Kerala High Court
Rojimon vs State Of Kerala on 30 January, 2012
Author: R.Basant
Bench: R.Basant, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 30TH DAY OF JANUARY 2012/10TH MAGHA 1933
Crl.A.No.1201 of 2007 (A)
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(S.C.No.828/2003 OF THE COURT OF
THE ADDITIONAL SESSIONS JUDGE-II, MAVELIKKARA).
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APPELLANT:-
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ROJIMON,
C.NO. 1643, CENTRAL PRISON, TRIVANDRUM
BY ADV. SUNNY XAVIER (STATE BRIEF)
RESPONDENT:-
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STATE OF KERALA,
REPRESENTED BY A PUBLIC PROSECUTOR.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
R.Basant & K.Vinod Chandran,JJ.
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Crl.A.No.1201 of 2007-A
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Dated this, the 30th day of January, 2012
JUDGMENT
R.Basant,J.:
(i) Did the Court below err in placing reliance on the oral evidence of P.Ws 1 to 3?
(ii) Did the Court below err in drawing support from the other circumstances for the oral evidence of P.Ws 1 to 3?
(iii) Was the appellant/accused entitled to the right of private defence?
(iv) Is the appellant entitled to the mitigative protection of exception 4 to Section 300 I.P.C.?
These are the questions raised before us by Sri.Sunny Xavier, the learned counsel for the appellant.
2. Before the Court below there were two accused persons. Appellant is the 1st accused. The 2nd accused was found not guilty and acquitted of the charge under Section 302 read with Section 34 I.P.C. The appellant was found guilty, convicted and sentenced under Section 302 I.P.C. to undergo sentence of imprisonment for life. No sentence of fine is seen imposed on the appellant.
Crl.A.No.1201 of 2007 - 2 -
3. The crux of the allegations against the appellant is that he, a young man aged about 24 years, caused the death of deceased Nissar, a person aged about 27 years, by stabbing him with M.O.1 knife at about 9.30 p.m. on 15.4.2001 on the public road in front of the 'Thattukada' of P.W.3. According to the prosecution, previous enmity in respect of an incident which allegedly took place about 1= months earlier operated as the motive for the unfortunate incident.
4. Investigation commenced with Exhibit P10 F.I.R. registered on the basis of Exhibit P1 F.I. Statement lodged by P.W.1. Investigation was completed and final report was filed before the learned Magistrate by P.W.15. The learned Magistrate, after observing all legal formalities, committed the case to the Court of Session. Both the accused denied the charges levelled against them. Thereupon the prosecution examined PWs.1 to 15. Exhibits P1 to P19 were proved. M.O.1 to M.O.5(a) were also marked.
5. The accused took up a defence of total denial. In the cross examination of the eye witnesses, it appears that a suggestion was raised that the deceased must have accidentally fallen and suffered the injuries. No defence witnesses were examined. Ext.D1 series and Ext.D2 Case Diary contradictions were marked when D.Ws 2 and 3 were cross-examined. Crl.A.No.1201 of 2007 - 3 -
6. The learned Sessions Judge, on an anxious consideration of all relevant inputs, came to the conclusion that the charge against the 2nd accused has not been established. Accordingly, the 2nd accused was acquitted of the charge under Section 302 read with Section 34 I.P.C. The appellant herein was found guilty, convicted and sentenced under Section 302 I.P.C.
7. Before us, the learned counsel for the appellant and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant contends that the appellant is entitled to the benefit of doubt and, at any rate, is entitled to the mitigative protection of exception 4. The learned Prosecutor, on the contrary, contends that there is no semblance of doubt aroused in favour of the appellant and that his conviction and sentence under Section 302 I.P.C. is eminently justified.
8. An appellate judgment is; is intended to be and ought to be read in continuation of the judgment of the trial Court. In that view of the matter, we deem it not essential to re-narrate the oral and documentary evidence placed before the learned Sessions Judge. We need only mention that the oral evidence of P.Ws 1 to 15 and the contents of Exts.P1 to P19 and Exts.D1 and D2 have been read to us in detail by the learned counsel. We have also been taken through the charges framed by the learned Sessions Crl.A.No.1201 of 2007 - 4 - Judge and the answers given by the appellant and the co-accused in the course of their examination under Section 313 Cr.P.C.
