Kerala High Court
Gopalakrishnan Nair@Maniyan vs State Of Kerala on 27 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:6060
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 976 OF 2019
AGAINST THE JUDGMENT DATED 14.12.2018 IN SC NO.134 OF
2010 OF ADDITIONAL SESSIONS COURT-V, THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:
GOPALAKRISHNAN NAIR @ MANIYAN , AGED 69 YEARS
S/O. KUTTAN PIALLAI, KUNNIL VEEDU,
MUNDAYILKONAM, ALATHUKAVU, KILIMANOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT- 695 601.
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RASSAL JANARDHANAN A.
ABHISHEK M. KUNNATHU
P.U.PRATHEESH KUMAR
P.R.AJAY
RESPONDENT/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 31,
2 THE STATION HOUSE OFFICER,
KILIMANOOR POLICE STATION, KILIMANOOR P.O,
THIRUVANANTHAPURAM - 695 601.
BY SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.01.2025, ALONG WITH CRL.A.199/2019, THE COURT ON
27.01.2025 DELIVERED THE FOLLOWING:
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 199 OF 2019
AGAINST THE JUDGMENT DATED 14.12.2018 IN SC NO.134 OF
2010 OF ADDITIONAL SESSIONS COURT-V, THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED (IN CUSTODY):
PRADEEP, AGED 42 YEARS
S/O.SIVADASAN, PRABITHA BHAVAN, MUNDAYILKONAM,
ALATHUKAVU, KILLIMANOOR VILLAGE,
KILIMANOOR.P.O., THIRUVANANTHAPURAM-695601.
BY ADV A.RAJASIMHAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SR.PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.01.2025, ALONG WITH CRL.A.976/2019, THE COURT ON
27.01.2025, DELIVERED THE FOLLOWING:
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
-: 3 :-
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl.Appeal Nos.976 and 199 of 2019
-----------------------------------------------
Dated this the 27th day of January, 2025
JUDGMENT
P.B.Suresh Kumar, J.
These appeals arise from S.C.No.134 of 2010 on the
files of the Court of the Additional Sessions Judge - V,
Thiruvananthapuram. There are two accused in the case and
they stand convicted and sentenced for the offences
punishable under Sections 294(b), 341, 307 and 302 read with
Section 34 of the Indian Penal Code (IPC). Among the appeals,
Crl.Appeal No.976 of 2019 is preferred by the first accused and
Crl.Appeal No.199 of 2019 is preferred by the second accused.
2. The accused were persons residing in the
neighbourhood of the house of the victims namely, Shaji who
died in the occurrence which is the subject matter of the case
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
and the wife of Shaji namely, Jayasree who suffered serious
injuries in the occurrence. The genesis of the occurrence is that
Shaji directed a few youngsters who were sitting in a car which
was parked in front of his house to remove the same owing to
their conduct in passing comments at people walking by in
front of his house. At about 10.30 p.m. on 27.03.2009, there
occurred an altercation in front of the house of Shaji over the
objection raised by Shaji as mentioned above and it is in that
altercation, Shaji and his wife suffered serious injuries.
Although Shaji and his wife were taken immediately by the
neighbours to Sree Gokulam Medical College Hospital,
Thiruvananthapuram, by the time they reached the said
hospital, Shaji passed away.
3. A case was registered against the accused at 6
a.m. on the following day by Kilimanoor Police in connection
with the occurrence under Sections 294(b), 341, 307 and 302
read with Section 34 IPC based on information furnished by
Jayasree at the hospital where she was undergoing treatment
at 4.30 a.m. on that day. In the investigation conducted in the
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
said case, it was revealed that at about 10.30 p.m. on
27.03.2009, the first accused came in front of the house of the
victims and started abusing them using filthy language and
when Shaji came out of the house hearing the said abuse and
enquired with the first accused the reason for the same, the
first accused stabbed him as also his wife multiple times with a
foldable knife, with the support and protection of the second
accused.
4. On the accused being committed to trial after
their arrest pursuant to the final report filed in the case, the
Court of Session framed charges against them under Sections
294(b), 341, 307 and 302 read with Section 34 IPC. The
accused pleaded not guilty. The evidence let in by the
prosecution thereupon consists of the oral evidence of 19
witnesses and 35 documents proved through them. MOs 1 to
17 are the material objects in the case. In the course of the
evidence let in by the prosecution, Exts.D1 to D5
contradictions were proved by the defence. Inasmuch as the
Court of Session did not find the case to be one fit for acquittal
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
under Section 232 of the Code, the accused were called upon
to enter on their defence. At that stage, the second accused
examined one Saifudeen as a witness on his side. On an
appreciation of the evidence on record, the Court of Session
found the accused guilty of the charges, convicted and
sentenced them, among others, to imprisonment for life. The
accused are deeply aggrieved by their conviction and sentence
in the case, hence these appeals.
