Kerala High Court
Sebastian @ Thampi vs The State Of Kerala on 9 April, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:30363
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 9TH DAY OF APRIL 2025/19TH CHAITHRA, 1947
CRL.A NO. 1287 OF 2018
AGAINST THE JUDGMENT DATED 28.09.2018 IN SC NO.861
OF 2011 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT-III, ALAPPUZHA
APPELLANT/ACCUSED:
SEBASTIAN @ THAMPI
AGED 44 YEARS
S/O.CHERIYAN, CHARANKATTUVEEDU, WARD NO. 1,
MARARIKULAM NORTH PANCHAYAT, MARARIKULAM
VILLAGE, ALAPPUZHA DISTRICT
BY ADVS.
S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM
BY ADV.SRI.ALEX M THOMBRA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH CRL.A.1424/2018, THE COURT ON
09.04.2025 DELIVERED THE FOLLOWING:
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2025:KER:30363
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
CRL.A NO. 1424 OF 2018
AGAINST THE JUDGMENT DATED 28.09.2018 IN SC NO.861
OF 2011 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - III, ALAPPUZHA
APPELLANT/1ST ACCUSED:
VARGHESE ANTONY @ DIBY,
AGED 34 YEARS
S/O.ANTONY V.V., VALIYAVEEDU, WARD NO.II,
KUTTAMANGALAM MURI, KAINAKARI PANCHAYATH,
KAINAKARI VILLAGE NOW RESIDING AT VALIYAVEETIL,
VELOOR, KOTTAYAM, PIN-686003.
BY ADVS.
K.G.SARATHKUMAR
S.RAJKUMAR
SRI.A.C.KURIAKOSE
RESPONDENTS/COMPLAINANT AND 2ND ACCUSED:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
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-: 3 :-
2 SEBASTIAN @ THAMPI,
AGED 44, S/O.CHERIYAN, CHARANKATTU VEEDU, WARD
NO.1, MARARIKULAM NORTH, MARARIKULAM VILLAGE,
ALAPUZHA, PIN-688523.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.04.2025, ALONG WITH CRL.A.1287/2018, THE COURT ON
09.04.2025 DELIVERED THE FOLLOWING:
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-: 4 :-
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl.Appeal Nos.1287 and 1424 of 2018
-----------------------------------------------
Dated this the 9th day of April, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The appellants in these appeals are accused 1 and 2
in S.C.No.861 of 2011 on the files of the Court of the Additional
Sessions Judge-III, Alappuzha. Among them, the first accused
stands convicted and sentenced for the offence punishable
under Section 302 of Indian Penal Code (IPC) for the murder of
one Jayaprakash and the second accused who is the brother-in-
law of the first accused, stands convicted and sentenced for the
offence punishable under Section 212 of IPC for rescuing and
harbouring the first accused after the crime.
2. Jayaprakash was a person engaged in
transporting goods using his country boats between different
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places in Kuttanad. At 7.15 a.m. on 24.08.2010, Rajeev, the
brother-in-law of Jayaprakash informed Pulinkunnu Police that
he received information from one Rajesh that Jayaprakash is
found lying in a weak state with a bleeding head in the boat
jetty at Pandicherry and when he went to that place,
Jayaprakash was found lying on his back on a cement bench in
the jetty. The police was also told by Rajeev that even though
he and others took Jayaprakash to the General Hospital,
Alappuzha, he breathed his last on the way to the hospital. A
case was registered by Pulinkunnu Police on the said
information. The investigation conducted in the case thereafter
revealed that on 23.8.2010, Jayaprakash and the first accused
engaged in multiple exchange of obscene words at the toddy
shop located at Kainakary and that at about 10.45 p.m. on the
same day, on account of the said enmity, the first accused beat
twice with a flat iron bar on the face of the deceased while he
was sleeping on the cement bench at Pandicherry Boat Jetty
and thereby caused his death. It was also revealed in the
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investigation that the second accused rescued the first accused
thereupon from that place and harboured him.
3. On the accused being committed to trial, the
Court of Session framed charges against them in terms of the
final report to which they pleaded not guilty. The evidence in
the case consists of the oral evidence of PWs 1 to 30 and
Exts.P1 to P26 proved through them. MO-I to MO-V are the
material objects identified by the witnesses. Exts.D1 and D2
are the case diary statements of PW3 and PW19 respectively
marked at the instance of the defence. The accused were
thereupon questioned under Section 313 of the Code of
Criminal Procedure (the Code) as regards the incriminating
evidence brought out by the prosecution. The accused denied
the same. As the Court of Session did not find the case to be
one fit for acquittal under Section 232 of the Code, the accused
were called upon to enter on their defence. The accused
examined two witnesses on their side at that stage as DW1 and
DW2. Thereafter, on an appreciation of the evidence, the Court
of Session found the accused guilty of the offences referred to
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above and sentenced the first accused, among others, to
imprisonment for life. The second accused was sentenced,
among others, to undergo simple imprisonment for three years.
