Kerala High Court
S.Michael vs State Of Kerala on 24 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal. No. 1358/2018
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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
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.A NO. 1358 OF 2018
CRIME NO.36/1994 OF KOTTAKKAL POLICE STATION, MALAPPURAM
AGAINST THE JUDGMENT DATED 8.1.2018 IN SC NO.320/2017
OF ADDITIONAL DISTRICT & SESSIONS COURT-I, MANJERI (CP NO.12
OF 1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS,MALAPPURAM)
APPELLANT/ACCUSED:
S.MICHAEL
AGED 48 YEARS, S/O. SETHUMARIYA NADAR
C.NO. 27/18, FIFTH BLOCK, CENTRAL PRISON
PALLIKKUNNU.P.O., KANNUR DIST.
BY ADVS. (STATE BRIEF)
GRASHIOUS KURIAKOSE (SR.)
GEORGE MATHEWS
PRANOY K.KOTTARAM(K/000931/2011)
SIVARAMAN P.L(K/1457/2020)
ATHUL BABU(K/940/2018)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY C.I. OF POLICE TIRUR
(CRIME NO.36/94 OF KOTTAKKAL POLICE STATION).
BY SMT.O.V. BINDU, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.10.2024, THE COURT ON 24.10.2024 DELIVERED THE FOLLOWING:
Crl. Appeal. No. 1358/2018
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JUDGMENT
Dated this the 24th day of October, 2024
C. Pratheep Kumar, J
1. This is an appeal filed by the accused in SC No.320 of 2017 on the file
of Additional District Judge-I Manjery, convicting and sentencing him
under Sections 449 and 302 of IPC. The prosecution case is that due to
the previous enmity of the accused towards deceased Ramani, on
29.3.1994 at about 1.45 p.m., he trespassed into the bedroom of the
quarters wherein she was residing and stabbed her on her chest and
abdomen several times using a knife and hacked her with a sickle on her
face and arm and as a result of the injuries sustained, she succumbed to
the injuries.
2. The evidence in this case consists of the oral testimonies of PWs 1 to 10
and documentary evidence of Exhibits P1 to P8 and P8(a). MOs 1 and
2 were identified. On the side of the accused, no oral evidence was
adduced. However, a portion of 161 Cr.P.C. statement of PW3 was
marked as Exhibit D1. After evaluating the available evidence, the trial
court found him guilty of offence under Section 449 and 302 IPC and
sentenced him for various punishments including imprisonment for life
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and fine. Aggrieved by the above judgment of conviction and sentence,
he preferred this appeal raising various contentions.
3. Now, the points that arise for consideration are the following:
1. Whether the prosecution has succeeded in proving that the
accused has trespassed into the residence of deceased Ramani
and committed her murder, as alleged?
2. Whether the impugned judgment of conviction and sentence
calls for any interference, in the light of the grounds raised in
the appeal?
4. Heard both sides.
5. Points 1 and 2: Initially, the case was filed before the trial court as SC
No.25 of 1997. At the time of framing charge, the accused jumped bail
and absconded. Thereafter the case was transferred to the register of
Long Pending Cases as L.P. No.40/2005. Thereafter he could be
apprehended only after the expiry of more than two decades and
thereafter the case was refiled in the present number as SC. No.320 of
2017. Because of the above inordinate delay in conducting the trial, the
prosecution could not examine several material witnesses including
CWs 1 to 4 as well as the investigating officers.
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6. PW1 was a child of 4 years and 9 months at the time of commission of
the offence. He was the son of deceased Ramani, who witnessed the
incident. However, when he was examined before the court in the year
2017, he was aged 28. At that time, he had deposed that while he was
residing along with his mother in a quarters at Kottakkal, on 29.3.1994
at about 2 p.m., the accused trespassed into their quarters and hacked
and stabbed his mother using a knife on her neck, face as well as on the
abdomen. When he called his mother, there was no response from her.