5. As per order dated 08.04.2019 in
Crl.M.Appl.No.1 of 2019 in Crl.Appeal No.199 of 2019, this
Court suspended the execution of the sentence passed against
the second accused and enlarged him on bail.
6. Heard Adv.C.P.Udayabhanu for the first
accused Adv.A.Rajasimhan for the second accused. Sri.Alex
M.Thombra addressed arguments on behalf of the State.
7. The point that falls for consideration is
whether the conviction and sentence of the accused are
sustainable in law.
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
8. The prosecution relies mainly on the oral
evidence of the wife, mother and daughter of Shaji who were
examined as PWs 1, 2 and 3 respectively to prove the
occurrence. The prosecution also relies on the evidence
tendered by PW6, namely the neighbour of the victims to
corroborate the evidence tendered by PWs 1 to 3. In order to
corroborate the oral evidence, the prosecution also relies on
the evidence tendered by the doctor who examined Jayasree,
the doctor who conducted postmortem examination on the
body of the deceased as also the evidence tendered by the
investigating officer as regards the recovery of the material
objects namely, MOs 1 to 3. The essence of the elaborate
submissions made by the learned counsel for the first accused
is that the oral evidence tendered by PWs 1 to 3 and 6 is not
reliable and trustworthy. More specifically, the evidence
tendered by PW1 and PW2 were attacked by the learned
counsel for the first accused mainly on the ground that no one
could see the occurrence as there was no light at the scene of
occurrence. According to the learned counsel, there cannot,
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
therefore, be a conviction based on the said evidence. It was
argued by the learned counsel for the first accused that at any
rate, the proved facts do not establish a case of murder and
that the first accused can, therefore, be convicted only for the
offence punishable under Section 304 IPC. The argument
advanced by the learned counsel for the second accused,
however, is that it is a case where the second accused was
implicated falsely on account of previous enmity between him
and PW1. It was also argued by the learned counsel
alternatively, that even if the entire evidence relied on by the
prosecution is accepted, the second accused cannot be
convicted, as the evidence in the absence of any overt act on
the part of the second accused does not disclose that the
second accused shared the common intention with the first
accused to cause the death of Shaji and to cause injuries to
Jayasree.
9. Jayasree is the main witness on the side of the
prosecution. As noted, she was examined in the case as PW1.
The version of PW1 as regards the occurrence is that at about
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
10.30 p.m. on the relevant day, while she was watching
television with her mother-in-law, the accused came in front of
their house and started abusing them by using filthy language;
that Shaji who by then had already slept, woke up hearing the
abuse, came out of the house and asked the first accused as to
the reason for his outburst of anger and the first accused then
rushed towards him and dragged him to the street. It was
deposed by PW1 that she and her mother-in-law then came out
of the house and followed Shaji and they were followed by her
elder daughter. According to PW1, as Shaji was moving
unsteadily on account of the conduct of the first accused, she
attempted to hold him and at that point of time, the second
accused rushed to that place and held from behind the hands
of Shaji. It was deposed by PW1 that the first accused then
took out a foldable knife from his waist and stabbed Shaji on
the left portion of his chest. It was the version of PW1 that
when she attempted to ward off the attack on Shaji, the
subsequent stab made by the first accused fell on her right
hand below the elbow and she lost the ability to move two of
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
her fingers on account of that stab injury. It was deposed by
PW1 that the first accused thereupon stabbed on the right
portion of the chest of Shaji as well and the stab that
subsequently followed the same fell on her right cheek and the
same resulted in 16 stitches. It was deposed by PW1 that the
first accused stabbed again thereafter on the thigh of the
deceased and also on her chest. According to PW1, they were
thereupon taken to the hospital by the neighbours. PW1
identified the accused in the dock as the assailants and
affirmed that it was she who gave Ext.P1 First Information
Statement. PW1 also identified MO1 as the weapon used by
the first accused to stab her and Shaji, MO2 as the shirt and
MO3 as the lungi worn by the first accused at the time of
occurrence.
10. In the cross-examination of PW1 by the
counsel for the first accused, it was clarified by PW1 that on
the day previous to the date of occurrence, when she and her
husband returned home, they found a car in front of their
house and noticed that the youngsters who were sitting then in
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
the car were passing comments and her husband then directed
them to remove the car from there. It was stated by PW1 that
the said youngsters then went to the house of the second
accused and when they came back with the second accused,
Shaji was sitting on the veranda of their house and one among
them who was sitting in the car then pointed his fingers at
Shaji and told the second accused that it was Shaji who
directed them to remove the car. It was stated by PW1 that
thereafter, all of them together went to the house of the first
accused. The suggestion made by the counsel for the first
accused to PW1 was that she and her husband sustained
injuries in the quarrel that took place between them and those
who were sitting in the car, and the same was denied by PW1.