The accused are deeply aggrieved by their conviction and
sentence and hence these appeals.
4. It is seen that the execution of the sentence
passed against the second accused has been suspended and
he was enlarged on bail by this Court as per order dated
29.10.2018 in Crl.M.A.No.1 of 2018 in Crl.Appeal No.1287 of
2018.
5. Heard Adv.A.C.Kuriakose for the first accused
and Adv.S.Shanavas Khan for the second accused. Sri.Alex
M.Thombra, the learned Public Prosecutor addressed
arguments on behalf of the State.
6. There was no eye witness to the occurrence in
terms of the final report filed in the case. However, after the
Court of Session framed charges against the accused, a
supplementary final report was filed in the case wherein the
prosecution cited two eye witnesses to the occurrence also. The
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said eye witnesses were examined during trial as PW17 and
PW19. It is seen that the Court of Session found that the
evidence tendered by the said eye witnesses are not reliable.
Consequently, the Court of Session rendered the impugned
decision based on the circumstances proved in the case. The
essence of the arguments advanced by the learned counsel for
the first accused therefore was that the circumstances proved
in the case do not establish the guilt of the first accused
beyond reasonable doubt. The argument advanced by the
learned counsel for the second accused is that there is no
evidence in the case to prove that the second accused
harboured the first accused with the intention of screening the
first accused from legal punishment with the knowledge or at
least reason to believe that it was the first accused who
committed the murder of Jayaprakash.
7. Per contra, the learned Public Prosecutor
supported the impugned decision of the Court of Session
pointing out that there are no reasons to ignore the evidence
tendered by PWs 17 and 19 and even if the same is ignored,
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the circumstances proved in the case would establish the guilt
of the first accused beyond reasonable doubt.
8. In the light of the arguments advanced by the
learned counsel for the accused, it is necessary to delve into
the evidence let in by the prosecution. But before doing so, it is
necessary to examine the question whether the Court of
Session was justified in rejecting the evidence tendered by PWs
17 and 19 for, their evidence is liable to be reckoned otherwise,
while examining the correctness of the impugned decision.
Although PWs 17 and 19 deposed that they saw the first
accused beating another person with a rod on the relevant day
at the relevant time at Pandicherry Boat Jetty and fleeing from
that place, the Court of Session discarded the evidence
tendered by the said witnesses in toto. One of the reasons
stated by the Court of Session to discard the evidence tendered
by PW17 is that PW17, who claimed to have seen the
occurrence and who was present during the inquest, post-
mortem and funeral obsequies, had not disclosed the same to
anyone for about seven years, and the reason given by PW17
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for the same for such a long period namely, that he was
contemplating to go abroad, is not convincing. Another reason
given to discard the evidence tendered by PW17 is that the
reason put forth by him for having disclosed the occurrence to
police only after almost seven years, is also not convincing. As
far as PW19 is concerned, the Court of Session found that there
are contradictions in his evidence and that he also had not
provided satisfactory explanation for not disclosing the fact
that he witnessed the occurrence, for a considerably long
period. On a close scrutiny of the evidence tendered by PWs 17
and 19, we also entertain a doubt in our mind as to whether
Pws 17 and 19 are persons who have actually witnessed the
occurrence. We therefore concur with the view expressed by
the Court of Session in this regard. In the circumstances, the
pointed question is whether the circumstances proved in the
case would establish the guilt of the accused beyond
reasonable doubt.
9. The witness who was examined as PW1 is
Rajeev, the brother-in-law of Jayaprakash. PW1 affirmed that it
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was he who furnished the information, on the basis of which the
case was registered and he identified his signature in Ext.P1
First Information Statement. PW2 is a person who had previous
acquaintance with Jayaprakash as also the accused. It was
deposed by PW2 that on the morning of 23.08.2010, he
supplied toddy on behalf of Jayaprakash to the toddy shop run
by one Rajesh in one of the boats owned by Jayaprakash.
