Cheriya Mohammed vs State Of Kerala on 19 March, 2011

[Cites 10, Cited by 0]

Kerala High Court

Cheriya Mohammed vs State Of Kerala on 19 March, 2011

Two persons, namely, Natarajan and Cheriya Muhammed, aged 51 and 60 years respectively, were prosecuted for the offences punishable under Sections 449, 302 and 324 read with Section 34 of Indian Penal Code. After trial, both of them were found guilty of the offences punishable under Sections 302 and 449 read with Section 34 of IPC. They were therefore sentenced to suffer rigorous imprisonment for life and to pay a fine of 1,000/- with default clause of simple imprisonment for one month each for the offence punishable under Section 302 IPC. For the offence under Section 449 IPC, they were sentenced to suffer rigorous imprisonment for five years and to pay a fine of 1,000/- with default clause Crl. Appeal Nos.654 & 2035/2011 2 of simple imprisonment for one month each. In addition to the above finding, the first accused was also found guilty of the offence punishable under Section 324 of IPC and he was sentenced to undergo rigorous imprisonment for one year for that offence. Substantive sentences were directed to run concurrently. Set off as per law was allowed.

2. The prosecution case runs thus:

The deceased, who is the father of PW1, the husband of PW2 and the grandfather of PW3, was engaged in procuring visa for various people and in that connection, he used to receive money and documents from such persons. The accused are said to be two such victims. When the deceased failed to procure visa for the first accused and also for the son of the second accused, they sought return of the documents as well as the money paid by them to the deceased. On the date of incident, it appears that in the morning, these two persons had gone Crl. Appeal Nos.654 & 2035/2011 3 to meet the deceased. There is no clear evidence as to what transpired in the morning, but they happened to go to the house of deceased again in the evening on the same day. Both of them came on a motor cycle driven by the first accused. They were informed that the deceased was not at home and they were asked to wait in the veranda. It would also appear from the narration of PW1 in Ext.P1 that they had come on a previous occasion also. At about 6.00 p.m. in the evening on 10.02.2005, prosecution allegation is that the deceased came home and after reciting prayers and removing his shirt, he went to the office room wearing a lungi. The two persons, who were waiting for him, joined him. PW1 was at the relevant time in another room and the office room was separated by a veranda. She happened to hear some unnatural and unusual sounds from the office which made her to go to the office and open the door. To her shock and surprise, she found the first accused inflicting a stab on the neck of Crl. Appeal Nos.654 & 2035/2011 4 her father. Then she saw him pulling her father down to the ground and in the process, inflicted two other injuries on his chest. Even though she cried aloud not to repeat the acts and tried to prevent the accused from further stabbing her father, that resulted only in she getting injured. The commotion that occurred in the room brought other people to the scene. The first accused is said to have left the place with the weapon in his hand and the second accused followed him. Though the deceased and PW1, the injured, were removed to the hospital, the deceased was less fortunate and he succumbed to his injuries. Meanwhile, PW12, the Sub Inspector of Police attached to Chalissery Police Station received information about the incident and got instructions from his superior officer to take necessary steps, and he was also told that the first accused had taken refuge in a house near the place of incident and he should be detained. He went to the place of occurrence and after having conversation Crl. Appeal Nos.654 & 2035/2011 5 with PW8, he recovered a knife from PW8's house where the first accused had taken refuge as per Ext.P10 mahazar. He then went to the Kunnamkulam Royal Hospital where PW1 was undergoing treatment for the injuries suffered by her. At 22.15 p.m., he had the statement of PW1 recorded as per Ext.P1 First Information Statement. He returned to the station and registered Crime No.23/2005 for the offences punishable under Sections 302 and 324 read with Section 34 of IPC. He detained the first accused under surveillance in the Police Station and informed his superior officer about the acts done by him.

3. Investigation was taken over by PW13, the Circle Inspector of Police. He commenced the investigation on 11.02.2005. He went to the Royal Hospital at Kunnamkulam and conducted inquest over the body of the deceased Unnithangal and prepared Ext.P8 inquest report. He seized M.O.2 found on the body. The Crl. Appeal Nos.654 & 2035/2011 6 body was then sent for autopsy. PW4, the Forensic Surgeon conducted autopsy over the body of the deceased Unnithangal and furnished Ext.P2 post-mortem report. He also had Exts.P3 and P4 reports procured with reference to the chemical examination of the samples collected by him. In the meanwhile, PW13 visited the scene of occurrence and prepared Ext.P9 scene mahazar. He recovered M.Os 3 to 8 found at the place of incident. He recorded statements of witnesses. He formally arrested the first accused on 11.02.2005 at 15.15 p.m, and Ext.12 is the arrest memo. After providing alternate clothes to the first accused, the dress worn by him which contained blood stains were seized as per Ext.P13 mahazar. M.Os 9 and 10 are said to be the shirt and mundu worn by the first accused at the relevant time. He then had filed a formal report Ext.P14 incorporating the details about the first accused arraying him as the first accused. He was produced before court. On 13.02.2005 Crl. Appeal Nos.654 & 2035/2011 7 the second accused appeared before the Circle Office, Pattambi and he was arrested on the same day and the arrest memo prepared for the said purpose is Ext.P15. On being satisfied that the second accused was wearing the same clothes on the day of arrest as was worn by him on the date of incident, after providing alternate clothes, the clothes worn by him were seized as per Ext.P16 mahazar. The clothes so seized are M.Os 11 and 12. Necessarily, PW13 had to file a report incorporating the name of the second accused also on the array of accused and he filed Ext.P17 report for the said purpose. In respect of the articles seized by him during investigation, he prepared Ext.P18 forwarding note and sent it to the court. He had the photographs of place of occurrence and the dead body drawn and Exts.P19 and P20 are the photographs and negatives respectively. He obtained Ext.P22 Chemical Analysis Report.

