Ajithkumar @ Aji S/o Parameswaran Nair v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** **CRL.A.No.51 of 2015** **AGAINST THE JUDGMENT IN SC 29/2010 of ADDITIONAL SESSIONS COURT-I, KOTTAYAM DATED 26-11-2014** **(CP 55/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, PALA)** **CRIME No.479/2009 OF Pala Police Station** ## **APPELLANT:ACCUSED:** **AJITHKUMAR @ AJI S/O.PARAMESWARAN NAIR, THIRUVATHICKALVEEDU, KADAPPATTOR KARA, MEENACHIL VILLAGE.** **BY ADVS. SRI.P.R.AJITHKUMAR SRI.K.MANOJ CHANDRAN** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031.** **BY SRI.S.U.NAZAR-SR.PUBLIC PROSECUTOR** ## **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **18.06.2019, THE COURT ON 01.07.2019 DELIVERED THE FOLLOWING:** CRL.A.NO.51 OF 2015 :-2-: ## **J U D G M E N T** ## **N.Anil Kumar, J:** In this appeal, the appellant, who was the first accused in S.C.No.29/2010 on the file of the court of Additional Sessions Judge-I, Kottayam, challenges the conviction entered and sentence passed against him under Sections 324 and 302 of IPC. Altogether there are two accused in the above case and first accused was convicted and the second accused was acquitted by the trial court. 2. The case of the prosecution can be summarised as follows:- On 29.7.2009 at about 21.00 hours, PW1, Ramesh, PW2 Sunil, PW3 Jomon and the deceased were standing at the veranda of shop bearing Door No.6/359 of Mutholy Panchayath. The aforesaid shoproom was one of the shoprooms in the building owned by the Kadappattoor Temple. The building was situated on the western side of the temple. Accused Nos.1 and 2 together reached there in an autorickshaw in front of the shoproom and the second accused asked, who was standing at the veranda of the shop. PW1 replied that they were also hailing from the very same place. Irritated by the answer, the first accused stabbed PW1 with MO1 knife causing injury to him on the abdomen. Immediately thereafter, the first accused criminally trespassed into the veranda of the shop and stabbed Sujith@Anikuttan on the left side of the chest with MO1 knife. The first accused also stabbed PW2 on CRL.A.NO.51 OF 2015 :-3-: the left side of his body causing grievous hurt to him and thus attempted to murder him. Sujith@Anikuttan died around 21.20 hours on the same day on account of the injury sustained to him. The accused 1 and 2 have thereby committed offences punishable under Sections 447,302,307 and 324 read with 34 IPC. 3. Ext.P1 First Information Statement was given by PW1 Ramesh, an eye witness. He gave the First Information Statement to PW18, the Assistant Sub Inspector of Police, Pala Police Station. PW20 registered Ext.P22 FIR on the basis of Ext.P1 F.I.Statement. PW19, who was the Circle Inspector of Police, Pala commenced the investigation on 30.7.2009. On that day, at 9 p.m. he had made inquest over the dead body of the deceased from the mortuary of the General Hospital, Pala, and prepared Ext.P4 inquest report. While doing so, PW19 seized MO5 shirt and MO6 lungi worn by the accused. On the same day at 12.30 noon, PW19 inspected the scene of occurrence and prepared Ext.P3 mahazar. PW19 seized MO8 parts of cement plastering which contains bloodstains from the scene of occurrence. He questioned the witnesses. At 3.30 p.m., he arrested the first accused from the Kurisupally region at Pala. After arrest in accordance with law, body search of the first accused was done. PW19 seized MO1 folding knife and Rs.670/- from the accused in the presence of witnesses by Ext.P5 mahazar. On being questioned, the first accused has confessed that bloodstained shirt and dhothi were entrusted to one Sabu of Ettumanoor, who was working CRL.A.NO.51 OF 2015 :-4-: under him for dry cleaning and he would show the same if he was taken there. Based on the confession, PW19 proceeded to Ettumanoor and reached the residence of Sabu bearing Door NO.4/517 and recovered MO2 shirt and MO3 dhothi in the presence of witnesses by Ext.P13. Thereafter PW19 arrested the second accused on 30.7.2009 around 5 p.m. On 1.8.2009, PW19 seized the shirts worn by PWs.1 and 2 by Ext.P17. PW19 questioned the witnesses, recorded the statement, completed the investigation and filed the final report before the Judicial First Class Magistrate Court, Pala. During investigation stage, as indicated earlier, the first accused was arrested on 30.7.2009. He was produced before the learned Magistrate on 30.7.2009 and remanded to judicial custody. He was released on bail on 13.10.2009. 4. Consequent to the final report before the learned Magistrate, after complying with the usual formalities, on 29.1.2010, the learned Magistrate committed the case to the Court of Sessions, Kottayam. Upon committal, the learned Sessions Judge took cognizance of the offences under Sections 447, 302,307 and 324 read with 34 IPC and issued summons to the accused. Pursuant to the summons, the accused entered appearance. After having heard both sides, the charge was framed under Sections 447,302,307 and 324 read with 34 IPC. