Rajesh vs State Of Kerala on 26 February, 2019

[Cites 9, Cited by 0]

Kerala High Court

Rajesh vs State Of Kerala on 26 February, 2019

This appeal has been preferred by the appellant Rajesh challenging the judgment of conviction and order of sentence passed by the Additional Sessions Judge - II (Special) by which the appellant is found guilty for offences under Sections 450, 302 and 307 of the Indian Penal Code, 1860 (for brevity 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `1,00,000/- (Rupees One Lakh only) with a default stipulation of rigorous imprisonment for one year for offence under Section 302 of I.P.C. and also sentenced to suffer imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default sentence of rigorous imprisonment for six months for offence under Section 307 of I.P.C. and further sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default direction of rigorous imprisonment for three months for offence under Section 450 of IPC. All sentences were directed to run concurrently. It was further directed that if fine amount is realized, `1,00,000/- (Rupees One Lakh only) should be paid to Crl.Appeal No.772/15 -:4:- PW2 as a compensation under Section 357(1)(b) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C').

2. The case of the prosecution is that on 29/10/2011 at 06.30 P.M., the appellant/accused with an intention to commit murder, criminally trespassed upon the house of the deceased Gopi Mohanan which was situated at Elampally kara in Anickadu village and that he with the knowledge and intention of causing death of Gopi Mohanan, attacked him with a weapon like chopper and inflicted fatal injuries over his forehead, chest, stomach and other parts of his body while he was in his bed room near to the kitchen of the house and caused the death of Gopi Mohanan and further that the appellant/accused inflicted fatal injuries to PW2 who is the wife of the deceased Gopi Mohanan with the same weapon with the intention and knowledge that his acts would cause death of PW2 and thereby attempted to commit murder of PW2.

3. Prosecution examined PW1 to PW18 as witnesses, marked Exts.P1 to P16 series and identified material objects MO1 to MO9. During 313 examination, the appellant herein submitted that he is innocent and that he was falsely implicated by PW1 to Crl.Appeal No.772/15 -:5:- PW3 due to their enmity towards him. While examining prosecution witnesses, Exts.D1 and D2 were marked. No defence evidence is adduced.

4. Learned counsel appearing for and on behalf of the appellant Smt.Miji John argued that the appellant is innocent in this case. He is falsely implicated. Witnesses of the prosecution are highly interested witnesses and they were on inimical terms with the appellant. The nature of incident shows that the attack on the victims was one done by more than one person. The alleged recovery is a fabricated one. Trial Court erred in its appreciation of evidence. She pleaded for extending benefit of doubt to the appellant and argued for an acquittal. She placed reliance on the verdict of the Supreme Court in Kuna @ Sanjaya Behera v. State of Odisha (AIR 2017 SC 5364) and also the judgment of the Division Bench of the Chhattisgarh High Court in Jagjeet Ram and Others v. State of Chhattisgarh (2018 KHC 4587) to support her arguments.

5. The learned Senior Public Prosecutor Sri.Alex M.Thombra submitted that prosecution proved the case against the appellant beyond reasonable doubt. PW2 and PW3 deposed Crl.Appeal No.772/15 -:6:- how the appellant unleashed brutal attack on the deceased and PW2. The injuries were brutal. Direct evidence is sufficiently corroborated by medical, scientific, recovery and other evidence. All the material available proves beyond doubt the involvement of the appellant in the crime. He mercilessly butchered his own father-in-law. Court below is justified in finding the appellant guilty for all the charged offences and also in awarding of sentence and hence he pleaded for non-interference by this Court.