9. The prosecution placed reliance on the oral evidence of P.Ws 1, 2 and 3. The incident had taken place in front of the mobile refreshment stall of P.W.3. Nissar - the deceased, had come to the shop of P.W.3. There P.W.1 was available. Nissar asked and P.W.1 directed P.W.3 to give him an Omelet. P.W.2 reached the shop of P.W.3. It was at this juncture that A1 and A2 came in two bicycles to the shop of P.W.3. There was an oral skirmish between A1 and A2 on the one hand and the deceased Nissar on the other. Without any provocation, the appellant is alleged to have drawn out M.O.1 knife in his possession and inflicted the intentional fatal injury on the chest of the deceased. The deceased succumbed to the injury. The accused persons escaped from the scene on their bicycles. This is the version of P.Ws 1 to 3.
10. The evidence of P.Ws 1 to 3 about the incident is eminently supported by the medical evidence about the injury found on the person of the deceased, which is described in Exhibit P5 wound certificate issued by P.W.10 and Exhibit P6 post-mortem certificate issued by P.W.11. The evidence of P.Ws 1 to 3 is further supported by the data perceived at the scene, which is described in detail by P.W.15 in Exhibit P3 scene mahazar prepared by him. The Crl.A.No.1201 of 2007 - 5 - evidence of P.Ws.1 to 3 gets support from the almost prompt and immediate F.I. Statement, Exhibit P1, lodged by P.W.1. The incident allegedly took place at about 9.30 p.m. on 15.4.2001. P.W.1 went to the Police Station and lodged Exhibit P1 F.I. Statement at 11.00 p.m. Exhibit P10 F.I.R. registered had reached the learned Magistrate at 12.45 p.m. on 16.4.2001. The Court below evidently drew inspiration for the oral evidence of P.Ws 1 to 3, from the prompt F.I. Statement (Exhibit P1) lodged by P.W.1.
11. The evidence of P.Ws 1 to 3 is sought to be supported by the prosecution by the evidence of recovery of M.O.1 and M.O.3 series under Exhibit P4 recovery mahazar. All the three were stained with human blood also. According to the prosecution, after the arrest of the appellant/1st accused on 16.04.2001, the appellant allegedly furnished Exhibit P4(a) information to P.W.5, the investigating police officer. On the basis of Exhibit P4(a) information and as led by the appellant/1st accused, P.W.15 proceeded to the house of the appellant and effected recovery of bloodstained M.O.1 and M.O.3 series which were kept concealed by the appellant in his house.
12. The prosecution, hence, contented that the oral evidence of P.Ws 1 to 3 is broadly inspiring. Intrinsically, there are no circumstances to doubt or suspect the evidence of P.Ws 1 to 3. Crl.A.No.1201 of 2007 - 6 - The various other circumstances relied on by the prosecution afford further support and corroboration for the oral evidence of P.Ws 1 to 3, it was contended. The Court below accepted their evidence and entered the verdict of guilty and conviction.
13. The learned counsel for the appellant first of all contends that the deceased in this case is one belonging to the Muslim faith. P.Ws 1, 2 and 3 are also persons of Islamic faith. There are indications to suggest that religious leaders of the community had intervened and there was a hartal in the locality on the next day. From these circumstances, the learned counsel for the appellant argues that the evidence of P.Ws 1 to 3 is tainted by the influence of their religious leaders. Their evidence deserves to be considered with care and caution, contends counsel.
14. At the outset we must note that the incident proper has no religious overtones. Going by the case of the prosecution, the defence set up by the accused or the submissions of the counsel, religious faith of the parties had in no way operated as relevant in the incident proper. In these circumstances, it would be hazardous to persuade a Court to approach the evidence of P.Ws 1 to 3 with unjustified doubt, suspicion and distress on the basis of the religious identities of the witnesses and the deceased vis-a-vis the accused persons.
