Shanifa Beevi vs State Of Kerala on 12 March, 2019

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Kerala High Court

Shanifa Beevi vs State Of Kerala on 12 March, 2019

Equivalent citations: AIRONLINE 2019 KER 201, 2019 CRI LJ (NOC) 394

These appeals have been preferred by the appellants challenging the judgment of conviction and order of sentence passed by the 1st Additional Sessions Judge, Thiruvananthapuram in S.C. No.1489/2004 by which both appellants were found guilty for offences under Section 302 read with Section 34, Section 448 read with Section 34, Section 323 read with Section 34 and Section 324 read with Section 34 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of `1,00,000/- (Rupees One Lakh only) each with a default stipulation of rigorous imprisonment for two years, also to undergo rigorous imprisonment for one year, and further to undergo rigorous imprisonment for six months, and again to undergo rigorous imprisonment for one year respectively for the above offences. Sentences were directed to run concurrently.

2. Case of the prosecution is as under:-

The appellants and the deceased were neighbours. The Crl.Appeal Nos.209 & 1050/14 -:4:- appellants purchased 5 cents of the property of the deceased in the name of 2nd accused and began to stay there. There was persistent boundary disputes and constant friction between the appellants and the deceased. The incident happened on 14/07/2002 at 10.30 P.M. Two days prior to the incident, the deceased and the first accused picked up quarrel in connection with the matter. Out of the said enmity, on the fateful day, accused 1 and 2 trespassed into the residential compound of the deceased Babykuttan located at Kurinchilakkad, Anakudi, Kallara Village in furtherance of their common intention to kill him. They abused Babykuttan and also raised imputations against his wife and provoked him to come out of his house. When Babykuttan approached him, 1st accused waved a bamboo stick at him. Seeing that, Babykuttan took a wooden log and swayed. Then the 1st accused asked his wife, the 2nd accused, to bring the sword kept in his house. 2nd accused brought the sword. 1st accused got the sword from 2nd accused and at once, 2 nd accused struck the deceased with a bamboo stick. The deceased took out and threw away the bamboo stick from the 2 nd accused. At that time, the 1 st accused having exhorted that he would chop the deceased to Crl.Appeal Nos.209 & 1050/14 -:5:- death, repeatedly inflicted cut injuries on the back of his chest with the sword and inflicted injuries on the neck twice. When PW2, the wife of the deceased rushed to intervene and ward off further blow and asked the 2nd accused as to why such cruelty is done to her husband, 2 nd accused also exhorted that they would cut him into pieces and the 1st accused slapped on her right ear.

3. Learned Senior counsel for the 1st appellant Sri.Grashious Kuriakose argued that the evidence adduced through PW1 to PW3 are not believable as they are highly interested witnesses. The aggression was started by the deceased. There is no evidence to show that the appellants were carrying the weapon of offence with them. It can be seen that the weapon stated as used by the aggressors at the time of incident was a chopper. But the material object produced is a sword. The recovery is also not proper. Motive for the crime is not proved by the prosecution. Deceased gave a blow to the 1 st appellant. The appellant was in fear of death. He, if at all admitted for the sake of argument, exercised his right of private defence. He pleaded for an acquittal by extending benefit of doubt. At any rate, the offence would not fall under Section 302 of I.P.C. The evidence Crl.Appeal Nos.209 & 1050/14 -:6:- adduced by the prosecution against the 1 st appellant almost would amount to an offence defined in the second limb of Section 304 of I.P.C. As far as the 2 nd appellant is concerned, she had not committed any overt act leading to murder and there is no evidence of any common intention to commit murder as well.

4. On the other hand, the learned Senior Public Prosecutor Sri.Alex M. Thombra argued that the case against the appellants is proved by the prosecution beyond reasonable doubt. Court below is justified in arriving at its conclusion. PW1 to PW3 are eyewitnesses to the incident. They deposed the involvement of both the accused in the crime. Their evidence is corroborated by medical, recovery and forensic evidence. Both appeals are devoid of merit and hence liable to be dismissed, he argued.

5. We heard both parties in detail and perused the materials on record. The question to be decided is whether the Court below was justified in arriving at its finding that prosecution succeeded in proving beyond reasonable doubt that both appellants are liable for the offences charged against them. For the sake of convenience and for better appreciation of evidence, Crl.Appeal Nos.209 & 1050/14 -:7:- it would be appropriate to discuss the matter under three points. Firstly, whether the Court below was right in holding that the death of Babykuttan was a homicide? Secondly, whether the evidence on record justify the finding of the trial Court that it was the 1st appellant who inflicted fatal injuries on the victim on the date of incident as alleged by the prosecution. Thirdly, whether the finding of the learned Sessions Judge that the 2 nd accused had common intention to commit the offences levelled against the 1 st accused and thereby attract vicarious criminal liability for the offences charged.

