Kerala High Court
Baiju @ 3D vs State Of Kerala on 1 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl.App.847/2017 & 893/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 1ST DAY OF OCTOBER 2024 / 9TH ASWINA, 1946
CRL.A NO. 847 OF 2017
CRIME NO.197/2008 OF PEROORKADA POLICE STATION,
THIRUVANANTHAPURAM
CP NO.139 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II,THIRUVANANTHAPURAM
SC NO.648 OF 2009 OF ADDITIONAL SESSIONS COURT - IV,
THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED
VIPIN @ MOTTA,
S/O.MOHANAN, T.C 11/584,PKRA-178,
REKSHAPURI LANE,PAROTTUKONAM, ULLOOR VILLAGE,
THIRUVANANTHAPURAM 695 011
BY ADVS.
SRI.C.HARIKUMAR
SRI.RENJITH RAJAPPAN
SRI.P.S.SIDHARTHAN
RESPONDENT/COMPLAINANT & STATE
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
SRI.E.C.BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.9.2024 ALONG WITH CRL.A.893/2017, THE COURT ON 01.10.2024
DELIVERED THE FOLLOWING:
Crl.App.847/2017 & 893/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 1ST DAY OF OCTOBER 2024 / 9TH ASWINA, 1946
CRL.A NO. 893 OF 2017
CRIME NO.197/2008 OF PEROORKADA POLICE STATION,
THIRUVANANTHAPURAM
CP NO.139 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II,THIRUVANANTHAPURAM
SC NO.648 OF 2009 OF ADDITIONAL SESSIONS COURT - IV,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.2
BAIJU @ 3D, S/O. VELAYUDHAN NAIR,
BAIJU BHAVAN, T.C 11/1918,TRA -B- 44,
THATTKAM, MANNANTHALA WARD, ULLOOR VILLAGE.
BY ADVS.
SREEJITH S. NAIR
V.S.THOSHIN(K/704/2007)
SATHEESH MOHANAN(K/94/2012)
MAHIMA(K/001307/2023)
SRI.SASTHAMANGALAM S. AJITHKUMAR
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI - 682 031.
SRI.E.C.BINEESH - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.9.2024 ALONG WITH CRL.A.847/2017, THE COURT ON 01.10.2024
DELIVERED THE FOLLOWING:
Crl.App.847/2017 & 893/2017
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
--------------------------------------
Crl.Appeal Nos.847 of 2017 & 893 of 2017
-------------------------------------------------
Dated : 1st October, 2024
JUDGMENT
C.Pratheep Kumar, J.
Crl.Appeal No.847/2017 was filed by the 1st accused and Crl.Appeal
No.893/2017 was filed by the 2nd accused involved in Sessions Case
No.648/2009 on the file of the Additional Sessions Judge-IV,
Thiruvananthapuram, against the judgment dated 27.6.2017 finding them
guilty and sentencing them under Sections 449 and 302 of IPC. Though
altogether four persons were charged, the trial Court has acquitted accused
Nos.3 and 4.
2. The prosecution case is that on 3.6.2008 at about 10.45 p.m., the
accused persons 1 to 4 tried to assault the deceased Jayakumar at a wayside
eatery at Kesavadasapuram. At that time, he had informed a nearby police
constable and with his support escaped from there. When he reached his
residence at Nalanchira, the accused persons came there in an autorickshaw
driven by the 2nd accused. Accused 3 and 4 waited outside the house and
accused persons 1 and 2 trespassed into his house and questioned the conduct
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of the deceased in calling the police. When the 2 nd accused tried to pull the
deceased out of the house, the 1 st accused took out a knife which was kept
concealed by the side of his hip and inflicted two stab injuries on his body,
one on the right side of the belly and the other on the left thigh and due to the
severity of the injuries, he succumbed to the injuries at 00.30 hours on
4.6.2008.