6. Evidence adduced by the prosecution, in short, are as under:-

PW1 is the son of the deceased and PW2. He gave Ext.P1 FIS based on which PW17 registered Ext.P10 FIR on 30/10/2011 at 03.00 A.M. PW2 is the wife of the deceased and an injured eye-

witness. PW3 is the daughter of the deceased and the wife of the appellant. She is an eye-witness to the incident. PW4 helped PW1 to take the injured to the hospital. PW5 is an autorickshaw driver in whose auto the appellant had travelled from Neyyattusseri junction to Oorali bhagom immediately after the incident. It is to PW6 a neighbour that the appellant had allegedly given an extra- Crl.Appeal No.772/15 -:7:- judicial confession soon after the incident. PW7 proved Ext.P2 mahazar prepared for the seizure of sim card used by the appellant. PW8 is an attestor to Ext.P3 scene mahazar. PW9 is an attestor to Ext.P4 inquest report prepared by PW18. PW10 is the Doctor who examined PW2 at 07.30 P.M. on 29/10/2011 and issued Ext.P5 wound certificate. Ext.P16 series case records from the hospital and Ext.D1 contradiction are marked through PW10. PW11 is an attestor to Ext.P6 mahazar for the recovery of MO3 weapon. He is declared hostile to the prosecution. MO2 is also proved through this witness. PW12 is the one who helped the police to recover the weapon from the well after emptying the well. PW13 is a social worker who is an attestor to Ext.P7 mahazar for the seizure of MO1, MO2 and MO4. PW14 is the Village Officer, Anickadu who prepared Ext.P8 scene plan. PW15 is the Doctor who conducted the autopsy of the deceased and issued Ext.P9 certificate. PW16 is the Scientific Assistant of FSL Unit attached to DCRB, Kottayam. He visited the place of occurrence and collected five items from the spot and handed them over to the investigating officer. PW17 recorded Ext.P1 FIS of PW1 and based on the same registered Ext.P10 FIR. He took Crl.Appeal No.772/15 -:8:- Ext.P1(a) body note of PW2 at Medical College Hospital. Ext.D2 is the death intimation from Medical College to the police. PW18 is the C.I. of Police, Ponkunnam. He took over the investigation on 30/10/2011 and prepared Ext.P4 inquest report at 09.00 A.M. on the same day. Ext.P3 is the scene mahazar prepared at 03.30 P.M. through which MO5 to MO8 were seized. On 01/11/2011 at 10.45 A.M, he recovered MO3 from the well of the appellant and it was seized as per Ext.P6 mahazar. With the help of PW12 he recovered MO1, MO2 and MO4 based on Ext.P7(a) confession statement of the appellant. Ext.P7 is the mahazar prepared for the same. Ext.P13 series is the property list. Ext.P14 is the FSL report and Ext.P15 is the chemical analysis report. He completed the investigation and filed the charge-sheet.

7. There is no dispute to the fact that the deceased herein is Gopi Mohanan who is the husband of PW2, father of PW1 and PW3 and father-in-law of the appellant. Ext.P4 is the inquest report. PW15 is the Doctor who conducted the post-mortem examination of the deceased on 30/11/2011 at 1.50 P.M. and issued Ext.P9 certificate. He deposed that he noted the following ante-mortem injuries on the corpse of Gopi:-

Crl.Appeal No.772/15

-:9:-

"1. Incised wound 4x0.5 cm muscle deep obliquely placed on forehead, its lower front end 4 cm above inner end of left eyebrow and 1 cm outer to midline.

2. Incised wound 1x0.2 cm muscle deep obliquely placed on the right side of forehead 1.5 cm outer to mid line and 0.5 cm above eyebrow.

3. Incised wound 2.5x0.5 cm muscle deep on the right upper eyelid.

4. Incised wound 7x1-1.2 cm bone deep horizontally placed on the right side of face its inner end 3 cm outer to ala of nose. The maxilla bone underneath was seen cut. Brain showed subarachnoid haemorrhage involving right parietal lobe.

5. Incised wound 5x1 cm muscle deep obliquely placed with bevelled margin on the right side of back of head and neck, its upper outer end 6 cm outer to midline and 8 cm above root of neck.

6. Incised penetrating wound 4x1.5 cm obliquely placed on the left side of front of chest its upper outer sharply cut end 14 cm below collar bone and 5 cm inner to the nipple at the 8 O'clock position. Penetrating through fifth left intercostal space, the wound terminated by making an incision 3 cm long on inner border of lower lobe of left lung. The left lung was pale and collapsed. The pericardial sac of heart showed infiltration with blood. Left chest cavity contained 500 ml. of blood. The track of the wound was directed backward, downward and to right for a depth of 5 cm.

