Rajesh @ Biju, S/O. Krishnan Nair vs State Of Kerala
2023 Latest Caselaw 353 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT

        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA,
                              1944
                  CRL.APPEAL NO. 555 OF 2006
 AGAINST THE JUDGMENT DATED 22.02.2006 IN S.C.NO.601 OF
  2003 THE ADDITIONAL SESSIONS JUDGE (FAST TRACK-III),
                        THIRUVANANTHAPURM


APPELLANT/ACCISED:

            RAJESH @ BIJU, S/O. KRISHNAN NAIR,
            KUNNIL VEEDU, ALATHARA, IST WARD,, CHERUVAIKAL
            VILLAGE.
            BY ADV SMT.P.A.ANITHA


RESPONDENT/COMPLAINANT/STATE:

            STATE OF KERALA
            REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,, ERNAKULAM.
            BY ADV. SANAL.P. RAJ (GP)


     THIS    CRIMINAL    APPEAL   HAVING    COME   UP   FOR   FINAL
HEARING ON 25.11.2022, THE COURT ON 11.01.2023 DELIVERED
THE FOLLOWING:
                                            2
Crl.Appeal No.555 of 2006


                                 JUDGMENT

The appellant was the 1st accused in S.C.No.601 of 2003

on the file of the Additional Sessions Court (Fast Track-III),

Thiruvananthapuram. He was convicted for offences

punishable under Section 307 read with Section 34 of Indian

Penal Code, 1860 and sentenced to undergo rigorous

imprisonment for a period of seven years and to pay a fine of

Rs.20,000/-, in default to undergo further period of

imprisonment for two years. It was also directed that the fine

amount, if realised shall be paid to PW2, Sreekantan, towards

compensation for the injury sustained by him under Section

357(1)(b) of the Code of Criminal Procedure, 1973. The

appellant challenges the said conviction and sentence in this

appeal filed under Section 374(2) of the Cr.P.C.

2. The appeal was admitted on 14.03.2006.

Execution of the sentence imposed on the appellant was

suspended on execution of a bond for Rs.20,000/- with two

solvent sureties each for the like amount to the satisfaction

of the court below.

Crl.Appeal No.555 of 2006

3. The allegations based on which the appellant stood

charged are the following:

On 18.08.2001, PW2 Sri.Sreekantan was driving his

autorickshaw bearing Reg.No.KET 784 along the main road at

overbridge junction, Thiruvananthapuram. The appellant

boarded the autorickshaw demanding to take him to Chakka.

After passing half a kilometres from the Statue of

Sreenarayana Guru at Chakka, the autorickshaw was got

stopped and the appellant went out. He came back along with

the 2nd accused, who was not available for trial along with the

appellant. They together continued the travel in the

autorickshaw and enroute they fetched water from a shop.

The appellant and the 2nd accused started having drinks inside

the autorickshaw. PW2 was also offered drinks, which he

declined. When reached the highway where the road work was

in progress, PW2 felt suspicion and he stopped the

autorickshaw. Immediately, the appellant stabbed PW2 at the

nape of his neck using a sword. PW2 ran out and tried to

escape. Soon he fell down. The appellant and the 2 nd accused

Crl.Appeal No.555 of 2006

followed. It was about 8 o'clock in the night. They together

attacked PW2 with swords. The appellant chopped off his right

foot and threw the foot away. They have also inflicted

extensive cut injuries using sword at both of his hands. They

did so out of previous enmity with the intention of causing

death of PW2.

4. Upon framing charge, the trial started. PWs.1 to 17

were examined and Exts.P1 to P15 were marked on the side

of the prosecution. MOs.1 to 5 were identified. During

examination under Section 313(1)(b) of the Code, the

appellant denied all the incriminating circumstances appeared

in evidence against him. He stated that he did not know PW2.

He saw PW2 first time in court. He was arrested by the police

without stating any reason. He has maintained that he was

innocent. No defence evidence was adduced.

5. The learned Additional Sessions Judge (Fast Track

Court-III), Thiruvananthapuram, after considering the

evidence tendered by the prosecution, found that the

evidence was enough to find the appellant along with the 2 nd

Crl.Appeal No.555 of 2006

accused guilty of inflicting grievous injuries to PW2 in

furtherance of their common intention of doing him away

with. The contentions raised by the appellant that the

evidence of PW2, which alone is available to prove the

incident, contained several inconsistencies, and therefore his

evidence unreliable was repelled. There has been staring

consistency with respect to the place of occurrence and

evidence regarding availability of light at the place of

occurrence was not credible. Identity of the appellant was not

proved at all and that the evidence was totally lacking to

establish that the amputated foot recovered from the river,

Parvathy Puthanar, was that of PW2. Those contentions of the

learned Additional Sessions Judge were repelled. As far as

failure to conduct a test identification parade is concerned the

learned Sessions Judge found fault with the prosecution.

