Shibu vs State Of Kerala on 1 February, 2019

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Kerala High Court

Shibu vs State Of Kerala on 1 February, 2019

These appeals have been preferred by the appellants challenging the judgment of conviction and order of sentence dated 6th May 2013, passed by the Additional Sessions Judge, Neyyattinkara in S.C. No. 641 of 2007 arising out of Crime No. 26 of 1996 of Balaramapuram Police Station (which had been investigated by the CBCID, Thiruvananthapuram as 104/CR/1999), by which both the accused/appellants were found guilty for offences under Sections 302 and 341 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and both of them were sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for three years each for offence under Section 302 read with Section 34 of IPC. No separate sentence is awarded for offence under Section 341 of IPC.

2. The case of the prosecution is that, on 29.01.1996, at Crl.Appeal Nos.648 & 1518/13 -:4:- about 07.45 p.m., the accused pelted stones to the house of the deceased and in spite of warning, the accused continued pelting uttering obscene words. The deceased Rajendran came out from the house with a cudgel and chased the accused. At about 08.05 p.m., the first accused clasped deceased Rajendran from the back and asked the second accused to kill him. The second accused stabbed the deceased with a dagger on his chest and stomach. Rajendran was taken to hospital and there he succumbed to the injuries.

3. Originally, the case had been investigated by Balaramapuram Police. The relatives of the deceased approached this Court and as per the direction issued by this Court in O.P.No.3000 of 1998, the investigation was made over to CBCID, Thiruvananthapuram.

4. PW1 to PW12 were examined as witnesses, Exts.P1 to P25 documents were marked and MO1 to MO4 were identified as material objects by the prosecution. Exts.D1 to D3 were marked as contradiction in the prosecution evidence. During 313 examination, the appellants denied the entire prosecution case and pleaded innocence. Though the accused did not adduce any Crl.Appeal Nos.648 & 1518/13 -:5:- defence evidence, in the written statement submitted under S.313(5) and also during cross examination of the victim, the accused has a consistent case that the deceased Rajendran was well-versed in Kalarippayattu (a traditional martial-art in Kerala), that he was an active worker of Kerala Congress, that he volunteered in many political fights due to which he had many political enemies, that the deceased was a womanizer and, on the date of incident also, local people interfered in his attempt to have illicit relationship with a woman and that there was a commotion over the same and the deceased happened to fall on glass pieces near a pond and sustained injuries. They contended that they were falsely implicated in the case by the witnesses who are the relatives of the deceased owing to their misconception that it was the accused who spread rumour in the locality about the deceased regarding his illicit relationship and wayward life.

5. Learned Senior counsel appearing for and on behalf of the second accused Sri.Vijaya Bhanu and learned counsel for the first accused Sri.R.V.Sreejith argued that the case at hand is without any basis and the accused were falsely implicated. Crl.Appeal Nos.648 & 1518/13 -:6:- Defence case was not at all considered by the trial Court and there is no discussion on it. Court below failed to appreciate the evidence in its correct perspective. PW1 to PW5 are not believable. Their version does not inspire confidence as they contradict each other in material aspects. Crucial independent witnesses were not examined by the prosecution to suppress the truth. At the time of offence, there was power failure. Even place of occurrence is not fixed by the prosecution. No recovery of weapon allegedly used for offence is effected at the instance of either of the accused. PW2 was questioned much later in 2004 only by the investigating agency. Prosecution case is the result of concoction and the accused became the prey to it. Court below committed serious error in convicting the accused and hence this Court need to interfere and ensure justice by ordering acquittal of the innocent accused, they argued.

6. On the other hand, learned Senior Public Prosecutor Sri.S.U.Nazar argued that direct evidence of PW1 to PW5 is cogent and coherent and they are believable. They corroborate each other. No material contradiction is brought in their evidence in spite of lengthy cross-examination. The defence case is proved Crl.Appeal Nos.648 & 1518/13 -:7:- to be a falsehood as they took almost a stand of alibi. The witnesses were readily available at or near the place of occurrence and medical evidence corroborate their unshaken version. The Court below is absolutely justified in its conclusion and hence there is no need for an interference by this Court.

7. Having heard both sides in detail, the question to be considered is whether the Court below was justified in convicting the accused/appellants herein in the light of available evidence.

