination of CW4 in any way affected the prosecution case as alleged.

15. Based on the confession statement of the appellant, MO1 weapon was seized and it is detected with human blood. We do not find much force in the contention that the place of recovery was different from that of the disclosure statement. It can be seen that in Ext.P13, the appellant disclosed "while proceeding to Thekke Punnamattom, I had concealed the knife at the portion where Mullaringad forest ends..." Of course, it can be seen that there is a discrepancy in the evidence of PW13 and Ext.P13 as against PW14 and Ext.P14 with respect to the area where the knife was concealed. But it is only a minor discrepancy. We do not think it would affect the recovery effected by the police in this case. The recovery of MO1 was effected from a trench with bushes. It is common sense that every northern border and southern border are separated by a 'thin line' which, as per the perception of the observer, depends on from where he Crl.Appeal No.719/14 -:20:- is assessing the direction. The evidence of Investigating Officer clearly shows that the recovery was effected from a place which is the border of Vadakke Punnamattom. We do not find it a grave discrepancy. The recovery of the weapon of offence in this case is proved and it corroborates the oral evidence adduced by the prosecution.

We therefore sustain the conviction and sentence of the accused. Appeal is hence dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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