Kerala High Court
Rajesh vs State Of Kerala on 29 February, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal No. 872/2020 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
CRL.A NO. 872 OF 2020
CRIME NO.1807/2016 OF SASTHAMCOTTA POLICE STATION, KOLLAM
CP 42/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM
AGAINST THE JUDGMENT DATED 07.05.2018 IN S.C. NO. 1151/2017 OF ADDITIONAL
SESSIONS JUDGE -IV, KOLLAM
APPELLANT/ACCUSED:
RAJESH
AGED 35 YEARS
S/O RAGHAVAN, RESIDING AT ADAPPIL VEEDU, WARD NO 4,
VALIYAPADAM MURI, WEST KALLADA, KOLLAM DISTRICT PIN-691 500.
BY ADV V.A.AJIVAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE, SASTHAMCOTTAH
POLICE STATION, KOLLAM DISTRICT THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2024, THE COURT ON
29.02.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 872/2020 :2:
P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
---------------------------------------------------------
Crl. Appeal No. 872 of 2020
--------------------------------------------------------
Dated this the 29th day of February, 2024.
JUDGMENT
Johnson John, J.
The appellant is the sole accused in S.C. No. 1151 of 2017 on the
file of the Additional Sessions Judge, IV, Kollam and he is challenging
the conviction and sentence imposed on him for the offence under
Section 302 of IPC as per the impugned judgment dated 07.05.2018.
2. The prosecution case is that the brother of the deceased had an
illicit relationship with the sister of the accused and even though a child
was born in that relationship, the brother of the deceased avoided the
sister of the accused and married another lady and because of that, the
accused had previous enmity towards the deceased. The accused was in
custody in another case and when he was released from the jail, the
accused along with the deceased Gopakumar reached the house of PW1
at Poikayil Mukku on 19.09.2016 and while they were staying there, at
about 10 p.m. on 20.09.2016, while the accused and the deceased were
consuming liquor, the accused asked PW1 to purchase 3 cigarettes and
when PW1 was leaving the house, he heard the accused and the
deceased quarrelling and hence, PW1 came back to the house and saw
the accused stabbing on the neck of the deceased with a broken glass
and the deceased, who sustained serious injuries, died on the spot and
the accused is thereby alleged to have committed the offence as
aforesaid.
3. On the basis of Exhibit P1 First Information Statement of PW1,
PW14 registered Exhibit P12 FIR and thereafter, PW1 5 Circle Inspector
conducted the investigation. PW16 was the Circle Inspector, who
completed the investigation and filed the final report before the Judicial
First Class Magistrate-I, Kollam
4. After committal, the case was numbered as S.C. No. 1151 of
2017 and made over to the Additional Sessions Judge IV, Kollam and
when the accused was produced before the trial court, after hearing both
sides charge was framed for the offence under Section 302 of IPC and
when the charge was read over and explained to him, he pleaded not
guilty. Thereafter, the prosecution examined PWs 1 to 16 and marked
Exhibits P1 to P26 and MOs 1 to 20 to prove the charge against the
accused. Since it is found that the accused is not entitled for an acquittal
under Section 232 Cr.P.C., he was called upon to enter on his defence;
but, no evidence was adduced from the side of the accused.
5. After hearing both sides and considering the oral and
documentary evidence on record, the learned Additional Sessions Judge,
by the impugned judgment dated 07.05.2018, convicted the accused
and sentenced him to undergo imprisonment for life and to pay a fine of
Rs.1,00,000/- and in default of payment of the fine, to undergo simple
imprisonment for one year for the offence under Section 302 of IPC It is
also ordered that the fine amount, if realised, shall be paid to PW5 as
compensation under Section 357(1) Cr.P.C.
6. Heard Sri. V.A. Ajivass, the learned counsel for the appellant
and the learned Public Prosecutor Sri. E.C. Bineesh, and perused the
records.
7. The point that arises for consideration in this appeal is whether
the conviction entered and the sentence passed against the accused is
legally sustainable.