According to PW2, at about 4.00 p.m. on the same day, on a
request made by the first accused, he consumed liquor along
with the first accused and Jayaprakash at a place near his
house and that by about 6 p.m., they parted ways. It was
deposed by PW2 that later on the same day at about 9 p.m.,
while he was standing in Pandicherry Jetty, he saw the accused
coming from the northern side loudly shouting abuses. It was
deposed by PW2 that when he enquired with the accused as to
why they were shouting abuses, the first accused told him that
"ഷഷപപൽ വചച JP ഉ ടപബപയ ആയപ വഴകച ഉണഷയപ എന അവനപടച ഇനച ഒര പണപ ക ഷടതപടട
പടനച ഉറങള എന ടപബപ എടനഷടച പറഞ." It was deposed by PW2 that
when he then required the first accused to go home, the latter
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abused him also and that the second accused thereafter
dragged away the first accused from that place. It was deposed
by PW2 that even though he left that place after the said
incident, he came back to the jetty at about 10.00 p.m. with his
friend Motty to take the boat of Jayaprakash to go to
Alappuzha. According to PW2, at that time, Jayaprakash was
sleeping on the northern side of the jetty and his friend,
Sumesh was sleeping on the southern side. It was deposed by
PW2 that Motty then sought permission from Jayaprakash to
take his boat to go to Alappuzha and that Jayaprakash
permitted the same. It was the version of PW2 that even
though he went to his house thereupon along with Motty to
change his clothes, he dropped the idea to go to Alappuzha on
account of the insistence of his sister and father and that he
sent back Motty. According to PW2, he came to know of the
death of Jayaprakash on the morning of the following day. PW2
identified the accused in court. He also identified MO-IV as the
dhoti worn by the first accused at the relevant time.
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10. PW3 is a cousin brother of Jayaprakash. PW3
deposed that on the relevant day at about 7 p.m. he saw
Jayaprakash in the toddy shop of Rajesh. According to PW3, at
the relevant time, Jayaprakash and the first accused were
singing in the room at the south end of the shop. It was
deposed by PW3 that after some time, he heard an exchange of
obscene words between them and that when he went to that
room, he saw the second accused also in their company. PW3
identified the accused in court. According to PW3, after
directing the first accused and the deceased to go home, he
left the toddy shop a while later PW4 is Motty referred to by
PW2 in his evidence. PW4 gave evidence on similar lines as the
evidence tendered by PW2. That apart, it was also deposed by
PW4 that after leaving from the house of PW2, on their visit to
Alapuzha being cancelled, he saw the first accused coming
from the north shirtless. According to PW4, the first accused
was then carrying a flat iron bar, and even though he asked the
first accused from where he was coming, he did not respond, as
he was in an angry mood. PW4 identified MO-V as the flat iron
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bar carried by the first accused then. It was deposed by PW4
that he then proceeded to Pandicherry Boat Jetty and that
Jayaprakash and Sumesh were sleeping there at that time and
when he made them woke up, Jayaprakash did not respond, but
Sumesh woke up and accompanied PW4. PW4 also identified
the dhoti worn by the first accused then as MO-IV.
11. PW5 is a person who is residing near
Pandicherry Boat Jetty. He is also a friend of Jayaprakash. PW5
deposed that at about 9.00 p.m. on the relevant day, when he
was going to his house after visiting his maternal grandfather
at the Medical College Hospital, Kottayam, he heard a
commotion from the house of Maniyan, the uncle of the first
accused. When PW5 went to the house of Maniyan on hearing
the commotion, the first accused and some of his relatives,
including the father of the first accused were present there. It
was deposed by PW5 that the first accused was then shouting
that he will teach a lesson to Jayaprakash on that night itself.
According to PW5, the father of the first accused then asked the
first accused if he was mad and that the first accused then
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brandished the flat iron bar carried by him at his father. It was
deposed by PW5 that the cousin of the first accused then
slapped the first accused twice on his cheek and that the first
accused then left from there in an angry mood. PW5 identified
MO-V as the flat iron bar carried by the first accused and MO-IV
as the dhoti worn by the first accused at the relevant time. In
cross-examination, PW5 admitted that in the statement given
by him before the Magistrate, he referred the flat iron bar only
as an iron rod.
