ABOOBACKER v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **& THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 CRL.A NO. 706 OF 2017 AGAINST THE JUDGMENT DATED 22.03.2017 IN SC NO.514 OF 2012 OF ADDITIONAL SESSIONS COURT, NEYYATTINKARA APPELLANT/ACCUSED:** **ABOOBACKER AGED 65, S/O.MAITHEEN KANNU, MAHEEN MANZIL, KARIKKATTUVILA, AITHIYOOR, PALLICHAL DESOM, PALLICHAL VILLAGE.** **BY ADVS. P.K.VARGHESE M.T.SAMEER(K/3346/1999) DHANESH V.MADHAVAN(K/298/2006) JERRY MATHEW(K/658/2015) DEEPA K.RADHAKRISHNAN(K/001131/2010) SOJAN K. VARGHESE(K/1611/2019) ARJUN KUMAR K.S.(K/1680/2019) REGHU SREEDHARAN(K/653/2020) RAMEEZ M. AZEEZ(K/001008/2022) NAMITHA K.S.(K/2262/2022) SUDARSANAN U.(K/2436/2022) ANU ASHOKAN(K/1343/2023) ATHUL.P(K/001590/2023)** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **Sri.E.C.Bineesh, P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2024, THE COURT ON 12.06.2024 DELIVERED THE FOLLOWING:** Crl.Appeal No.706 of 2017 -: 2 :- ## **P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.** ## **-----------------------------------------------** **Crl.Appeal No.706 of 2017** **----------------------------------------------Dated this the 12[th] day of June, 2024** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The sole accused in S.C.No.514 of 2012 on the files of the Court of the Additional Sessions Judge, Neyyattinkara, is the appellant in the appeal. He stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC). 2. The victim in the case is one Salahudeen. He sustained serious injuries in an occurrence that took place at about 7.15 p.m. on 06.04.2010. Although the victim was taken first to KIMS Hospital, Balaramapuram and then to the Medical College Hospital, Thiruvananthapuram, he succumbed to the injuries while undergoing treatment at the Medical College Hospital at about 3.45 a.m. on 07.04.2010. A case was registered by Balaramapuram Police at 8.00 a.m. on -: 3 :- Crl.Appeal No.706 of 2017 07.04.2010 on the basis of the statement given by Meera Sahib, the son of the deceased. The investigation in the case revealed that it was the accused who caused the death of the victim. Final report was accordingly filed in the case. The accusation against the accused in the final report is that on account of the enmity the accused had towards the deceased for having warned him against urinating in public places which is against the tenets of Islam, on 06.04.2010 at about 7.15 p.m., the accused stabbed the deceased repeatedly at a place near St.Joseph L.P. School, R.C. Theruvu on the road leading to Aithiyoor from Balaramapuram while the deceased was walking with his bicycle. 3. On the accused being committed to trial, the Court of Session framed charges against him, to which he pleaded not guilty. Thereupon, the prosecution examined 14 witnesses as PWs 1 to 14 and proved through them 23 documents as Exts.P1 to P23. MOs 1 to 6 are the material objects in the case. Ext.D1 is the case diary statement of one of the witnesses examined on the side of the prosecution and Ext.D2 series are the documents marked at the instance of the defence through PW2. When the incriminating circumstances -: 4 :- Crl.Appeal No.706 of 2017 brought out in evidence were put to the accused in terms of the provisions contained under Section 313 of the Code, he denied the same. Inasmuch as the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon thereafter to enter on his defence and in response to the same, four witnesses have been examined by the accused on his side as DW1 to DW4. Exts. D3 to D9 are the documents proved by the accused through the witnesses examined on his side. Thereafter, on a consideration of the evidence on record, the Court of Session held that the accused is guilty of the offence for which he was charged, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-. The accused is aggrieved by his conviction and sentence, and hence this appeal. 4. The point that falls for consideration is whether the conviction of the accused and the sentence imposed on him, are sustainable in law. 5. Heard the learned counsel for the accused as also the learned Public Prosecutor. 6. The learned counsel for the accused made -: 5 :- Crl.Appeal No.706 of 2017 elaborate arguments on facts. The essence of the arguments made by him is that the conviction of the accused which rests solely on the evidence tendered by PWs 1 and 2, is unsustainable in law. According to the learned counsel, the evidence tendered by the said witnesses is totally unreliable. It is unnecessary to refer to the elaborate arguments made by the learned counsel at this stage, for we propose to deal with the same exhaustively, in the succeeding paragraphs of this judgment. 