4. Further investigation was done by PW14. Crl. Appeal Nos.654 & 2035/2011 8 PW14 conducted investigation following the investigation done by PW13 and he questioned CWs 24 to 26. It may be noticed here that most of the witnesses were questioned by PW13. PW14, on the basis of the investigation conducted by him, felt that offence under Section 449 of IPC had also been committed and therefore, he filed Ext.P23 report to incorporate the said offence also in the records. He completed investigation and laid charge before court.

5. The court before which the final report was laid, took cognizance of the offences and finding the offences to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Palakkad under Section 209 of Cr.P.C. after following necessary procedures. The said court made over the case to the II Additional Sessions Court, Palakkad for trial and disposal. The latter court, on receipt of records and on appearance of the accused before the said court, framed Crl. Appeal Nos.654 & 2035/2011 9 charges for the offences punishable under Sections 449, 320 and 324 read with Section 34 of IPC.

6. To the charge, accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 16 and had Exts.P1 to P25 marked. Exts.D1 to D6(a) were marked from the defence side. M.Os 1 to 12 were got identified and marked.

7. After the close of prosecution evidence, the accused were questioned under Section 313 Cr.P.C regarding the incriminating circumstances brought out in evidence against them. Apart from denying the incriminating circumstances, the first accused stated as follows: He pleaded total innocence and claimed that he had no connection with the incident at all. According to him, no incident as spoken to by the witnesses had ever taken place. The deceased had taken money from him for visa and deceased was also indebted to several others. He also stated that he came to know that he had thus Crl. Appeal Nos.654 & 2035/2011 10 cheated so many persons. Since the deceased had promised the first accused that the money due to him will be paid in the morning on the day of incident, the first accused admitted that he had gone to meet the deceased. According to him, when he reached the house of the deceased, he found several others who were similarly situated like him. According to the first accused, the deceased told them that he did not have the requisite money and that the first accused would be paid after two days. The first accused claims to have returned home. He stays about 100 kms away from the house of the deceased at Karinkallathani at Parappanangadi. On the next day of incident, by afternoon, a Police Constable came to his house and informed him that he was wanted in the Pattambi Police Station. He took his motor cycle and went to the Police Station. When he reached the Police Station, his motor cycle, mobile phone and purse were taken possession of by the Circle Inspector. He Crl. Appeal Nos.654 & 2035/2011 11 would say that thereafter, he was deliberately and falsely implicated in the case and he denied that any incident as spoken to by the witnesses had ever occurred. The second accused remains satisfied by denying the incriminating circumstances.

8. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They examined DW1.

9. The trial court, on appreciation of the evidence and presumably greatly impressed by the testimony given by PWs 1, 2 and 3 and the seizure of weapon and also the Chemical Analysis Report which showed that the clothes alleged to have been worn by the first accused at the relevant time contained blood stains of the same group as that of the deceased, found no reason to disbelieve the witnesses and held the accused guilty.

10. As far as the second accused was Crl. Appeal Nos.654 & 2035/2011 12 concerned, the court below formed the opinion that since he did not try to prevent the attack and also did not try to do anything to save the victim, he too had shared the common intention and therefore, he was found guilty for the offences alleged against him taking aid of Section 34 of IPC. Conviction and sentence as already mentioned followed.

11. Assailing the conviction and sentence, learned counsel appearing for the first accused pointed out that there has not been a proper appreciation of the evidence in the case and a mechanical approach has been made by the court below. A close scrutiny of the evidence of PWs 1, 2 and 3 would show material contradictions and inconsistencies in their evidence making them untrustworthy and unreliable. There are different versions regarding the arrival of the deceased, his acts in the house and before he went into the office where he had met the accused persons. Emphasis was laid on the fact Crl. Appeal Nos.654 & 2035/2011 13 that the first version regarding the weapon used is a Pen knife whereas, the weapon produced in the court is a kitchen knife. That the knife, which was initially used was a foldable one, would be evident, according to the learned counsel, from the testimony of PW8 in whose house the first accused is alleged to have taken refuge after the incident. The learned counsel emphasized that it is rather strange to note that even after getting information about the commission of a cognizable offence, PW12 and PW13, for reasons best known to them, did not register a crime and waited for recording of the statement of PW1 the next day morning to register a crime. It is unprecedented and that shows that manipulation was being done from the beginning itself.

12. Criticizing the seizure of the clothes alleged to have been worn by the first accused at the relevant time, the learned counsel pointed out that had the knife and the clothes been seized at the place where the first Crl. Appeal Nos.654 & 2035/2011 14 accused had taken initial refuge, it would have been more convincing if the witness to the seizure had been the brother of PW8 who was in the house as per the evidence of PW8 and it would have been natural. In the case on hand, PW10 speaks as to the recovery of knife whereas, PW8, in whose house the first accused had taken refuge, is left alone and so also the son of PW8, who was admittedly in the house, is deliberately not made as a witness to the recovery. It was also pointed out that there was no justification for the Investigating Officer to have the first accused taken to the Police Station and keep him under surveillance when he could have been easily arrested at the relevant time. It was then pointed out that there is nothing that prevented the Investigating Officer from seizing the clothes immediately on taking custody of the first accused from the house of PW8, if necessary by providing alternate clothes. Emphasis was also laid on the fact that the seizure mahazar relating to the clothes worn Crl. Appeal Nos.654 & 2035/2011 15 by the first accused is attested to by two Police Officers which betrays the veracity of the documents. There is nothing which prevented the seizure from being effected in the presence of independent witnesses which would have lend credence to the seizure of clothes.