12. PW6 is a cook working in a houseboat. PW6
deposed that on 23.08.2010, he saw Jayaprakash at about 8.00
p.m. in the toddy shop of Rajesh; that the accused were also
present there at the relevant time and that all of them were
drinking toddy. It was deposed by PW6 that Jayaprakash used
foul language when the second accused criticized the quality of
the toddy supplied by Jayaprakash. It was deposed by PW6 that
a verbal altercation ensued thereupon between the first
accused and Jayaprakash and in the course of the said verbal
altercation, Jayaprakash threatened the first accused that he
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would teach him a lesson and that the first accused also replied
in the same tone and left the place. PW6 also identified
accused 1 and 2. In cross-examination, it was admitted by PW6
that he did not disclose in the statement given to the
Magistrate that he saw the first accused consuming toddy then.
Similarly, it was admitted by PW6 that he did not disclose to
the Magistrate about the verbal altercation that took place
between Jayaprakash and the first accused.
13. PW7 is Sumesh referred to by the witnesses as
the person who was sleeping on the side of Jayaprakash on the
southern cement bench at the boat jetty on the night of the
date of occurrence. PW7 deposed that at about 9.15 p.m. on
the relevant day, Jayaprakash came to his house and while
leaving therefrom, Jayaprakash required PW7 to drop him at his
house; that while he took Jayaprakash in his boat to drop him,
the latter wanted to be dropped at the jetty to sleep for
sometime and that both of them accordingly slept at the jetty
for sometime. It was deposed by PW7 that after sometime, PW4
came there and woke him up and that he returned to his house
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along with PW4. It was deposed by PW7 that when he left the
jetty, Jayaprakash was still sleeping and even though he
attempted to wake him up, he did not respond.
14. PW8 is a fisherman. It was deposed by PW8
that at about 2.00 a.m. on 24.08.2010, while he was waiting
near his boat on his way to Nedumbassery airport to receive his
cousin brother, the accused sought his help to go to a place
called Kavunkal in his boat and when he said that he cannot do
so, they offered that they would pay any amount for the said
purpose.
15. PW11 is Rajesh referred to by PW1 in his
evidence. He is also relative of the first accused. He deposed
that on 23.08.2010, when he reached near Pandicherry Boat
Jetty at about 11.30 p.m. while returning to his house from the
house of his aunt, he saw one person lying there and when he
went near him to ascertain the identity, it was found that he
was soaked in blood. It was deposed by PW11 that he informed
the matter to one of the nearby houses and that when he came
back along with others to the jetty, one among those who
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accompanied him identified the injured as Jayaprakash. It was
deposed by PW11 that immediately thereupon, he went to the
house of PW1 and informed him about the matter.
16. PW25 was the doctor who conducted the post-
mortem examination on the body of the deceased and issued
Ext.P13 post-mortem certificate. The ante-mortem injuries
found by PW25 on the body of the deceased at the time of the
post-mortem examination, as deposed by her, are the
following:
"1. Two small lacerated wounds, 1x0.5x0.5cm and
1x0.1x0.1cm on the left side of chin, 2cm outer and
below the lower lip.
2. Multiple small lacerated wounds with surrounding
contusions over and area 3x3cm on the inner aspect of
lower lip, 2 cm to the left of midline.
3. Superficial lacerated wound 1.5x1cm on the under
aspect of chin, 2cm outer to midline.
4. Curved lacerated wound 8x1cm of varying depth of
muscle deep and bone deep entering into the cranial
cavity, horizontal on the left side of the face its inner
end being 4cm outer to midline and 1cm below the
inner angle of the eye, and its outer end being 3cm in
front of left ear, its outer margin showed multiple small
skin flaps, the inferior wall of left orbit, zygomatic bone,
nasal bones on left side and maxilla were seen in a
chopped off and fractured fragmented state, the upper
medial and lateral incisors were seen fractured and
loose from sockets. The cribroform plate and the roof of
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orbits were seen fractured, exposing the cranial cavity
through.
5. Curved lacerated wound 1x0.1cm bone deep with
surrounding contusions on the left side of face, being
2cm outer to midline and 1cm below the inner angle of
eye. Injury No.5 and 6 were is a same linear plane.
6. Punctured lacerated wound 3x1x4cm entering into nasal
cavity oblique, on the left side of root of nose and
adjacent part of inner canthus of the eye.
7. Contusion of scalp, 4x3x0.5cm on the right side of back
of head, 2 cm behind the ear.
Brain showed bilateral subdural and diffuse
subarachnoid haemorrhages and contusion 4x3x1cm on
the under aspect of left temporal lobe."
It was opined by PW25 in her evidence that the deceased died
due to the lacerated wound sustained to the head. It was
clarified by PW25 in her evidence that injury 4 is a fatal injury
and that the same could be produced by MO-V flat iron bar.
