Kerala High Court
Sebastian @ Babichan, C.No.1407, ... vs State Of Kerala on 11 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
CRL.A NO. 693 OF 2017
AGAINST THE ORDER/JUDGMENT IN SC 58/2014 OF ADDITIONAL SESSIONS
COURT (SPECIAL COURT), KOTTAYAM, KOTTAYAM
(C.P NO.98/2013 OF JFCM COURT, CHANGANACHERRY)
(CRIME NO.1056/13 OF THRIKODITHANAM POLICE STATION)
APPELLANT:
SEBASTIAN @ BABICHAN, C.NO.1407, CENTRAL PRISON,
TRIVANDRUM
BY ADV SMT.PREETHY.R.NAIR(STATE BRIEF)
RESPONDENT:
STATE OF KERALA
OTHER PRESENT:
SENIOR GOVERNMENT PLEADER SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2021,
THE COURT ON 11.06.2021 DELIVERED THE FOLLOWING:
Crl.A.No.693 of 2017 - 2 -
K. Vinod Chandran & M.R. Anitha, JJ.
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Crl.A.No.693 of 2017
-------------------------------------
Dated, this the 11th day of June, 2021
JUDGMENT
Vinod Chandran, J.
The always potent mixture of playing cards and
liquor, led to the murder of a person by his own brother. On
16.09.2013 after the revelry in connection with Onam; laced
with intoxication of liquor, five friends sat together for a
game of cards at the house of one of them (the deceased
victim). The brother of the victim, who resides nearby, also
under the influence of liquor, demanded to be participated in
the game. Presumably due to his demand having been declined,
there ensued a brawl and some pushing and pulling. The
intruder was then led to his own neighbouring house and the
wife of the victim requested that the friends disperse, since
the brother was sure to return and again pick up a quarrel.
The friends hence decided to rejoin at the house of another
among them. While they were leaving the premises in three
bikes, with two riding pillion, the intruder waylaid his
brother's bike and stabbed him. The injured was taken by his
friends first on a bike and then in a Scorpio car initially
to a hospital at Chettikuzha where he was given first aid and
then to the Medical College Hospital, Kottayam. The victim
succumbed to his injuries at 10.30 p.m on the same day. The
FIR was registered on the basis of the First Information
Statement of PW1 and the accused arrested at 1.00 p.m on the
next day.
2. Before the Trial Court the prosecution examined
PW1 to PW19 and produced MO1 to MO6. Exts.P1 to P20
documents were marked. PW1 to PW4, who in the company of the
deceased was engaged in the game of cards were occurrence
witnesses. MO1 knife said to be the weapon used for stabbing
was alleged to have been seized from the body of the accused
at the time of arrest. The Trial Court found the accused
guilty of the offense of murder punishable under Section 302
of the Indian Penal Code and sentenced him to life
imprisonment and fine of Rs.25,000/- with a default sentence
of one year.
3. We heard learned State Brief Preethy R Nair for
the accused/appellant and Sri. S.U Nazar learned Prosecutor
for the State. Learned Counsel for the appellant argued that
the seizure of MO1 knife was stage managed. The inspection
report at the time of arrest did not show such seizure having
been made from the body of the accused. Further it is very
unlikely that the accused would have carried the knife after
the alleged incident of stabbing. It is also pointed out that
though the arrest was made on 17.09.2013, the material object
alleged to have been seized from the body of the accused, a
crucial piece of evidence being the offending weapon, was
produced before Court only on 26.09.2013. There was no
explanation offered by the prosecution as to why the delay
was occasioned in producing the knife which is the most
crucial piece of evidence. The learned Counsel also argues
that there is no scientific evidence to show that the offense
of stabbing was carried out with the material object produced
before Court. It is pointed out that PW1 to PW4 though
occurrence witnesses admit that they were driving away from
the scene and saw the incident while looking back from the
moving vehicles, which is very improbable. There are major
embellishments and discrepancies in the evidence of PW1 to
PW4 which definitely enables the accused to the benefit of
doubt. The discrepancies in the evidence of the ocular
witnesses raise serious doubts about the incident having
occurred as set up by the prosecution. According to the
accused his brother got injured when the bike he was riding
slipped and the rider fell on to the fence. The sharp pickets
on the fence caused the various incised wounds. One of the
witnesses had also spoken of a drizzle at the time of the
incident which probablize the version of the accused that the
bike ridden by the deceased slipped causing the rider to fall
down. The postmortem report also indicates that the deceased
was intoxicated at the time he was riding the bike.
