Kerala High Court
Shanu @ Shibu vs State Of Kerala on 12 December, 2018
Bench: A.M.Shaffique, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/5TH AGRAHAYANA, 1940
CRL.A.No. 1690 of 2013
AGAINST THE JUDGMENT IN SC 524/2006 of 1ST ADDITIONAL
SESSIONS COURT, THRISSUR DATED 26-10-2013
CP 43/2006 of J.F.C.M., CHALAKUDY
CRIME NO. 200/2005 OF Mala Police Station, Thrissur
APPELLANT/ACCUSED:
SHANU @ SHIBU
S/O.GANGADHARAN, ELAVANPARAMBIL HOUSE,
PUTHENCHIRA VILLAGE, PAKARAPILLY DESOM
BY ADV. SRI.P.VIJAYA BHANU (SR.)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
BY ADV.PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.11.2018, THE COURT ON 12/12/2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.1690/13
-:2:-
JUDGMENT
Shaffique, J.
This appeal has been filed by the appellant challenging the judgment of conviction and order of sentence dated 26.10.2013 passed by the 1st Additional Sessions Judge, Thrissur in S.C. No. 524 of 2006 by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and a fine of `50,000/- (Rupees Fifty Thousand only) in default of which to undergo rigorous imprisonment for 6 months.
2. Prosecution allegation is that, on 28.03.2005, at about 10.00 a.m., the appellant committed murder of Krishnankutty, his father's younger brother. The motive for the alleged crime was that the deceased Krishnankutty had objected the appellant in going to Gulf countries. According to the prosecution, while Krishnankutty was travelling in a motor cycle bearing no. KL-08 AD 716 and as he reached near the house of Krishnanand in Ullas Nagar, Pakarappilly Sastha Temple Road, the appellant Shanu @ Shibu with a chopper inflicted cut injuries indiscriminately on him Crl.Appeal No.1690/13 -:3:- and that resulted in his instantaneous death.
3. Prosecution examined PWs 1 to 19 as witnesses, produced documents Exts P1 to P28 and marked MOs 1 to 12.
4. The appellant was examined under Section 313 of the Cr.P.C. to explain the circumstances and incriminating evidence levelled against him by the prosecution. He denied the prosecution evidence and submitted that, in the year 2005, he was engaged in truss work and he was going for work in the morning via Achakulam road upto Ullas Nagar bus stop. On that day, when he reached near the toddy shop, he heard a sound and tumult. Hearing that, he went near to the toddy shop and at that time Krishnankutty came near to him with a chopper and started scolding him. When Krishnankutty came to inflict injury on him with the chopper, he ran towards the north. While so running, he stumbled over his dhothi and fell down. Then Krishnankutty inflicted a cut injury on his leg. When Krishnankutty again attempted to attack him, the appellant held both hands of Krishnankutty. Thereafter, he lost his memory. During those days, he was being treated for mental problems. It was when he felt severe pain that he got back his memory. One nurse was suturing Crl.Appeal No.1690/13 -:4:- his leg. When he asked where he was, he was told that he was in the Medical College Hospital, Thrissur. He is innocent in the case. He further stated that witness Udayan has given false evidence against him. While he was a student, he used to go for work and earn money and give it to his parents. Parents of Udayan used to scold him and told him to learn from the appellant. For that reason, Udayan has animosity towards the appellant. That apart, Udayan tried to purchase the property belonging to his father and the same was objected by the appellant. Udayan was therefore forced to purchase the property at the prevailing market rate. Since childhood, Udayan was inimical towards the appellant. The enmity aggravated due to the above facts. On the date in which injury was sustained to the appellant, he had not seen Udayan. Udayan had not seen the appellant as well. Udayan is giving false evidence against the appellant at the instance of the police.