13. Further criticism was levelled against the seizure of clothes worn by the second accused also. He was taken into custody after three days of the incident and it is too much to believe, according to the learned counsel, that he would have been wearing the same clothes for all the three days continuously without changing the clothes. Seizure of the clothes of the second accused at the time of his arrest alleging it to be the clothes which is said to have worn by him at the relevant time shows the over enthusiasm on the part of the Investigating Officer to manipulate the evidence against the accused persons.

14. Relying on the evidence of PW5, it was Crl. Appeal Nos.654 & 2035/2011 16 contended that going by the evidence furnished by the doctor, admittedly, the blunt portion of the weapon alleged to have been used could not have caused incised injuries and most of the injuries located on the body of the deceased as well as the injured are incised wounds. Combining the contention with reference to the nature of the weapon used along with the statements given by PW5, it is contended that it is clear that the weapon produced before court is not the weapon that has been used for inflicting the injuries and that betrays the prosecution case.

15. It was contended that there is a specific allegation that for the purpose of inflicting stabs, the accused had come prepared and that he had purchased a knife on his way. This allegation remains unsubstantiated and that further weakens the prosecution case. Further the non-detection of blood in chemical analysis on the weapon allegedly used for commission of offence shows Crl. Appeal Nos.654 & 2035/2011 17 that M.O.1 was not the weapon used. It is further contended that it is significant that after inflicting four or five stab injuries with the knife in question, according to PW8, the knife was drenched in blood when she saw the first accused coming out of the house and going towards her house. It is also surprising, according to the learned counsel, to note that the dothi said to have been worn by the deceased, on chemical analysis, was found containing insufficient blood stains to determine the group. This again betrays the prosecution case since, according to the learned counsel, even going by the prosecution version as given by PWs 1, 2 and 3, after receiving the injuries when the deceased fell down on the ground, he was found in a pool of blood.

16. Finally, it is contended that the plea of alibi has not been demolished by the prosecution and that ought to have been accepted. On the basis of these contentions, the learned counsel appearing for the first Crl. Appeal Nos.654 & 2035/2011 18 accused maintained that the conviction and sentence for various offences are clearly unsustainable both on facts and in law.

17. Learned counsel appearing for the passive second accused tried to point out that all the allegations and the overt acts are attributed to the first accused and he at worst was a passive onlooker. There is nothing to show that the first and the second accused had come to the place of occurrence sharing a common intention to harm the deceased and there is also nothing to indicate that the second accused was even aware of the fact that the first accused was carrying a knife. There is nothing to indicate that it was in furtherance of the common intention that the first accused had inflicted stabs on the deceased. The learned counsel drew attention of this Court and pointed out that one cannot predict as to how one would react in a given situation and merely because, the second accused did not come to rescue the deceased Crl. Appeal Nos.654 & 2035/2011 19 by itself may not be a ground to implicate him with the aid of Section 34 of IPC. The possibility of him apprehending danger at the hands of the first accused at the relevant time could not be ruled out. Pointing out the court charge also, the learned counsel pointed out that it is found wanting with respect to the sharing of common intention in furtherance of which the act committed by the first accused is alleged to have been committed. Finally, the learned counsel pointed out that there is absolute want of evidence to come to the conclusion that the act committed by the first accused, even assuming it has been proved, is in furtherance of the common intention shared by the first accused and the second accused and the conviction of the second accused taking aid of Section 34 of IPC is unsustainable both on facts and in law.

18. The learned Public Prosecutor, on the other hand, pointed out that there is no merit in any of the Crl. Appeal Nos.654 & 2035/2011 20 contentions raised by the learned counsel for the first accused. The evidence of PWs 1, 2 and 3 are so telling and clinching enough that no other view except the guilt of the first accused is possible. The learned Public Prosecutor pointed out that it is not difficult to find out minor discrepancies or exaggerations or inconsistencies in the evidence of PWs 1, 2 and 3 especially when they were deposing long after the incident had taken place. A reading of the evidence of PWs 1, 2 and 3 appear to be quite natural and consistent with the ordinary course of things that it admits of no suspicion.

19. As regards the criticism levelled against the non drawing up of First Information Report immediately on getting information about the incident, the learned Public Prosecutor pointed out that at the time when the initial information was received with regard to the incident that had occurred at the place of occurrence, no details were available. With the available information, it was not Crl. Appeal Nos.654 & 2035/2011 21 possible to draw up a proper FIS or FIR and therefore there was nothing wrong in PW13 directing PW12 to go over to the place of incident to ascertain as to what exactly had occurred there and also to keep the first accused who had taken refuge in the house of PW8 under surveillance. It is quite natural that it had to be done so and no ill-motive needs to be attributed to either PW12 or PW13.

20. The learned Public Prosecutor pointed out that the criticism levelled against the seizure of M.Os 1 and 9 to 13 that is the knife and the clothes worn by the accused persons is unfounded. Naturally, since the first accused had been apprehended from the house of PW8, where he had taken refuge after the incident, his clothes could have been taken possession of, only after providing him with clothes to wear. After having brought the first accused to the Station, alternate clothes were provided to him and the blood stained clothes were seized. It is not the law, according to the learned counsel, that unless Crl. Appeal Nos.654 & 2035/2011 22 there are independent witnesses, the seizure cannot be believed. It is well settled, according to the learned Public Prosecutor, that if the evidence of the Police Officers concerned are trustworthy and admits of no doubt, there is no reason as to why the seizure should be disbelieved. Viewed thus, it is pointed out that the seizure of the clothes alleged to have been worn by the accused persons is perfectly in accordance with law.

21. As regards the reports incorporating the names of the accused persons are concerned, the learned Public Prosecutor pointed out that it was necessary in view of the vague description of the accused given at the time of lodging the FIR and it had to be sent to the court. Once the real identity of the accused persons were ascertained, it is necessary in law to provide relevant informations to the court concerned and that alone has been done by filing the respective reports in respect of the first and the second accused.