7. Before dealing with the arguments made by the learned counsel for the accused, it is necessary to ensure that the finding rendered by the Court of Session that the case on hand is one of homicide, is in order. PW8 is the doctor who conducted autopsy of the body of the deceased and Ext.P7 is the autopsy certificate issued by her. The ante-mortem Injuries 1 to 4 found by PW8 on the body of the deceased at the time of autopsy, as deposed by PW8, were the following: > “1. Incised penetrating wound 3cm long, horizontal on left side of chest, its front sharply cut end 13.5cm outer to midline and 10cm below collar bone. Its back end was blunt. The left chest cavity was seen penetrated through fifth left intercostal space, the lower lobe of left lung transfixed for a depth of 1.2cm (wound of entrance and exit being 3cm and 2.5cm in length respectively and seen sutured) and pierced the left ventricle of heart for a depth of 1cm (seen sutured over an Crl.Appeal No.706 of 2017 -: 6 :- area 4x1.5cm). The wound was directed backwards and to the right for a total minimum depth of 5.2cm. Left chest cavity contained 150ml of fluid blood. 2. Incised puncture wound 4cm long, obliquely placed on left side of upper part of chest, its lower inner sharply cut end 6.5cm to left of midline and 1.5cm below upper end of breast bone. Its upper outer end was blunt. The wound was directed downwards in the muscle plane for a depth of 11cm. 3. Incised wound 7cm long and 3.5cm deep, vertical on left side of chest 3.5cm below axilla and its lower end just above the back end of injury no.1. 4. Incised puncture wound 3cm long and 41cm deep, vertical on the back of trunk, its upper sharply cut end 0.5cm to right of midline and 18cm below root of neck. Its lower end was blunt. Injury Nos.1 to 3 were seen stapled and the deep muscle layers sutured. Injury no.4 was in a sutured state.” It was testified by PW8 in her evidence that the death was due to the penetrating injury sustained to the chest of the victim, namely, injury 1. PW8 also deposed that Injuries 1 to 4 were injuries that could be caused using MO2 weapon and that injury 1 is independently sufficient to cause death. There was no serious cross-examination on the said evidence tendered by PW8. As such, we do not find any infirmity in the finding rendered by the Court of Session that the case on hand is a case of homicide. 8. As noticed, the occurrence took place at about 7.15 p.m. on 06.04.2010. The victim was taken from the scene of occurrence, first to KIMS Hospital, Balaramapuram and from Crl.Appeal No.706 of 2017 -: 7 :- there to the Medical College Hospital, Thiruvananthapuram. He succumbed to the injuries at about 3.45 a.m. on 07.04.2010 while undergoing treatment at the Medical College Hospital. There is no dispute as regards the above facts. 9. PW1 is none other than the son of the deceased. PW1 deposed that on 06.04.2010, at about 6.50 p.m., while he was drinking lime juice from a shop near “Anchuvannam Juma Masjid”, an altercation took place in front of a studio namely, “Neethu Studio” near the said Masjid, between the deceased and the accused who was known in the locality as 'Poo'. It was deposed by PW1 that he along with the people who gathered there, intervened in the altercation and managed to pull apart the accused and the deceased from each other. Thereupon, according to PW1, the accused proceeded towards the place called Aithiyoor and after sometime, the deceased also proceeded in the same direction with his bicycle. PW1 deposed that he then went to the office of the organisation 'SDPI' near Aithiyoor and while he was conversing with others inside the said office, PW1 heard a scream and when he rushed to the place from where he heard the scream, he found the deceased lying on the street with Crl.Appeal No.706 of 2017 -: 8 :- injuries on his body. It was deposed by PW1 that the deceased was then keeping his right hand just below the left underarm and when PW1 lifted the deceased, the latter told him “മകള�, പ എള� കത�". It was deposed by PW1 that he along with one Hashim then took the deceased in an auto rickshaw to KIMS Hospital, Balaramapuram and from there to the Medical College Hospital by an ambulance. PW1 affirmed that it was he who gave Ext.P1 First Information Statement. PW1 also