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. 5. The prosecution altogether examined 20 witnesses as PWs.1 to CRL.A.NO.51 OF 2015 :-5-: 20 and got marked 22 documents as Exts.P1 to P22 and 8 material objects as MOs.1 to 8. After the closure of the prosecution evidence, the first accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. The first accused stated that he did not either remember or know any of the circumstances put to him. To some of the questions asked, he did not give any answer at all. The first accused filed a statement before the court below raising the following contentions:- On 29.7.2009 at about 20.30.hours the first accused reached Pala where he saw the second accused. The first accused along with the second accused reached in front of the shop of the second accused at the western side of Kadappattoor tample in the autorickshaw hired by the second accused. The second accused, after assuming that somebody was drinking liquor at the veranda of the shop, had asked who was there. When the first accused proceeded towards the building of the Post Office in the opposite side, the persons, who were sitting at the veranda of the shop, came behind him and they were PW1, PW2 and one Anikuttan. PW1 abused him and caught hold of the shirt of the first accused and pulled him to the courtyard of the Post Office building. Resultantly, a scuffle ensued and they assaulted the first accused and while so, he fell down along with PW2 and Anikuttan. First accused stated that the person, who was residing in the Post Office building and their friend also CRL.A.NO.51 OF 2015 :-6-: came and assaulted him. In the meanwhile, PW2 stood up noting that blood coming from the side of the body of the first accused. Anikuttan then sat on the veranda of the Post Office building stating that he was stabbed. Then, PW1 and his friend, who was residing in the Post Office building ran away from the place. Thereafter, he got up and apprehending threat to his life, he ran towards east direction. PW2 and Anikuttan chased him and when they reached near the veranda of the shop room in which they were earlier sitting, Anikuttan lay on the floor of the shop. The first accused reached his house. On the next day, he came to know from the newspaper that Anikuttan died and that he was implicated as the accused in the case. He stated that he had not stabbed with MO1 knife produced in this case as alleged by the prosecution. 6. The learned Sessions Judge, who conducted the trial did not consider this as a fit case for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce evidence which he might have in support thereof. No oral or documentary evidence was adduced by the accused to prove his contentions in the statement filed before the trial court. 7. After the conclusion of trial, the learned Addl.Sessions Judge as per judgment dated 26.11.2014 convicted the appellant/the first accused for the offences punishable under Sections 302 and Section 324 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,20,000/- and in default of payment of fine, to undergo rigorous CRL.A.NO.51 OF 2015 :-7-: imprisonment for a period of one year for the offence punishable under Section 302 IPC. He is also sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 324 of IPC. The substantive sentences of imprisonment were ordered to run concurrently. The trial court found the first accused not guilty of the offences punishable under Sections 447 and 307 of IPC and he is acquitted in respect of those offences. The second accused was found not guilty of the offences punishable under Sections 447,324,307 and 302 read with 34 of IPC and he was therefore acquitted. 8. The following points arise for consideration in this appeal. - (1)Has the prosecution succeeded in proving that Sujith@Anikuttan died as a result of sustaining homicidal injuries at about 21.20 hours on 29.7.2009 as alleged by the prosecution? - (2) Has the prosecution proved that the accused intentionally and knowingly caused the death of Sujith@Anikuttan by stabbing him to death and he has thereby committed the offence of murder punishable under Section 302 of IPC? - (3) Are the conviction entered and the sentence passed against the appellant sustainable? 