Crl. Appeal Nos.654 & 2035/2011 23

22. The learned Public Prosecutor then pointed out that the criticism that on evidence, it is clear that M.O.1 is not the weapon used is totally baseless. It is true, according to the learned Public Prosecutor, that in the wound certificate of PW1, namely, Ext.P6 the weapon used is said to have been a pen knife. Of course and probably, M.O.1 produced in court may not answer the description of a pen knife. But that is totally insignificant, according to the learned Public Prosecutor, in the sense that once the evidence is clear to the effect that the weapon M.O.1 could result in infliction of injuries found on the body of the deceased and on the body of PW1, whether it is called a pen knife or by any other name, it is of little consequence.

23. The criticism levelled against the non- examination of Sameer, the person who had taken PW1 to the hospital, according to the learned Public Prosecutor, does not carry much weight. There is no evidence in the Crl. Appeal Nos.654 & 2035/2011 24 case at all to show that Sameer had witnessed any part of the incident and his only role was at best taking the injured to the hospital.

24. The learned Public Prosecutor drew attention of this Court to the Chemical Analysis Report obtained by PW4, the doctor who had conducted post- mortem. It is evident that he had collected necessary samples for chemical examination and had handed it over to the chemical analysts. Exts.P3 and P4 are the reports. Ext.P4 report shows that the blood group of the deceased would belong to B group. Drawing attention to Ext.P22, the learned Public Prosecutor pointed out that the clothes which were seized from the first accused, namely, M.Os 9 and 10 contained blood of the identical group and that clinches the issue. The learned Public Prosecutor pointed out that the criticism that the blood group of the first accused has not been determined and therefore no conclusion can be drawn on the basis of Chemical Analysis Crl. Appeal Nos.654 & 2035/2011 25 Report is baseless.

25. Regarding the weapon in question, the learned Public Prosecutor pointed out that be it a pen knife or a knife produced as M.O.1, so long as it is not shown that the injuries could not have been inflicted by the weapon produced, it is of no consequence at all. The doctor, PW4 who is examined, and PW5 who prepared the wound certificate of PW1 are of the firm opinion that the injuries could be inflicted by the use of M.O.1 weapon.

26. As regards the second accused is concerned, the learned Public Prosecutor pointed out that he was rightly convicted by taking aid of Section 34 of IPC since he had gone together with the first accused to the house of the deceased and he had remained in the room till the incident was over. Had he been not a privy to the transaction, he would have made some attempt to prevent the unfortunate incident and his non action in not preventing the first accused from repeatedly stabbing the Crl. Appeal Nos.654 & 2035/2011 26 deceased shows that he too was a privy to the transaction. The lower court was therefore justified in coming to the conclusion that it was in furtherance of a common intention that the stabbing was committed by the first accused.

27. Taking the case of the second accused first, it needs to be noticed that he is found guilty only on the basis of Section 34 of IPC. His involvement is that he was present in the room where the incident took place and he was found guilty on the ground that he did not react positively to the situation and let the stabbings go on. Admittedly, he has not done any overt acts at all nor is there anything to show that he had implored the first accused to act in the manner which he did. He may be guilty of not preventing the first accused from inflicting the injuries on the deceased. But it will be too far fetched to assume his involvement on that ground alone. No one can predict how a person would react in a given situation Crl. Appeal Nos.654 & 2035/2011 27 and the people may react differently to the given situation. It cannot be ruled out that the second accused might have apprehended danger at the hands of the first accused if he had intervened.

28. We will come to the complicity of the second accused in the case little later.

29. It may be noticed here that the second accused was granted bail by this Court at the time of admission of the appeal and this Court is given to understand that he died during the pendency of the appeal. His legal heirs have come on record to contest the matter so as to have the stigma of conviction removed.

30. The court below has placed considerable reliance on the evidence of PWs 1, 2 and 3 against which severe criticism has been levelled before this Court. It will therefore be necessary to refer to their evidence in some detail.

Crl. Appeal Nos.654 & 2035/2011 28

31. PW1 is the daughter of the deceased. PW2 is the wife of the deceased and PW3 is the grandson of the deceased and the son of PW1. That these three persons were at home on the relevant date is beyond dispute.

32. PW1 is the author of Ext.P1 First Information Statement. As per her evidence, the incident took place in the evening of 10.02.2005 at about 6.15 p.m. The incident occurred in the office room of the house. She, her mother and her son were at home. While she was reciting the Quran, she heard an unusual sound and murmur from the office room which made her rush to the office and open the door. She found her father, the deceased, sitting on the chair and the first accused inflicting a stab on the deceased and thereafter pulling him down to the ground. At that time, according to PW1, the second accused was in the office room. She cried aloud and hearing her cries, PW3 came to the spot. She implored not to stab her father and she tried to prevent Crl. Appeal Nos.654 & 2035/2011 29 further attack which resulted only in her suffering injuries at the hands of the first accused. She would say that thereafter, the first accused inflicted two stabs on the chest of the deceased. Hearing the cries, her mother and others came to the place. She would say that the first accused brandished the knife and threatened all with dire consequences. They went to the hall of the house. Thereafter, PW1 would say that the first accused left the house with bleeding knife in his hand and the second accused followed him. She saw them going away through the window of her house. No sooner as they left, the people of the locality gathered near the house and she was taken to the Modern Hospital at Koottanad and since her position was not found to be very stable, she was transferred to the Royal Hospital at Kunnamkulam. She would say that in the night, the Police had come to the hospital and had taken her statement and she identified Ext.P1.