7. Incised penetrating wound 7x2 cm obliquely placed across the front of chest with its right lower front sharply cut end at the level of costal margin and 19 cm below collar bone. The left back upper end showed two parallel Crl.Appeal No.772/15 -:10:- tailing 1.5 cm long, 0.5 cm apart. Penetrating through the right lower costal margin and abdominal wall the wound terminated by cutting the left lobe of liver 7x1 cm involving its full thickness. The wound was directed backward, downward and to the left for a total minimum depth of 10 cm. Abdominal cavity contained one litre of blood.

8. Curved superficial incised wound 23 cm long skin deep obliquely placed across the right side of front of shoulder and left chest its right upper end 1.5 cm above collar bone.

9. Superficial incised wound 5 cm long oblique on the right side front of abdomen, its upper inner end 0.5 cm outer to midline and 2 cm below costal margin.

10. Incised wound 2.5x 1 cm, muscle deep horizontal on left side of front of lower abdomen 7 cm outer to midline and 4 cm below upper prominence of hip bone."

According to him, the injuries sustained to the head, chest and abdomen resulted in the death of Gopi Mohanan. He further opined that all the injuries noted on the body of the deceased could be caused by MO1 chopper. Injury nos. 4, 6 and 7 are sufficient in the ordinary course of nature to cause death. He also stated that it is possible to inflict stab wounds using MO1. Hence from these evidence, it can safely be concluded that the death of Gopi Mohanan was a homicide.

8. PW10 is the Doctor who examined PW2 in the Medical College Hospital, Kottayam on 29/10/2011 at 07.30 P.M. Ext.P5 is Crl.Appeal No.772/15 -:11:- the wound certificate issued by her. She deposed that the following injuries were noted on PW2:-

"1. Incised wound 5x2x2 cm x right parietal region

2. Incised wound 5x2x2 cm posterior part of right side of neck"

9. According to her, the injuries noted are on the vital parts of the body and they are grave in nature. Those incised wounds could be caused by MO1. Ext.P16 series is the case record of her treatment in Medical College Hospital. Ext.P1(a) is the body note of PW2 prepared by PW17 in Medical College Hospital. Even keeping the oral testimony aside, these evidence clearly shows that PW2 had sustained fatal injuries on her body on 29/10/2011 during the course of the same transaction in which attack was unleashed on the deceased.

10. The only question remaining is who caused the said fatalities on the above victims. It can be seen that the appellant is convicted for offence under Section 302 for murdering Gopi Mohanan who is his father-in-law. He is also found guilty for offence under Section 307 for attempting to murder PW2 Ponnamma who is his mother-in-law. He was sentenced to suffer life imprisonment for both offences. As far as Section 450 is Crl.Appeal No.772/15 -:12:- concerned, he is sentenced to suffer rigorous imprisonment for 10 years. All sentences were with fine and default imprisonment stipulation. To arrive at its conclusion, Court below inter alia heavily relied on the oral evidence of PW2 and PW3. The most important question under consideration is whether the Court below is justified in arriving at its verdict in the backdrop of available evidence.