8. The learned counsel for the appellant argued that the conviction
is based on the evidence of a single eye witness and that the evidence of
PW1, the only eye witness who supported the prosecution case, suffers
from serious infirmities and the evidence of PW1 that he witnessed the
accused stabbing the deceased is not at all reliable, because PW1 has
stated in his evidence that immediately before the occurrence, the
accused asked him to purchase 3 cigarettes and accordingly, he left the
house for purchasing the cigarette and in that circumstance, there is no
possibility for him to witness the alleged occurrence that took place
inside the house at that time. It is also argued that as per the
prosecution case, the alleged illicit relationship was between the brother
of the deceased and sister of the accused and there is no evidence to
show that there was any previous enmity between the accused and the
deceased.
9. But, the learned Public Prosecutor pointed out that the evidence
of PW1 would clearly show that due to the quarrel between the accused
and the deceased, he immediately returned to the house without
purchasing the cigarette, and at that time, he saw the accused breaking
a glass by hitting the same on the wall and thereafter, stabbing on the
neck of the deceased with the glass piece and there is no reason to
suspect the evidence of PW1 regarding the occurrence. It is also pointed
out that there is nothing in evidence to show that PW1 has any reason to
falsely depose against the accused in a serious case of murder.
10. PW1 deposed that he is a casual labourer and that his parents
are no more and that the incident occurred in his house at 10 p.m. on
20.09.2016. On the previous day evening, the deceased Gopan, along
with the accused Rajesh, who was released from the jail, reached his
house at about 5 p.m. in the evening of 20.09.2016, contractor Prabhath
reached there to discuss about an unloading work on the next day.
According to PW1, the deceased Gopan was residing with him for the last
two months and the contractor wanted to engage the witness and Gopan
for the work and then the deceased availed Rs. 500/- from the
contractor and thereafter, the deceased and the accused went to
purchase liquor and they returned at about 10 p.m. When the accused
and the deceased started to consume liquor, the accused asked PW1 to
purchase 3 cigarettes and when PW1 went out of the house for
purchasing the cigarette, he heard the accused and the deceased
quarrelling inside the house and therefore, he immediately returned to
the house without purchasing the cigarette and then he saw the accused
hitting a glass on the wall and stabbing on the neck of the deceased with
the glass piece.
11. According to PW1, the accused immediately left the place in
the motorbike of the deceased. PW1 deposed that he pressed a towel on
the neck of the deceased and called the neighbours; but none of the
neighbours came there and thereafter he called Member Noushad.
Subsequently, police came there along with the member and took the
injured in an ambulance to hospital and the doctor after examining the
injured, declared him dead. According to PW1, the sister of the accused
and the elder brother of the deceased were neighbours and a child was
born in their relationship. But in spite of that, the brother of the
deceased has not married the sister of the accused and because of that,
there was enmity between the accused and the deceased.
12. In cross-examination, PW1 stated that there is no case
against him and he had acquaintance with the deceased Gopan for the
last one year. According to PW1, he has not consumed liquor and he
denied the suggestion that he also consumed liquor at the time of
occurrence along with others. According to him, he told the police that
the accused broke the glass by hitting the same on the wall. PW1 stated
that he came to know about the relationship between the sister of the
accused and the brother of the deceased when the deceased told him
about the same. PW1 denied the suggestion that there was no previous
enmity between the deceased and the accused. According to PW1 when
the accused stabbed the deceased, he was standing in the step of the
hall room and when the accused stabbed the deceased, the deceased fell
backwards. PW1 categorically denied the suggestion that the deceased
fell down in a commotion and sustained the injuries.
13. It is pertinent to note that even though PW1 was seriously
cross-examined, no material contradiction or omission is brought out
and further the defence has no case that PW1 has any grudge or enmity
towards the accused so as to falsely depose against the accused. The
evidence of PW1 in chief examination regarding the relationship between
the sister of the accused and the brother of the deceased is reiterated by
PW1 in cross-examination, he also clarified that he came to know about
the said relationship from the deceased.