9. The fact that Sujith @ Anikuttan died as a result of homicidal stab injuries sustained by him on 29.7.2009 at 21.20 hours is CRL.A.NO.51 OF 2015 :-8-: undisputed. Inquest over the dead body of the deceased was held by PW19 on the forenoon on 30.7.2009 at 9 a.m. on the mortuary of the General Hospital, Pala. Ext.P4 is the inquest report prepared by PW19. Against column Nos.7 and 8(a) of Ext.P4 inquest report, PW19 has described the fatal injuries on the body of the deceased. Against Column No.11 pertaining to the apparent cause of death of the deceased, PW19 has concluded that the deceased died as a result of the severe injuries sustained to the chest. Autopsy over the deadbody of the deceased was conducted by PW17 Dr.Tomy Mappalakayil, Associate Professor of Forensic Medicine and Deputy Police Surgeon of the Medical College, Kottayam between 11.30 am and 12.30 pm on 30.7.2009 at the Medical College Hospital, Kottayam. The postmortem examination revealed the following:- _**“**_ **A. GENERAL :** Body of a moderately built and nourished male weighed 80 kg. and having a length of 178 cm. Corneae hazy, finger nails blue. Other external body orifices appeared normal. Rigor mortis established and retained all over, post mortem staining on back-fixed. ## **B. Injuries (Ante-Mortem)** 1. A stab wound on front of left side of chest 2.5 x1.5cm. Vertical. The upper end blunt and lower end pointed. The wound 4.5 cm. outer to front midline and 1 cm. below collar bone.The wound pierced. The skin subcutaneous tissue, muscular tissue at first. Left inter costal space directed downwards and backwards entered the chest cavity and passed through the inner part of upper lobe of left lung 2.5 x 0.3cm. and cut open the upper part of pulmonary trunk 2.5x0.3cm. The left chest cavity contained 1.5 litre of fluid blood. The wound have a total minimum depth of 8.5cm. 2. An abraded contusion on front of right knee 0.5x 0.5cm. CRL.A.NO.51 OF 2015 :-9-: ## **C. OTHER FINDINGS :** The skull intact. The brain congested. The hyoid, Iarynx, thyroid and other soft tissues of neck were intact. Trachea and bronchi contained froth, mucosa appeared pale. The right lung weighed 550 gm. Left lung 500 gm. The lungs appeared pale. The heart walls, valves chambers and coronaries were normal. The liver weighed 1500gm. congested, biliary passages patent. Stomach and contents weighed 450 gm. Contained partly digested boiled ricy food materials and beefy materials, mucosa normal. No unusual smell. Urinary bladder empty. Genetal organs normal. All other organe congested; otherwise normal. ## OPINION AS TO CAUSE OF DEATH THE DEATH WAS DUE TO STAB INJURY SUSTAINED TO CHEST. _”_ 10. PW17 opined that the deceased died as a result of stab injury sustained to the chest. When examined before court, PW17 testified that injury No.1 could be caused with a weapon like MO1 and that the said injury is fatal and sufficient to cause death in the ordinary course of nature. In view of the above, there is overwhelming evidence to show that Sujith@Anikuttan died as a result of sustaining fatal stab injury on 29.7.2009 at about 21.20 hours. 11. PWs.1 and 2 are the witnesses, who sustained injuries in the occurrence. In the statement filed by the first accused under Section 313 Cr.P.C., the first accused has admitted the presence of PWs.1 and 2 at the time of occurrence, though he has made an attempt to give a different version of the incident. 12. Evidence in this case consists of both direct and circumstantial. CRL.A.NO.51 OF 2015 :-10-: PWs.1 to 3 are the occurrence witnesses. The main circumstantial evidence against the accused is the recovery of MO1 knife from his possession as per Ext.P5 mahazar. PW1, by and large, stuck to the narration of facts in Ext.P1 statement while giving evidence before the court below. According to him, the incident took place at about 21 hours on 29.7.2009 in front of the building owned by the Kadappattoor Devaswom. At that time, he was standing at the veranda of the aforesaid building. While so, along with PW1, Sujith @ Anikuttan, PW2 Sunil, Prasanth, Vysakh and Jomon were also there. Suddenly, the accused came there in an autorickshaw and A2 asked who was standing there. PW1 replied that they were also belonging to the said place. Irritated by the answer given by PW1, A1 uttered obscene words, took MO1 knife from his possession and stabbed PW1. By that time, A1 stabbed on the left side of the chest of Sujith@Anikuttan. On sustaining the injury, Anikuttan cried aloud and fell down on the floor. Although PW2 intervened and tried to prevent A1 from doing further illegal acts, A1 stabbed PW2 also. PW1 identified A1 and A2 before the trial court. PW1 also identified MO1 knife, MO2 shirt,MO3 dhothi,MO4 shirt, MO5 shirt, MO6 dhothi respectively before court. Identification made by PW1 during the course of examination has been seriously challenged in the crossexamination. On going through the evidence of PW1, it is very clear that PW1 substantially stuck to the version in his First Information Statement. However, he came out with an improvement that he had not told the CRL.A.NO.51 OF 2015 :-11-: Police that it was after trespassing into the veranda of the building that the first accused stabbed him. This is only an omission which cannot be treated as a contradiction, which affects the credibility of the witness touching the occurrence. Verbatim reproduction of facts in his First Information Statement during