8. Evidence adduced in this case, in brief, are as follows:-

PW1 to PW5 were examined to prove the overt acts of the accused as they were cited as occurrence witnesses. PW1 is the nephew of the deceased. Ext.P1 FIS is lodged by him. PW2 is an independent witness. PW3 is the younger brother of the deceased who was an attestor to Ext.P2 mahazar. He identified MO1 broken dry leaves of jack fruit tree collected from the scene of occurrence and MO2 fresh leaves of jack fruit tree. PW4 was a tuition student of the deceased. PW5 is the younger brother of the deceased. PW6 is an attestor to Ext.P3 inquest report. He also identified MO3 lunki and MO4 towel of the deceased. PW7 is the Doctor who proved Ext.P4 post-mortem certificate. PW8 recorded Crl.Appeal Nos.648 & 1518/13 -:8:- Ext.P1 statement of PW1 based on which he registered Crime No.26 of 1996 of Balaramapuram Police Station for which Ext.P5 is the FIR. PW9 is the Circle Inspector of Police who conducted the initial investigation. He prepared inquest report, scene mahazar, seized MO1 to MO4, searched house of A1 and A2 as per memos Exts.P6 and P7. Exts.P8 and P9 are the respective search lists. Ext.P10 is the report filed for giving correct address of the accused. Ext.P11 is the custody report of A1 who surrendered before Court on 19.02.2006. Exts.P12 and P13 are the property lists. Ext.P14 is the chemical analysis report. PW10 is the then Village Officer, Pallichal Village through whom Ext.P15 scene plan is marked. PW11 is the Detective Inspector of Crime Branch CID, Thiruvananthapuram who took over the investigation based on Ext.P16 order of the DGP and Ext.P17 order of the IGP, Crime Branch. Exts.P18 and P19 are reports filed in Court informing that the investigation of the case was taken over by the CBCID. PW12 is the Dy.S.P., Crime Branch CID, Thiruvananthapuram who conducted the investigation. He proved Ext.P20 report filed before Court. Ext.P21 is the affidavit and Ext.P22 is the report for the obtaining of custody of second accused on his surrender Crl.Appeal Nos.648 & 1518/13 -:9:- before Court on 26/10/2004. Ext.P25 is the report detailing address of second accused. He recorded the confession of the second accused, but no weapon was recovered. Ext.P23 is the forwarding note prepared for sending MO1 and MO2 and Ext.P24 is the report from Forensic Science Lab. PW12 completed the investigation and laid charge-sheet before Court on 12/05/2005.

9. PW7 Dr.Rema is the then Assistant Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram. Ext.P4 is the certificate issued by her. She deposed that the following ante-mortem injuries were noted by her on the corpse of Rajendran:-

"1. Incised penetrating wound 3.5x0.5 cm obliquely placed on the right side of front of trunk, its lower inner blunt end being 7 cm to the right of midline and 4 cm below the costal margin. Its upper outer end was sharply cut. The abdominal cavity was seen penetrated, the lower margin of right lobe of liver, partial thickness of fundus of gall bladder and portal vein were found cleanly cut. The wound was directed backwards, upwards and to the left for a total minimum depth of 2.5 cm. Abdominal cavity contained 1800 ml. of fluid blood.

2. Incised wound 3.5 x 0.2 x 0.3 cm, obliquely placed on the right side of front of trunk, its upper inner end being 11 cm, outer to umbilicus.

3. Incised wound 2 x 0.2 x 0.2 cm, horizontal on the left Crl.Appeal Nos.648 & 1518/13 -:10:- side of front of chest 4 cm below the front fold of armpit.

4. Abrasion 2 x 1 cm on the outer aspect of right thigh 15 cm below the top of hip bone.

5. Abrasion 1.5x1.5 cm on the back of chest 4 cm to the left of midline and 10 cm below the top of shoulder."

10. According to her, death was due to penetrating injury on abdomen (injury no.1). Out of the five injuries, injury no.1 is independently fatal. Injury nos. 2 and 3 were possible by attack with the edge of any sharp cutting weapon. Injury no.2 can be caused in an act of withdrawing the weapon after inflicting injury no.1. It is her version that injury no.3 can be caused in an attempt to stab. A sharp light cutting single-edged weapon having appropriate dimension can cause injury no.1. She admitted that she had given statement to the police that injury nos.4 and 5 could be caused when the part of the body comes into contact with any rough substance or object. During cross- examination by the second accused, she stated that if a person happened to fall on a broken glass, injury no.1 was not possible. She also stated that it is not possible to sustain this injury during a scuffle and also with a knife held by the deceased.