3. The evidence in the case consists of the oral testimonies of PWs1
to 23 and Exts.P1 to P33, on the side of the prosecution. MOs 1 to 19 were
also identified. No oral evidence was adduced by the accused persons.
However, Ext.D1 was marked on their side. After evaluating the available
evidence, the trial court found the accused 1 and 2 guilty under Sections 449
and 302 IPC and convicted and sentenced them to undergo imprisonment for
life and fine under Section 302 IPC and rigorous imprisonment for seven
years and fine under Section 449 IPC. The trial court acquitted the accused
persons 3 and 4. Aggrieved by the above judgment of conviction and
sentence, the accused persons 1 and 2 preferred these appeals raising various
contentions.
4. Now the points that arise for consideration are the following :
(i) Whether the prosecution has succeeded in proving the
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offence under Sections 449 and 302 IPC against accused
persons 1 and 2, beyond reasonable doubt ?
(ii) Whether the impugned judgment of conviction and
sentence as against the accused persons 1 and 2 call for any
interference, in the light of the grounds raised in the appeals?
5. Heard both sides.
6. Points (i) & (ii): - PW1 is the brother of deceased Jayakumar. He
would swear that at about 11.00 p.m. On 3.6.2008, while he was reading news
paper, he heard the noise of somebody speaking at the dining hall. When he
went there, he saw two persons talking with his mother and brother
Jayakumar. The persons who came there are accused persons 1 and 2. They
asked Jayakumar as to why he had called the flying squad. Though his brother
told them that he will meet them on the next day, they insisted to take
Jayakumar along with them. At that time, PW1 asked Jayakumar to go inside
the house. While the 2nd accused tried to pull him out of the house, the 1 st
accused took out a knife from behind his body and stabbed on the abdomen of
Jayakumar. Then he pulled out the knife and inflicted another stab injury on
the left thigh of Jayakumar and thereafter they ran away. Though he tried to
nab them, they went away from the place in an autorickshaw, along with two
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other persons who were waiting there. Immediately he searched for a vehicle
to take Jayakumar to the hospital and on getting a vehicle, he was taken to the
medical college hospital, where he was declared brought dead. PW1 identified
the accused persons as well as MO1 knife as the weapon used by the 1 st
accused to inflict stab injuries on the body of the deceased.
7. PW2 is the mother of the deceased. She would swear that at
about 11.00 pm on 3.6.2008, two persons came to her house calling the name
'Manikkuttan'. She opened the door and told them that there is no one by
name Manikkuttan in the house. Along with her, deceased Jayakumar also
came near the door and on seeing him, the persons who came there asked him
why he had called the flying squad. Though they tried to take Jayakumar out
of the house, he refused to go. In the meantime, PW1 came there and tried to
take Jayakumar inside the house. When the 2nd accused tried to pull
Jayakumar out of the house, the 1 st accused took out a knife and stabbed
Jayakumar on his abdomen and also on his thigh. She also deposed that
immediately Jayakumar was taken to the medical college hospital and it was
reported that he died because of the injuries sustained.
8. PW6 was the police constable on duty at Kesavadasapuram, who
intervened in the first dispute between the accused persons and Jayakumar. He
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deposed that at the instance of Jayakumar he intervened in the dispute and
since Jayakumar told him that he was not assaulted and he has no complaint,
no action was taken. Subsequently, he came to know that the said Jayakumar
was murdered. At the time of evidence, he identified accused 1 to 4 as the
persons who have quarrelled with Jayakumar at a wayside eatery at
Kesavadasapuram.
9. PW11 is an attestor to Ext.P5 seizure mahazar for the recovery of
MO1 knife and MO6 series of sandals. He would swear that he had seen the
accused taking out MO1 knife and MO6 sandals from a thicket at Nirmala
gardens and handing over to the Investigating Officer. He admitted his
signature in Ext.P5 mahazar and he has also identified MO1 knife and MO6
series sandals as the material objects recovered as per Ext.P5 mahazar. PW23,
the investigating officer would swear that he had arrested the accused persons
and on questioning, the 1st accused disclosed that he had kept the knife and
sandals in a thicket at Nirmala gardens. On the basis of the above disclosure
statement, the 1st accused was taken to that place, from where he had taken out
MO1 knife and MO6 pair of sandals and handed over to him.