Crl.A.No.1201 of 2007 - 7 -
15. Consideration of the evidence of P.Ws 1 to 3 on broad probabilities; intrinsically exposes to us the emptiness or hollowness of this argument. The evidence of P.Ws 1 to 3 show that they have gone out of their way - against even previous statements made by them before the police, to volunteer information favourable to the appellant. They have in no way shown any undue enthusiasm or commitment to somehow secure the conviction of the appellant and the co-accused. To us, it appears that P.Ws 1 to 3 have been absolutely fair and disinterested in the testimony tendered by them before Court against both the accused. In fact, a perusal of Exhibit D1 series and Exhibit D2 would suggest that the witnesses were not willing to oblige the prosecution even to the extent of statements said to be recorded from them by the investigating officer in the course of investigation. We need only observe that the religious faith of P.Ws 1 to 3 does not, in the facts and circumstances of this case, persuade us in any manner to approach the testimony of P.Ws 1 to 3 with doubt, suspicion or distrust.
16. P.W.3 is the most natural witness for the incident that had taken place in front of his mobile refreshment stall. He has narrated before Court what he perceived. His evidence is supported by the oral evidence of P.W.1, a respectably employed person Crl.A.No.1201 of 2007 - 8 - who happened to be present in the stall. His evidence is further supported by Exhibit P1 the prompt F.I. Statement lodged by him. P.W.2 had also come to the stall to have tea. The evidence of P.Ws 1 and 2 show that they were present at the scene of the crime, as usual in a most natural and reasonable manner. They had come to the shop of P.W.3 for having tea/refreshments. To sum up, the evidence of P.Ws 1 to 3 is found to be absolutely inspiring, natural and reasonable.
17. The learned counsel relies on some incongruity about the precise time when Exhibit P1 F.I. Statement was signed by P.W.1. According to P.W.1, he witnessed the incident. He and the others attempted to shift the victim/injured to the hospital. Local autorickshaw drivers were unnecessarily apprehensive and they did not co-operate. This obliged P.W.1 to rush to the relatives of the deceased. P.W.6, the brother of the deceased, came to the scene. With the help of the local police, he transported the deceased to the local hospital, where P.W.10, Doctor, examined the deceased at 10.00 p.m. and pronounced him dead. Exhibit P5 is the wound certificate issued after such examination of the deceased by the doctor. In Exhibit P5 it is stated that the deceased was brought to the hospital by police men. That is the version of P.W.14 also. As the local persons could not ensure the shifting of the Crl.A.No.1201 of 2007 - 9 - injured/deceased to the local hospital, some one went to the police station for assistance and it was thus that the police rendered assistance to shift the victim to the hospital. There is absolutely nothing to show that any person had given any authentic information about the incident to the police before the police rendered a helping hand to shift the deceased to the hospital of P.W.10. The mere fact that the police had helped to move the victim/injured from the scene to the hospital of P.W.10, cannot certainly persuade a prudent mind to jump to the conclusion that Exhibit P1 would not have been the real F.I. Statement or that any conflicting version must have been given to the police before Exhibit P1 F.I. Statement was lodged. Notwithstanding the fact that the police had rendered a helping hand to shift the victim from the scene of the crime to P.W.10, the evidence of P.Ws 1 and 14 that Exhibit P1 F.I. Statement was lodged at 11.00 p.m. is found to be absolutely acceptable. The contents thereof do eminently support the present version of P.Ws 1 to 3.
18. Some of the witnesses have turned hostile. The Indian Courts do come across the sad spectacle of the allegedly independent witnesses turning hostile to the prosecution with impunity. So unsatisfactory is the sense of commitment to the solemnity and sanctity of oath that such hostility by a couple of Crl.A.No.1201 of 2007 - 10 - witnesses cannot ritualistically persuade the Courts to look at the prosecution evidence with any amount of doubt, suspicion or distrust. On the material aspects about the infliction of the injury, we have the oral evidence of P.Ws 1 to 3, which support inter se and which rhyme well with broad probabilities and natural and reasonable human conduct.