11. Evidence of PW4 coupled with Ext.P3 inquest report Crl.Appeal Nos.648 & 1518/13 -:11:- shows that death of Rajendran was out of stab injury sustained on the stomach and it was a homicide. Court below found that the said injuries were caused by the accused with common intention to commit murder of Rajendran. We are to see whether the conclusion drawn by the Court is justified based on the available evidence.

12. As already stated, PW1 to PW5 are cited as occurrence witnesses. Crux of the evidence of PW1 is as under:-

PW1 stated that, on 29/01/1996 at 7.45 p.m., he had dinner and came out of his house after halting autorickshaw in his house. There was power failure during that time and electric supply was resumed at 08.00 p.m. According to him, he saw the accused pelting stones to the house of Rajendran and as he reached in front of the house of Rajendran, the accused pelted stones at him also. PW1 asked the accused whether they were mocking. Accused continued pelting stones to the house of the deceased. At that time the deceased was conducting a tuition class for PW4 and CW6 in the veranda of his house. The wife of Rajendran came out of the house and at that time, the accused jumped over the compound wall. Rajendran came out with a Crl.Appeal Nos.648 & 1518/13 -:12:- cudgel and went to the place to which the accused jumped over. The accused went near the pond and suddenly returned. It is his version that he saw the first accused Thankaraj clasping Rajendran and asking 2nd accused to kill Rajendran (അവന കത ന ന ട ). Accordingly, the 2nd accused took a pointed dagger and stabbed Rajendran on his right upper side of the body. He again drew back the dagger and stabbed on the left side of the chest of Rajendran. It is his further version that when he rushed to the spot, 2nd accused brandished the dagger towards him. Then accused went away. PW1 deposed that other witnesses Vikraman Nair, Sukumaran, Premachandran and Ilayamma also came to the place of incident and they took the injured to his house. There was profuse bleeding and hence PW1 tied a towel over the abdomen. He further stated that he went to his house, brought his autorickshaw and took the injured to hospital. As he was faced with such a daunting situation, he could not drive further and hence the auto was taken to Nemom Police Station. Police hired a car and the injured was rushed to Medical College Hospital, Thiruvananthapuram. The injured was declared dead by Doctors on examination. According to him, he witnessed the incident with Crl.Appeal Nos.648 & 1518/13 -:13:- the help of tube light in a nearby electric post. He further deposed that the accused went to the house of one Chandini and quarrelled with her. Deceased Rajendran scolded the accused and because of the same accused murdered Rajendran. He identified both accused in Court. He also stated that he could identify the dagger used for the commission of the offence. Ext.P1 FIS is given by him to Balaramapuram Police. No material omission is brought out in PW1's evidence.

13. PW2 is cited as an independent witness. He was a security guard in KTDC and the incident took place on 29/01/1996 at 08.00 p.m. According to him, he had gone to one of his relatives and was on his way back to his house. As he reached in front of the house of Rajendran, he saw both the accused pelting stones towards the house of Rajendran from the compound of one Sivarajan. It is his version that Rajendran came out of his house and came to the road shouting: "ആര ട വടൽ ന റയനത?"

(Who is pelting stones at the house?) An electric post with tube light was there. Both the accused jumped over the wall and came near to Rajendran. It is his version that the 1 st accused clasped Rajendran and exhorted: "കനതട ഷബ" (Shibu, stab him). At that Crl.Appeal Nos.648 & 1518/13 -:14:- time, 2nd accused stabbed Rajendran with a dagger (Vechuvaa) on his right abdomen and again stabbed him on the left side of the chest of Rajendran. Rajendran shouted: "അയ എനന കതയ "