Crl. Appeal Nos.654 & 2035/2011 30

33. The evidence of PW1 is to the effect that on the date of incident, two accused persons had come in the morning to their house. They had asked for her father and they had met her father in the morning. After conversation, they left the place. She would then say that they returned again at 5.30 p.m. in the evening and they were informed that her father was not at home. They remained in the place and then the rest of the incident occurred. She identified M.O.1 as the weapon used by the accused. She would also say that after the incident, when the accused tried to go away on the motor bike, it did not start and therefore, the bike was kept there and they went towards the eastern side.

34. The main criticism levelled against the evidence of PW1 is that she deviates considerably from the First Information Statement. It may at once be noticed that no contradictions or inconsistencies between the evidence of PW1 with that of Ext.P1 statement is seen Crl. Appeal Nos.654 & 2035/2011 31 marked during the examination of PW1. We meticulously went through the evidence of PW1 and the narration of incident in Ext.P1 and find little difference or no inconsistency or contradiction between the two. On the other hand, we find that the narration of incident in Ext.P1 fully tallies with the narration of incident given by PW1 and corroborates the evidence of PW1 in all respects.

35. PW2 does not claim to have seen the incident. She only says about her entry in the office room. She however deposes in detail regarding the arrival of the accused, their waiting in the house till the deceased came home. She also speaks about a telephone call which she received while the accused were waiting for the deceased. When she informed her husband over phone that two persons were waiting for him, he enquired who they were and then she says that she handed over the telephone to the first accused to disclose their identity. Her husband returned home a little after 6.00 p.m. She would say that Crl. Appeal Nos.654 & 2035/2011 32 her husband after coming home, changed his clothes and went to the office. It is significant to notice that she also says that she asked the accused persons whether they would like to have something to eat and she was very cordial to them little knowing what was waiting for her husband at their hands.

36. Further evidence of PW2 is to the effect that after reciting salath when she had gone inside the room and at the time while PW1 was reciting the Quran, she suddenly heard loud cries let out by PW1 which brought her to the office room. When she entered the office room, she found PW1 and PW3 already there and she found her husband lying in a pool of blood. Hearing the commotion, the other inmates of the house also came to the place. She would say that the first accused wielded the knife and threatened the inmates of the house. Of course, she too would say that the second accused was present at the relevant time. Frightened about the Crl. Appeal Nos.654 & 2035/2011 33 consequences, she restrained herself from going near her husband and she then thinking about the safety of other inmates of the house, led them into a room and closed the door. Then she realized that her daughter was also injured and she found the accused leaving the place with the first accused carrying the knife.

37. The main criticism levelled against the evidence of PW2 is regarding the identity of the accused. It is contended on behalf of the accused that she was not familiar with them and she did not know their names at all. But she gives their names at the time of evidence. It is also pointed out that there is difference in the time of arrival of the deceased in the house between the evidence of PW1 and PW2.

38. At the outset itself, we must say that the criticism levelled against the evidence of PW2 is quite unfounded. On going through her evidence, it can be seen that she did not claim familiarity with the accused at Crl. Appeal Nos.654 & 2035/2011 34 all. However, she is definite in her deposition before court that when the accused came in search of her husband, her husband was not at home and they were asked to wait in the veranda. She then speaks about the telephonic conversation which she had with her husband wherein, she informed her husband about the arrival of two persons and they were waiting for him. Then her husband asked her to hand over the phone to the accused persons who disclosed their identity. Her hospitality is also quite evident from her testimony.

39. It is quite clear that it is from the conversation between the first accused and her deceased husband that she had learnt the name of the first accused as Natarajan. As regards the inconsistency, if at all any, regarding the time of arrival of deceased at the house, we must say, it is too insignificant aspect to be taken note of. Whether it is 6.00 p.m. or little after 6.00 p.m., it is of little consequence as far as the crux of the issue is concerned. Crl. Appeal Nos.654 & 2035/2011 35

40. PW3 is the son of PW1. He had returned home after a tour on the date of incident. He says that he happened to see the accused persons by about 5.30 p.m. on the date of incident. He too would say that when the accused arrived at his house, his grandfather was not at home. His grandfather returned home in an autorikshaw by about 6.00 p.m. and then went to his office. PW3 was lying in the hall. Hearing the loud cries of his mother, he rushed to the office room of his grandfather and to his dismay, he found the first accused inflicting stab injuries on his grandfather. He saw two such stab injuries being inflicted on the deceased. He would also say that even though PW1 implored not to harm her father, that went unheeded and the consequence was that she too received injuries at the hands of the first accused. Thereafter, he gives a similar version as PWs 1 and 2 regarding brandishing of knife by the first accused and threatening the inmates of the house with dire consequence. He too Crl. Appeal Nos.654 & 2035/2011 36 identified M.O.1 as the weapon used by the accused.

41. Much criticism is levelled against the evidence of PW3 regarding his point of arrival at the time of the incident. It is very vehemently contended on behalf of the accused persons that he could not have seen the incident at all. But a reading of evidence of PWs 1, 2 and 3 would clearly show that in all probability, what is deposed to by PW3 appears to be true and is quite consistent with the version given by PWs 1 and 2.

42. The evidence of PW3 is to the effect that hearing her mother's cries, he rushed to the office and he found the first accused inflicting injuries on his grandfather. One may here recall the evidence of PW1 to the effect that after inflicting the first blow, the deceased was pulled down from the chair to the ground and thereafter the other two stabs were inflicted. It was possibly after inflicting the first injury that PW1 let out loud cries which brought PW3 to the scene and he had Crl. Appeal Nos.654 & 2035/2011 37 occasion to see the rest of the injuries being inflicted on the deceased.

43. Here one may notice the evidence of PW2 also. PW2 does not claim to have seen the stab injuries being inflicted on the deceased. Her evidence is to the effect that when she entered the office room, she found her husband lying in a pool of blood and PWs 1 and 3 were already there.