6. According to the prosecution, there is direct evidence to prove the occurrence and involvement of the appellants to the crime. The evidence adduced, in brief, are as follows:-

PW1 to PW3 are cited as occurrence witnesses. PW4 is a neighbour who reached the spot hearing about the incident. PW5 is the Doctor who conducted the autopsy of the victim and issued Ext.P3 certificate. PW6 is an independent witness who is an attestor to Ext.P4 recovery mahazar of MO2 sword based on Ext.P4(a) disclosure statement of the 1 st accused. Ext.P18 is the property list. PW7 is an attestor to Ext.P5 inquest report. He also Crl.Appeal Nos.209 & 1050/14 -:8:- proved the seizure of MO4 and MO5 from the spot. PW8 is the Village Officer through whom Ext.P6 site plan was proved. Ext.P7 is the report issued by him. It relates to the details of the landed property conveyed by the deceased to the 2 nd accused. PW9 is the Additional Sub-Inspector of Police, Pangode. He registered Ext.P1(a) FIR based on Ext.P1 FIS of PW1. PW10 is the Circle Inspector of Police, Kilimanoor who conducted the investigation. He arrested both the accused. Exts.P11 and P15 are the arrest memos of 1st and 2nd accused respectively. Exts.P13 and P16 are their respective inspection memos. Exts.P12 and P17 are their respective custody memos. Ext.P10 is the report revealing the address of the appellants. Ext.P8 is the search memo and Ext.P9 is the search list. Ext.P19 is the forwarding note for sending the items for examination. Ext.P20 is the certificate of chemical analysis prepared by Smt.S.Sujatha, Joint Chemical Examiner, Thiruvananthapuram. Ext.P21 is the FSL report prepared by PW11. PW10 completed the investigation and laid the charge- sheet.

7. Whether the death of Babykuttan was a homicide is the first question to be looked into. Ext.P5 is the inquest report Crl.Appeal Nos.209 & 1050/14 -:9:- prepared by PW10. PW5 is the Doctor who conducted the autopsy of the victim on 15/07/2002 and issued Ext.P3 post-mortem certificate. She deposed that she had noted the following ante- mortem injuries on the corpse of the victim Babykuttan:-

"1. Incised wound 10x6x0.5 to 2 cm, with multiple side cuts and exposing a flap of skin 5.5x6.5 cm from the lower margin, on the left side of face the upper inner end 7.5 cm outer to midline and 2.5 cm below the margin of lower eyelid.

2. Incised wound 2x0.3x0.3 cm horizontal on the left side of face, the outer end merging with injury No.1, 2.5 cm below its upper inner margin.

3. Incised wound 6.5x0.6x0.3 cm on the front of left ear lobe, 2.5 cm below its top.

4. Incised wound 1.5x0.5x0.3 cm on the front and outer aspect of left ear lobe.

5. Incised wound 7.5x6x1.5 cm, exposing a flap of skin, 6x5 cm on the upper margin, on left side of front of neck the upper inner end 8.5 cm outer to midline and 2 cm below the lower border of jawbone.

6. Two incised wounds 12x1x0.4 cm and 7.5x1.2x0.4 cm with two side cuts and an intervening flap of skin 3.5x1.5 cm oblique on the front of chest and adjoining part of arm, the lower outer extent at the front fold or armpit.

7. Incised wound 6.5x2x0.3 cm exposing a flap of skin 5.5x1.5 cm inwards from the inner margin on the front of left arm, the lower inner end 20 cm above elbow.

8. Incised wound 12x4x1.5 cm exposing the joint Crl.Appeal Nos.209 & 1050/14 -:10:- cavity on the outer aspect of left elbow and adjoining part of arm and forearm, the lower end 21 cm above wrist. A tailing of 2 cm extending upwards from the inner end. Upper end of radius was found cut over an area 2x0.5x0.1 cm.

9. Incised wound 16x5 cm, bone deep horizontally placed on the front of right thigh 24 cm above knee. Thigh bone was found cut over an area 1.5x0.3x0.3 cm, the upper margin showed fragmentation. Femoral vein was found cut on the inner margin.

10. Incised wound 18x4x12.5 cm obliquely placed on the left side of back of chest the upper inner end 7 cm outer to midline and 10 cm below the top of shoulder with a tailing 2 cm long extending upwards, wound terminated by fracturing the vertebral attachment of back end of first rib.