17. PW26 was the police officer who arrested the
first accused on 25.08.2010. PW26 deposed that based on the
information that the first accused is present in the house of one
of his relatives at Marthandam, PW26 proceeded to that place
and apprehended the first accused. PW29 was the police officer
who conducted the investigation in the case. Among others, it
was deposed by PW29 that in the interrogation pursuant to the
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arrest of the first accused, he disclosed to PW29 that he has
concealed a flat iron bar in his house and when he was taken
there pursuant to his disclosure, he took out a flat iron bar from
beneath a wooden plank kept under a wooden desk on the
north-western corner of the centre bedroom and handed over
the same to PW29, who seized the same in terms of Ext.P3
mahazar. PW29 identified MO-V as the flat iron bar seized in
terms of Ext.P3 mahazar. It was deposed by PW29 that the
investigation revealed that it was the second accused who
accompanied the first accused to Marthandam so as to enable
the first accused to hide in the house of one of their relatives. It
was clarified by PW29 in cross-examination that only PW3 had
stated to him about the quarrel that took place in the toddy
shop. PW12, who was a witness to Ext.P3 mahazar
corroborated the evidence tendered by PW29 as regards the
recovery of MO-V flat iron bar by deposing that he witnessed
the first accused taking out MO-V flat iron bar from the place as
deposed by PW29 and handing over the same to PW29.
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18. PW29 has also proved Ext.P26 report received
from the Forensic Science Laboratory, Thiruvananthapuram in
respect of various objects forwarded for forensic examination.
Item 8 in Ext.P26 report is MO-IV dhoti of the first accused and
item 9 therein is MO-V flat iron bar. It is reported in Ext.P26 that
blood has not been detected on item 8 and even though blood
has been detected on item 9, its origin and group could not be
determined for want of sufficient sample.
19. It is on an evaluation of the evidence discussed
above that the Court of Session came to the conclusion that it
was the first accused who committed the murder of
Jayaprakash and that the second accused rescued the first
accused thereupon from the place of occurrence and harboured
him. The pointed question is whether the Court of Session was
justified in arriving at the said conclusion on the basis of the
evidence discussed above.
20. Before examining the said question, it is
necessary to mention that the deceased, accused and the
witnesses examined in the case, other than the official
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witnesses, were persons residing in the same locality and were
known to each other. None of the witnesses referred to above
had seen the occurrence. They are all persons who were
examined to prove one or other circumstances relied on by the
prosecution to establish the guilt of the accused. As far as the
evidence tendered by PW2 is concerned, at about 9 p.m., while
he was standing in Pandicherry jetty, he saw the accused
coming from the northern side shouting abuses loudly. The
evidence tendered by PW2 was consistent with his previous
statements and his evidence that when he required the first
accused to go home, the latter abused him also and that the
second accused thereafter dragged away the first accused from
that place, makes the evidence of PW2 convincing. Likewise,
we find the evidence tendered by PW3 very much natural when
viewed in the social background of the parties involved in the
case. Coming to the evidence of PW4, the same is not only
consistent with his previous statements, but also consistent
with the evidence tendered by other witnesses. PW5 is a
witness who deposed that on the date of occurrence at about 9
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p.m., he heard the first accused shouting that he will teach a
lesson to the deceased in the presence of the close relatives of
the first accused, including his father. The evidence tendered
by PW5 that when the father of the first accused dissuaded him
from doing anything by asking him if he was mad, the first
accused brandished the flat iron bar carried by him then
towards his father also, makes the evidence of PW5 natural.
Even though PW5 was cross-examined thoroughly by the first
accused, nothing was brought out to create any suspicion even
as to the genuineness of the evidence tendered by PW5. The
same was the position as regards the evidence of PW6 also.
Even though it has come out in evidence that he did not
disclose to the Magistrate in the statement recorded under
Section 164 of the Code that he saw the first accused
consuming toddy and that there was a verbal altercation
between the first accused and the deceased, the evidence
tendered by PW6 that they threatened each other is consistent
with his statement. As in the case of other witnesses, nothing
was brought out in the cross-examination of PWs 7 and 8 also
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to discredit their evidence. Coming to the evidence tendered
by PW25, the doctor who conducted the post-mortem
examination on the body of Jayaprakash, the same would
establish beyond reasonable doubt that his death was a
homicide.