44. The first question that arises for consideration is regarding the cause of death of Unnithangal. One need not labour much in this regard. That Unnithangal received stab injuries and was taken to Royal Hospital, Kunnamkulam cannot be disputed. PW13 conducted inquest over the body of deceased Unnithangal and furnished Ext.P8 report. It discloses the injuries found on the body. The infliction of injuries on deceased is spoken to by PWs 1, 2 and 3. Of course, one cannot forget the fact that PW2 has not spoken about actually Crl. Appeal Nos.654 & 2035/2011 38 having seen infliction of injuries on the deceased by the first accused. That remains confined to the testimony of PWs 1 and 3.

45. One may have now look at the evidence of PW4 who conducted autopsy over the body of deceased. He furnished Ext.P2 report which contains the following ante-mortem injuries.

"1. Incised penetrating wound 3.6 x 1.3cm, vertical on left side of chest, 5 cm to the left of nipple and 7cm below front fold of axilla. Upper end was square cut and lower sharp cut. A linear superficial incision 2.5cm long extended downwards and slightly backwards from the lower end. The wound entered chest cavity cutting the 3rd rib and muscles below it, cut the upper lobe of left lung (transfixed, 3cm long) cut the covering of heart and entered the heart (left ventricle) penetrating the left side of heart (3cm long). Left lung (250g) was collapsed and pale. Left chest cavity contained 1500ml of blood and blood clots. Pericardial Crl. Appeal Nos.654 & 2035/2011 39 cavity contained 100ml of blood. The depth for which tissues cut was 6cm and was directed transversely from left to right.

2. Incised wound 8.5x1x1cm, transverse on right side of neck, right end 5 cm below angle of jaw, left end 3cm to the left of midline. Upper margin of left 1/3rd of the injury was contused (0.5cm broad) The internal neck structures were intact.

3. Superficial incised wound 6.5x0.2cm, oblique on left side of forehead, lower front end at left end of eyebrow.

4. Incised wound 3x1x0.8cm, oblique on right side of front of chest, lower left end 6cm away from midline, 15cm below collar bone. Right upper end 14cm below collar bone.

5. Incised wound 3.5x0.5x1cm, transverse on back of right elbow.

6. Incised wound 3x1x0.5cm oblique, its inner end 4cm above injury No.5.

7. Abrasion 1.5x1.5cm on forehead, 2cm Crl. Appeal Nos.654 & 2035/2011 40 above root of nose, just to the right of midline.

8. Abrasion 0.3x0.3cm on left upper eyelid outer 1/3rd.

9. Linear abrasion 2cm transverse present/across root of nose.

10. Abrasion 1.5x0.2cm vertical on right side of face, 3cm away from nose, 1.5cm below eye.

11. Multiple small abrasions scattered on an rea 4.8x2 cm present just below the injury No.2. Three abrasions 3cm, 2.5cm and 2cm long, 0.2 cm broad extended downwards and to left, 1 cm apart, from the lower margin of the abraded area.

12. Linear abrasion 15 cm vertical on right side of abdomen, 15 cm below nipple.

13. Abrasion 0.3x0.7 cm at inner aspect of right forearm, 12 cm above wrist.

46. PW4 attributes the cause of death as inflicted injuries suffered to chest especially injury No.1. One may notice here injury No.1 which reads as follows: Crl. Appeal Nos.654 & 2035/2011 41

"1. Incised penetrating wound 3.6 x 1.3cm, vertical on left side of chest, 5 cm to the left of nipple and 7cm below front fold of axilla. Upper end was square cut and lower sharp cut. A linear superficial incision 2.5cm long extended downwards and slightly backwards from the lower end. The wound entered chest cavity cutting the 3rd rib and muscles below it, cut the upper lobe of left lung (transfixed, 3cm long) cut the covering of heart and entered the heart (left ventricle) penetrating the left side of heart (3cm long). Left lung (250g) was collapsed and pale. Left chest cavity contained 1500ml of blood and blood clots. Pericardial cavity contained 100ml of blood. The depth for which tissues cut was 6cm and was directed transversely from left to right.

47. Recall the evidence of PWs 1 and 3 to the effect that the first accused repeatedly stabbed the deceased. This seems true going by the incised wounds found on the body. PW4 also deposed that incised injuries Crl. Appeal Nos.654 & 2035/2011 42 found on the body of deceased could be inflicted with the use of a weapon like M.O.1. A reading of the deposition of PW4 and on noticing the injury which caused the death of deceased, there can be no dispute regarding the fact that Unnithangal died as a result of inflicted injuries and it is a clear case of homicide.

48. It is true that certain omissions were brought out in the cross examination of PW2, and there are omissions in the evidence of PW3 also. But a close reading of the so called omissions would clearly show that they cannot fall under the category of contradictions discrediting the evidence given by PWs 2 and 3. It is on insignificant aspects that the omissions have been brought out. As regards the core incident and the fact spoken to by them with regard to the incident, there is no material contradiction or omission brought out in their cross examination.

49. We, on considering the evidence given by Crl. Appeal Nos.654 & 2035/2011 43 PWs 1, 2 and 3 like the trial court find no reason to disbelieve these witnesses. Their evidence appears to be natural, cogent and convincing.

50. It is not as if that the prosecution case is built on their oral testimony alone. Ext.P6 is the wound certificate relating to PW1. That was proved through the evidence of PW5. It is true that in Ext.P6, the weapon used is mentioned as pen knife. But, however, PW5 has stated that the injuries found on the body of PW1 could be inflicted using a weapon like M.O.1 produced in court. He would also speak about Ext.P5 certificate issued by him which indicated that when the deceased was examined, he was found dead and that he issued the said certificate after examining the deceased at 8.10 p.m on 10.02.2005.