Alternatively it is also pleaded that the accused is entitled
to Exceptions 1 and 4 under Section 300 of the IPC. It is the
contention of the learned Counsel that if at all the accused
is found guilty of stabbing his brother it was one which
occurred on the heat of the moment when there was a wordy
altercation between the brothers. The incident occurred only
by reason of the sudden quarrel that ensued between the
brothers and there was no premeditation asserts Smt. Preethy
R. Nair.
4. Sri.S.U Nazar would argue that there are no
embellishments in the deposition of the ocular witnesses, and
if at all, they are not very material. The FIS which is the
most contemporaneous document names every person who was
present at the time of the incident and just prior to it, all
of whom having been examined by the prosecution. The motive
which is the denial of the deceased to allow the accused to
join the game of cards, is also spoken of in the FIS. On the
material particulars and the circumstances leading to the
incident and also the incident proper, there is clear
identity in the deposition of PW1 to PW4. The fact that the
FIS did not reveal the drizzle at the time of incident is not
at all material and there is nothing to show that the
deceased had fallen from the bike or had died by reason of
the injuries caused thereby. The fatal injury as spoken of by
PW11 the Doctor who conducted autopsy was one which entered
the left side of the front of chest just below the collar
bone and pierced even the abdominal cavity. The stab wound
was so forceful and deliberate, which could not have been
caused by a person falling on a fence from a bike. It is
urged that there is no reason to find the accused entitled to
any benefit of doubt especially when the evidence clearly
indicates a premeditated act of the accused after he was
taken away from the spot, where a wordy altercation had
ensued. The deceased who was leaving the premises was waylaid
and deliberately stabbed with a knife. There is no cause for
bringing the act under any of the Exceptions. The learned
Prosecutor would seek to sustain the conviction and sentence.
5. PW11 is the Doctor who conducted the autopsy and
Ext.P6 is the postmortem certificate. The incised injuries
noted therein are 1,2,3 and 8. Injury Nos. 4 to 7 are linear
aberrations. The opinion as to the cause of death is that
the deceased died of the injury sustained to the chest and
abdomen, ie, injury No.1, the description of which is
extracted below from Ext.P6.
Incised penetrating wound 2.3cm long, oblique on
left side of front of chest, the upper outer
sharply cut end was 8cm to left of midline and
17cm below collar bone, the other end was blunt.
Cutting down along soft tissues of the chest wall
and directed downward, backwards and inwards the
wound entered the abdominal cavity by penetrating
the anterior abdominal wall and peritoneum and
had terminated by incising front wall of the body
of stomach. The wound track had a total minimum
depth of 10.5cm. The abdominal cavity contained
800ml of fluid blood mixed with blood clots and
spilled stomach contents.
6. PW11 spoke of the ante-mortem injuries as seen from
Ext.P6. The Doctor's opinion as seen from the deposition is
specifically that the injury could be caused by MO1 knife and
it is sufficient in the ordinary course of nature to cause
death. There was a specific question put in cross-examination
as to whether the injury could have been caused by reason of
the rider of a bike falling on a fence. It was categorically
opined by the Doctor that injury No.1 cannot be caused by
falling on to a sharp fence. The other injuries according to
him, except injury Nos.7 and 8 also could be caused by a
weapon like MO1. The fatal injury as we see from the above
extract from Ext.P6, entered the body on the left side of the
chest, below the collar bone and traveled down cutting the
soft tissues of the chest wall to enter the abdominal cavity
by penetrating the anterial abdominal wall and peritoneum
and terminated by incising the front wall of the stomach. The
wound track had a total minimum depth of 10.5cm. The fatal
injury as revealed from the postmortem report and deposition
of the Doctor clearly indicates a forceful stab made on the
chest downwards and the weapon piercing the innards of the
body to a depth of 10.5cm; which is highly improbable if the
rider of a bike fell on a fence. For producing such an injury
from falling on a picket of the fence, the body has to fall
down from a height almost at a 90 degree angle to the ground.
We are convinced that the injury was caused by a piercing
weapon like a knife and that there was deliberate human force
applied to the weapon. The injured lost his life due to the
fatal injury caused by a weapon like a knife which was used
on him by another stands well established. That the injured
was murdered is quite evident from the medical evidence.