19. The evidence of P.W.15 proves Exhibit P4(a), information furnished by the appellant to him in the course of interrogation after he was arrested. That led to the recovery of M.O.1 and M.O.3 series under Exhibit P4 recovery mahazar. P.W.9, the witness for recovery, turned hostile to the prosecution. But, the oral evidence of P.W.15 about the recovery is eminently supported by the contents of the contemporaneous Exhibit P4 recovery mahazar, the signature on which is unambiguously admitted by P.W.9. M.O.1 and M.O.3 series are found to be stained with human blood. The fact that the said bloodstains have not been shown to belong to the same blood group as the deceased is in the context not crucially relevant. That M.Os.1 and 3 recovered from their place of concealment were stained with human blood and the appellant offers no explanation for such concealment and the knowledge of such concealment or the presence of human blood in such articles is sufficient to support the oral evidence of P.Ws 1 to 3. Crl.A.No.1201 of 2007 - 11 -
20. Only one stab injury was suffered by the deceased. Notwithstanding the statement in Exhibit P5 that the policemen had brought the dead body to P.W.10, we have the evidence of P.W.6 that it was he who took the initiative to take the body of the injured to P.W.10. The police had also come along with him, shows the evidence of P.W.6. In these circumstances, the value of medical corroboration offered by Exhibits P5 and P6 is not in any way lost by the innocuous inaccurate statement in Exhibit P5 that the police had brought the dead body to the hospital. The fact that it is not mentioned in Exhibit P5 that P.W.6 had gone with the dead body to P.W.10 cannot succeed in generating any doubt against the evidence adduced by the prosecution. We agree with the Court below that Exhibits P5 and P6, the medical documents, support the evidence of P.Ws 1 to 3.
21. The learned counsel for the appellant points out that under Exhibit P12 series and Exhibit P13 series P.W.15 had allegedly conducted search in the residential premises of both the accused. On that search, M.Os 1 and 3 were not recovered. Hence then, could it be accepted that M.Os 1 and 3 were recovered later from the residential premises of the appellant under Exhibit P4, queries the learned counsel. We find no difficulty on this aspect at all. The search under Exhibit P12 series and Exhibit P13 series was Crl.A.No.1201 of 2007 - 12 - not for identification or recovery of any specific articles, whereas the recovery under Exhibit P4 was in pursuance of specific information furnished by the appellant in Exhibit P4(a). No trace of doubt is aroused in our mind about the acceptability of the evidence of recovery under Exhibit P4 of M.O.1 and M.O.3 series by P.W.15.
22. We do, in these circumstances, come to the safe conclusion that the oral evidence of P.Ws 1 to 3 can be accepted and when that is accepted, it reveals clearly that the injury suffered by the deceased was suffered by him at the hands of the appellant with a weapon like M.O.1.
23. It may not be inapposite to now take note of the very unreasonable explanation offered by the appellant in the course of cross examination. The only suggestion urged is that the deceased may have fallen and suffered the injury. It will be crucial to note that such a theory was not even suggested to P.Ws 10 and 11, medical experts, in the course of their cross examination. Less said about this attempted explanation, the better.
24. The learned counsel for the appellant then argues that even if the oral evidence of P.Ws 1 to 3 were accepted in toto, it must lead the Court to the conclusion that the deceased was, and the appellant and his co-accused were not, the aggressor. The counsel argues that the appellant is entitled to the right of private Crl.A.No.1201 of 2007 - 13 - defence, if the evidence tendered by P.Ws 1 to 3 were accepted in toto. The learned counsel hence argues that notwithstanding the fact that the appellant had not raised such a specific plea, this Court must come to the conclusion that the appellant was, at any rate, entitled to the right of private defence.