51. Much criticism was levelled against the nature of weapon alleged to have been used by the first accused. Harping on the mention of weapon as pen knife in Ext.P6 and also relying on the evidence of PW8 to the Crl. Appeal Nos.654 & 2035/2011 44 extent where it is claimed by the defence that she had stated that it was a folded knife, it is contended that the knife produced before court is not the knife which is allegedly used for inflicting injuries.

52. We find little merit in the above contention. True, in Ext.P6, what is mentioned is a pen knife. But the attribution of statement to PW8 that she had stated that she had seen the knife in the folded palm of the first accused is without basis. What she had stated is as follows:

                     "                               (Q)

                       

             (A)".

The question and answer cannot lead to the inference that the first accused had a folded knife with him.

53. Apart from the above aspect, there is no suggestion to PWs 4 and 5 that the weapon produced before court could not have caused the injuries found on Crl. Appeal Nos.654 & 2035/2011 45 the body of deceased as well as on PW1.

54. There may be some substance in the contention that it is rather strange to notice that the knife, on chemical examination, was not found to contain blood stains. It looks quite unnatural. Since the evidence is to the effect that it was used to inflict repeated stab injuries on the deceased and considering the fact that the deceased was found in a pool of blood, normally the weapon should have contained blood stains. The mere fact that blood stains were not detected on the weapon by itself cannot be an exonerating factor.

55. PW8's evidence is to the effect that while she was returning home after collecting ration, she happened to see the first accused running into her house holding M.O.1 knife. Of course, she would admit that at the relevant time her son was sitting in the house. She would say that the first accused entered her house, closed the door and proclaimed that Police may be summoned Crl. Appeal Nos.654 & 2035/2011 46 and he will surrender before the Police. Further evidence is to the effect that a short while thereafter Police came to her house and took the first accused away with the weapon.

56. The criticism that Shaji, her son was not even a witness is without any basis whatsoever. No purpose would have been served by examining him since he had no claim that he had seen the incident except the first accused taking refuge in the house of PW8. Of course, certain insignificant contradictions have been brought out in her evidence. She had stated in her evidence that when the Police knocked at the door, first accused had opened the door and surrendered before the Police. The said statement is conspicuously absent in the statement under Section 161 Cr.P.C. In fact, what she had stated is that no sooner the Police had arrived, the accused voluntarily opened the door. The said contradiction is marked as Ext.D4.

Crl. Appeal Nos.654 & 2035/2011 47

57. However, it must be remembered that the role of PW8 is rather limited. The relevance of her evidence is only to the extent that after the incident, accused had taken refuge in her house. This is a fact which is not disputed by the defence. The question as to whether he voluntarily opened the door or whether the Police had opened the door is of no relevance or significance as far as the incident is concerned.

58. The criticism levelled against seizure of clothes of first accused needs to be considered at this point of time. It was very vehemently contended that nothing prevented PW12 from seizing the clothes as soon as the first accused was taken under surveillance and the seizure should have been in the presence of independent witnesses. The non seizure of M.O.s 9 and 10, the clothes worn by the first accused, earlier is deliberate and is deliberately delayed to manipulate the evidence against the accused persons. There was no justification for Crl. Appeal Nos.654 & 2035/2011 48 making the two Police Constables as witnesses to the seizure of clothes worn by the first accused.

59. Here the defence conveniently overlooks one aspect. The prosecution case is that there was no clothes that could be provided to the accused to change at the time when he was under surveillance and that could be made available only after he had brought before the Police Station. It was under those circumstances that the seizure of clothes worn by the first accused was made in the Police Station. The time gap between the Police locating him in PW8's house, bringing him to the station and seizure of clothes is not much at all.

60. It is not the law that seizure mahazar attested to by the Police Officers is to be simply discarded. Of course, law cautions that such evidence should be viewed with utmost care and caution. If, on scrutiny, the evidence furnished by such Police Officers are found to be credit worthy and acceptable, there is no reason to reject Crl. Appeal Nos.654 & 2035/2011 49 the same merely on the ground that the mahazar was attested to by the Police Officers. Of course, the courts have gone to the extent of saying that evidence of recovery as spoken to by the Investigating Officer is sufficient in law. If the recovery is acceptable, that would be sufficient. Applying the above standards, the criticism levelled against the seizure of clothes worn by the first accused is without any basis whatsoever.

61. Slight inconsistencies and contradictions are bound to arise in the matter of evidence. It will be imprudent on the part of court to insist for mathematical precision. Apart from the fact that it was a horrendous act that had taken place and it was witnessed by PWs 1, 2 and 3, they were also deposing after a long time after the incident had occurred. It has already been observed that one cannot predict as to how a person would react in a given situation and the people act differently in a given situation.

Crl. Appeal Nos.654 & 2035/2011 50

62. There is yet another significant aspect. PW1 is an injured witness. The law gives higher credence to the evidence of injured witness. Further it is to be noticed that the deceased is none other than the father of PW1, husband of PW2 and the grandfather of PW3. It will be unwise and imprudent on the part of court to even remotely believe that these persons would have let the real culprits escape and would falsely implicate the accused persons. They stand to gain nothing by doing so. This also lends credence to the testimony furnished by PWs 1, 2 and 3.

63. One may now notice the plea of alibi raised by the first accused. He denied his presence totally at the place of incident on the relevant date. He examined DW1 in his evidence. DW1 has stated that on the next day of incident, while first accused and DW1 were engaged in agricultural operations in the property of one Abdul Rahman, a Police Constable attached to Pattambi Police Crl. Appeal Nos.654 & 2035/2011 51 Station came to their place of work and informed the first accused that he is wanted by the Circle Inspector of Pattambi Police Station. The place they were working is very close to the house of first accused and the first accused left for the station on his bike. On the previous day, till afternoon, according to DW1, first accused had not come for work and on enquiry he was told that he had gone to see somebody. However, DW1 asserted that the first accused was available for agricultural operations in the afternoon on the date of incident.