5. Learned Senior Counsel appearing on behalf of the appellant, Sri P.Vijaya Bhanu argued that the appellant is falsely implicated in the crime. Prosecution suppressed the genesis of the incident and the whole truth is not before the Court. The version of the witnesses, especially that of PW15 Udayan is not Crl.Appeal No.1690/13 -:5:- believable. He has enmity towards the appellant. It is pertinent to note that a deep injury is sustained by the appellant also at his knee. The evidence on record shows nothing about the motive for the crime. The deceased was a habitual drunkard. Witnesses deposed that they heard a cry from the spot of crime. But nobody stated as to whose cry actually it was. The witnesses knew both the appellant and the deceased very well. But PW2 did not identify the appellant as the assailant. There is no evidence to show who was the actual aggressor and who possessed the weapon of offence. At any rate, the offence will not fall under Section 302 of IPC. Without prejudice, the case at hand is one falling under the category of exceeding the right of private defence, if at all the Court believes the sole testimony of PW15.
6. On the other hand, the learned Public Prosecutor Sri.Nicolas Joseph argued that there is clear evidence against the appellant. Altogether 15 ante-mortem injuries were noted on the body of the deceased out of which 9 were incised wounds. Evidence of PW's 2 and 15 throws sufficient light into the matter and their version is fully believable. The appellant had enmity towards the deceased owing to his objection for appellant's plan Crl.Appeal No.1690/13 -:6:- to go to Gulf countries. The extra-judicial confession made by the appellant to the Doctor and Nursing Assistant in the hospital is categoric and it inspires full confidence. The case at hand will never fall under private defence. It can be seen that the appellant was having the weapon with him even at the time he reached the hospital. It was blood-stained. Nothing has been brought in evidence to show that the appellant was injured in the incident at the instance of the deceased. Prosecution has succeeded in proving the case beyond reasonable doubt and the Court below is justified in convicting the appellant. He submitted that there is no need to disturb the said finding.
7. The evidence adduced in the case, in short, is as under:
8. Prosecution primarily relied on the oral evidence of PWs 1, 2, 4, 5 and 15 to prove their case and out of which PWs 1, 2 and 15 are cited as eye-witnesses. We may consider their evidence in detail later.
9. PW1 is the de facto complainant and he is an autorickshaw driver. He admitted the signature in Ext.P1 FIS, but turned hostile to the prosecution. PW2 is a resident of Ullas Crl.Appeal No.1690/13 -:7:- Nagar, aged about 72 years and she is cited as an eye-witness. PW3 is an attestor to Ext.P3 inquest report. PW4 is the then Nursing Assistant of Puthenchira Community Health Centre. PW5 is the then Assistant Surgeon at Community Health Centre, Puthenchira. PW6 is an attestor to Ext.P6 scene mahazar. PW7 is the writer of Ext.P6. PW8 is an attestor to Ext.P7 additional scene mahazar. PW9 Police Constable is an attestor to Ext.P8 seizure mahazar of MOs 2 and 3, dress of the appellant handed over by his father Gangadharan to PW18, Sub Inspector of Police, Medical College P.S., Thrissur.
10. PW10 conducted post-mortem examination of the deceased and issued Ext.P9 post-mortem certificate. Following were the ante-mortem injuries:-
1. Incised wound 9.5x3.5x3.5 cm horizontally over the front and left side of neck, its right end 1.5 cm to the right of midline and its left end 5.5 cm below and 1.5 cm outer to angle of jaw bone. Underneath the strap muscle of the neck was completely cut and separated.
The jugular veins and carotids were completely cut and separated. The thyroid cartilage was found cut and its lower 1/3rd (3.5 cm in length). The oesophagus was also found cut completely. Test for air embolism was found positive. The vertebral column showed a cut in Crl.Appeal No.1690/13 -:8:- between 5th and 6th cervical vertebra exposing spinal cord without any injury.
2. Incised wound 16x10x0.8 cm vertical over the left side of head; its lower margin 2.5 cm above root of neck and its upper margin 2 cm outer to angle of leg. The left ear was avulsed and the external auditory meaters (portion of petrous part of temporal bone) was cut over an area 3x2 cm. The zygomatic process also showed a cut measuring 4.5x1cm. The vessels, muscles and nerves were found cut.
3. Abrasion 7x2cm over the top of left shoulder.
4. Incised wound 8x8xmuscle deep over the front and outer aspect of left forearm elbow and lower part of left arm with bevelling directed upwards.