deposed in his evidence that two days before the occurrence, the accused passed urine publicly in front of their house and the deceased had warned him against the same. According to PW1, it is on account of the said reason that the accused attacked the deceased. PW1 denied the suggestion made to him during cross-examination that the accused is not called in the locality as 'Poo', even though he admitted that he had no occasion to call him as such. To a specific question put to PW1 during cross-examination as to whether he knew the particulars of the persons who saw the occurrence at the time when he gave the statement to the police, the answer of PW1 was in the negative. 10. PW2 is a witness cited by the prosecution as -: 9 :- Crl.Appeal No.706 of 2017 an occurrence witness. PW2 deposed that he too witnessed the altercation between the accused and the deceased and they were pulled apart by PW1 and others. It was also deposed by PW2 that after sometime, while he was proceeding along with one Hashim towards Aithiyoor direction, he saw the accused stabbing the deceased near St.Joseph L.P. School. PW2 was specific in his deposition that the accused inflicted one stab on the left side of the chest, two stabs beneath the left underarm and one stab on the lower back, and on account of the impact of the said injuries, the deceased fell on the bicycle. It was deposed by PW2 that thereafter, the accused proceeded further towards Aithiyoor direction. PW2 affirmed in his evidence that by that time, hearing the scream of the deceased, PW1 and others came to the scene. PW2 identified MO2 as the weapon used by the accused to inflict the stab injuries on the deceased. PW2 also affirmed in his evidence that the deceased was taken to KIMS Hospital by PW1 and Hashim and he followed them in a bike. PW2 also deposed that when the victim was taken to the Medical College Hospital by an ambulance, PW2 accompanied the victim in the ambulance and the victim was conscious at that time. PW2 identified the Crl.Appeal No.706 of 2017 -: 10 :- accused in the dock and also affirmed that the accused is known as 'Poo' in the locality. 11. PW5 is a person residing in the locality of the accused and the deceased. PW5 deposed that on the previous day of the occurrence, the accused passed urine on the side of the road and there was an altercation between the accused and the deceased in connection with the said conduct of the accused and they were pulled apart by the people who assembled there. In cross-examination, PW5 clarified that the accused passed urine on the side of the road leading to the house of the deceased. 12. PW14 was the investigating officer in the case. PW14 deposed that during the interrogation after the arrest, the accused informed him that the accused had concealed a knife at a place on the Balaramapuram ITU road and that the accused could produce the same, if he is taken to the said place. It was deposed by PW14 that pursuant to the said information, the accused was taken there and MO2 knife was recovered as per Ext.P6 mahazar. Ext.P6(a) is the disclosure allegedly made by the accused to PW14 which led to the recovery of MO2 knife. PW7 is a witness to Ext.P6 mahazar and Crl.Appeal No.706 of 2017 -: 11 :- he affirmed the same in his evidence. 13. Let us now deal with the evidence let in by the accused. The witness who was examined as DW1 on the side of the accused was the Associate Professor in the Department of Thoracic Surgery attached to the Medical College, Thiruvananthapuram. DW1 made available Ext.D3 case sheet of the deceased. It was deposed by DW1 that the deceased was admitted in the said hospital on 06.04.2010 at 7.30 p.m. and the cause of the injury is recorded in Ext.D3 as “assault by a known person at Balaramapuram at 7.15 p.m. on 06.04.2010”. DW1 deposed that he attended the patient inside the operation theatre. Even though DW1 deposed that the patient died due to cardiac arrest, it was clarified by him that the cardiac arrest occurred due to the injury sustained and consequent blood loss. It was also clarified by DW1 in his evidence that at the time of admission, the patient was conscious and oriented. 14. As noted, the pointed question is whether the prosecution has established beyond reasonable doubt that it was the accused who caused the death of the victim by inflicting the fatal injuries suffered by him. It is placing reliance Crl.Appeal No.706 of 2017 -: 12 :- on the evidence discussed above that the prosecution attempted to make out their case that it was the accused who caused the death of the victim, and it is by accepting the said evidence that the Court of Session came to the conclusion that it was the accused who caused the death of the victim. 