However, it was held that the said lapse does not discredit the

evidence of PW2 and other circumstantial evidence, which has

proved that the appellant along with the 2 nd accused had

attacked and inflicted serious injuries to PW2. Holding that

Crl.Appeal No.555 of 2006

injuries inflicted were sufficient in the ordinary course to

cause death of a person, the Sessions Court concluded that an

offence under Section 307 of the I.P.C. was committed by the

appellant.

6. The learned counsel appearing for the appellant

would submit that the findings of the learned Sessions Judge

insofar as credibility of PW2 is totally faulty. Considering the

fallible nature of evidence of PW2, the same ought not have

been acted upon in the absence of any independent evidence.

Even going by the oral testimony of PW2, he did not have

prior acquaintance with the appellant. The appellant was

never shown to PW2 during the investigation, much less,

conducting of a test identification parade, and therefore,

identification of the appellant by PW2 first time in court was

unsafe to be acted upon. Regarding the place of occurrence

also, the learned counsel pointed out certain inconsistencies,

which according to him are sufficient to doubt the veracity of

the prosecution case.

Crl.Appeal No.555 of 2006

7. The incident occurred on 18.08.2001. PW2 is an

autorickshaw driver by profession. He was driving his

autorickshaw on the fateful day and when reached at over-

bridge Junction in Thiruvananthapuram at about 6.30 p.m. the

appellant boarded his autorickshaw. They went to Chakka and

enroute the 2nd accused joined. They went to a place

Karikkikam and came back to the place from where the 2 nd

accused joined. From there, they again went in that

autorickshaw to the National Highway bypass road and

reached Chakka. In between, the appellant and the 2 nd

accused started taking drinks inside the autorickshaw. PW2

was also offered, but he declined. All such incidents created

some suspicion in the mind of PW2. PW2 deposed that he

therefore stopped the autorickshaw, but immediately the

appellant stabbed behind his neck using a sword. The 2 nd

accused also stabbed him, which resulted an injury behind his

right ear. PW2 proceeded to say that he tried to escape by

taking on his heels, but he could not go long since he fell

down. The appellant and the 2nd accused chased him and

Crl.Appeal No.555 of 2006

inflicted cut injuries using swords. Going by the version of

PW2 and the nature of injuries noted in Ext.P10 wound

certificate issued by the Doctor, who examined him at the

Medical College Hospital, Thiruvananthapuram, it can be seen

that it was a brutal attack. His left foot was chopped off. Both

of his hands were tried to be cut off. The appellant had shown

the audacity of rubbing the chopped off foot of the PW2 on

the floor and thrown it away to the Parvathy Puthanar.

8. Hearing the cry of PW2, people from the

neighbourhood rushed to the spot and then the assailants

escaped. It was police, who reached the spot immediately,

took PW2 to the Medical College Hospital,

Thiruvananthapuram. One Dr.Muhammed Nazeer attended

him at the hospital and prepared the wound certificate.

Ext.P10 is the certificate. Dr.Muahmed Nazeer was not

available for examination before the court. So one of his

colleagues, PW15, Dr.Arun deposed before court proving

Ext.P10. He duly had identified the signature in it and

explained the injuries noted in the certificate. Following are

Crl.Appeal No.555 of 2006

the injuries:-

"(1) Right lower limb traumatic amputation lower third.

(2) Left upper limb near total traumatic amputation at wrist level distal vascularity is doubtful. (3) Right upper limb incised wound of 8 x 5 x 5 cm. over right upper third fore arm. Ulna was fractured. Incised wound of 5 x 3 x 3 exposing wrist joint and part of distal radius.

(4) Lower limb tendo achilles cut with a wound 10 x 3 x 3 cm.

(5) Incised wound of 15 x 10 x 10 cm. over nape of neck."

9. Knowing the incident, PW1, brother of PW2 reached

the Medical College Hospital. He could not gather much details

regarding the incident from PW2, who was then experiencing

excruciating pain and not able to respond and speak out

properly. Immediately, PW12, a Head Constable attached to

the Petta Police Station reached the Medical College Hospital

and recorded the statement of PW1. Ext.P1 is the statement.