When PW1 was questioned in the cross-examination as to the
availability of light at the scene at the time of occurrence, she
clarified that there was street light in the scene of occurrence
and that apart, that there were lights on both sides of her
house also. It was also stated by PW1 that one of the street
lights was on the north-western boundary of their house. It was
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
clarified by PW1 in her cross-examination by the counsel for
the first accused that it was the first accused who pulled down
Shaji who was standing near the front door of their house by
holding on to his t-shirt. When it was put to PW1 that she does
not appear to have stated before the police that the second
accused rushed to the scene and held from behind the hands
of Shaji to enable the first accused to stab him, her answer was
that she stated so to the police. When PW1 was asked in cross-
examination by the counsel for the first accused about the
recital in Ext.P9 wound certificate that it was one Pradeep and
one Saifudeen who brought her to the hospital, she clarified
that she was brought to the hospital by Saifudeen and Nikhil.
11. PW2 is the mother of Shaji. PW2 also gave
evidence on similar lines as the evidence given by PW1 as
regards the occurrence. It was specifically deposed by PW2 in
her evidence that on the relevant day, at about 10.30 p.m.,
when Shaji came near the door of his house on hearing the
abuse made by the first accused and questioned him for the
same, the first accused pulled him and dragged him to the
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
road; that when she and PW1 followed Shaji, they saw the first
accused taking out a foldable knife from his waist and stabbing
on the left portion of the chest of Shaji; that when PW1 held
Shaji to support him, the first accused stabbed on the right
hand of PW1 below the elbow; that the first accused thereupon
stabbed Shaji again on the right portion of his chest and when
PW1 intervened, the first accused stabbed on her cheek. It was
also deposed by PW2 that the first accused thereafter stabbed
on the leg of Shaji also. As in the case of PW1, PW2 also
deposed that when Shaji was dragged to the road, the second
accused held his hands from behind. PW2 identified the
accused in the dock as the assailants of her son and daughter-
in-law. PW2 also identified MO2 and MO3 clothes worn by the
first accused at the time of occurrence and MOs 9 and 10 as
the clothes worn by PW1 at the relevant time. She has also
identified MO1 as the foldable knife used by the first accused
to stab Shaji and PW1. In cross-examination, it was clarified by
PW2 that when Shaji was dragged to the road, PW1 followed
him first and that PW2 accompanied her. PW3 is the daughter
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
of Shaji. It was deposed by PW3 that she was sleeping at the
relevant time; that she woke up on hearing the noise of the
quarrel; that thereupon when she proceeded to the scene of
occurrence hearing the scream of her mother and
grandmother, she saw the first accused stabbing her parents.
As in the case of PW1 and PW2, PW3 also deposed that she
saw then the second accused holding the hands of Shaji from
behind. In the cross-examination, PW3 stated that she did not
see anyone dragging Shaji to the road and that she is unable
to state as to how many times the first accused stabbed her
parents. Likewise, PW3 also stated in her cross-examination
that she does not know on which part of the body of Shaji
where the first stab of the first accused fell and also that she
does not know the parts of the body of Shaji where the
remaining stabs were inflicted by the first accused. Even
though the stand taken by PW3 in the chief-examination was
that she woke up from sleep on hearing the noise of the
quarrel, it was stated by PW3 in cross-examination that she
had not slept at the time when the quarrel took place, but was
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
only lying on her bed. It was admitted by PW3 in the cross-
examination that she did not inform the police that she saw the
second accused holding the hands of her father.
12. PW6 is a neighbour of the victims. PW6
deposed that the house of the victims is on the northern side
of his house and that he went to the scene of occurrence on
the relevant night on hearing the utterance of PW2
"gopalakrishnan കതയ ". PW6 also deposed that on reaching
the scene, he saw Shaji lying on the lap of his mother and that
blood was oozing out from the injuries on his body. PW6 also
saw PW1 at the scene with injuries on her body. It was deposed
by PW6 that some of the neighbours took the victims
immediately to the hospital and he followed them in another
car. In the cross-examination, even though it was admitted by
PW6 that his house was located about 100 meters away from
the house of the victims, he denied the suggestion made to
him that it is not possible to hear in his house, the sound from
the house of the victims. It was clarified by PW6 in cross-
examination that initially he only heard a sound from the house
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
of the victims and it is while proceeding there that he heard
the utterance "gopalakrishnan കതയ ". PW6 admitted however
that what was stated by him was that while he was about to
sleep, he heard a noise and when he came out of the house on
hearing the same, he saw his neighbours proceeding towards
the house of the victims and on reaching the place from where
the noise was heard, he saw PW2 crying aloud uttering "എന
യ ന gopalakrishnan കതയ ".
13. PW11 was the Village Officer who prepared
Ext.P8 scene plan. PW11 deposed in his evidence that there
was an electric post about 1.2 meters away from the scene of
occurrence and the position of that electric post is shown in
Ext.P8 scene plan as P2. Similarly, it was deposed by PW11
that there is another electric post 21.55 meters away from the
scene of occurrence and P3 in Ext.P8 scene plan is the position
of that electric post. In cross-examination, it was clarified by
PW11 that he has not recorded in the sketch, the existence of
electric bulbs in the electric posts shown in the scene plan and
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
that existence of bulbs are not usually shown in the scene
plans.