15. All witnesses are not expected to possess a photographic memory to recollect the finer details of an occurrence, for the power of observation differs from person to person. What one may notice, may not be noticed by another. A witness is expected to recall only the essence of what he has heard or seen. As regards the time and duration of an occurrence, the evidence would be based on an estimation by witnesses. Ordinarily, a witness cannot be expected to recall with precise finer details, the sequence of events that took place in rapid succession or in a short span of time. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination and out of nervousness, he/she is likely to mix up facts, get confused regarding the sequence of events or to fill up details from imagination on spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of Crl.Appeal No.706 of 2017 -: 13 :- looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him [See **Lal Bahadur v. State (NCT of Delhi)** , (2013) 4 SCC 557]. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, in the circumstances, shall not be a ground on which the evidence can be rejected in its entirety. Similarly, mere marginal variations in the statements of a witness cannot be taken as improvements, as the same may be elaborations of the statement earlier made by the witness [See **C. Muniappan v. State of T.N.** , (2010) 9 SCC 567]. In other words, what is expected from the court is to sift the evidence and separate the truth from untruth, exaggerations and improvements and arrive at the conclusion as to whether the residuary is sufficient to convict the accused. 16. Keeping in mind the principles aforesaid, let us now consider the question whether the evidence aforesaid is sufficient to justify the conclusion arrived at by the Court of Session that it was the accused who caused the death of the victim. As noted, the motive for the occurrence as alleged by Crl.Appeal No.706 of 2017 -: 14 :- the prosecution is that on account of the enmity towards the victim for having warned the accused against passing urine in public places against the tenets of Islam, the accused caused the death of the victim. It has come out from the evidence of PW5 that on the previous day of the occurrence, the accused passed urine on the side of the road leading to the house of the victim and there was an altercation on the account of the said reason between the accused and the victim. The evidence of PW5 thus establishes the motive for the crime. 17. As regards the occurrence, PW1 did not depose that he saw the occurrence. But, that does not mean that his testimony is of no use for the prosecution. The altercation that took place between the accused and the deceased immediately prior to the occurrence, being a conduct of the accused which influences the fact in issue, namely as to who caused the death of the victim, is relevant and therefore, admissible under Section 8 of the Indian Evidence Act. Likewise, as noticed, PW1 testified in his evidence that when he rushed to the scene of occurrence on hearing the scream, and lifted the deceased, the latter told him “മകള�, പ എള� കത�. The statement made by the victim to PW1 being a statement Crl.Appeal No.706 of 2017 -: 15 :- as to the circumstances of the transaction which resulted in the death of the victim, it is admissible under Section 32(1) of the Indian Evidence Act. The attempt of the counsel for the accused during the cross-examination of PW1 was to establish that it was not PW1 who took the deceased to the hospital. Nothing was however brought out in the cross-examination of PW1 to doubt the veracity of the said aspect. No doubt, it was brought out in the cross-examination of PW1 that he is an activist of 'SDPI' and that he is an accused in a case registered against the activists of the said organisation for attempting to commit murder of a Congress worker. That by itself is not sufficient, according to us, to reject the evidence tendered by PW1. In short, we have no reason to disbelieve the evidence tendered by PW1 as regards the prior conduct of the accused as also the statement made by PW1 that it was the accused who inflicted the fatal injuries on the deceased. 