14. Even though the learned counsel for the appellant argued
that there are serious contradictions and inconsistencies in the evidence
of PW1 regarding the occurrence, no portion of the previous statement
of the witness was specifically brought to his attention while cross-
examining him and no portion of his previous statement is proved legally
to contradict him. It is well settled that if it is intended to contradict a
witness by his previous statement in writing, the attention of the witness
must be drawn to those parts of it before the writing is proved as held
by the Hon'ble Supreme Court in Tahsildar Sing and another v. State
of UP [AIR 1959 SC 1012]
15. In Dasu and others, Appellant v. State of Maharashtra,
Respondent (1985 Crl.L.J.1933), it was held that:-
"In order to see whether there is a contradiction by omission it is
necessary to find out whether the two statements cannot stand
together. It is also necessary to see whether the statement which
the witness has made in the witness-box should have been made
by him while reporting the matter soon after the incident. If the
two statements made by the witness cannot stand together and
the statements in the court is such that the witness would
necessarily have made at the time of his earlier statement, then
alone omission thereof can be considered to be a contradiction."
16. The learned Public Prosecutor pointed out that the evidence
of PW1 regarding the occurrence is also supported by medical and
scientific evidence and by the evidence of PWs2 to 4 and 6. PW4
Noushad is the Panchayat Ward Member and he deposed that after
10.00 p.m on 20-09-2016, while he was in the house of PW2, he
received a phone call from PW1 informing him about the incident and
immediately he also received another phone call from the police and
accordingly he proceeded to the house of PW1 along with PW2.
According to PW4, when he reached the place of occurrence the
deceased was lying soaked in blood in the hall room and along with the
police they took the victim in an ambulance to the hospital and the
Doctor, after examining him, informed them that he is no more. PW4 is
also a witness to Ext.P2 inquest report. In cross-examination, PW4
admitted that he has no direct acquaintance with the accused and the
deceased and that the inquest was conducted at Sasthamcotta Hospital.
17. PW2 deposed that he is residing at Pallissery in
Sasthamcotta and on 20-09-2016 at about 10.30 p.m. while he and
Ward member Noushad were watching television in his house, Noushad
received a phone call from PW1 and thereafter they proceeded to the
house of PW1 in his scooter and when they reached there they saw the
deceased lying there with stab injuries. The evidence of PW2 further
shows that Prakash was standing near the canal and the room was full of
blood. PW2 deposed that he saw broken glass pieces in the room. In
cross-examination, PW2 stated that the accused and the deceased were
not previously known to him. He would say that there is a distance of
150 metres between his house and the house of PW1.
18. PW3 is a neighbour of PW1 and she deposed that she heard
a noise after 10.00 p.m. on 20-09-2016 and when she came out of the
house along with her husband, she saw PWs2 and 4 and police officials
standing there. PW3 stated that when she reached the house of PW1
along with her husband, they saw a person lying there with stab injuries
in the hall room. According to PW3, the said person was Gopakumar,
who was residing in the house of PW1 for the last two or three months.
In cross-examination, PW3 admitted that she had not witnessed the
occurrence and there is a distance of 10-50 metres between her house
and the house of PW1.
19. PW5 is the mother of the deceased who received the
motorcycle of the deceased from the court after executing Ext.P3 kychit.
20. PW6 deposed that he is a building contractor and that the
deceased Gopakumar was his friend. According to PW6, the deceased
was residing in the house of PW1 and at about 5.30 - 6.00 p.m. on 20-
09-2016, he reached the house of PW1 to engage him in an unloading
work and at that time Prakash, Gopan, Rajesh and a relative of Prakash
were there and the deceased asked Rs.1,000/- as advance for the work
and since there was no change in his pocket, he took the deceased in his
bike to a petrol pump at Sasthamcotta and there he handed over
Rs.500/- to the deceased. According to PW6, at that time, Rajesh came
there in the bike of Gopan and both of them returned in that bike. PW6
further deposed that after 10.00 p.m. while he was in his house, he
received a phone call from PW1 stating that there is a quarrel, but the
witness asked PW1 to pacify them. According to PW6 on the next day
morning, he came to know about the death of Gopan. PW6 also
identified the accused before the court.