21. In Ext.P13 post-mortem certificate, it is recited
among others, that the stomach of the deceased was half-full
with rice and other unidentifiable food particles at the time of
post-mortem examination. It was argued by the learned
counsel based on an article published in one of the medical
journals namely, IOSR Journal of Dental and Medical Sciences
that digestion is an active ante-mortem process which does not
continue after death and if it is found that the stomach contains
undigested food, it can certainly be presumed that the death
took place within 4 to 6 hours after the meals. According to the
learned counsel, there is no evidence in the case to indicate
that the deceased had food after lunch, and in the absence of
any evidence to that effect, the death must have certainly
occurred, at any rate, before 7.00 p.m. on the relevant day. The
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argument is that if the death had occurred before 7.00 p.m. on
the relevant day, the evidence tendered by the witnesses who
deposed that they saw the deceased alive after 7.00 p.m., can
only be rejected. According to the learned counsel, if the said
evidence is rejected, there is nothing in the case to connect the
accused with the crime. We are not impressed by this
argument. The argument proceeds on the premise that the
deceased had not eaten food after lunch on the relevant day.
There is absolutely no evidence to show that the deceased had
not eaten any food after lunch on the relevant day. In the
absence of any convincing evidence that the deceased had not
eaten food on the relevant day after lunch, the argument is
fallacious and is only to be rejected.
22. It is trite that the circumstances to be proved
to establish the guilt of the accused in a given case, shall be of
a conclusive nature and tendency and the same shall be fully
established, which means that the circumstances shall
unequivocally establish the truth of the facts, leaving no
reasonable doubt, or alternative explanation and the same
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should have a definite tendency of implicating the accused in
the crime. If one examines the evidence tendered by the
prosecution keeping in mind the principles referred to above,
the following are the circumstances that could be taken as
proved in the case:
(i) that the deceased, accused and the witnesses
other than the official witnesses, were persons residing in
the same locality and were known to each other.
(ii) that PW3 saw the deceased consuming toddy in
the company of the first accused at about 7 p.m. on the
relevant day at the toddy shop of one Rajesh and witnessed
the exchange of obscene words between them at the said
toddy shop, while he was present there.
(iii) that PW6 saw the deceased consuming toddy at
about 8 p.m. on the relevant day at the shop of Rajesh
along with the accused and witnessed the heated exchange
of words and threats between Jayaprakash and the first
accused.
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(iv) that PW5 saw the first accused at about 9 p.m.
in the house of the uncle of the first accused in the
presence of his relatives, including his father and heard the
first accused shouting that he will teach a lesson to the
deceased on that night itself.
(v) that PW2 saw the accused together at about 9
p.m. on the relevant day near the boat jetty at Pandicherry
and heard the first accused loudly shouting abuses and
when PW2 enquired with the first accused as to the reason,
the first accused replied to PW2 that he would teach a
lesson to the deceased on that day itself.
(vi) that PW2 saw the deceased sleeping on the
bench at the Pandicherry boat jetty at about 10 p.m. on the
relevant day when he went there again along with his
friend, PW4 to seek the permission of Jayaprakash to take
his boat for them to go to Alappuzha.
(vii) that after leaving from the house of PW2, PW4
saw the first accused shirtless in an angry mood at about
11 p.m. on the relevant day and with MO-V flat iron bar just
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before he saw the deceased sleeping at Pandicherry boat
jetty.
(viii) that PW7 who was sleeping with the deceased
for sometime at Pandicherry boat jetty on the relevant day,
left the jetty in the company of PW4 leaving the deceased
alone there at about 11 p.m.
(ix) that PW11 saw the deceased soaked in blood at
about 11.30 p.m. on the relevant day on the cement bench
at Pandicherry boat jetty.
(x) that PW8 saw accused 1 and 2 leaving the
locality at about 2 a.m. on the following day.
(xi) that the death of Jayaprakash was a homicide
and the same occurred due to the lacerated wound
sustained to the head.
(xii) that the fatal injury sustained by the deceased
was one possible with MO-V flat iron bar carried by the first
accused when the latter was seen by PW4.
(xiii) that the first accused fled from the scene after
the occurrence and he was hiding in another State until his
arrest on 25.08.2010.
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(xiv) that MO-V flat iron bar was recovered based on
the information furnished by the first accused from the
house of the first accused itself.
(xv) that MO-V flat iron bar contained blood even
though its origin and group could not be detected.