5. Incised wound 8.5x5cmxmuscle deep over the front of left forearm. 3 cm below injury number (4). Underneath injury numbers 4 and 5, the vessels, muscles, nerves were found cut.
6. Incised wound 9x3xbone deep vertical over the left thenar eminence of left hand, its upper end at the wrist joint. The vessels, nerves, muscle and tendons were found cut.
7. Incised wound 3x1.5x0.5cm over the front of left thumb at its root with avulsion of its terminal portion including the phalange.
8. Abrasion 11x0.2cm over the outer aspect of middle of abdomen 22 cm below armpit.
9. Abrasion 11x0.2cm over the outer aspect of middle of left thigh.
10. Abrasion 23x7cm over the front of left knee, leg and lower part of thigh.
Crl.Appeal No.1690/13-:9:-
11. Incised wound 2x0.5x0.3cm over the tip of left big toe.
12. Incised wound 4x1xskull cavity deep, oblique over the back of right side of head upper end 2 cm above right ear. The skull bone and brain were devoid of any injury.
13. Incised wound 9.5x1.5xmuscle deep placed front to back over the top of middle of right shoulder.
14. Abrasion 7.5x0.2cm over the front of right side of abrasion 2cm outer to midline line.
15. Abrasion 9x1.5cm over the front of right knee." Altogether 15 injuries were noted in Ext.P9. He opined that the deceased died due to the combined effect of injury nos. 1, 2 and
6. Those injuries, according to him, can be caused by MO1.
11. PW11 is an attestor to Ext.P10 seizure mahazar of Ext.P11 series and Ext.P12 series of photographs and negatives respectively. PW12 is the Village officer of Puthenchira Village. He issued Ext.P13 site plan. PW13 is the Judicial First Class Magistrate, Thrissur at the relevant time. He deposed that he recorded Ext.P2 statement of Kannan (PW2) and Ext.P14 statement of Udayan (PW15) under Section 164 of Cr.P.C. Ext.P15 is the summons issued to the witnesses in this connection. Ext.P17 is the requisition for recording the statements of those witnesses. He was not the jurisdictional Magistrate. Crl.Appeal No.1690/13 -:10:-
12. PW14 is the then Assistant Chemical Examiner at Government Regional Chemical Examiner's Lab, Ernakulam. She received 14 sealed packets from Court on 18/05/2005. She issued Ext.P18 certificate. Human blood was detected in item nos. 1 to 14 and items 4, 9, 12 and 13 contained human blood of B group.
13. PW15 is the star witness of the prosecution. He is an eye-witness to the incident.
14. PW16 is the then Assistant Professor of Orthopaedics at Government MCH, Thrissur. He deposed that on 28/03/2005, he examined a patient by name Shibu, aged 26 years, S/o Gangadharan referred from CHC, Puthenchira. On examination, he found that the patient sustained an incised wound over the medial aspect of left knee 6 x 4 c.m. opening the knee joint and the patient was treated by wound debridment, suturing of the wound and application of plaster of paris. Ext.P19 is the original case sheet of the appellant. He was transferred to Dr.Jayaprakash, Unit Chief of Ortho ward for further treatment. PW17 Dr. Jayaprakash, was the Professor and Head of the Department of Orthopaedics at Government MCH, Thrissur. According to him, the patient was having no bony injuries and he Crl.Appeal No.1690/13 -:11:- was discharged on 08/04/2005 at 2.00 p.m. He proved Ext.P19 as the case sheet of the patient.
15. PW18 was the S.I. of Police, Mala Police Station. He recorded Ext.P1 FIS given by PW1 Kannan and registered Ext.P1(a) FIR based on the same. As empowered by higher officials, he conducted the inquest and Ext.P3 is the inquest report prepared by him at 11.00 a.m. As per inquest report, he seized items shown in Ext.P20 property list. He seized MO1 chopper and prepared Ext.P4 seizure mahazar for the same. He prepared Ext.P6 scene mahazar as well. Through Ext.P8 seizure mahazar, he seized MO2 and MO3 dress of the appellant as they were produced by the father of the appellant.