21. In cross-examination, PW6 stated that the deceased is
known to him from his childhood and that they are relatives. According
to PW6, the accused is also previously known to him and the house of
the accused is near to his house.
22. PW7 deposed that he is residing on the western side of the
house of PW1 and that he signed Exts.P4 and P5 mahazars on 21-09-
2016.
23. PW9 was the Associate Professor of Forensic Medicine and
Deputy Police Surgeon of Medical College Hospital, Thiruvananthapuram,
who conducted the post-mortem examination on 21-09-2016 and issued
Ext.P7 post-mortem certificate. The evidence of PW9 and Ext.P7 post-
mortem certificate shows the following ante-mortem injuries :
" Lacerated wound 11 x 1 to 2.5 cm, 'റ' shaped with convexity
upwards on left side of neck, its lower front end 6 cm below
left angle of jaw and lower back end 3 cm behind top of
shoulder and 2 cm above root of neck. Its margins showed
multiple small side cuts. Underneath sternocliedomastoid
muscle was found cut. Internal jugular vein and common
carotid artery were irregularly cut. Vagus nerve showed a
laceration 0.3 x 0.2 x 0.1 cm on its front wall. The wound was
directed downwards, forwards and to the right for a depth of 1
to 2.5 cm with maximum depth as its front part."
24. According to PW9, the death was due to injuries sustained to
the neck and the said injury can be caused by stabbing with a broken
glass piece. In cross-examination, PW9 stated that this injury alone is
not possible by falling from a height and that in case of a fall, there will
be some associated injuries. According to PW9, the ante-mortem injuries
sustained alone are sufficient to cause death.
25. The Village Officer, who prepared Ext.P8 plan is examined as
PW10 and the KSEB Electrical Assistant Engineer, who issued Ext.P10
certificate stating that there was no power failure in the place of
occurrence on 20-09-2016 is examined as PW11. PW13 is the Scientific
Assistant, who inspected the place of occurrence and collected the
sample.
26. The evidence of PW14 Sub Inspector of Sasthamcotta Police
station shows that he recorded Ext.P1 First Information Statement of
PW1 at 2.00 a.m. on 21-09-2016 and registered Ext.P12 First
Information Report. It is well settled that the First Information Report is
the most immediate and the first version of the incident and has great
value in ascertaining the truth. In this case, the evidence of PW1
regarding the occurrence is supported by a prompt F.I.R. It is true that
the F.I.R is not a piece of substantive evidence, but great importance is
attached to a prompt F.I.R as it reduces the chances of improvement in
the prosecution story.
27. PW15 was the Circle Inspector of Sasthamcotta, who took
charge of the investigation of this case on 21-09-2016. According to
PW15, he conducted the inquest in the presence of the Scientific
Assistant and Fingerprint Expert at about 10.00 a.m. in the Government
Hospital Mortuary and the inquest report is marked as Ext.P2. The
material objects recovered from the body at the time of the inquest are
identified as MOs1 to 9 and the property list is marked as Ext.P13.
Ext.P4 is the scene mahazar prepared by PW15 and the material objects
recovered from the scene of occurrence are marked as MOs 10 to 16.
The property list prepared for producing the said material objects before
the court is marked as Ext.P14. According to PW15, he arrested the
accused on 22-09-2016 and the arrest memo, inspection memo and
custody memo of the accused are marked as Exts.P15 to P18. The
certificate of medical examination of the accused is marked as Ext.P19.