He cried aloud and ran out to the nearby Anganvadi, wherein he was
studying at that time. The accused went out of the house through the
back door. After reaching Anganvadi he told his teacher about the
incident. The persons gathered there took his mother to the hospital and
later on she died. His statement was recorded by the police. On that
night he stayed with a neighbour, whom he called as 'Umma'.
7. PW2 was a neighbour of deceased Ramani. She would swear that she
knows Ramani as well as the accused, whom she used to call 'Annachi'.
She used to call PW1 as 'Kutta'. According to her, in the incident that
occurred at about 1.30-2p.m. On 29.3.1994, Ramani died. According to
her, in the morning on that day, there was a quarrel between Ramani and
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the wife of the accused. The reason for that quarrel was, while Ramani
was bathing her son, water splashed onto the body of the wife of the
accused. In the noon, there was also a quarrel between them for the
reason that the stem of a coconut tree that had fallen from the tree was
taken by Ramani. At that time, the accused proceeded to the quarters of
Ramani to question her about the above conduct in quarreling with his
wife. Though the wife of the accused tried to stop him, after pushing
her away, he rushed to the quarters of Ramani with a knife. Thereafter,
she heard the scream of Ramani as well as her son. She also saw the
son of Ramani (PW1) running towards the Anganvadi. People gathered
there stopped the accused and handed him over to the police. She saw a
large knife in the hand of the accused. According to her, after the
incident, PW1 stayed in her house for two days. Further according to
her, PW1 told her that his mother was hacked using a large knife.
Subsequently, she identified the knife shown to her by the police.
8. PW3 was the Anganvadi teacher during the relevant period. She would
swear that during the time of the incident PW1 was studying in her
Anganvadi. She knew Ramani as well as the accused. On 29.3.1994,
as usual PW1 came to the Anganvadi and returned after 12 noon. At
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about 1.45 p.m., PW1 ran towards her and told her that "അണ ച
എൻ അമൻ ൻ ട , ക ത." She took the child and saw people
gathered near the place of incident. She kept PW1 in the Anganvadi
till the evening and during the evening, the child was handed over to
PW2.
9. PW4 was conducting a workshop near the place of incident. He also
would swear that he knew Ramani as well as the accused by name
'Michael'. They were residing in adjacent quarters. During the
afternoon, she heard a scream of Ramani from her quarters by about
1.45-2p.m. When he went there, he saw Ramani lying dead in her
house. She was taken to the hospital and it was reported that she was no
more. In the evening, police came with the accused to his residence
from where he had handed over a knife kept on the roof and it was
seized by the police as per Exhibit P1 seizure mahazar. He admitted his
signature in Exhibit P1 seizure mahazar.
10. PW6 was the Civil Surgeon, Taluk Headquarters Hospital, Tirurangadi,
who had conducted the postmortem examination on the body of the
deceased and issued Exhibit P3 postmortem certificate. PW6 noticed
the following antimortem injuries on the body of the deceased:
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"External injuries:
1) a lacerated wound of 10½ cm x 2 ½ cm extending from left eye
to left pinna with laceration of pinna,
2) lacerated wound above the first one, 1½ cm above, of 3½ cm x
/4 cm of length,
3) another lacerated wound of 3½ em x ½ cm of length (two in
numbers) above the 2nd one,
4) above the 3rd wound, 1 cm above and the lacerated wound of 2
cm x 2 cm with loss of hair,
5) a lacerated wound of 8 cm x 2 cm deep wound in left side of
occipital region of scalp,
6) a lacerated wound of 4 cm x 1 cm in the left cheek,
7) under the above wound a small lacerated wound,
8) lacerated wound on the left pinna in the canal and upper region
and small minor wounds,
9) a lacerated wound of 4½ cm x 1 cm and 12 cm away from the
left nipple,
10) another lacerated wound under the 9th one of 4 cm x 2 cm,
11) a penetrating wound of 3 ½ cm in the abdomen in the let side
11 cm away from the umbilicus.