True, even though blood was found on MO-V flat iron bar, its
origin and group could not be determined. It was argued by the
learned counsel for the first accused that inasmuch as the
origin and group of the blood found on MO-V flat iron bar could
not be detected, the same cannot be accepted as a
circumstance against the first accused. In this context, it is
relevant to refer to the decision of the Apex Court in State of
Rajasthan v. Teja Ram, (1999) 3 SCC 507. Paragraphs 25 to 27
in Teja Ram read thus:
"25. Failure of the serologist to detect the origin of the
blood due to disintegration of the serum in the meanwhile does
not mean that the blood stuck on the axe would not have been
human blood at all. Sometimes it happens, either because the
stain is too insufficient or due to haematological changes and
plasmatic coagulation that a serologist might fail to detect the
origin of the blood. Will it then mean that the blood would be of
some other origin? Such guesswork that blood on the other axe
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would have been animal blood is unrealistic and far-fetched in
the broad spectrum of this case. The effort of the criminal court
should not be to prowl for imaginative doubts. Unless the doubt
is of a reasonable dimension which a judicially conscientious
mind entertains with some objective, no benefit can be claimed
by the accused.
26. Learned counsel for the accused made an effort to
sustain the rejection of the abovesaid evidence for which he
cited the decisions in Prabhu Babaji Navle v. State of
Bombay [AIR 1956 SC 51 : 1956 Cri LJ 147] and Raghav
Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri
LJ 70] In the former, Vivian Bose, J. has observed that the
chemical examiner's duty is to indicate the number of
bloodstains found by him on each exhibit and the extent of each
stain unless they are too minute or too numerous to be
described in detail. It was a case in which one circumstance
projected by the prosecution was just one spot of blood on a
dhoti. Their Lordships felt that 'blood could equally have spurted
on the dhoti of a wholly innocent person passing through in the
circumstances described by us earlier in the judgment'. In the
latter decision, this Court observed regarding the certificate of a
chemical examiner that inasmuch as the bloodstain is not
proved to be of human origin the circumstance has no
evidentiary value 'in the circumstances' connecting the accused
with the murder. The further part of the circumstance in that
case showed that a shirt was seized from a dry-cleaning
establishment and the proprietor of the said establishment had
testified that when the shirt was given to him for dry-cleaning, it
was not bloodstained.
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27. We are unable to find out from the aforesaid decisions
any legal ratio that in all cases where there was failure of
detecting the origin of the blood, the circumstance arising from
recovery of the weapon would stand relegated to disutility. The
observations in the aforesaid cases were made on the fact
situation existing therein. They cannot be imported to a case
where the facts are materially different."
In the light of the decision of the Apex Court referred to above,
we are of the view that having regard to the various other
circumstances established in the case, the fact that MO-V
contained blood cannot be ignored, even though the origin and
group of the blood found on the same could not be determined.
23. One of the arguments seriously pressed into
service by the learned counsel for the first accused is that in
the absence of any convincing evidence as to the motive for
the first accused to commit the murder of the deceased, the
first accused cannot be found guilty for the murder of the
deceased, irrespective of the nature of the circumstances
established in the case. No doubt, motive plays a significant
role in a case on circumstantial evidence, but it cannot be said
as a general proposition that in the absence of any evidence to
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establish the motive, the guilt of the accused, in a case of this
nature, cannot be established at all. True, the circumstances
proved in the case would show that there was no prior enmity
between the first accused and the deceased. It has come out in
evidence that they consumed toddy together and were singing
at the toddy shop of Rajesh when PW3 went there. It was
thereafter that they engaged in a heated exchange of obscene
words and mutual threats. Even though it cannot be stated that
trivial quarrels of the nature referred to above is a cause for
committing the murder, the same is sufficient for one to assault
another, especially the social background in which the parties
involved in the case were living. In other words, even though it
cannot be said that a motive sufficient to commit the murder of
the deceased was made out by the prosecution in the case, the
circumstances proved would certainly establish the motive for
the first accused to assault the deceased.
24. The question that remains to be considered is
whether the circumstances mentioned above are sufficient to
hold beyond reasonable doubt that it was the first accused who
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inflicted the injuries found on the body of the deceased. Before
examining the said question, it is necessary to keep in mind the
principles to be followed in this regard. The principles are:
(1) that the circumstances from which the conclusion of
guilt is drawn are fully established,
(2) that the facts so established are consistent only with
the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) that the circumstances are of a conclusive nature and
tendency,
(4) that they should exclude every possible hypothesis
except that the accused is guilty, and
(5) that there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability, the act must have
been done by the accused.
The said circumstances, according to us, would form a chain of
evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the
appellant and would show that in all human probability, it was
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the first accused who inflicted the injuries on the deceased
which ultimately resulted in his death.