14. PW13 was the doctor who examined PW1 at
Sree Gokulam Medical College Hospital, Thiruvananthapuram
at 11.30 p.m. on the relevant day and issued Ext.P9 wound
certificate. It was deposed by PW13 that the following were the
injuries noted by him at the time of examination of PW1;
1. Lacerated wound 2x1cm on right temporal region, muscle deep.
2. Lacerated wound 3x1cm with facial tear right forearm dorsal
aspect.
It was deposed by PW13 that the cause for the injuries was
alleged to be stab injuries inflicted by a known person at 10.45
p.m. near her house. It was opined by PW13 that the injuries
noted could be caused as alleged. It was also deposed by
PW13 that the patient was brought to the hospital by one
Pradeep and Saifudeen and that the cause of the injuries was
stated by the bystanders. In cross-examination, it was
admitted by PW13 that the injured was conscious when
brought to the hospital and that she had not stated the name
of the assailant.
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
15. PW16 was the Assistant Director of Serology
attached to the Forensic Science Laboratory,
Thiruvananthapuram who issued Ext.P12 report. Items 11 and
12 in Ext.P12 report are MO3 and MO2 clothes worn by the first
accused and items 14 and 15 therein are the clothes worn by
PW1 at the time of occurrence. Item 16 in Ext.P12 report is
MO1 foldable knife. PW16 deposed that items 11, 12, 14 and
15 contained human blood belonging to Group 'A'. It was also
deposed by PW16 that even though item 16 contained blood,
its origin could not be detected for want of sufficient quantity
of the sample.
16. PW18 was the doctor who conducted
postmortem examination on the body of the deceased and
issued Ext.P15 postmortem certificate. The ante-mortem
injuries noted by PW18 at the time of postmortem examination
were the following:
"1. Incised penetrating wound, 2.5x0.4 cm, oblique on left side
of chest, the lower inner end which showed splitting of
tissues was 6 cm to the left of midline and 10 cm below
collar bone. The upper outer end of the wound was sharply
cut. Cutting through the structures of the second
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
Intercostal space, entered the chest cavity, pierced through
the pericardium and ended in the lumen of the main
pulmonary trunk (2.5x0.2 cm) just above the root of heart.
The pericardial cavity contained 100 g of blood clot. The
left chest cavity contained 750 g of blood clot and 500 ml
of fluid blood. The wound track was directed upwards,
backwards and to the right for minimum depth of 2.9 cm.
2. Incised punctured wound, 7.5x0.3 cm, oblique on right side
of chest, its upper inner end which was sharply cut was 5.5
cm to the right of midline and 7.5 cm below collar bone.
The lower outer end of the wound showed splitting of
tissues. The wound track was directed upwards, backwards
and to the right for a depth of 10.5 cm and terminated
within the muscle plane 3 cm below the front fold of armpit.
3. Incised wound, 7x1.5x1 cm, oblique, on the back of left
thigh, its lower inner end was 6.5 cm above knee with a
superficial side cut, 5.5x0.2 cm, directed obliquely
downwards and inwards in the same direction.
4. Linear abrasion, 18.5 cm long, ' ' shaped on the left side of
trunk, its upper end being 10.5 cm outer to midline and 18
cm below collar bone.
5. Abrasion, 2.5x0.3 cm, on the back of root of right index
finger.
6. Abrasion, 1.5x1 cm, on the outer aspect of right ankle 5 cm
above heel.
7. Two abrasions, 0.5x0.5 cm each, 0.5 cm apart, one behind
the other, on the inner aspect of right ankle, the back of
one being 5 cm in front of heel."
It was opined by PW18 in his evidence that the death of Shaji
was due to the penetrating injury namely, injury 1 sustained to
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
the chest. It was also opined by PW18 that injuries 1 to 3 could
be caused with MO1 knife.
17. PW19 was the investigating officer who
conducted the substantial part of the investigation in the case.