28. PW15 deposed that on the basis of the disclosure statement
of the accused that he kept the motorcycle bearing registration No.KL
02/X 9006 and a shirt in a place and that he will take out the said
motorcycle and shirt if he is taken to that place, the witness as led by
the accused reached near the filter house on the side of Sasthamcotta -
Karunagappally public road and from the shrubs in the property on the
left side of the filter house, the accused pointed out the motorcycle and
a shirt kept on the petrol tank of the motorcycle and the witness
recovered the same by preparing Ext.P6 mahazar. Ext.P20 is the
property list and the shirt is marked as MO 17. PW15 further deposed
that on the basis of the disclosure statement of the accused that he
concealed the shirt, kylie and baniyan in a place and that he will point
out the same if he is taken to that place, the witness reached the
property of Afsal near Rajagiri Kurisadi Junction, as led by the accused
and from there the accused took out the kylie, shirt and baniyan and the
same was seized as per Ext.P11 mahazar. The kylie is marked as MO18,
the shirt is marked as MO19 and the baniyan is marked as MO20. The
property list prepared for producing the same before the court is marked
as Ext.P21. Ext.P22 is a report filed by the witness regarding the name
and address of the accused. Ext.P23 is a letter seen in the purse of the
deceased and recovered at the time of inquest and the same is marked
as Ext.P23. PW15 further deposed that as per Ext.P24 forwarding note,
the material objects seized were forwarded for scientific examination to
the Forensic Science Laboratory and the report from the Forensic
Science Laboratory is marked as Ext.P25. The report from the
Fingerprint Bureau is marked as Ext.P26. The evidence of PW15 and
Ext.P26 shows that the chance print developed on the scene of crime
and the specimen right thumb impression of the accused contained
identical ridge characteristics and that both the finger impressions are
identical and that they are made by the same finger of the same person.
From Ext.P26, it can be seen that the chance print S1 was developed
from the glass piece seen at the place of occurrence.
29. From the cross-examination of the material witnesses, it can
be seen that the case set up by the defense is one of total denial and
when the accused was questioned under Section 313 Cr.P.C, he denied
all the incriminating circumstances and maintained that he is innocent.
Apart from PW1, PW6 also deposed regarding the presence of the
accused in the house of PW1 along with the deceased on the date of
occurrence. The evidence of PW2, who reached the place of occurrence
along with PW4 Panchayat member also shows that he saw the accused
Prakash standing near to the canal when he reached there. There is no
reason to disbelieve the evidence of PWs 2 and 6 regarding the presence
of the accused at the place of occurrence. Therefore, we find that their
evidence also supports the evidence of PW1 regarding the occurrence.
30. The evidence of PW9 and the ante-mortem injuries noted in
Exhibit P7 postmortem certificate will clearly show that the death of
Gopakumar is a homicide. Further, the defence has also no case that the
death of Gopakumar is not a homicide.
31. In State of Andra Pradesh v. Rayavarpu Punnayya {AIR
1977 SC 45} it was held as follows:-
"When the Court is confronted with the question whether the offence
is "murder" or "culpable homicide not amounting to murder", the
problem is to be approached in three stages. The question to be
considered at first stage is whether the accused has done an act by
doing which he has caused the death of another person. Proof of such
causal connection between the act of the accused and the death leads
to the 2nd stage for consideration whether that act of the accused
amounts to "culpable homicide" as defined in section 299. If the
answer of this question is prima facie found in the affirmative the
stage is reached for considering the operation of section 300, I.P.C.
This is the stage at which the Court should determine whether the acts
proved by the prosecution bring the case within the ambit of any of
the four clauses of the definition of "murder" contained in section 300.
If the answer to this question is in the negative the offence would be
culpable homicide not amounting to murder punishable under the first
or the 2nd part of section 304, depending respectively on whether the
2nd or the 3rd clause of section 299 is applicable. If the question is
found to be positive, but comes within any of the exceptions
enumerated in section 300, the offence would still be culpable
homicide not amounting to murder punishable under the first part of
section 304. But sometimes the facts are so intertwined and the 2 nd
and 3rd stages are so telescoped into each other that it may not be
convenient to give a separate treatment to the matters involved in the
2nd and the 3rd stages."