25. It was argued by the learned counsel for the
first accused that inasmuch as it is not established by the
prosecution that the first accused intended to cause the death
of Jayaprakash, the conviction of the first accused for the
offence punishable under Section 302 IPC is unsustainable in
law. No doubt, the evidence on record is not sufficient to hold
that the first accused intended to cause the death of
Jayaprakash. But the materials on record would certainly show
that the first accused intended to cause a bodily injury to
Jayaprakash. Since the intention of the first accused was only to
cause a bodily injury to him, the question to be examined is
whether the bodily injury intended to be inflicted by the first
accused is sufficient in the ordinary course of nature to cause
death. It is established in the case that MO-V is the weapon
used by the first accused to inflict bodily injury to the deceased
and the same, as revealed from Ext.P3 mahazar, is a flat iron
bar having a length of 47.5 cm, a width of 2 cm and a thickness
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of 0.5 cm. Unusually, in the case on hand, there is no formal
evidence on the side of the prosecution to establish that the
injury intended to be inflicted by the first accused is sufficient
in the ordinary course of nature to cause death. No doubt, this
is a matter that can be inferred by the court having regard to
the facts and circumstances of the case. On an evaluation of
the materials on record, including the weapon that was used by
the first accused to inflict injuries on the deceased, we are of
the view that even though it could be held that the injuries
intended and inflicted by the first accused are injuries that are
likely to cause death, they are certainly not injuries that are
sufficient in the ordinary course of nature to cause death. If
that be so, the first accused cannot be convicted for the
offence punishable under Section 302 IPC. Instead, he could be
convicted only for the offence punishable under Section 304
Part I IPC.
26. What remains to be considered is whether
there is evidence to hold that it was the second accused who
rescued the first accused from the place and harboured him. As
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revealed from the evidence discussed in the preceding
paragraphs, even though the second accused was present
along with the first accused at the toddy shop to consume
toddy in the evening hours of the relevant day and also near
the Pandicherry Boat Jetty when the first accused went there at
about 9.00 p.m., there is no evidence to infer that it was the
second accused who rescued the first accused from the place
of occurrence and thereby harboured him. The only evidence
relied on by the prosecution to prove the said fact is the
evidence tendered by PW8. As noted, it has come out from the
evidence of PW8 that the accused left the locality together at
about 2.00 a.m. on the following day. We do not think that the
said evidence alone is sufficient to hold that the second
accused is guilty of the offence punishable under Section 212
of IPC. In order to attract Section 212 IPC, the accused should
harbour or conceal a person with the intention of screening him
from legal punishment whom he knows or has reason to believe
to be the offender of a crime which has been committed. In the
case on hand, there is nothing on record to indicate that the
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second accused knew or had reason to believe that the first
accused caused the death of Jayaprakash. The only evidence
that was brought on record to substantiate the stand of the
prosecution that the second accused knew or had reason to
believe that the first accused caused the death of Jayaprakash
is that when PW8 refused to accede to the request of the
accused to drop them at Kavunkal, they offered him that they
are willing to pay any amount for the said purpose. According
to us, the said evidence is not sufficient to infer that the second
accused knew or had reason to believe that the first accused
committed an offence. Needless to say, the conviction of the
second accused is liable to be interfered with.
27. The next aspect is as regards the sentence to
be passed against the first accused for having committed the
offence punishable under Section 304 Part I IPC. Having regard
to the peculiar facts of this case, especially the social
background of the parties involved as also the weapon used,
according to us, the proportionate sentence to be awarded to
the first accused for the offence punishable under Part I of
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Section 304 IPC is rigorous imprisonment for a period of ten
years and to pay a fine of Rs.10,000/-.
28. In the result, Crl.Appeal No.1424 of 2018 is
allowed in part and the conviction of the first accused under
Section 302 IPC is altered to Part I of Section 304 IPC and he is
sentenced to undergo rigorous imprisonment for a period of ten
years and to pay a fine of Rs.10,000/- and in default of
payment of fine to undergo simple imprisonment for three
months. Crl.Appeal No.1287 of 2018 is allowed and the
conviction of the second accused for the offence charged
against him is set aside and he is acquitted.
The bail bond executed by the second accused
pursuant to the interim order passed by this Court on
29.10.2018 in Crl.M.A.No.1 of 2018 in Crl.Appeal No.1287 of
2018 will stand cancelled.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
Ds 28.03.2025
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PETITIONER ANNEXURES
ANNEXURE A1 MEDICAL CERTIFICATE DATED 13/2/2019
ISSUED BY DR.R.PADMAKUMAR