It was deposed, among others, by PW19 that during the
interrogation after the arrest, the first accused disclosed to him
that a knife has been kept by him in the pump-house attached
to the rubber estate of one Damodaran near the house of the
first accused and when he was taken to that place as guided
by him, the first accused took out MO1 knife from inside a PVC
pipe kept in the pump-house and handed over the same to
PW19 and the same was seized by PW19 as per Ext.P4
mahazar. Ext.P4(a) is the information which led to the recovery
of MO1 knife. It was also deposed by PW19 that during the
interrogation, the first accused disclosed to him further that he
has dropped a few clothes in a deserted well near his house
and when he was taken to that place as guided by him, he took
out from a deserted well in the rubber estate of one
Damodaran, MO2 and MO3 clothes and the same were seized
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
by PW19 as per Ext.P10 mahazar. Ext.P10(a) is the disclosure
which led to the recovery of the said MOs. In the cross-
examination, PW19 affirmed that PW2 did not give a statement
that the second accused held the hands of Shaji from behind
and that what was stated by PW2 in her previous statement is
only that the second accused who was present at the scene,
did not prevent the first accused from attacking the victims. It
was also affirmed by PW19 in cross-examination that what was
revealed in the investigation as regards the role of the second
accused was that he came along with the first accused to the
house of the victims and that he had not made any attempt to
prevent the attack of the first accused on the victims. Likewise,
it was stated by PW19 that in the previous statement of PW6,
he did not state as to the precise time when he heard the
utterance. It was also deposed by PW19 in cross-examination
that the house of PW6 is not one that could be seen from the
scene of occurrence and that is why the house of PW6 is not
shown in the scene plan. Nevertheless, it was asserted by
PW19 that PW6 is a neighbour of the victims. When PW19 was
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
asked as to the distance between the house of PW6 and the
scene of occurrence, PW19 took the stand that he did not
conduct any investigation regarding the same. In the cross-
examination, PW19 also affirmed that the statement of PW3
was recorded only on 07.04.2009. PW14 was a person who
witnessed the recovery of MO2 and MO3 clothes at the
instance of the first accused as also a witness to Ext.P10
mahazar prepared by the police in this regard. PW14 deposed
the said facts in his evidence.
18. Let us now examine the point formulated for
decision. A few facts which are not challenged in the cross-
examination of the above witnesses are that the occurrence
took place at about 10.30 p.m. on 27.03.2009; that the
deceased and injured were taken to Sree Gokulam Medical
College Hospital, Thiruvananthapuram at about 11.30 p.m. on
27.03.2009; that the statement of PW1 was recorded
thereupon at 4.30 a.m. on the following day in the said hospital
while she was undergoing treatment; that the crime was
registered at 6 a.m. on 28.03.2009 and that the First
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
Information Report reached the Jurisdictional Magistrate at
10.30 a.m. on 28.03.2009. The prime witness in the case is the
wife of the deceased who was examined as PW1. PW1 was a
person who also suffered serious injuries in the occurrence. As
noted, the evidence tendered by PW1 as regards the
occurrence was consistent with her version in the First
Information Statement given within a few hours after the
occurrence. Even though what is recorded in Ext.P9 wound
certificate issued by PW13, the doctor who examined PW1, as
to the cause of injuries was only that the same were caused by
stab injuries inflicted by a known person, it has come out that
the cause was not stated to the doctor by PW1, rather by the
by-standers. Anyhow, it was categorically stated by PW1 in
Ext.P1 recorded within a few hours after the occurrence that
the injuries were caused by the first accused. No contradictions
or omissions affecting the veracity of the evidence of PW1 as
regards the occurrence were established in the case. True,
there is an embellishment in the evidence of PW1 as regards
the complicity of the second accused in the crime and we are
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
dealing with the same elaborately in the latter part of the
judgment. But, the same, according to us, is no reason to
doubt the veracity of the evidence tendered by PW1 as regards
the complicity of the first accused, especially since PW1
suffered serious injuries in the occurrence, which fact has not
been disputed by the first accused. In this context, it is
apposite to refer to a passage from the decision of the Apex
Court in Bhajan Singh v. State of Haryana, (2011) 7 SCC
421, which reads thus:
"The evidence of the stamped witness must be given due
weightage as his presence on the place of occurrence cannot be
doubted. His statement is generally considered to be very
reliable and it is unlikely that he has spared the actual assailant
in order to falsely implicate someone else. The testimony of an
injured witness has its own relevancy and efficacy as he has
sustained injuries at the time and place of occurrence and this
lends support to his testimony that he was present at the time of
occurrence. Thus, the testimony of an injured witness is
accorded a special status in law. Such a witness comes with a
built-in guarantee of his presence at the scene of the crime and
is unlikely to spare his actual assailant(s) in order to falsely
implicate someone. "Convincing evidence is required to discredit
an injured witness." Thus, the evidence of an injured witness
should be relied upon unless there are grounds for the rejection
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
of his evidence on the basis of major contradictions and
discrepancies therein."
In the light of the proposition of law laid down by the Apex
Court as referred to above, there is absolutely no reason to
disbelieve the evidence tendered by PW1 as regards the
occurrence and the complicity of the first accused in the crime.