(Oh! I got stabbed). Hearing the same, PW1 and Sukumaran came near to Rajendran. According to him, the 2 nd accused tried to stab PW1 with the same weapon, but he pacified it. PW2 and others brought Rajendran to his house. Blood was oozing from the stomach of Rajendran and the wound was wrapped with a towel. It is his version that PW1 went to his house and brought his autorickshaw and the injured was taken to hospital. He saw the incident with the help of street light. According to him, because the accused were prevented by the deceased from pelting stones at the house of Chandini, they committed the offence. He identified both accused. He stated that he could identify the weapon of offence also. During cross-examination, he stated that the house of Rajendran was situated 15 feet away from the main road. He had gone to the house of a relative at Muttamoodu on the said day. He denied the suggestion that he had seen people gathered in front of the house situated on the northern side of the road. He stated that he alighted from the bus in front of the Crl.Appeal Nos.648 & 1518/13 -:15:- house of Rajendran. He was cross-examined at length especially regarding the deposition about scene of occurrence and his alleged presence at the relevant time at the place of occurrence. Exts.D3 and D4 contradictions were marked. He further deposed that the autorickshaw in which the injured was taken to hospital was owned and run by PW1. Himself, Maniyan and Aji had taken the injured to hospital. He stated that CPI(M) is the strongest political party in the locality and Kerala Congress is not that much powerful in the locality. He pleaded ignorance to the suggestion by the defence whether the deceased was a master in Kalarippayattu. He stated that though he felt like saving Rajendran, because of fear, he did not venture for it. He added that PW1 reached the spot at the time when Rajendran was stabbed by 2nd accused. He also admitted that at the time when 1st accused was clasping Rajendran, PW1 had not reached there. While he was cross-examined by 2nd accused, he admitted that he know the deceased and his family for last 20 years. He affirmed his earlier version that 1st accused shouted "കനതട ഷബ". He gave statement in 2004. He admitted that he had not given statement to police that the deceased had told aloud: "അയ എനന കതയ ". Crl.Appeal Nos.648 & 1518/13 -:16:- Chandini is the sister of Rajendran. Power cut in that area was between 7.30 and 08.00 p.m. during the relevant day. He specifically denied the suggestion put by 2 nd accused that the injuries on the deceased were caused by a fall over broken glasses.

14. PW3 is the younger brother of the deceased. According to him, he closed his shop at 07.30 p.m. and came to the family house and was about to make preparations for pooja in the pooja room. By the time, he heard commotion from the road. There was a hue and cry from the house of Chandini. Rajendran came out and asked to abstain from the scene. He was conducting tuition for children. He heard the noise of falling stones in front of the family house and as such he came out of the house by which time power supply was resumed. It is his version that he saw Rajendran proceeding towards Peringottu kulam and at that time accused jumped over the wall and reached near Rajendran. According to PW3, 1st accused clasped Rajendran and shouted to 2nd accused to kill Rajendran. At that time, 2 nd accused drew a sharp knife (Vechuvaa) and stabbed Rajendran on the right side of the stomach. Again he stabbed him on the left side of the Crl.Appeal Nos.648 & 1518/13 -:17:- chest. It is his statement that as witnesses rushed to the spot, 2 nd accused brandished the weapon of offence against PW1. Thereafter the accused ran away from the spot. Rajendran was taken to his house and subsequently he was taken to hospital in the autorickshaw of PW1. He saw the incident with the help of street light near the place of occurrence. He had shown the place of occurrence to the police and he is an attestor to Ext.P2 scene mahazar. During cross-examination, he stated that his shop is situated 15 metres west to Mottamoodu Junction. He used to open his shop at 07.00 in the morning and close at 07.30 in the evening. A family temple is there in the family house. The house of PW3 is situated near the shop. He made preparations for pooja and his younger brother is the one who performs pooja. He further stated that Rajendran wore a lunki and a belt at the time of incident and there was profuse bleeding from his wound. He proceeded to the hospital in bus. He denied the suggestion that the deceased was having ninja (a short sword found with karate stunters). He also denied the suggestion of the defence that the injuries were caused to Rajendran by falling on the broken glass pieces near the pond.

Crl.Appeal Nos.648 & 1518/13 -:18:-

15. PW4 was a student taught by Rajendran. She did not witness the incident. But she stated that the deceased was taking tuition class to her and CW6 during the relevant time. From 07.30 p.m., there was power failure in the locality. The accused came in front of the house and abused Rajendran. According to her, Rajendran went out of the house and came back. Thereafter, there was pelting of stones towards the house. Hence Rajendran went out of the house with a cudgel. Herself and CW6 went inside the house as there was commotion outside. When Rajendran came out of the house, the power supply was resumed. Rajendran went towards the pond and after sometime, according to PW4, Rajendran was taken injured to the house by PW1 and others. There was profuse bleeding from injuries and hence a towel was wrapped over the wound. PW1 brought an autorickshaw and Rajendran was taken to the hospital in the said autorickshaw. During cross-examination, she deposed that the house of Rajendran was only 15 metres away from the main road.