11. Incised wound 2.5x0.6x1cm, oblique on the left side of back of trunk the lower inner end 1.5 cm outer to midline and 3.5 cm above the natal cleft with a tailing 13 cm long extending downwards from the lower margin.

12. Incised wound 2x0.5x0.8 cm, obliquely placed on the right side of back of trunk, the upper inner end 7.5 cm outer to midline and 17.5 cm below the collar bone top of shoulder with a tailing of 14.5 cm long, linear extending downwards from the lower margin. It was found merging with the tailing of injury No.11.

13. Incised wound 2 cm long, linear 2.5 cm above and parallel to upper margin of injury No.10.

14. Multiple small abrasions over an area 4x1.5 cm, 2.5 cm above and 2 cm outer to the upper inner end of injury No.10"

Crl.Appeal Nos.209 & 1050/14 -:11:- She further deposed that the cause of death of the victim was multiple injuries. Altogether 14 ante-mortem injuries were noted by her. According to her, injury numbers 1, 5 and 9 are fatal and sufficient in the ordinary course of nature to cause death. Except injury number 14, all other injuries could be caused using MO2 as weapon of offence. Injury number 14 could be caused if the person falls and comes into contact with rough surface or object. Presence of air in the right ventricle of the heart was possible by injury number 5. All injuries noted by her on the body of the victim were fresh. The blood of the victim belonged to 'B' Rh negative. PW1 is the brother-in-law, PW2 is the wife and PW3 is the daughter of the deceased. All of them deposed that the deceased herein is Babykuttan. Hence, we agree with the finding of the Court below that the death of Babykuttan was a homicide.

8. To answer the next two questions, it is necessary to look into the evidence of PW1, PW2 and PW3 whom prosecution cited as eyewitnesses to the incident. PW1 is the brother-in-law of the deceased. He deposed that the deceased was residing 10 metres south to his house. The house of the appellants is situated on the southern side of the house of the victim and PW1. The Crl.Appeal Nos.209 & 1050/14 -:12:- appellants purchased 5 cents of property from the deceased in the name of 2nd accused and began to reside there. He stated that he had seen the incident. It was on 14/07/2002 at about 10.30 P.M. The victim was a mason. He was in the habit of coming home from work place on Saturdays and go back to the work place on Sunday. On the date of incident, PW1 reached his house at 07.00 P.M and he had dinner and slept by 10.00 P.M. Hearing hue and cry, he went out with a torch. At that time he had seen the 1st accused abusing the deceased and saying "come out, I will show you." It is his version that he had seen there 1 st accused, 2nd accused, the victim, PW2 and PW3. The 2 nd accused hit the deceased with a bamboo stick. Babykuttan managed to get the bamboo stick and he threw it away. He took a stick and waved at the 1st accused. According to PW1, at that time 1 st accused asked 2nd accused to bring the sword which was kept in their house. 2 nd accused brought the sword. Using the sword, the 1 st accused inflicted three cut injuries on Babykuttan. He inflicted cut injuries at the neck and face. Thereafter he inflicted injuries indiscriminately. PW1 to PW3 who were present there cried aloud. By saying that he would kill the victim inch by inch, the 1 st Crl.Appeal Nos.209 & 1050/14 -:13:- accused chopped at the knee and thigh of Babykuttan. Even though the victim fell down on his knees, the 1 st accused continued his aggression. As PW2 asked the 2 nd accused as to why this cruelty was being done, 2nd accused stated that they will rest only after finishing the victim off. As more people gathered by hearing the loud cry, the accused ran away by throwing the weapon and the torch to the dark. PW1 went near to the victim with the torch. There was only a slight screaming from the victim. They called for a jeep, but by that time Babykuttan was dead. He gave Ext.P1 FIS to the Police on the same day based on which PW9 registered Ext.P1(a) FIR. He identified MO1 as the kaili worn by the deceased, MO2 as the weapon used for the commission of the offence, MO3 as the torch left by the accused, MO4 as the stick waved by the deceased and MO5 as the bamboo stick seen in the hands of 2nd accused. During cross-examination, he stated that the house of the deceased and the appellants were 4 metres apart. He also stated that the local people over their place name 'വ ൾ' (sword) as 'വവടകത'(chopper). The statement during chief examination that the 2nd accused had hit the victim with a bamboo stick and that the 2 nd accused had brought the sword Crl.Appeal Nos.209 & 1050/14 -:14:- (MO2) to the place of occurrence and that the victim fell on his knees and that they ran away by leaving torch and stick and that the 1st accused had beaten PW2 with hands were shown to be omissions. He received the dead body of the victim as per Ext.P2 receipt.