19. Coming to the evidence tendered by PW2, the
specific case of PW1 was that when the first accused dragged
her husband to the road, PW1 along with PW2 followed Shaji
and the first accused. The said part of the evidence of PW1 is
consistent with the First Information Statement given by her
within hours after the occurrence. Therefore, the presence of
PW2 at the scene at the time of occurrence, cannot be
doubted. True, as regards the sequence of events that took
place at the scene of occurrence, there are trivial omissions in
the evidence of PW2. PW2 was aged 74 years at the time when
the evidence was taken and the occurrence took place about
nine years prior to that date. Minor discrepancies are bound to
occur in situations of this nature and the evidence let in by the
parties cannot be ignored on that ground. True, Exts.D1 to D4
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
contradictions were proved in the evidence tendered by PW2
and those contradictions, according to us, are not significant
inasmuch as the same does not relate to the material parts of
the evidence tendered by PW2. Needless to say, there is
absolutely no reason to disbelieve the evidence tendered by
PW2 also. As noted, the evidence tendered by PW1 and PW2
were attacked mainly on the ground that no one could see the
occurrence as there was no light in the locality at the time of
occurrence. The evidence was let in by the prosecution in the
case to prove that there was light at the scene of occurrence
and that there were lights on both sides of the house of the
victims also, through the evidence of PW1. It was also stated
by PW1 that one of the street lights was on the north-western
boundary of their house close to the scene of occurrence. The
learned counsel for the first accused took us through Ext.P8
scene plan to contend that even though the existence of
electric posts were noted therein, the existence of bulbs in the
said posts are conspicuously absent in the scene plan.
According to the learned counsel, the explanation offered by
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
the Village Officer who prepared Ext.P8 scene plan that
existence of bulbs in the electric posts are normally not shown
in such plans, is not acceptable. Similarly, after taking us
through the scene mahazar, the learned counsel for the first
accused contended that there are no indications therein that
there was sufficient light at the scene at the time of occurrence
to enable anyone to see the occurrence. We are not impressed
by these arguments. According to us, the accused in the case
cannot be heard to contend that there was no light at all at the
scene at the time of occurrence for, the occurrence took place
after the first accused dragged the deceased to the road from
the main door of the house where there was sufficient light. Be
that as it may, the existence of electric posts close to the
scene of occurrence is sufficient for us to infer that there was
light at the scene at the time of occurrence.
20. Coming to the evidence tendered by PW3,
even though PW3 stated in cross-examination that she had not
slept at the time when the quarrel took place, but was only
lying on her bed, her version in the chief-examination was that
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
she woke up from sleep on hearing the scream of her mother
and grandmother. If what PW3 had stated in chief-examination
is correct, it is not possible for her to have reached the scene
of occurrence from her house to witness the occurrence, since
going by the version of PW1 as regards the occurrence, the
same concluded within a few minutes. According to us, in the
circumstances, it is not safe to place reliance on the evidence
tendered by PW3. As regards the evidence tendered by PW6, it
is to be noted that PW6 was not an eye-witness to the
occurrence. According to the prosecution, the evidence
tendered by PW6 that he heard the scream of PW2, the mother
of the deceased "gopalakrishnan കതയ ", is admissible under
Section 6 of the Indian Evidence Act as res gestae. No doubt, if
the evidence of PW6 is found believable and acceptable, the
said part of the evidence would certainly fall within the scope
of Section 6 of the Indian Evidence Act. But, in the case on
hand, even though there are materials to hold that PW6 was a
person who rushed to the scene after the occurrence on
hearing the noise coming from the direction of the house of the
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
victims, it is doubtful as to whether PW6 could have heard the
scream of PWs 1 and 2 from his house. As noted, PW19, the
investigating officer in the case has categorically stated that
the residence of PW6 is not one visible from the scene of
occurrence and when PW19 was asked as to the distance
between the house of PW6 and the scene of occurrence, PW19
gave an evasive reply that he did not conduct any
investigation regarding the same. Even though according to
PW6, his house is located about 100 meters away from the
scene of occurrence, it is doubtful whether a person who is
inside his house located 100 meters away from the scene of
occurrence could hear the utterance claimed to have been
made by PW2. Needless to say, the evidence tendered by PW6
that he heard the utterance made by PW2, cannot be relied on.
At the same time, it is necessary to mention that there is no
impediment in relying on the evidence tendered by PW6 that
on reaching the scene, he saw the deceased lying on the lap of
PW2; that he saw blood oozing out from the injuries on the
body of the deceased; that he saw PW1 at the scene with
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
injuries on her body; that some of the neighbours took the
victims immediately to the hospital and that he followed them
in another car, to corroborate the evidence tendered by PWs 1
and 2.
21. Apart from the evidence discussed above, the
evidence tendered by PW13, the doctor who examined PW1 at
11.30 p.m. on 27.03.2009 at Gokulam Medical College
Hospital, Thiruvananthapuram, that the injury suffered by her
could be caused by stabbing, and the evidence tendered by
PW18 that the ante-mortem injury 1 found on the body of the
deceased which was the cause of death, is one that could be
caused with MO1 foldable knife recovered based on the
information furnished by the first accused, corroborates the
oral evidence tendered by PWs 1 and 2 to prove the
occurrence. Likewise, the evidence of PW16, the Assistant
Director of Serology of the Forensic Science Laboratory,
Thiruvananthapuram that the presence of blood of the same
group, namely A +ve was found in MOs 2 and 3 clothes worn
by the first accused at the time of occurrence as also MOs 9
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
and 10 clothes worn by PW1 at the time of occurrence, also
corroborates the evidence tendered by PWs 1 and 2 as regards
the occurrence.