11. Coming to the evidence in detail, PW2 is the wife of the deceased and mother-in-law of the appellant. She is an injured eye-witness. She stated that the incident happened on 29/10/2011 at 06.30 P.M. Herself, her husband, son and daughter were living in Mohanavilasom Veedu. The appellant married her daughter Nisha (PW3) in the year 2006 and during 2011 they were living separately. There were frequent quarrels between them. Initially, both of them resided in the house of the appellant. Later, they shifted to Vanchimala on rental basis. There the appellant tried to commit suicide. PW3 was taken back home. A case was registered against the appellant. Later, as per the direction of the Court, for the purpose of reconciliation, they stayed together in a house near to the house of PW2. There also Crl.Appeal No.772/15 -:13:- the appellant continued his quarrelsome attitude. One day, hearing the hue and cry, PW1 rushed to the house of the appellant. The appellant inflicted cut injuries on PW1 and a criminal case was lodged in connection with that incident. Thereafter, PW3 was staying in PW2's house. A divorce petition was filed before the Family Court, Ettumanoor. On the date of incident, PW2 along with her daughter PW3 had gone to the Family Court in connection with the said case. The appellant was also present in Court. It is her version that the appellant threatened both of them. They told the same to her husband (the deceased herein). Then her husband told her that at around 03.30 P.M. on the same day, the appellant had called him over phone and threatened. At about 06.30 P.M., her husband was taking coffee and she went to grind coconut near the stone kept for the purpose which was near the kitchen of the house. PW3 was present in the kitchen at that time. At that time she saw the appellant standing there. She asked the appellant why he was standing there. Then the appellant took a weapon which resembled a chopper used for slicing meat and inflicted cut injuries on the right side of the neck of PW2. PW3 tried to save Crl.Appeal No.772/15 -:14:- her by attempting to take her to the kitchen. Then the appellant inflicted a cut injury with the same weapon on the upper part of the right ear of PW2. PW3 managed to draw PW2 into the kitchen. At that time her husband (the deceased) rushed to the spot. As he reached kitchen, the appellant had pushed him to the cot and started cutting him with the chopper indiscriminately. It is her version that the appellant had inflicted cut and stab injuries on the face and chest of the deceased, stabbed at the forehead and also on the chest. First stab was inflicted on the chest and the chopper was drawn back. Thereafter he was stabbed on the abdomen also. Seeing the horrible stabbing and cutting, PW3 went into the nearby room and closed the door. PW2 got into another room near the hall and closed the door. The appellant had broken the door of the room in which PW3 had entered. Then PW3 ran away. The appellant made a hole in door of the room in which PW2 had entered. He had broken the glass of the window on the back side. After sometime, as there was no noise, PW2 came out and went near to her husband and sat with him. Her husband was seen lying on the cot in a pool of blood. After sometime, PW1 her son reached there with some people and her Crl.Appeal No.772/15 -:15:- husband was taken to hospital. She was also taken to the hospital. It is her version that the appellant was wearing a cream colour shirt and white dhothi at that time. She identified MO1 as the weapon used for inflicting injuries on them. According to her, the reason for the attack was the filing of Court case against the appellant by her daughter(PW3). There was electric light at that time in their house. She was treated as in-patient in hospital for 5 to 6 days. During cross-examination, she denied the suggestion of the defence that the attack on them was done by a group of people and not the appellant. Questions were directed to the effect that there was no light at the relevant time and that the witnesses were not able to identify who the assailants were. PW2 categorically denied the said suggestion. She also denied the suggestion that the injuries on her was sustained as a result of her being jammed between the door and doorpost. She stood firm in her version in the chief examination.