9. PW2 is the wife of the deceased. Her husband was a mason who was engaged in constructing granite wall at seashore. According to her, the incident happened on 14/07/2002 at 10.00 P.M. 1st accused lighted the torch into their house and asked the deceased to come out. There was boundary dispute with the appellants. The habit of her husband was to reach home on Saturdays and go back to the work place on Sundays. It is her version that whenever her husband comes, the appellants used to pick up quarrel. The appellants encroached the boundary. That was the issue between them. Her husband went out hearing the call from the appellants. The 1st accused tried to hit the deceased with bamboo stick. Her husband turned back. At that time the 1 st accused told his wife (2nd accused) to bring the sword from their house. It is the version of PW2 that the 1 st accused inflicted three cut injuries on the deceased using the sword brought by the 2 nd Crl.Appeal Nos.209 & 1050/14 -:15:- accused. Injury was inflicted on the neck and face also. PW2 asked the 2nd accused as to why they were doing such cruelty. To the same, they replied that they would chop the victim to death. Even after falling down, the 1st accused cut at the knee, leg and thigh of the victim with the weapon. As PW2 intervened, the 1 st accused slapped on her cheek. PW2 cried aloud and hearing loud cry, many people gathered there. Daughter of PW2 i.e., PW3 and son of PW2 who is blind, were also present there. It is her further version that the 2nd accused hit her husband using bamboo stick. According to her, as her husband came out from their house hearing the call of 1st accused and begin to wave a stick, the 1 st accused took the bamboo stick and tried to hit the deceased. The torch was on the left hand of 1st accused and the sword was on his right hand. PW1 also reached the place. Her husband had already died before they could take him to hospital. She identified MO1 to MO5 in Court. During cross-examination, she admitted that she did not have a case before police that the 2 nd accused had hit her husband with bamboo stick and that she had gone to her home as per the direction of the 1 st accused and brought MO2 sword to the place of occurrence and gave it to the 1 st accused. Crl.Appeal Nos.209 & 1050/14 -:16:- She also admitted that she had no case earlier that the 1 st accused had hit at her cheek.

10. PW3 is the daughter of the deceased and PW2. She deposed that she had seen the incident. On 14/07/2002 at 10.30 P.M., as the family members were sleeping, 1 st accused came to their house and began to use abusive words against her father Babykuttan (the deceased herein) and her mother (PW2). He challenged her father Babykuttan to come out. Babykuttan came out and herself and PW2 followed him with the lantern. The deceased saw a bamboo stick with the 1 st accused. So, he took a stick and waved it. 1st accused asked 2nd accused to bring the sword which was kept in their house. 2 nd accused went to their house and brought the sword. 2nd accused hit the deceased by taking hold of the bamboo stick. According to PW3, 2 nd accused exhorted 1st accused to finish off the deceased. 1 st accused inflicted 3 cut injuries on the back of her father. As the victim turned, 1st accused had cut at the left side of the neck twice and blood rushed out. Her father fell on his knees and lied down. 1 st accused continued to cut the victim at his left hand, right thigh, knee and elbow. PW2 came and asked the 2 nd accused why they Crl.Appeal Nos.209 & 1050/14 -:17:- were doing that cruelty. Then the 2nd accused asked the 1st accused to cut the victim again and again. 1st accused slapped PW2 on her cheeks. Hearing the hue and cry, her mother's sister and PW1 came to the spot. 2 nd accused went to her house and the 1st accused ran away to the south with the weapon. People gathered there. They understood that her father died. It is her version that her father had sold 5 cents of land adjacent to their property to the 2nd accused. There were boundary disputes regarding the properties. On previous Friday also there was quarrel between the deceased and the 2 nd accused. She identified MO2 sword, MO4 stick, MO5 bamboo stick, MO1 kaili of her father and MO3 torch of the 1st accused. During cross-examination, she admitted that she had not stated to police that there was a quarrel between the deceased and the 1 st accused two days prior to the incident. The incident happened in their courtyard near the well. 1st accused challenged the deceased and the deceased had come out to the courtyard.

11. The learned Senior counsel for the 1st accused contended that the versions of these witnesses are full of embellishments and omissions and hence they cannot be Crl.Appeal Nos.209 & 1050/14 -:18:- believed. He argued that all these witnesses are highly interested witnesses and all of them have a grudge against the appellants. Prosecution suppressed the real incident and presented a false story before Court.