On the basis of it, a crime was registered, F.I.R. for which is

Ext.P1(a).

Crl.Appeal No.555 of 2006

10. PW14 is the Sub Inspector of Police, Petta Police

station. He deposed that on getting information that a foot of

a human being was located in the Parvathy Puthanar, he

reached there. He took the body part into custody and a crime

was registered under Section 174 of the Code. Ext.P9 is the

F.I.R. He has prepared an inquest regarding that amputated

foot. The investigation in the case was held by PW16, Circle

Inspector of Police, Petta. He sent the foot recovered by PW14

for examination by a forensic expert. PW13, Dr.Sasikala, who

was the Assistant Professor of Forensic Medicine and Deputy

Police Surgeon, Medical College Hospital, Thiruvananthapuram,

held a detailed examination of the amputated stump. After

having necessary examination of the foot and collecting

details of PW2, came to the finding that the foot he received

for examination was the chopped off right stump of PW2.

Ext.P8 is the post-mortem certificate issued by PW13 to that

effect.

11. PW16 deposed before court that he had arrested

the appellant. He has also inspected the place of occurrence

Crl.Appeal No.555 of 2006

on 19.08.2000 at 9.00 a.m. and prepared Ext.P4 scene

mahazar. At the time of his inspection, he saw the

autorickshaw bearing Reg.No.KET 784, which belongs to PW2

parking there. Blood stains were seen at the place which was

shown to him by PWs.3 and 4. He collected such bloodstained

soil, which was forwarded to the Forensic Science Laboratory,

Thiruvananthapuram. Ext.P7 is the report obtained from the

Forensic Science Laboratory to the effect that the samples

contained human blood. PW16 also stated that from the place

of occurrence, he could recover three pieces of a broken

sword, which are identified in court as MO1 series by PW2. He

also recovered a pair of slippers from the place of occurrence,

which PW2 identified as his own.

12. PW16 further deposed in court that on 29.10.2010

at 9.00 a.m. he had arrested the 2nd accused. While in his

custody, the 2nd accused gave a statement that the sword he

kept under the Idamala bridge could be shown if he was taken

to that place, and on the basis of that statement, PW16 took

the 2nd accused to that place from where the sword was

Crl.Appeal No.555 of 2006

located and recovered. Ext.P11 is the mahazar prepared for

the said purpose. PW9 is an attestor to this document. But he

did not support the case of the prosecution. However, the oral

testimony of PW16 supported by the contemporaneous

document, Ext.P11 mahazar would substantiate that at the

instance of the 2nd accused, the sword was recovered, which is

MO3. PW2 had identified that sword before the court as MO3.

13. Apart from the oral testimony of PW2, recovery of

MO1 series from the place of occurrence and recovery of MO3

under the provisions of Section 27 of the Evidence Act, 1872

are mainly relied on by the prosecution to prove the charge

against the appellant.

14. The incident occurred at about 8.00 p.m. The

appellant got into the autorickshaw of PW2 at about 6.30 p.m.

For about 1½ hours, the appellant and also the 2 nd accused

were there along with PW2. Several incidents transpired in

between, namely, the appellant alighted from the

autorickshaw to fetch the 2nd accused, alighted at another

place to get water from a shop and also speaking them to

Crl.Appeal No.555 of 2006

each other at several occasions. Therefore, there has been

enough time and opportunity for PW2 to get acquaintance

between them. Those incidents were followed by the attack on

PW2. In such circumstances there would not be any difficulty

for PW2 to identify the appellant or the co-accused at any

later point of time. He duly had identified the appellant

pointing him out before the court. The contention of the

appellant that no test identification parade was held and

therefore identification of the appellant by PW2 before the

court cannot be acted upon has no legs to stand.

15. In the aforesaid facts and circumstances, there was

absolutely no necessity for the conduct of a test identification

parade. Identification of the appellant before the court by PW2

can certainly be acted upon. Hence the decision of the Apex

Court in Lakhwinder Singh and others v. State of Punjab

[(2002) 10 SCC 295] on which the learned counsel for the

appellant placed reliance has no application in this case.