64. It is significant to notice that there is no suggestion to PWs 1, 2 and 3 that either the first accused or the second accused had not come to the house of deceased in the afternoon of the date of incident. The graphic description given by PWs 1, 2 and 3 about the presence of the first and second accused at the place of incident betrays the plea of alibi raised by the first accused.

Crl. Appeal Nos.654 & 2035/2011 52

65. Apart from the above said fact, the narration given by the first accused at the time of examination may also be looked into. What he would say is that though he had gone in the morning to the house of Unnithangal, he was told that the Thangal did not have the requisite amount and he would pay the amount to the first accused two days thereafter and he returned in the morning. On the next day, while he was at home, he would claim that Police had come to his house and told him that he was wanted by PW13.

66. One may at once notice the incongruity in the evidence of DW1 and first accused in this regard. DW1 would say that it was while they were working in the property belonging to one Abdul Rahman that the Police had come to the place of work and informed the first accused about the call made by PW13. But the first accused would say that he was at home at the relevant time. It is also significant to notice that the claim made Crl. Appeal Nos.654 & 2035/2011 53 by both the first accused and DW1 that the first accused had left for station in his motor bike to respond to the call made by PW13 is absolutely false since his motor bike, according to prosecution, was left at the place of incident and it was seized by PW13 on the next day of incident. The evidence is to the effect that it was released on kychit. The above inconsistencies between the statement given by first accused at the time of questioning under Section 313 Cr.P.C and the evidence of DW1 and the absolute falsity of using motor bike to respond to the call of PW13 would make the plea of alibi absolutely false and baseless.

67. Having thus analysed the evidence in considerable detail, we agree with the conclusion drawn by the trial court that fatal injuries which caused death of Unnithangal was in fact inflicted by the first accused. No other conclusion is possible on the basis of evidence on record.

Crl. Appeal Nos.654 & 2035/2011 54

68. Then comes the question as to what are the offence committed by the accused persons. There can be no manner of doubt that as far as the first accused is concerned, he having inflicted repeated stab injuries which caused the death could not escape from falling within the ambit of clauses 1, 3 or 4 of Section 300 IPC. One may even find it difficult to take it out of the first clause of Section 300 IPC also. It could not be said that by inflicting repeated stab injuries of the nature of injury No.1, he did not know that it will cause death of a person concerned. Surely and certainly, he was rightly found guilty of the offence under Section 302 IPC. There is ample evidence also to show that he had inflicted fatal injuries on PW1 also.

69. A contention is raised in this regard that the act was committed not voluntarily or intentionally and therefore the first accused cannot be accused of having committed the offence under Section 324 IPC. Crl. Appeal Nos.654 & 2035/2011 55

70. The argument to say is too far fetched. A person who wields his knife and repeatedly attacks a person must be credited with knowledge that anyone who intervenes is also likely to be hurt in the process and PW1, who is the daughter of deceased, has spontaneously acted in the natural course of events when she found her father being repeatedly stabbed by the accused. It is in the process, she too received injuries and it could not be said that it was unintentional. Considering the nature of weapon used and the manner in which injuries were inflicted on PW1, the accused must be credited with knowledge that anyone intervenes also receives injury. That injuries are described in Ext.P6 wound certificate furnished by PW5. The court below was therefore perfectly justified in finding the first accused guilty under Section 324 IPC.

71. Coming to the role of the second accused, we have considerable doubt as to whether the act of the Crl. Appeal Nos.654 & 2035/2011 56 court below in roping in the second accused by taking aid of Section 34 of IPC is just and proper. The only sin that the second accused seemed to have committed is that he had gone along with the first accused. Except the fact that he too had paid for Visa transaction carried on by the deceased, nothing is brought about to show that he had any knowledge about the first accused carrying a weapon with him or the mind of first accused on being given the utterances made by him on the deceased. There is nothing to show that he had accompanied the first accused to the house of deceased sharing common intention of causing any harm to the deceased. The mere fact that he did not spontaneously react when the first accused inflicted stab injuries and that he did not try to prevent him from further inflicting injuries cannot be taken as a reason for him having shared common intention with the first accused. As has already been observed, there is no set pattern of behaviour. If, in the Crl. Appeal Nos.654 & 2035/2011 57 given situation, seeing the act of first accused, second accused stood numb, he could not be found fault with and it could not be said that he was a privy to the transaction.

72. Of course, there is some evidence to show that the accused had left together to the house of deceased. But, that by itself cannot be taken as a ground to attribute common intention being shared by the first accused and the second accused.

73. On an impartial and meticulous consideration of evidence, we find it extremely difficult to come to the conclusion that the act committed by the first accused is in furtherance of common intention shared by second accused. We find no reason to arrive at such a conclusion.

74. For the above reasons, while we find no reason to interfere with the conviction and sentence passed against the first accused for the offences under Sections 302, 324 and 449 IPC, we are unable to sustain Crl. Appeal Nos.654 & 2035/2011 58 the conviction and sentence passed against the second accused taking the aid of Section 34 IPC. The second accused stands acquitted of the offence under Sections 302 and 449 IPC read with Section 34 IPC and it is held that he is not guilty of the said offences. He stands acquitted of all the charges levelled against him.

In the result, the appeal filed by the second accused namely, Crl.Appeal No.654/2011 stands allowed and the appeal filed by the first accused namely, Crl. Appeal No.2035/2011 stands dismissed.

Sd/-

P.BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE smp/ds

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