32. In Zahira Habibullah H. Sheikh V. State Of Gujarat 2004
(4) SCC 158, the Hon'ble Supreme Court held thus:
"A criminal trial is a judicial examination of the issues in the case and
its purpose is to arrive at a judgment on an issue as a fact or relevant
facts which may lead to the discovery of the fact issue and obtain proof of
such facts at which the prosecution and the accused have arrived by their
pleadings; the controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to convict the guilty
and protect the innocent, the trial should be a search for the truth and not
a bout over technicalities, and must be conducted under such rules as will
protect the innocent, and punish the guilty. The proof of charge which has
to be beyond reasonable doubt must depend upon judicial evaluation of
the totality of the evidence, oral and circumstantial, and not by an isolated
scrutiny."
33. It is well settled that minor discrepancies on trivial matters
not touching the core of the case, hyper-technical approach by taking
sentences torn out of context here or there from the evidence, attaching
importance to some technical error committed by the investigating
officer not going to the root of the matter, would not ordinarily permit
rejection of the evidence as a whole, as held by the Hon'ble Supreme
Court in State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48].
34. In this case, PW9 has specifically stated that the death was
due to the injury sustained to the neck and the said injury can be caused
by stabbing with a broken glass piece. According to PW9, the said injury
alone is sufficient to cause death. In this case, even though the accused
denied all the incriminating circumstances against him and maintained
that he is innocent at the time of 313 questioning, he has no case that
he was not there in the house of PW1 at the time of occurrence. The
prosecution has adduced reliable evidence to prove the presence of the
accused in the house of PW1 along with the deceased at the time of
occurrence. It is also in evidence that the deceased was residing along
with PW1 for the past two or three months and the accused, who was
released from jail on the previous day, reached there along with the
deceased and that there occurred a quarrel between the accused and
deceased while they were consuming liquor in the house of PW1.
35. The evidence of PW1 shows that immediately before the
occurrence, the accused asked PW1 to purchase 3 cigarettes and that
when he went out of the house, he heard the noise of the accused and
the deceased quarrelling inside the house and therefore, he immediately
returned to the house and then, he saw the accused breaking a glass by
hitting the same on the wall and stabbing the deceased on the neck with
a piece of glass and the deceased falling backward on sustaining the
stab injury. The evidence of PW1 clearly shows that the accused left the
place in the motorbike of the deceased and it is in evidence that
subsequently, PW15 recovered the motorbike of the deceased on the
basis of the disclosure statement of the accused. There is nothing in
evidence to indicate that any of the witness have any grudge or
animosity towards the accused so as to falsely implicate him in a serious
case of murder. The fact that the accused deliberately broke a glass by
hitting the same on the wall and used the piece of the glass to stab the
deceased on the neck and the fact that the accused deliberately
attempted to avoid the presence of PW1 there at the time of occurrence
by asking him to purchase 3 cigarettes, clearly shows that the accused
stabbed on the neck of the deceased with the intention of causing his
death and therefore, we find that the case would attract the first clause
of Section 300 IPC.
36. On a careful re-appreciation of the entire evidence, we find no
reason to disagree with the findings of the trial court that the accused
committed the murder of the deceased Gopakumar and therefore, we
find that the trial court rightly convicted the accused for the offence
under Section 302 of IPC and in view of the fact the trial court has
awarded the minimum sentence of imprisonment for life, we find no
reason to interfere with the sentence imposed on the accused by the
trial court.
In the result, this appeal is dismissed confirming the conviction
entered and the sentence passed by the learned Additional Sessions
Judge, Kollam in S.C No.1151 of 2017. Interlocutory applications, if any
pending, shall stand closed.
sd/-
P.B. SURESH KUMAR,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv/amk