18. Coming to the evidence of PW2, as noticed, he testified that he too witnessed the altercation between the accused and the deceased and after sometime, while he was proceeding along with one Hashim towards Aithiyoor direction, he saw the accused stabbing the victim. PW2 also corroborated -: 16 :- Crl.Appeal No.706 of 2017 the evidence tendered by PW1 that the latter reached the scene of occurrence on hearing the screaming of the deceased. It is seen that the attempt of the counsel for the accused during the cross-examination of PW2 was to establish that he did not see the occurrence and that as an SDPI activist, he is supporting the case of the prosecution to help PW1, who is also an activist of SDPI. Nothing was however brought out in the cross-examination of PW2 to doubt the veracity of the evidence tendered by PW2 that he saw the occurrence. Further, PW2 emphatically denied the suggestion that he is a close friend of PW1 and an activist of 'SDPI'. 19. The learned counsel for the accused contended that the stand taken by PW2 in his evidence was that he did not hear any scream from the place of occurrence, whereas the stand of PW1 was that he heard a scream and it is on hearing the said scream that PW1 rushed to the scene. The argument advanced by the learned counsel was that the evidence tendered by PW1 and PW2 are, therefore, mutually destructive. There is no merit in this argument. While narrating the occurrence, PW2 categorically deposed that PW1 reached the scene of occurrence on hearing the screaming of the -: 17 :- Crl.Appeal No.706 of 2017 deceased. Of course, PW2 has stated in his cross-examination that he did not hear the scream. A reading of the entire evidence of PW2 would indicate that the answer given by PW2 in cross-examination as referred to above, in all probability, might have been given without understanding the question. 20. The specific stand taken by PW1 in his crossexamination was that he was not aware of the particulars of the persons who saw the occurrence, at the time when he gave the statement to the police. According to the learned counsel, PW2 is a person who was very much with PW1 to take the deceased to the hospital, and if PW2 had actually seen the occurrence, PW2 would have certainly disclosed the said fact to PW1, and in that event, PW1 would have disclosed the said information to the police while giving the statement. The submission made by the learned counsel is that inasmuch as PW1 did not disclose to the police that PW2 saw the occurrence, it has to be understood that PW2 did not see the occurrence at all. The argument aforesaid proceeds on the premise that there must have certainly been a communication between PW1 and PW2 as to whether PW2 saw the occurrence, before PW1 gave the statement to the police. As the -: 18 :- Crl.Appeal No.706 of 2017 possibility of the absence of such a communication cannot be ruled out, we are not impressed by the argument. In short, we do not find any reason to disbelieve the evidence tendered by PW2 that he saw the occurrence. 21. As noticed, the evidence tendered by PW14, the investigating officer would indicate beyond doubt that during interrogation, the accused informed him that he had concealed a knife at a place on the Balaramapuram ITO road and that he could produce the same if he is taken to the said place, and pursuant to the said information, the accused was taken to there and MO2 knife was recovered. The evidence tendered by PW14 in this regard was attacked mainly on two grounds. The first ground of attack is that PW2 deposed in cross-examination that the accused left the scene after leaving the weapon at the scene itself. The second ground of attack is that inasmuch as the accused did not specifically state the place where the weapon was concealed in his disclosure statement, it could not have been recovered by PW14 without the aid of the accused and PW14 did not say in his evidence that the weapon was shown to him by the accused. We are not examining the sustainability of the said arguments, for, even if -: 19 :- Crl.Appeal No.706 of 2017 it is held that the evidence tendered by PW14 as regards recovery of the weapon would not fall under Section 27 of the Indian Evidence Act, the conviction of the accused is not liable to be set aside, for we find that the conviction would certainly rests on the evidence tendered by PW1 and PW2. In the light of the discussion aforesaid, we do not find any merit in this appeal and the same is accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **M.B.SNEHALATHA, JUDGE.** ds 04.06.2024