16. PW19 is the then Circle Inspector of Police who conducted the investigation further. He arrested the appellant on 08/04/2005. Ext.P22 is the arrest memo and Ext.P23 is the inspection memo. Ext.P24 is the report detailing the name and address of the accused. He prepared Ext.P7 additional scene mahazar. Ext.P10 is the seizure mahazar for the MO11 series and MO12 series photographs and negatives respectively, taken by police photographer. Ext.P26 is the property list. Ext.P18 is the Crl.Appeal No.1690/13 -:12:- chemical analysis report obtained on Ext.P27 forwarding note. Ext.P19 is the case records of treatment of the accused in MCH, Thrissur. He completed the investigation and laid the charge- sheet.
17. PW15 deposed that he had seen the incident. According to him, the deceased Krishnankutty is his father's younger brother. The appellant is his father's another younger brother's son. The incident happened on 28/03/2005 at about 10.00 a.m. at Pakarappilly-Ullas Nagar Sasthavu road, in front of the gate of the house of one Krishnanandan, a Bank employee. His house is about 60-70 metres away from the place of occurrence. On that day, he was going from his house to the house of one Bhaskaran to attend a 'സഞയന ' (ritual on 7th day in connection with the death of a Hindu). On his way, when he reached the junction, one autorickshaw was going from north to south. When that autorickshaw reached near the gate of Krishnanandan, he heard a cry of a human being from that place. So, he ran to that place and found two persons fighting and he saw the appellant inflicting cut injuries on Krishnankutty with a chopper. He deposed that he had seen the appellant chopping on Crl.Appeal No.1690/13 -:13:- the right side of the neck of Krishnankuttry. The appellant was holding chopper in his right hand. According to him, the appellant was inflicting injuries on all parts of the body i.e., head, hands, legs etc. of the deceased. Seeing this, he attempted to take cadjan from a fence in vain. His intention was to divert the attention of the appellant. Then he shouted to the appellant "വ ടല ട വ ടല ട ". Even then the appellant continued to inflict injuries on the deceased. Krishnankutty fell down. Then, the appellant tied his dhothi and went towards Achankulam roadside. By that time people gathered there. PW2 Saraswathy had also come there. It is his version that the autorickshaw found there was that of PW1 Kannan. He rushed to Krishnankutty and found that he is dead. Police came by 11.00 a.m. and conducted inquest. He gave statement to the Police. He identified the appellant and MO1 chopper as the weapon of offence. He also identified Ext.P11 series photographs out of which he deposed that the house seen in Exts.P11 and P11(c) is that of Krishnanandan. He proved Ext.P14 statement as the one he had given before learned Magistrate under Section 164 of Cr.P.C. He admitted his signature in Ext.P15 summons.
Crl.Appeal No.1690/13-:14:-
18. PW2 is a resident of Ullas Nagar and she knows the appellant and the deceased. According to her, the incident in this case happened on 28/03/2005 at about 10.00 a.m. She was alone in her house at that time as her son went for work. She was washing vessels at the western side of the house. At that time, she heard a sound from road "അല ". So, she had a look at the western side of the road from where she heard the sound. Then she went towards the road and found one person holding a billhook in his right hand and in a slightly bend position. On seeing the billhook with that person, she ran back to her house shouting "അല ഓട രല ". She also cried out "വ ല ട ല വന". She identified MO1 as the billhook that was held by the person whom she found there. But she did not identify the person who committed the assault on the deceased.
19. PW4 is the Nursing Assistant of Puthenchira Community Health Centre at the relevant time. She deposed that, on 28/03/2005, at about 11.00 a.m., the appellant came to the Centre with injury on his left knee. He had MO1 billhook on his right hand. Dr.Vidya (PW5) was also there. PW5 informed police over phone. Then, she dressed the wound on the left knee of the Crl.Appeal No.1690/13 -:15:- appellant. It is her version that when she asked the appellant about the injuries sustained by him, he told her that after cutting his uncle (brother of his father), the billhook hit on his leg accidentally. He also told her that his uncle's name is Krishnankutty. Police came and seized MO1 billhook through Ext.P4 mahazar and she is an attestor to it.