16. PW5 is the younger brother of the deceased. According to him, the incident happened on 29/01/1996 at about 08.00 p.m. He reached the house as usual and saw Rajendran teaching his Crl.Appeal Nos.648 & 1518/13 -:19:- students, PW4 and CW6. He had gone for a bath near a well. He went out for defecation and came back, but did not see Rajendran. As he came out to the road, he saw the 1 st accused clasping Rajendran. He found a cudgel and a blood-stained knife in the hands of the 2nd accused. He also had seen PW1, Vikraman Nair and Sukumaran there. They brought Rajendran to the house. Rajendran was taken to MCH, Thiruvananthapuram. He witnessed the incident in the street light at the scene of occurrence. During cross-examination, he deposed that there was no power supply at the time when he reached his house. He stated that the distance between road and the pond was about 300 metres. There was no street light between the road and the pathway. Electric post is situated on the main road adjacent to the wall. The tube light was placed in slanting position. He deposed regarding a post overt act circumstance primarily along with attending circumstances. Nothing is brought out in cross-examination to contradict his evidence.

17. An anxious perusal of the depositions of above witnesses would show that the deceased died at the hands of the accused. Overt acts of the accused are clearly spoken to by PW1, Crl.Appeal Nos.648 & 1518/13 -:20:- PW2 and PW3. PW5 and PW4 corroborate their version in all material particulars. As held by the trial Court, minor discrepancies in the wording is of no consequence. Non-recovery of weapon is not of much consequence as the identity of the accused and the way in which the killing was done including the words uttered is proved beyond reasonable doubt. Moreover, both the accused were not arrested immediately. A1 and A2 surrendered before Court in 2006 and 2004 respectively. The defence case is proved to be false in the light of proved facts. Both of them were seen by the witnesses inflicting injuries on the victim. The case of 2nd accused that the injuries on the deceased was due to fall on the broken pieces of glass was denied by PW4 Doctor and also by eye-witnesses. The submission that the deceased was a womanizer and a man of immoral life stands merely as a wild allegation, which is not proved. Under such circumstance, we are in agreement with the finding of the trial Judge that the death of Rajendran was caused at the hands of the accused. To that extent, trial Court is justified.

18. Most crucial question is whether the accused committed murder of the deceased. On analysing the evidence at Crl.Appeal Nos.648 & 1518/13 -:21:- hand, the following facts can also be found:

(i) Prosecution did not prove motive for the crime to the satisfaction of the Court.

(ii) Evidence on record does not show any pre-meditation on the part of the accused to commit murder of Rajendran.

(iii) It is brought in evidence that the deceased proceeded to the place of occurrence with a cudgel which is a weapon to be used.

(iv) Weapon of offence is not recovered and produced by the prosecution.

(v) What had happened between the intervening time i.e., between the time when the deceased went out towards the accused with a cudgel and the infliction of injuries on the deceased by the accused, is not brought into light by the prosecution. The benefit of it must be given to the accused.

19. To make it short, there is no pre-meditation. Motive is not proved by the prosecution and admittedly deceased was carrying a weapon of offence, though cudgel, with him and he was proceeding to the spot. Considering all these, in our view, the case at hand would not fall under Section 302 of I.P.C. Rather it is Crl.Appeal Nos.648 & 1518/13 -:22:- a case punishable under Section 304 Part II of IPC.

In the result, the appeals are partly allowed. The conviction and sentence passed by the trial Court on both the accused under Section 302 read with Section 34 of I.P.C. is hereby set aside. The conviction under Section 341 read with Section 34 also is set aside. Both the appellants are found guilty under Section 304 Part II read with Section 34 of I.P.C. and are sentenced to undergo rigorous imprisonment for eight years. The accused are entitled to set off under S.428, if they had undergone any confinement during pre or post trial stages of the case.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                             A.M.BABU

Rp              True copy                      JUDGE

                  P.S. To Judge

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