25. This contention calls for careful scrutiny of the oral evidence of P.Ws 1 to 3. It will be appropriate in this context to remind ourselves of the law. The burden in a criminal trial rests always on the shoulders of the prosecution - from the beginning to the end of the trial, to prove the case against the indictee beyond doubt. Whatever the defence taken by the accused, this burden continues unabated till the end of the trial. Under Section 105 of the Evidence Act, the absence of circumstances bringing the case within the sweep of any of the General Exceptions to criminality have to be assumed and presumed. It is of course a rebuttable presumption. The burden on the accused to establish his plea for protection of the General Exception is certainly not as heavy and onerous as the initial paramount burden on the prosecution. An accused need not adduce any evidence. He may rely on the very case of the prosecution, the favourable answers elicited in cross examination, the inspiring suggestions put to the witnesses in the course of cross examination, the answers given in the course of Crl.A.No.1201 of 2007 - 14 - 313 examination and every other relevant input in his attempt to take umbrage under any of the General Exceptions to criminality. He need prove his case not beyond doubt, but only on the test of balance of probabilities. Even if he has not specifically raised the plea, the burden is on the Court to consider the availability of such a plea if the totality of the circumstances indicates, suggests or reveals the availability of such a plea. Even if an accused does not succeed in his plea for protection of any General Exception to criminality, he may still succeed not because his plea for General Exception is established, but because he has succeeded in generating a reasonable doubt on the initial case of the prosecution. In that event, even an unsuccessful indictee who attempts to establish his plea for protection of the General Exception, may also succeed eventually and would be entitled for an acquittal if in the course of his unsuccessful attempt to the protection of the General Exception, he generates reasonable doubt against the very initial case of the prosecution.
26. Having understood the law thus, we look at the evidence of P.Ws 1 to 3 again closely. The evidence of P.Ws 1 to 3 reveal - notwithstanding their contrary statements before the police
- that it was the deceased who initially triggered a verbal altercation. Subsequently, there was some physical altercation Crl.A.No.1201 of 2007 - 15 - between the 2nd accused and the deceased. It was in the course of such physical altercation that the appellant took out M.O.1 and planted the injury on the deceased. Is the appellant entitled to the right of private defence in these circumstances? That is the question that falls for our consideration now. We do first of all note that the appellant has not advanced such a plea. Is the availability of such right of private defence indicated in the totality of the facts and circumstances? Our answer ought to be an emphatic 'No'. There is nothing to indicate that the initial verbal altercation and the subsequent physical altercation between the deceased and the 2nd accused could justifiably arouse any reasonable apprehension of danger to the life or limb of the appellant or his co-accused. Every verbal or physical altercation cannot ipso facto be held to be sufficient to generate reasonable apprehension in the mind of the indictee about harm to his life and person. In that view of the matter, we are certainly of the opinion that in the facts and circumstances - even taking the most liberal view in favour of the accused, the totality of inputs does not suggest the availability of any right of private defence in favour of the appellant. We do accept the oral evidence of P.Ws 1 to 3 that the initial verbal quarrel may have been triggered by the deceased. We also accept that the initial physical altercation between the deceased and the 2nd Crl.A.No.1201 of 2007 - 16 - accused may also have been triggered by the deceased. All these do not help us to come to the conclusion that the accused persons or any one of them was entitled to the right of private defence.
27. We have already concurred with the conclusion of the Court below that the injury was planted on the deceased by the appellant. The Court below has already found the 2nd accused not guilty and has acquitted him of the charge under Section 302 read with Section 34 IPC. That finding has become final without challenge. We take note of the nature of the weapon. We take note of the part of the anatomy where the injury was inflicted. That the deceased succumbed to the injury suffered is very evident from the medical evidence. A person who inflicts such an injury like the one described in Exhibit P6 which had entered the chest cavity and injured the lung resulting in profuse internal bleeding can ordinarily be assumed to intend to cause the death of the deceased. At any rate, that intentional injury inflicted, it is easy to conclude, was sufficient in the ordinary course of nature to cause death. Under clause thirdly of Section 300 (if not under clause firstly of Section
300), the offence proved against the appellant is clearly that of "murder" as defined under Section 300 IPC.
28. The learned counsel for the appellant next contends that at any rate, the appellant is entitled to the mitigative protection Crl.A.No.1201 of 2007 - 17 - of exception 4 to Section 300 IPC. The learned counsel for the appellant relies on the decisions of this Court in Johny v. State of Kerala [2010 (1) KLD 173 (DB)] and Haridas v. State of Kerala [2012 (1) KLT 124]. If the following four ingredients are proved to simultaneously co-exist, the indictee it is trite is entitled to the mitigative protection of exception 4 of Section 300 IPC:
(i) There must be no premeditation.