20. PW5 is the then Assistant Surgeon at Community Health Centre, Puthenchira. It is her version that, on 28/03/2005, the appellant came to the Centre at about 11.00 a.m with an injury on his left knee and a blood-stained billhook on his right hand. She asked the appellant what happened. It is her version that the appellant told the following words to the above query:
"പ പവന വ ട. അലപ ൾ അബദതൽ ഇടലത ലവ മടന തവ ണ."
On examination, she found it as a deep wound. She had directed PW4 to dress the wound. The appellant had told her that the person whom he cut is lying on the road. It is her deposition that as the appellant was holding billhook, she asked him to give it, but he did not give. Since it was a medico-legal case, she informed the matter to Mala Police Station. She proved Ext.P5 Crl.Appeal No.1690/13 -:16:- original OP register of the centre. The specific page is marked as Ext.P5(a). After giving first aid, she referred the patient to Taluk Hospital, Kodungallur as there was no facility for surgery, which note is also seen in Ext.P5(a).
21. On analysing the evidence, it can be seen that no material contradiction is brought in as far as the evidence of PW15 is concerned. He is a natural and probable witness. He clearly deposed the specific overt acts of the appellant. He identified the appellant and the weapon of offence as MO1. He withstood the touch stone of cross-examination and deposed in tune with his previous statement to police and to the learned Magistrate. PW15's evidence inspires full confidence.
22. It is true that, in Court, PW2 did not identify the appellant herein as the assailant. Apart from that, her version is thoroughly consistent with what is spoken to by PW15. She also identified MO1 as the weapon of offence. Her evidence corroborates the evidence of PW15 to that extent.
23. Both PW4 and PW5 deposed that the appellant made an extra-judicial confession to them while he was treated by them at the hospital. The treatment records prepared by PW5 are Crl.Appeal No.1690/13 -:17:- contemporaneous documents available in the case. It is true that during cross-examination, PW5 denied having given Ext.D2 statement, which says that the injury sustained by the appellant was inflicted by the deceased. But oral evidence of PW4 regarding the extra-judicial confession is unshaken. It also corroborates the version of PW15.
24. The appellant's explanation regarding the enmity of PW15 does not inspire our trust. It is improbable and unnatural as he even went to the extent of telling that PW15 objected a property transaction which had taken place at their childhood.
25. Hence, the above discussion would lead us to the conclusion that the deceased died due to the injuries noted in Ext.P9 and the said injuries were inflicted by the appellant herein using MO1 as the weapon of offence. To that extent, the finding of Court below is justifiable.
26. What remains to be considered is whether the offence would fall under S.302 of I.P.C., which is already found by the trial Court. Learned Senior Counsel took much pain in his attempt to convince us that the case would not fall under 302 IPC.
27. In our considered view, the following aspects should Crl.Appeal No.1690/13 -:18:- also be considered to arrive at a just conclusion:
1. Prosecution did not prove the motive for the crime.
2. Of course, the attack on the victim speaks a lot about the intention of the appellant, but we are still at dark as to how the whole episode started. Prosecution failed to prove the genesis of the incident.
3. The weapon of offence was carried by the appellant to the hospital. But whether the appellant was carrying the weapon with him before the incident is not proved by the prosecution beyond doubt.
4. The evidence as a whole would tend to show that there was no pre-meditation on the part of the appellant.
5. Appellant also suffered a deep bleeding injury for which prosecution does not have an explanation especially in the light of his denial of confession he made to PW4 and PW5 in 313 explanation.
28. Under these circumstances, we are of the view that there was no pre-meditation to commit murder and hence the case at hand would not fall under S. 302 of I.P.C. It would only fall only under S.304 Part I of I.P.C.
Crl.Appeal No.1690/13-:19:-
In the result, the appeal is partly allowed. The conviction and sentence passed by the trial Court under Section 302 of I.P.C. is hereby set aside. The appellant is found guilty under Section 304 Part I of I.P.C. and hereby sentenced to undergo rigorous imprisonment for a period of ten years.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
SHIRCY V.
Rp //True Copy// JUDGE
PS to Judge