10. Thereafter the above knife was sent for forensic examination and
after examination, PW21 reported that MO1 knife contained human blood of
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group A. In the post-mortem report prepared by PW19, the blood group of the
deceased was also found to be A+. Therefore, it can be seen that the blood
group found on MO1 knife as well as the blood group of the deceased are the
same. It will go a long way in proving that MO1 was the weapon used for
inflicting injuries on the body of the deceased.
11. From the evidence of PWs1 and 2, it is revealed that at about
11.00 pm on 3.6.2008 the accused persons 1 and 2 came to the residence of
the deceased, questioning his conduct in seeking the assistance of the police.
When the deceased told them that he will meet them on the next day, the
accused persons wanted to take the deceased along with them, at once. When
the 2nd accused tried to pull the deceased out of the house, PW1 tried to keep
him inside the house. At that time, the 1st accused took out MO1 knife from
behind his body and inflicted two stab injuries, one on the abdomen and
another on the left thigh of the deceased and as a result of which, he
succumbed to the injuries. Though PWs 1 and 2 were cross-examined in
detail, nothing material could be brought out to discredit their testimonies.
Ext.D1 is a portion of the FIS which states that after receiving the injuries
deceased went inside the house. He denied the same when the question was to
the effect that the incident occurred outside the house and thereafter the
deceased went inside. He clarified that the injury was inflicted near the door
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of dining hall and thereafter he took the deceased near to his mother.
Therefore, there is no contradiction in Ext.D1. There is no other contradiction
or omission in the evidence of Pws 1 and 2.
12. In fact, at the time of arguments, the learned counsel for the 1 st
accused has only tried to advance an argument to the effect that the 1 st accused
had no intention to cause the death of Jayakumar and the entire incident
occurred within a short span of time and as such, the offence under Section
302 IPC will not be attracted in this case. His attempt was to bring the offence
under Section 304 IPC.
13. As per the post-mortem certificate prepared by PW19 as well as
the evidence given by him, the following ante-mortem injuries were noticed
on the body of the deceased :
1. Incised penetrating wound 4.2 x 0.7 cm oblique on the right
side of abdomen its upper inner and 4.5 cm outer to midline and
12 cm below the costal margin. The both ends of the wound were
sharply cut and the wound was seen terminating into the
abdominal cavity. A loop of small intestine was protruding out.
The wound was directed backwards and upwards for a depth of
2.9 cm.
2. Incised punctured wound 4.1 x 0.6 cm oblique on the front of
left thigh. Both ends of the wound were sharply cut. Its lower
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inner end was 28 cm above the knee. The wound terminated in the
lumen of femoral artery after cutting its front wall 4.5 cm below
the mid inguinal point. The wound was directed backwards and
upward for a depth of 9.9.cm.
3. Abrasion 3.6 x 2 cm obliquely placed on the outer aspect of
right arm its lower front end 18 cm above the elbow.
4. Multiple abrasions varying in sizes from 0.3 x 0.2 cm to 2.8 x
0.6 cm over an area 8.5 x 2.5 cm on the back of left forearm 1 cm
below elbow.
5. Abrasion 1x0.8 cm on the front of left knee.
6. Abrasion 0.9 x 0.5 on the front of left leg 17 cm below the knee.
7. Two abrasions 0.5 x 0.5 cm and 0.5 x 0.3 cm, 0.5 cm apart one
above other on the front of right knee.
Air passages contained mucoid fluid. Lungs were pale.