22. What remains to be considered is the question
whether the evidence discussed above would make out a case
of murder. Even though it cannot be said that the act alleged
against the first accused was one done with the intention of
causing the death of Shaji, the proved facts would establish
beyond reasonable doubt that the act was one done with the
intention of causing bodily injuries to Shaji. Having regard to
the nature of injuries, it cannot be said that the injuries
intended were not injuries sufficient in the ordinary course of
nature to cause death. In the circumstances, in the absence of
any case for the first accused that the case would fall within
any of the exceptions to Section 300 IPC, we have no
hesitation in arriving at the conclusion that the finding
rendered by the Court of Session that the prosecution has
established beyond reasonable doubt, the complicity of the
first accused in the crime, is perfectly in order. The first
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
accused has no case that if the factual allegations levelled
against him are true, the offences punishable under Sections
294(b), 341, 307 and 302 would not be made out. In the
circumstances, the conviction of the first accused and the
sentence passed against him is only to be confirmed.
23. Let us now examine the question relating to
the complicity of the second accused in the crime. The overt
act alleged against the second accused in the charge is thus:
"The 2nd accused at the time of occurrence had given support
to the 1st accused and also made an utterance to the effect
that the deceased was their target."
The charge in the case has been framed by the Court of
Session in the aforesaid fashion obviously for the reason that
the allegation in the final report as against the second accused
was only that he rendered sufficient protection to the first
accused to commit the crime by uttering " ന യ ക വചര ത
തന ട ". As noted, PW19, the investigating officer gave
evidence consistent with the final report that it is not revealed
in the investigation that the second accused held the hands of
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
the deceased from behind. When PW19 was asked on what
basis the second accused was arrayed as an accused in the
case, the explanation of PW19 was that what was revealed in
the investigation is that the second accused went along with
the first accused to the scene of occurrence and that he did
not make any attempt to prevent the attack on the victims.
Even though no specific overt act is attributed to the second
accused in the final report and in the charge framed by the
court, PWs 1 and 2 gave evidence consistently that the second
accused who was present at the scene at the time of
occurrence, held the hands of the deceased from behind so as
to enable the first accused to stab the deceased and PW1 as
alleged by them. In this context, it is necessary at once, to
refer to Ext.P1 First Information Statement given by PW1 within
a few hours after the occurrence. PW1 did not have such a
case in Ext.P1 and what is stated therein is only that the first
accused came to their house along with the second accused.
Had the second accused held the hands of the deceased from
behind as deposed by PW1, having regard to the peculiar facts
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
of this case, PW1 would have certainly stated so in Ext.P1. Be
that as it may, it was established by the accused in the course
of the trial that PW2 who asserted that the second accused
held the hands of the deceased at the time of occurrence, did
not state so in her previous statements recorded by the police
under Section 161 of the Code. On the other hand, what was
stated by PW2 in her previous statements was only that the
second accused who was present at the scene did not prevent
the first accused from attacking the victims. In the above
circumstances, what could be inferred from the evidence let in
by the prosecution is only that the second accused
accompanied the first accused to the house of the victims on
the relevant day at the relevant time and that the second
accused was present at the scene when the first accused
stabbed the deceased and his wife.
24. The next question is whether the conduct of
the second accused aforesaid is sufficient to hold him guilty of
the offences charged against him applying Section 34 IPC. The
scope of Section 34 IPC has been considered by the Division
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
Bench of this Court of which one of us was a party, in
Shafeek v. State of Kerala, 2024 KHC OnLine 445.
Paragraph 22 of the said judgment reads thus:
22. It is trite in criminal jurisprudence, that only a person who
actually commits an offence, is liable to be punished.
However, Section 34 lays down a principle of joint liability in
a criminal act, the essence of which is to be found in the
existence of a common intention. Even when separate acts
are done by two or more persons in furtherance of a
common intention, each person is liable for the result of all
the acts, as if all the acts had been done by all these
persons. Section 34 is only a rule of evidence which attracts
the principle of joint criminal liability and does not create
any distinct substantive offence. The distinctive feature of
Section 34 is the element of participation in action and
intention of each one of the accused should be known to the
rest of the accused. Mere participation is not sufficient to
attribute common intention. Common intention can be
inferred from proved facts and circumstances and the same
can develop during the course of an occurrence or at the
spot. This section does not whittle down the liability of the
principal offender committing the principal act but
additionally makes all other offenders liable. The question
whether the prosecution has established common intention
in a given case has to be decided on the basis of the proved
facts. In other words, the prosecution is required to prove a
premeditated intention of all the accused. Section 34 of the
Indian Penal Code, is really intended to meet a case in which
it is difficult to distinguish between the acts of individual
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
members of a party and prove exactly what part was played
by each of them. To attract Section 34 of IPC, no overt act is
needed on the part of the accused if they share common
intention with others in respect of the ultimate criminal act,
which may be done by any one of the accused sharing such
intention. Common intention implies acting in concert.