12) a lacerated wound of 211/2 x ½ cm on the left side of abdomen
near the hip
13) a lacerated wound of 31/2 cm x 2 cm in the left wrist
14) a lacerated wound of 4½ cm on the right elbow
15) a lacerated wound of 22 cm on the back of the chest.
16) a lacerated wound of 11/2 cm of 10 cm above the 15th wound.
17) a lacerated wound of 3 x 1/2 cm in left flank 11 cm away from
the 15th wound."
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11. Internal injuries noted are the following:
Internal appearances:
"1) Fracture of skull bone in the occipital region with multiple
bone fragments with brain matter exposed.
2) Fracture skull bone in the left temporal region.
3) Fracture maxilla left.
4) Brain tissue in the posterior cerebral fossa severed. Blood clots
plus.
5) Brain matter in the left temporal region also smashed. Brain
tissue congested in other parts.
6) Left upper lobe of lungs have got a penetrating wound of 6 cm
depth from the surface of lateral aspect.
7) Penetrative wound in the omentum. Omentum is congested and
some parts black in colour."
12. According to PW6, the death was due to blood loss and multiple
injuries in the brain tissue and in the lungs and omentum. PW6 deposed
that all the injuries were over the vital areas of the deceased. He also
deposed that those injuries could be caused using a chopper like
weapon.
13. PW8 was the Junior Superintendent, Judicial First Class Magistrate
Court, Malappuram. He was examined to prove that two knives were
produced along with other articles before the court and those articles
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were sent for forensic examination. Exhibit P7 is the FSL report
received in that respect. PW9 was the Head Constable, who had
recorded Exhibit P8 FI Statement of CW1 and registered Exhibit P8
FIR.
14. It was argued by Advocate George Mathews, who appeared on
behalf of the accused that the evidence of PW1, who was a child of five
years at the time of the incident could not be relied upon. Further
according to him, there is no other reliable evidence to prove the charge
against the accused. Therefore, he prayed for acquitting the accused by
allowing the appeal. On the other hand, Smt. O.V. Bindu, the learned
public prosecutor would argue that in the light of the evidence of PWs 1
to 4 and 6, the prosecution has succeeded in proving the charge against
the accused beyond reasonable doubt. Further according to her, it was
due to the reason that accused absconded for more than two decades, the
prosecution could not examine the crucial witnesses like investigating
officer as well as other occurrence witnesses. Therefore, she prayed for
dismissing the appeal.
15. It is true that at the time of the incident, PW1 was less than five
years old. However, when he was examined in 2017, he was aged 28
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years. The accused has to blame himself for the above delay in the
examination of the star witness PW1. For the mere reason that there
was delay in examination of PW1, his evidence could not be
disbelieved, especially because, the above delay was caused by the
accused himself. On the other hand, his evidence is to be evaluated like
that of any other witness. At the same time, the prosecution has to
prove its case beyond reasonable doubt as in other cases. In this case,
though there was long delay in the examination of PW1, during the
cross examination nothing material could be brought out to discredit his
testimony. He has given evidence almost in tune with the statement
given by him to the investigating officer, at the time of investigation.
During his cross examination, not even an omission or contradiction
could be brought out by the accused.
16. It is true that during the cross examination, PW1 could not give
the name of the landlord of the building, in which they were residing on
rent. He also could not give the names of adjacent neighbours.
However, he clarified that even at the time of examination, he could
identify the neighbours, by sight, though he could not remember their
names. For the mere reason that PW1 could not name the landlord as
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well as adjacent neighbours, his evidence could not be disbelieved
because he was examined before the court about 23 years after the
incident. So it is quite natural that he is not remembering the name of
his landlord as well as names of other neighbours. However, he sated
that he could identify the neighbours by sight. Remembering the names
of the landlord and neighbours could never be compared with
remembering the attack on his mother, right in his front.
17. At the time of evidence, PW1 deposed that when the accused
hacked and stabbed his mother, he cried aloud and ran towards the
nearby Anganvadi, met his teacher and told about the incident to her.