Liver was fatty. Spleen was shrunken. Stomach contained starchy
food materials green gram and other unidentifiable food
materials having no unusual smell, mucosa was normal. Urinary
bladder was empty. All other internal organs were pale,
otherwise normal.
14. According to PW19, death was due to injuries sustained to
abdomen, which is injury No.1 and injury No.2. During the cross-
examination, PW19 deposed that injury No.1 has entered into the abdominal
cavity and hence injury No.1 itself is sufficient to cause the death of the
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deceased. Even if it is assumed that injury No.2 being on the thigh of the
deceased, which is not a vital part, injury No.1 is on the abdomen which is
definitely a vital part of the human body. Since the 1st accused inflicted two
stab injuries using MO1 knife, first on the abdomen and second on the left
thigh of the deceased, one after another, it cannot be said that those injuries
were unintentional or accidental or that the injury intended to be inflicted by
him was something else. From the evidence of PWs 1 and 2, it is evident that
the 1st accused, all on a sudden took out MO1 knife from behind his body and
inflicted two stab injuries on the body of the deceased, without any
provocation or justifiable reasons.
15. It is true that immediately before the incident there was an
altercation between the accused persons on the one side and the deceased on
the other side at a wayside eatery at Kesavadasapuram. At that time, the
deceased sought assistance of a Police Constable, PW9, and escaped from
there. Thereafter, the accused persons chased the deceased in an autorickshaw,
came to his residence and questioned his conduct in calling the policeman at
Kesavadasapuram. Even at that time, the deceased only told them that he
will meet them on the next day. At that time, PW1, the elder brother of the
deceased asked PW1 to go inside the house. It was at that time the 2 nd accused
pulled the deceased out of the house while PW1 tried to keep him inside the
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house. Then, all on a sudden, and without any provocation or sufficient
reasons, the 1st accused took out MO1 knife from behind his body and
inflicted two stab injuries on the body of the deceased. As deposed by PW19,
injuries 1 and 2 are sufficient in the ordinary course of nature to cause death.
16. MO1 is a steel knife and it's blade portion is very sharp. It has a
total length of 29 cm and blade portion has a length of 17 cm. Injury No.1 was
on a vital part of the body namely abdomen. Injury No.1 terminated into the
abdominal cavity and a loop of small intestine protruded out. Though injury
No.2 is not on such a vital part, it has a depth of 9.9 cm and it cut the front
wall of femoral artery. The learned counsel would argue that since both ends
of the wound were sharply cut, it could not be inflicted using an ordinary
knife. We have summoned MO1 and verified. On verification it is found that
the difference in the thickness on both sides of the metallic portion are
minimal and hence there is no wonder that the doctor noticed that both sides
of the injury were sharply cut. Considering the nature and size of the weapon
used, the force with which the injuries were inflicted and the severity of the
resultant injuries, it can be concluded that the 1 st accused inflicted those
injuries with the intention to cause the death of the victim.
17. Even if it is assumed that he did not have the intention to cause
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the death of the victim, he had the intention to inflict such bodily injury,
which is sufficient in the ordinary course of nature to cause death.
Accordingly, the above conduct of the accused will come under part III of
Section 300 IPC, namely, culpable homicide amounting to murder. The 1 st
accused could not bring out his conduct within any of the exceptions to
Section 300 IPC and as such, as against the first accused, it is a clear case of
murder punishable under Section 302 IPC.
18. The learned Senior Counsel Sri. Sasthamangalam Ajith Kumar
who appeared for the 2nd accused would argue that in this case there is no
evidence to prove that the 2nd accused shared common intention with the 1st
accused to commit murder of deceased. Therefore, he prayed for finding the
2nd accused not guilty of the offence of murder.