12. PW3 is the daughter of the deceased and PW2. She was the wife of the appellant. Their marriage took place on 30 th April 2006. She stayed at her matrimonial home for a few years. A child was born in the wedlock. Then they shifted to Vanchimala Crl.Appeal No.772/15 -:16:- for rent. According to her, the appellant was in the habit of quarrelling with and beating her after consuming alcohol. During their stay at Vanchimala, the appellant came in a drunken state and quarrelled and attempted to commit suicide. So, she went back to her parental home. She filed a petition for divorce and there was a family counselling also. As they were advised to live together, a house was taken for rent near to her parental house and they began to stay there. But the appellant continued his alcoholism and assault on PW3. On 16/07/11, the appellant came after consuming alcohol and started manhandling her. PW1 who is the brother of PW3 came there and the appellant had inflicted cut injuries on the lower leg of PW1. The appellant thereafter left the house. PW3 and the child began to live with her parents. A case was registered against the appellant by PW3 for harassment and cruelty. According to PW3, the incident happened on 29/10/2011. PW3 and PW2 went to the Family Court in connection with the case on that day. The appellant was also present there. They were called for counselling. After the same, the appellant threatened PW2 that he would 'show' them. Both PW2 and PW3 left the Court taking a different route. They got into a bus and Crl.Appeal No.772/15 -:17:- reached home. At that time her father was not there at home. By 06.00 P.M., her father reached there. They told the incident to father. At that time her father told her that the appellant had called him at about 03.30 P.M. on the same day and threatened him also. Thereafter, PW3 went to the kitchen. PW2 gave a cup of coffee to Gopi Mohanan (the deceased). Then PW2, for grinding coconut, went out through the kitchen door. It is the version of PW3 that she heard her mother PW2 telling "Why are you standing here?" It was about 06.30 P.M. As she went there, she saw the appellant inflicting cut injuries on the neck of PW2 using a chopper resembling one used for slicing meat. She caught hold on the left hand of PW2 and pulled her inside. She tried to close the door also. But PW2 did not fully get in, as her head was still outside. At that time the appellant had inflicted cut injury on the upper part of the right ear. PW3 pulled her mother into the kitchen. The appellant forcefully pushed the kitchen door open and entered in. Hearing hue and cry, her father came to the spot. The appellant stabbed him on his abdomen. Then he pushed him on to the cot and began to stab on the forehead, chest and on different parts of the body. She also deposed that she had seen Crl.Appeal No.772/15 -:18:- some other weapons also with the appellant. PW2 ran into a nearby room on the eastern side and closed the door. PW3 also ran into another room on the western side. At that time the appellant had broken open the door of the room in which PW3 was. Her father told her to raun away. As the appellant's attention was diverted, PW3 ran for her life and reached the house of CW4. She stated the incident to CW4. CW4 called PW1 and told the incident. After some time, PW1 came to the house of CW4 along with Roy. She narrated the incident to PW1. PW1 went to the place of incident and had taken the injured to hospital. She identified MO1 as the weapon used for inflicting injuries on the victims. According to her, the appellant committed all these violence because of his enmity developed towards her parents out of the conception that it were her parents who persuaded her to lodge case against the appellant. She stated that MO1 was shown to her by the police. Nothing material is brought out in evidence to discredit her version regarding the over act, motive and conduct of the appellant.

13. This is a case in which there is evidence of eye- witnesses. PW2 and PW3 are natural and probable witnesses. The Crl.Appeal No.772/15 -:19:- incident happened in the dwelling house of the victims and that too at 06.30 P.M. The contention of the learned counsel for the appellant that no independent witnesses from neighbourhood were examined is flimsy and is only to be discarded in the facts and circumstances of this case. It is settled that the prosecution has the prerogative to examine or not to examine any witness to prove a fact and can even give up any witness. S.134 of the Evidence Act is clear on the aspect that it is not the number of witnesses but the quality of their evidence that matters. Testimonies of PW2 and PW3 corroborate each other in material particulars. They deposed the incident in detail. Their evidence is credible and reliable. The said evidence are amply corroborated by evidence of PW1, PW4 and PW5 in other aspects as detailed earlier.

14. As far as the identity of the assailant is concerned, the defence put forth a case that the attack was carried out by more than one person and the witnesses were not able to identify the assailants as there was no light available. To hold their argument, the defence relied on Ext.P5 issued by PW10 Doctor who treated PW2 on 29/10/2011 at about 07.30 P.M. which is the most Crl.Appeal No.772/15 -:20:- contemporaneous document. In Ext.P5, it is recorded that assault was by identifiable persons. Counsel for the appellant argued that Ext.P5 clearly shows that the actual assailants were other persons, not the appellant herein. But we do not find any reason to agree with the said argument in the light of available evidence. PW10 deposed that the said history was not spoken to by PW2. She recorded the same based on hearsay. PW2 also did not have a case that she deposed to PW10 about the identity of the assailant. That apart, no trace of evidence is placed on record to show that more than one person is involved in the commission of offence. On the other hand, evidence available shows that it was the appellant who committed the overt acts as alleged by the prosecution. The case of the appellant is that he was not even present at the time of offence at the place of occurrence. It is proved to be false.