He also deposed that after the incident he stayed in the residence of
PW2. PW2, Aleema also deposed that she saw PW1 running towards
the Anganvadi, immediately after the incident. Further, according to her,
after the incident, PW1 stayed in her house for two days. PW3 the
Anganvadi teacher also deposed that on the date of the incident, at about
1.45 p.m., PW1 ran towards her and told her that his mother was
stabbed and hacked by Annachi, namely the accused. The above
evidence of PWs 2 and 3 substantiates the evidence of PW1. Therefore,
we do not find any grounds to disbelieve the evidence of PW1, which
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was supported by the evidence of PWs 2 and 3 to the effect that it was
the accused, who trespassed into the residence of Ramani and hacked
and stabbed to death Ramani on 29.3.1994 at about 2 p.m. Therefore,
the above act of the accused amounts to culpable homicide as defined
under Section 299 of IPC, in addition to the offence under Section 449
of IPC.
18. One of the weapons produced in this case is a chopper having a
total length of 37.6 cm and another knife having a length of 12 cm.
From the evidence of PW8, the Junior Superintendent of Judicial First
Class Magistrate Court, Malappuram, it was revealed that these items
were sent to Forensic Science Laboratory along with other articles and
while the articles were in the FSL, there occurred a fire on 21.3.1995. In
the above circumstance, the prosecution could not produce those
weapons before the court at the time of evidence, so that it could be
identified by the witnesses.
19. However, PW6, the civil Surgeon Taluk Headquarters Hospital,
Tirurangadi, who conducted the postmortem examination deposed that
the antemortem injuries noted by him on the body of the deceased were
all on the vital parts and all those injuries could be caused using a
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chopper like weapon. From the evidence of PW6, it is revealed that the
accused inflicted 17 lacerated wounds on various parts of the body of
the deceased including on her head, face, limbs, abdomen etc. and as a
result of which several bones on the scalp were fractured and brain
matter exposed. There were also internal injuries to the lungs and in the
omentum. From the nature of the weapons used, number of injuries
inflicted, the places in the body where the injuries were inflicted, the
force with which the injuries were inflicted and the impact of the
injuries sustained, it can be safely concluded that the accused inflicted
those injuries with the intention to cause the death of Ramani. Even if it
is assumed that he had no intention to cause her death, it can be
concluded with certainty that he had the intention to cause such bodily
injury, which is sufficient in the ordinary course of nature to cause
death. Therefore, the above act of the accused will come within clause
thirdly to Section 300 IPC, which is murder punishable under Section
302 of IPC.
20. At the fag end of arguments, the learned counsel for the accused
would argue that the act of the accused will come under Exception 4 of
Section 300 IPC. In order to attract Exception 4, the accused must have
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committed the act without premeditation, in a sudden fight in the heat of
passion, upon a sudden quarrel and without the offender's having taken
undue advantage or acted in a cruel or unusual manner. However, in
this case, from the very conduct of the accused in trespassing into the
residence of Ramani with a chopper and inflicting several injuries on all
the parts of the body namely, head, face, limbs and abdomen, it can be
seen that he had taken undue advantage of the fact that she is an
unarmed hapless woman and he has acted in a cruel and unusual
manner. In this case, there was no fight between Ramani and the
accused and also there was no scope for any heat of passion. In the
above circumstances, Exception 4 of Section 300 of IPC will not be
attracted in this case.
21. In other words, this is a clear case of murder punishable under
Section 302 of IPC. Therefore, we do not find any grounds to interfere
with the finding of the trial court that the act of the accused will amount
to murder punishable under Section 302 of IPC. The trial court has
awarded only minimum punishment provided for the offence of 302
IPC and as such there is absolutely no valid grounds to interfere with
the impugned judgment of conviction and sentence. Points answered
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accordingly.
In the result, this appeal is dismissed.
Sd/-
P.B. SURESH KUMAR,
JUDGE
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