12. It is settled law that the maxim 'falsus in uno falsus in omnibus', which means "false in one thing, false in everything", has no application in India. It is the duty of the Court to analyse and weigh the evidence of each witness including hostile witness and accept in evidence those statements which are credible. Other statements can be discarded. In this case, there are three eyewitnesses. They deposed in detail what had happened on the date of incident. The evidence of these eyewitnesses need to be assessed carefully to arrive at a conclusion regarding what actually had taken place on the fateful day.

13. The evidence tendered by these three witnesses clearly establish the fact that it was the 1 st accused who had inflicted the fatal blows on the victim. The evidence of PW1, PW2 and PW3 are categoric to that point. The place of occurrence is the property of the victim and the appellants had no business to enter into the victim's property with weapons at that odd hours. Crl.Appeal Nos.209 & 1050/14 -:19:- Criminal trespass is also clearly established. PW5 deposed that there were 14 incised wounds on the deceased out of which injury numbers 1, 5 and 9 were fatal and sufficient in the ordinary course of nature to cause death. Ext.P3 is the post-mortem certificate. Based on Ext.P4(a) confession statement of the 1 st accused, MO2 sword was recovered as per Ext.P4 mahazar for which PW6 is an witness. The said weapon was sent for chemical analysis and it is shown as item number 5 in Ext.P21 report. The report reveals that the said item was blood-stained. The 1 st accused was absconding after the incident. Learned counsel put an argument that the weapon allegedly used was a വവടകത (chopper) as per earlier version of the witnesses but the weapon allegedly recovered was a sword (MO2). But that argument cannot be accepted as the witnesses clearly deposed that in their locality they call sword as വവടകത. In so far as the witnesses clearly identified MO2 as the weapon used for committing the offence, it would be hyper-technical to take a view that the weapon used was different. We are convinced that MO2 produced and proved by the prosecution is the weapon used by the 1 st accused to commit the crime. All evidence prove beyond Crl.Appeal Nos.209 & 1050/14 -:20:- reasonable doubt the involvement of the 1 st accused in the crime. It can be seen that the deceased was incapacitated and silenced by the assailant. Unlike the argument of the learned counsel, it is not a case of exceeding right of private defence. Evidence on record shows that the 1st accused was the one who trespassed into the property of the victim and he was the one who inflicted fatal injuries on the victim using MO2 sword. The 1 st accused trespassed into the property of the victim and the victim had the right to defend himself. 1st accused cannot claim that he was exercising his right of private defence by going to the house of the victim with weapons like sticks and sword. Nothing is available on record to consider the plea of self defence. The act of the 1st accused was deliberate and intentional. The Court below is justified in convicting the 1st accused for murdering Babykuttan. Regarding the hurt caused to PW2 by the 1 st accused, it is brought out that the said portion of deposition of witnesses is an omission. Hence the prosecution failed to prove the charge of 324 and 323 against the 1st accused.

14. The remaining question is whether the 2 nd accused entertained any common intention to commit the crime as Crl.Appeal Nos.209 & 1050/14 -:21:- alleged against her. It can be seen that PW1 who had given Ext.P1 FIS to the police and PW2 who is the wife of the deceased did not have a case before police that the 2 nd accused was involved in the crime the way they stated in Court. None of the witnesses had a case that the 2 nd accused hit the victim with bamboo stick. Those portions were brought out as omissions. Even assuming that the 2nd accused had brought the sword to the place of occurrence and handed it over to the 1 st accused, there is nothing to show that she had the shared intention or had prior meeting of mind with the 1st accused to commit murder of the victim. We are compelled to take this view especially in the light of the fact that none of the witnesses had a case that the 2 nd accused had committed any of the injuries on the victim. No incriminating material is recovered at the instance of 2 nd accused. No other evidence is available to connect her to the crime as alleged by the prosecution. The allegation is that the 2 nd accused had hit the victim with bamboo stick. But it can be seen that no corresponding injury is noted by PW5 on the victim during post- mortem examination. To that extent, we disbelieve the ocular version of witnesses as embellishment. Under these Crl.Appeal Nos.209 & 1050/14 -:22:- circumstances, we are of the view that the finding of the Court below as far as the 2 nd accused is concerned is without the backing of any legal evidence and hence she should be given the benefit of doubt.

In the result, the appeals are disposed of as under:-

(i) Crl.Appeal No. 209/2014 is allowed. The 2 nd accused is acquitted of all charges levelled against her and she shall be released forthwith, if her presence is not required in any other case.

(ii) Crl. Appeal No.1050/2014 is partly allowed setting aside the conviction and sentence of the 1 st accused for offence under Sections 323 and 324 of IPC. In all other respects, the judgment is confirmed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                               A.M.BABU

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