7. There was considerable argument made regarding
the seizure of the knife from the body of the accused. We are
not convinced that it is totally improbable for the
perpetrator of a crime to carry the weapon on his body after
the alleged incident. However, we have our own apprehensions
about the seizure proper as was pointed out by the learned
Counsel for the appellant. The Inspection Memo (Ext.P12)
prepared at the time of arrest did not contain any narration
about such seizure having been made or the presence of the
knife on the body of the accused. Further, the seizure was
made on 17.09.2013, but it was produced only on 26.09.2013
before Court, which stands admitted by PW19, the
Investigating Officer. The explanation for the delay as
spoken of by the Investigating Officer during
cross-examination was that the same was kept with him so as
to confront the Doctor with the weapon when his statement was
recorded on 26.09.2013. The Doctor on the other hand though
spoke of having seen the weapon, was not asked anything about
the date on which he had seen the same. The Investigating
Officer also categorically stated that there was no attempt
made or permission taken from the Court to keep the knife in
safe custody, until the Doctor was confronted with the same.
It is also pertinent that though on chemical examination of
the knife, there was blood detected on it, the same was
insufficient for the purpose of identifying the group. In the
totality of the circumstances we are of the opinion that
there can be no reliance placed on the seizure of the knife
from the person of the accused at the time of arrest. The
said circumstance as pointed out by the prosecution does not
impress us to bring home the guilt of the accused. However,
we have to notice that the prosecution case is not based
merely on the circumstances but has its foundation on the
clear ocular evidence of four witnesses.
8. PW1 to PW4 supports the prosecution case to the
hilt. PW1 is the person who gave the FIS, Ext.P1 leading to
registration of P11 FIR. As rightly pointed out by the
learned Prosecutor, it is the most contemporaneous document;
having been recorded at 3.00 a.m after the death of the
injured at 10.30 p.m. on the previous day. The FIS speaks of
the incident fairly in detail regarding the circumstances
which led to the incident of stabbing one George Thomas @
Sibichan. PW1 to PW3 and the deceased were engaged in a game
of cards at about 6.00 p.m on the front portion of the house
of the deceased; PW4 being a mere onlooker. The accused
approached them demanding to join the game, which was
declined by those who were playing. The accused then created
a row when the wife of the deceased asked her husband and his
friends to disperse since the accused was definitely going to
return. The deceased is also said to have scolded the
accused, his brother for having been forced to stop the game.
The friends then decided to continue with their game at the
house of PW1 and proceeded in three bikes; two riding
pillion. PW3 is said to have gone pillion in the bike ridden
by the deceased. When the deceased & PW3 reached in front of
the house of the accused they were waylaid by the accused.
The accused is said to have then forcefully stabbed the
deceased on the left chest.
9. The deceased having been subjected to a forceful
stab fell down from the bike. PW1 to PW4 immediately came to
the rescue of the injured and took him to the nearby hospital
for first aid and then to the MCH, Kottayam. There the
injured succumbed at 10.30a.m. PW 1 spoke in tandem with the
FIS. The essential circumstances involving the intrusion
made by the accused into the game peacefully carried on by
the deceased and PWs 1 to 3, the wordy altercation that
ensued on the intrusion of the accused, the friends gathered
in the house of the deceased having proceeded to disperse and
the incident of stabbing has been graphically described by
PWs1 to 3 in tandem. There are obviously embellishments which
however, are not material and do not raise any doubt in our
mind as to the incident having occurred in any other manner.
10. Sunil Kumar Shambu Dayal Gupta v. State of
Maharashtra [2010 (13) SCC 657] restated the rules relating
to appreciation of evidence. It was held that the nature of
the contradictions, exaggerations or embellishments have to
be judged by their magnitude as to whether it materially
affects the trial. Minor contradictions, inconsistencies,
embellishments or improvements on trivial matters which do
not affect the core of the prosecution case cannot be a
ground to reject the evidence entirely. Marginal variations
need not necessarily be improvements in the real sense. Such
variations could be in elaboration of the statements made
earlier. It was held to be the duty of the Court to consider
the evidence in its entirety to form an opinion about the
credibility of the witnesses. The embellishments, if they can
be so styled, are only minor additions made on the details of
the incident, which none would narrate when an FIS is being
recorded. Those are only details regarding an incident which
comes to the mind of a witness on deliberate introspection;
which may not occur to him at the time of giving an FIS
immediately after the incident, when the crime proper and the
consequences of that alone would be impacting the mind of the
person who witnessed it.