(ii) There must have been a sudden fight upon a sudden quarrel.
(iii) The act must have been committed in the heat of passion.
(iv) the offender must not have
(a) taken undue advantage; or
(b) acted in a cruel or unusual manner.
29. In the instant case, it is clear as day light that there was no premeditation. Prior animosity is not proved. Though an attempt was made to prove motive, such motive has not been established at all. There is nothing to indicate that M.O.1 was being carried by the appellant even remotely with the knowledge or intention that the same can be used against the deceased. The sequence of events clearly reveal that there was no premeditation for the appellant to commit the offence which eventually was committed. The evidence of P.Ws 1 to 3 clearly show that there was a sudden unanticipated quarrel and what triggered such Crl.A.No.1201 of 2007 - 18 - quarrel was the initial response of the deceased. This sudden quarrel led to a sudden fight. That again is evident from the oral evidence of P.Ws 1 to 3. The appellant and his co-accused were evidently caught unawares. There is evidence to show that the deceased was in a state of inebriation. The evidence of P.W.10 shows that the alcohol level in his blood was 127 mg. per 100 ml., which is about four times more than the tolerated level of alcohol in human blood for a driver under Section 185 of the Motor Vehicles Act. Evidently, the act was committed in the heat of passion. There is nothing to indicate that between the commencement of the incident and the infliction of injury there was sufficient time for the aroused passion to die down.
30. Did the appellant take undue advantage or did he act in a cruel or unusual manner? This is the last of the four ingredients. It is true that M.O.1 weapon was used. We do also note that only one injury was inflicted. M.O.1 came in handy and it was not carried by the appellant to take any undue advantage. We are satisfied that the appellant had not taken any undue advantage. He has not acted in any exceptionally cruel or unusual manner. In an older and more mature person the sudden quarrel and sudden fight which followed may not have generated any passion. But we do note the young age and background of the appellant. The sequence Crl.A.No.1201 of 2007 - 19 - of events suggests that he was overtaken by passion. In this view of the matter, we are persuaded to accept the argument of the learned counsel for the appellant that the appellant is, at any rate, entitled to the mitigative protection of exception 4 to Section 300 IPC. We unhesitatingly concede to the appellant the benefit of the 4th exception.
31. The above discussions lead us to the conclusion that the verdict of guilt, conviction and sentence imposed on the appellant under Section 302 IPC deserves alteration/modification/ reduction. We are satisfied that the appellant should have been convicted more appropriately under first part of Section 304 IPC. The challenge succeeds to the above extent.
32. That takes us to the next question as to what is an appropriate sentence to be imposed under the first part of Section 304 IPC. Under Section 304 Part I, the offence is punishable with imprisonment for life or imprisonment of either prescription for a term which may extend to 10 years and shall also be liable to fine. In the facts and circumstances of this case, we are satisfied that imposition of a sentence of rigorous imprisonment for a period of ten years and a fine of Rs.5,000/- shall meet the ends of justice eminently. The verdict of guilty, conviction and sentence shall, accordingly be modified.
Crl.A.No.1201 of 2007 - 20 -
33. In the result:
(a) the appeal is allowed in part.
(b) in supersession of the verdict of guilty, conviction
and sentence imposed under Section 302 IPC, the appellant is found guilty, convicted and sentenced under Section 304 Part I to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- (Rupees five thousand only. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further period of three months.
34. The Registry shall forthwith communicate this judgment to the Court below. The Court below shall take immediate necessary steps to issue revised warrant of commitment.
Sd/-
R.Basant, Judge Sd/-
K.Vinod Chandran, Judge.
vku/-
- true copy -
Crl.A.No.1201 of 2007 - 21 - R.Basant & K.Vinod Chandran, JJ.
Crl.A.No.1201 of 2007-A JUDGMENT 30th January, 2012.