Existence of a prearranged plan has to be proved either from
the conduct of the accused, or from circumstances or from
any incriminating facts. It is not enough to have the same
intention independently of each other [See Chhota Ahirwar
v. State of M.P., (2020) 4 SCC 126].
As seen from the extracted paragraph, the distinctive feature
of Section 34 is the element of participation in action and the
intention of each one of the accused being known to the rest of
the accused. In other words, the prosecution is required to
prove a premeditated intention of all the accused. Reverting to
the facts, merely for the reason that the second accused
accompanied the first accused to the house of the victims and
merely for the reason that he was present when the first
accused stabbed the victims, we are unable to infer that the
accused shared the common intention to commit the murder of
the deceased and to cause injuries to PW1. We are not
oblivious of the proposition that even mere presence of a
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
person would be sufficient, at times, to hold him guilty
applying Section 34 IPC, but having regard to the peculiar facts
of this case, it is not justifiable to make such an inference. We
take this view also for the reason that MO1 foldable knife used
by the first accused to inflict injuries was one hidden by the
first accused in his waist and there is nothing on record to
indicate that the second accused was aware of the fact that
the first accused was carrying a weapon when the second
accused proceeded to the house of the deceased along with
the first accused. Needless to say, the evidence on record is
not sufficient to hold the accused guilty of the charges levelled
against them applying Section 34 IPC and the second accused
is, therefore, entitled to the benefit of doubt.
25. It was however strenuously argued by the
learned counsel for the second accused that it is a case where
the second accused was falsely implicated and that he is
therefore entitled to an honourable acquittal. In order to
convince us that PW1 was maintaining a strained relationship
with the second accused, the learned counsel for the second
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
accused drew our attention to the admission made by PW1
during cross-examination that Bindu, the wife of the second
accused had preferred a complaint against PW1 alleging that
PW1 withdrew a sum of Rs.10,000/- from the bank account of a
Kudumbasree Unit jointly held by PW1 as the Secretary of the
Unit and Bindu as the President of the Unit by forging the
signature of Bindu. According to PW1, the complaint preferred
by Bindu was baseless and the amount was withdrawn by the
Vice President of the Unit. Be that as it may, in the cross-
examination by the first accused, it was specifically deposed
by PW1 that the deceased had in fact directed a few
youngsters in the car parked in front of their house to remove
the same from there as it was causing inconvenience to them;
that those persons then proceeded straight to the house of the
second accused and came back along with the second
accused; that when all of them reached in front of the house of
the victims, the deceased was sitting in the veranda and one
among them, then pointed his finger towards the deceased
and informed the second accused that the deceased was the
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
person who directed them to remove the car and that
thereupon, all of them went to the house of the first accused. It
is on that basis, it was asserted by PW1 that it is at the
instance of the second accused that the first accused went to
the house of the victims along with the second accused. The
relevant portion of the evidence tendered by PW1 in this
regard reads thus:
"Car-ൽ ഇര വവകകൾ Pradeep-ന വട ൽ യ കകയ തരച എല വര കട
ഞങളനട വട ന മൻവശത വ യ* ൾ യ+ടൻ വ തകൽ ഇരകക ആ രന. അയ* ൾ
car-ൽ വ ഒര ൾ അയങർ ആണ car റ ഇട ൻ റഞത എ pradeep-യ ട
റഞ. എ ട അവർ എല വര കട Gopalakrishnan ന വട യ8 ട യ . യറ
ദ വസ Pradeep ന+ റഞത അനസരച ണ Gopalakrishnan-ഉ Pradeep-
ഉ കട വ ത.
As evident from the extracted portion of the deposition, even
though the learned counsel for the first accused asked PW1
whether she gave such a statement to the police, her reply
was only that she remembered to have stated so to the police
and the said part of the evidence has not been challenged by
the second accused in the cross-examination of PW1. That
apart, in the First Information Statement given within a few
hours after the occurrence, PW1 stated that the second
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
accused was very much present with the first accused, when
the first accused abused the deceased using filthy language,
even though no other overt acts were attributed against the
second accused in the First Information Statement. In the
above circumstances, the argument advanced on behalf of the
second accused that he had no role at all, to play in the
occurrence and that he was a mere spectator of the
occurrence, cannot be accepted. The materials indicate that
the second accused also had a role to play, although the same
was not established beyond reasonable doubt by the
prosecution. In the circumstances, the second accused is not
entitled to an honourable acquittal. Nevertheless, inasmuch as
it is found that the second accused is entitled to the benefit of
doubt, the conviction and the sentence passed against him,
are liable to be set aside.
In the result, Crl.Appeal No.199 of 2019 is allowed
and Crl.Appeal No.976 of 2019 is dismissed. The bail bond
executed by the second accused pursuant to the interim order
Crl.A Nos.976 and 199 of 2019
2025:KER:5418
passed by this court on 08.04.2019 in Crl.M.A.No.1 of 2019 in
Crl.Appeal No.199 of 2019 will stand cancelled.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
Ds