15. Appellant was also found guilty by the trial Court for attempting to murder PW2. First and second limb of Section 307 of IPC reads as follows:

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either Crl.Appeal No.772/15 -:21:- description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned."

16. It is well established that for attracting offence under Section 307 of IPC, it is not necessary that injury capable of causing death should have been inflicted. The most crucial factor to be considered is whether the facts and circumstances of the case reveal the guilty intent or knowledge of the accused to commit offence as detailed in Section 307 of IPC. It is a question of fact to be gathered from the attending circumstances of each case. It is in evidence that the appellant herein inflicted injuries on the vital part of the body of PW2 i.e., neck and head with a deadly weapon like MO1 chopper. It is also in evidence that he was carrying more than one weapon with him. There was no provocation at all from the victims. Obviously, PW2 is an injured eye-witness. She suffered fatal injuries on the vital part of her body in the incident. Evidence would show that after attacking the deceased brutally, the appellant tried to break the door of the room in which PW2 was sheltered herself. What would have happened had he been succeeded in opening the door we do not Crl.Appeal No.772/15 -:22:- know. His acts and subsequent conduct as deposed to by the witnesses would show that he had the intention to kill PW2 though could not succeed. She lost her husband in the incident. We don't think she would falsely implicate another person by sparing the real culprit. We are of the view that in the case at hand, the circumstances under which the attempt to inflict fatal injuries were carried out would bring the deeds of the appellant under Section 307 of IPC.

17. On appreciation of evidence, it can be seen that motive for the crime is clearly established by the prosecution through the evidence of PW1 to PW3. Evidence on record would show that the appellant had premeditation to commit the offence. He planned it in such a way that he carried with him four deadly weapons (MO1 to MO4), lurked near the dwelling house of the victims by the dusk of the day and attacked the victims indiscriminately. It can be seen that the appellant had broken open the door of the room in which PW3 was locked herself up. He tried to assault her also. Luckily for the appellant, no charge was framed by the trial Court for the said offence.

18. The appellant was not staying with the victims herein. Crl.Appeal No.772/15 -:23:- He was at loggerheads with them. He threatened PW2 and the deceased on the date of incident. There is no cross-examination on that point. It is also in evidence that the appellant carried weapons of offence with him to the house of the victims. These acts of the appellant and the ultimate result of his trespass into the house loudly speak of his intentions and the purpose with which he entered into the dwelling house of the victims. Hence we would conclude that the Court below is justified in convicting the appellant under Section 450 of IPC.

19. Having gone through the evidence of two eye- witnesses PW2 and PW3 and other materials on record, we are of the view that the prosecution proved the case against the appellant beyond reasonable doubt. It is crystal clear that it was the appellant who had broken into the dwelling house of the victims, it was he who had inflicted fatal injuries on PW2 who is his own mother-in-law and it was he who had inflicted as many as nine incised wounds which resulted in the death of his father-in- law. Medical evidence already detailed would corroborate the detailed oral testimony of the witnesses. The weapon of offence was recovered at the instance of the appellant from a well. The Crl.Appeal No.772/15 -:24:- place of concealment is revealed by the disclosure statement of the appellant. The weapon is found to be stained with human blood. Court below did not rely on the alleged extra-judicial confession made by the appellant to PW6 which we also do not rely. The evidence of PW1 and Ext.P1 FIS given by him sufficiently corroborate the evidence of PW2 and PW3 to the extent that PW2 was seen injured with the deceased who was lying in a pool of blood in the house in which the incident took place. Evidence of PW5 shows that the appellant hired his autorikshaw to travel from Neyyattusseri junction which is near the scene of occurrence to Oorali bhagom soon after the incident. We do not find any error in the finding of the trial Judge. The incident was so unfortunate. Appellant acted in a cruel manner. No interference is called for.

The appeal is therefore dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                             A.M.BABU

Rp               True copy                     JUDGE

                  P.S. To Judge

Unlock Advanced Research with PRISMAI

Kerala High Court