19. On the other hand, Sri. E.C. Bineesh, the learned Public
Prosecutor would argue that all along the incident, the 2 nd accused was there
along with the 1st accused and he has also trespassed into the house of the
deceased along with the 1st accused. Therefore, according to him, as per the
conduct of the 2nd accused, it can be presumed that he had shared the common
intention to murder the deceased. It was further contended that if he had not
shared the common intention along with the first accused, he would have
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restrained the first accused from inflicting the 2nd injury on the deceased. It
was argued that, absence of any such attempt from the side of the 2 nd accused
is to be taken note of seriously. Therefore, he prayed for sustaining the
conviction as against the 2nd accused also.
20. From the evidence of PWs 1 and 2, it is revealed that when the
accused persons 1 and 2 came to the residence of the deceased, there was no
weapon in the hands of the 1st accused. Initially the accused persons only
questioned the conduct of the deceased in calling the policeman at
Kesavadasapuram. It is true that from Kesavadasapuram onwards the accused
persons followed the deceased to his residence, at Nalanchira. Thereafter,
along with the 1st accused, 2nd accused also trespassed into the residence of the
deceased. While they were talking each other, the 2 nd accused tried to pull the
deceased out of the house, but PW1 pulled the deceased towards the house.
At that time, all on a sudden, the 1 st accused took out MO1 knife from behind
his body and inflicted two stab injuries on the body of the deceased. In the
available evidence, there is nothing to show that the 2 nd accused had any
knowledge about the possession of MO1 knife by the 1 st accused, as he kept it
stealthy behind his body and taken out only at the last minute. With regard to
the contention that if there was no common intention, the 2 nd accused would
have restrained the first accused from inflicting the 2nd injury on the deceased,
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it is to be noted that the 1 st accused inflicted both the injuries one after
another, in quick succession and as such no inference could be drawn in that
respect.
21. In this context, it is also to be noted that on an earlier occasion,
the deceased had taken away a mobile phone belonging to the father of the 1 st
accused and he failed to return the same. Thereafter he avoided the first
accused. It was in the above context the 1st accused questioned the deceased
about the mobile phone, when they met at a wayside eatery at
Kesavadasapuram. At that time, the deceased escaped from there, with the
help of PW6. It was the reason why the accused persons proceeded to the
house of the deceased to question him about the mobile phone and also about
his conduct in calling the police.
22. When the evidence available on record is evaluated in the light of
the above background, it can be seen that in this case there is nothing to prove
that the 2nd accused shared common intention along with the 1 st accused, to
murder the deceased. He has also no axe to grind against the deceased.
Therefore, the 2nd accused cannot be convicted for the offence of murder
under Section 302 IPC, by invoking Section 34 IPC. However, since the 2 nd
accused accompanied the 1st accused from Kesavadasapuram till the residence
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of the deceased and trespassed into the residence of the deceased, the 2 nd
accused has committed the offence of house trespass punishable under Section
448 IPC and as such he is liable to be punished for the aforesaid offence.
23. The punishment provided for the offence under Section 448 IPC
is, imprisonment of either description for a term which may extent to one
year, or with fine which may extent to One Thousand Rupees, or with both.
Considering the entire facts, we hold that simple imprisonment for a period of
one month will be a reasonable punishment for the offence under Section 448
IPC in this case. However, as against the 1st accused, the conviction and
sentence are liable to be sustained. Points 1 and 2 answered accordingly.
24. In the result, Criminal Appeal No.847 of 2017 filed by the 1 st
accused is dismissed, confirming the conviction and sentence passed by the
trial court as against him.
25. In the result, Criminal Appeal No.893 of 2017 filed by the 2 nd
accused is allowed in part as follows:
The conviction and sentence imposed on the 2nd accused under Section
449 and 302 IPC are set aside. The 2 nd accused is found guilty under Section
448 IPC and he is convicted and sentenced to undergo simple imprisonment
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for a period of one month for the offence under Section 448 IPC. He is
entitled for set off for the period in custody.
Sd/-
P.B. Suresh Kumar, Judge
Sd/-
C. Pratheep Kumar, Judge
Mrcs/sou/25.9.