11. PW2 further adds that after suffering the stab
injury the injured also spoke of "Babichan (the accused)
having stabbed him". This was spoken of by PW4 and PW5, the
wife of the deceased who came to the scene of occurrence
immediately after her husband was stabbed. PW3 is the person
who was riding pillion in the bike of the injured. There is
an argument raised that there is nothing to show that PW3 is
Sojan as spoken of by the other witnesses. The name of PW3 is
shown as Joseph.M and he was not specifically identified by
the prosecution as having been known by the alias of Sojan.
None of the other witnesses also were asked about the alias
or nickname of PW3. However, from the totality of the
circumstances as narrated by PWs 1, 2 & 4 it is fairly clear
that it was Sojan who was riding pillion with the deceased
and PW3 admitted to be that person riding pillion on the bike
ridden by the deceased. PW3 also speaks of the circumstances
leading to and the incident itself in tune with the FIS and
the ocular evidence of PWs1,2 and 4. In cross-examination he
specifically speaks of himself and three others having played
cards, of which one is the deceased and the two others PWs 1
and 2. PW4 did not participate in the game as spoken of by
him and also by PWs 2 and 3. We do not find any reason to
discard the evidence of PW3 who saw the incident at first
hand, being the person riding pillion, when the accused who
was driving the bike was stabbed on the chest.
12. The motive and the subsequent events were also
spoken of by PWs 1 to 4 in tandem. The mere fact of PW4
having spoken of a drizzle at the time of the incident would
not aid the accused in the appeal for acquittal. We have
already found that there is absolutely no chance of the
deceased having suffered the fatal injury by falling on the
fence. The contradictions as marked through PW4 are relied on
by the learned Counsel for the appellant. The incident proper
as spoken of by PW4 to the Police when confronted to the
witness have been denied. Exts.P2 and P2(a) are the
contradictions marked on the side of the prosecution.
However, on the first part of the chief-examination of PW4 he
spoke of the specific circumstance which occurred during the
game of cards proceeded with in the house of the deceased. He
also spoke of not having participated in the game of cards,
which is in tune with the evidence of PWs 2 and 3. The wordy
altercation and the dispersal of the five friends are also
spoken of by PW4. The only deviation is that he does not
speak of having witnessed the incident proper. He speaks of
having heard a sound when the friends were leaving the
premises. When he turned around, according to him, he heard
the deceased saying that "Babichan (accused) stabbed him". It
was on PW4's bike that the injured was taken from the scene
of occurrence, up to the main road from where he was taken to
the hospital in a Scorpio van. There was considerable
deviation from the statement given to the police insofar as
PW4 does not admit to have seen the incident. All the same,
he admits to have witnessed the earlier incidents and also
heard the injured identifying the accused as the person who
stabbed him. Further even if PW4 is found to have not
witnessed the crime there is the evidence of PWs 1 to 3 to
bring home the guilt of the accused definitely; without any
doubt arising.
13. That the deceased lost his life by reason of a
homicide has already been found by us. We do not place any
reliance on the seizure of the offending weapon. However, the
eye witness testimony of PWs 1 to 3 definitely brings home
the guilt of the accused; of he having stabbed his brother
forcefully and deliberately by reason of grouse harbored
against his brother for having not participated him in a game
of cards. The deposition of PW4 and PW5 also supports the
case of the prosecution. The injury by its very description
speaks of the same having been caused by a forceful
deliberate act of stabbing made to the body of the deceased
which itself reveals the intention to cause death of the
victim. We do not find any grave and sudden provocation
having been made by the deceased or any of his companions. We
also cannot find the incident having occurred without
premeditation at the heat of the moment by reason of a sudden
quarrel. The evidence reveals that after the quarrel the
accused was forced to retreat to his own nearby house. The
five persons who had gathered in the house of the deceased
decided to leave the premises for reason of the intrusion and
altercation caused by the accused. It was while they were
leaving, that the accused waylaid the deceased and stabbed
him to death. Though MO1 has not been proved to be the weapon
used to commit the crime, the description of the wound and
the deposition of the Doctor who conducted the postmortem,
indicates clearly that the fatal injury was caused by a
weapon like a knife. The accused obviously had procured a
knife after the earlier incident, which again reveals
premeditation on his part and a deliberate intention to stab
his brother in retaliation for the earlier incident. We do
not think that the accused is entitled to any benefit of the
Exceptions under Section 300 of the IPC. The guilt of the
accused stands established without any reasonable doubt. We
find no reason to interfere with the conviction and sentence
passed by the lower Court.
The Criminal Appeal stands dismissed.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
M.R.ANITHA, JUDGE
jma