16. PW2 succinctly narrated the nature of attack on

him. While he was sitting in the driver seat, he was stabbed at

Crl.Appeal No.555 of 2006

the nape or his neck using a sword first by the appellant and

then by the 2nd accused. When he fell down on his attempt to

escape, both of them approached him and inflicted the

remaining injuries. While he was lying down his leg was

chopped off. Both of his hands were cut using the swords by

the appellant and the 2 nd accused. The nature of injuries

would suggest that the attack was so brutal and inhuman and

the intention of the assailants would be nothing else than

causing death of PW2. PW15 deposed before the court that

the injuries noted in Ext.P10 certificate are sufficient in the

ordinary course to cause death of a person. It can

undoubtedly be said that unless timely medical attention was

provided, the inevitable result was his death.

17. As pointed out above, from the place of occurrence,

PW16 seized the autorickshaw of PW2 and his chappals,

besides bloodstained earth. The blood found on the earth

collected by PW16 from the place of occurrence was proved to

be human blood. The said circumstances are enough to prove

that the place of occurrence was correctly located by PW16.

Crl.Appeal No.555 of 2006

PW4 is an attestor to Ext.P4. It is true that he did not state

having seen the incident. He maintained that he was not

available in his shop situated near to the place of occurrence.

He however explained that immediately after the incident he

reached there and the people found there told him regarding

such an incident. From that place, PW16 could see and seize

autorickshaw, chappals and bloodstained mud. His oral

testimony therefore renders support to the evidence tendered

by PW16 regarding the place of occurrence. An electric post

was noted by PW16 near the place of occurrence. Therefore,

even the place where PW2 fell down there was enough light

available. That fact anyhow has no much relevance since PW2

had had enough acquaintance with the assailants prior to that

incident itself.

18. One of the contentions of the learned counsel

appearing for the appellant is that considering the shabby

nature of the prosecution evidence, lack of proof about the

motive is fatal to the prosecution. It is true that going by the

oral testimony of PW2 and also his brother PW1, no motive for

Crl.Appeal No.555 of 2006

the appellant to attack PW2 could be gathered. The motive is

a mental element, which cannot ordinarily be deciphered. The

case of the prosecution was that in connection with an attack

on the appellant by PW2 one year before at Apollo Colony he

entertained the motive for the attack. But there is no such

evidence in that regard. Also, the contention raised by the

appellant that some other persons having enmity towards

PWs.1 and 2 in connection with the murder of their Uncle,

Sri.Krishnankutty, who was a Sub Inspector of Police, ought to

have attacked PW2, is also not supported by any piece of

evidence. The evidence brought on record by the prosecution

sufficiently had proved that the appellant in association with

the 2nd accused attacked PW2. When the oral testimony of

PW2 and other evidence proved beyond doubt the said fact,

absence of evidence regarding the motive alleged by the

prosecution does not have any importance.

19. In the light of the aforesaid facts and

circumstances, I am of the view that the findings rendered by

the learned Additional Sessions Judge that the appellant

Crl.Appeal No.555 of 2006

together with the 2nd accused attacked PW2 and inflicted him

injuries as noted in Ext.P10 certificate, does not suffer from

any infirmity or irregularity. There is no reason to interfere

with the said finding. The conviction of the appellant for the

offence under Section 307 read with Section 34 of the I.P.C.

recorded by the learned Additional Sessions Judge is therefore

confirmed.

20. The sentence imposed by the learned Additional

Sessions Judge on the appellant is to undergo rigorous

imprisonment for a period of seven years and to pay a fine of

Rs.20,000/-, in default to undergo further period of

imprisonment for two years. The learned counsel appearing

for the appellant would submit that considering the long lapse

of time since the incident and the fact that the appellant

committed the offence at his young age, he deserves a lenient

view in the matter of sentence. From the narration of the

incident and the injuries inflicted, gravity of the offence is

quite clear. By such acts, PW2 has become a physically

challenged person leaving him without means of livelihood. A

Crl.Appeal No.555 of 2006

driver by profession, PW2 could not continue his avocation.

Taking all such aspects into account, I am of the view that the

sentence is liable to be modified to a limited extent.

21. Accordingly, the appeal is allowed in part. On

confirming the conviction, the order of sentence is modified.

The appellant is sentenced to undergo rigorous imprisonment

for a period of four years and to pay a fine of Rs.20,000/-

(Rupees twenty thousand only), failing to pay the fine, to

undergo rigorous imprisonment for a further period of one

year. The fine amount, if realised, shall be paid to PW2-

Sri.Sreekantan.

The learned Additional Sessions Court (Fast Track-III),

Thiruvananthapuram will take immediate steps for the

execution of the sentence.

Sd/-

P.G. AJITHKUMAR, JUDGE

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