examination is an impossibility. Such a test is not contemplated in law. 13. PW15, Dr.Mini.P.Joy examined PW1 on 29.7.2009 while she was working as Assistant Surgeon in the General Hospital, Pala and issued Ext.P7 wound certificate. On examination, she had noted abrasion just above umbilicus on right side 1cm size skin deep on the body of PW1. The cause alleged in Ext.P7 is attempted assault by one Aji. She opined that the injury noted is to be caused by MO1. On the same day at about 9.30 p.m. she had examined PW2 Sunil and issued Ext.P8 wound certificate noting lacerated and punctured wound on the left infra axillary area communicating with plural cavity. Since PW2 was in a critical stage, according to PW15, he was referred to Medical College Hospital, Kottayam after giving first aid. Cause of alleged injury was stabbing by Aji near Kadappattoor Temple. PW15 further opined that the injury noted in Ext.P8 certificate could be caused by using MO1 knife and the injury noted would have caused the death of the injured. 14. PW1 testified that when A1 stabbed him, he warded off the blow with his hand and then the knife caused injury on the right side of his abdomen. The evidence of PW15 along with Ext.P7 wound certificate CRL.A.NO.51 OF 2015 :-12-: would show that PW1 was examined in the hospital at 23.35 hours on 29.7.2009 and then an abrasion of the size 1 cm just above the right side of the umbilicus of PW1 was found. The fact that PW1 warded off the blow dealt by the first accused would clearly establish the fact that he sustained only an abrasion. PW2 Sunil supported the case advanced by PW1. His evidence tallies with the evidence tendered by PW1 in material particulars. According to him, after sustaining injury, initially he was taken to the Government Hospital, Pala from where he was referred to the Medical College Hospital, Kottayam. On the next day, he came to know that Sujith@Anikuttan had passed away. PW2 also identified the material objects before court. PW13 Dr.A.N.Susheel while working as Senior Lecturer, General Surgery, Medical College Hospital, Kottayam had issued Ext.P9 discharge certificate to PW2 on 13.8.2009. Ext.P9 would reveal that PW2 was admitted in the hospital on 29.7.2009 and was discharged on 1.8.2009. 15. Coming to recovery, PW19 arrested the accused from a place near to the Church at Pala. On conducting search of the body of the accused, MO1 knife was found and that he seized it as per Ext.P5 mahazar in which PW13 is a signatory. PW13 identified in the court below that MO1 was recovered from the accused by the Police. PWs.1 and 2 further identified in the court, MO2 shirt and MO3 dhothi purchased from the textile shop owned by PW9 in Ettumanoor. MO2 shirt and MO3 dhothi were also sent for chemical examination to the Forensic Science CRL.A.NO.51 OF 2015 :-13-: Laboratory, Thiruvananthapuram. Ext.P21 report received from the Forensic Science Laboratory would indicate that there were bloodstains on MO2 shirt and on MO3 dhothi. Going by the evidence, there are sufficient materials to believe the evidence of PW19 touching the recovery of MO2 shirt and MO3 dhothi. His evidence is corroborated by the evidence of PW8 as well. 16. The evidence of injured witnesses must be given due weightage as their presence in the place of occurrence cannot be doubted. PWs.1 to 3 sustained injuries in the very same occurrence. Their evidence is reliable and it is unlikely that they have spared the actual assailants in order to falsely implicate someone else. It is settled principle of law that the testimony of an injured witness has its own relevancy 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, PWs.1 to 3 come with a built-in-guarantee of their presence at the scene of occurrence and are unlikely to spare their actual assailants in order to falsely implicate someone. No convincing evidence is adduced to discredit PWs.1 to 3. No major contradictions and discrepancies are brought out to discard their evidence. PWs.5 and 6 are the witnesses examined by the prosecution to prove motive. PW5, who is the father of PW2 and PW6 adduced evidence regarding the occurrence. The sum and substance of their evidence is that A1 assaulted PW6 during the festival in the Kadappattor temple and then, PW6 sought the help of CRL.A.NO.51 OF 2015 :-14-: PW5 and then PW5 removed A1 and bet A1 twice. However, there is nothing on evidence to show that the first accused had any reason to have enmity towards PW1 or the deceased. The only legal inference for his enmity towards them would have their friendship with PW2. Motive is not relevant invariably in all circumstances, where there is clear evidence that the person has committed the offence, it is immaterial where no motive for the commission of the crime has been shown. Failure to discover the motive of the offence does not signify the non-existence of the crime. When facts are clear, it is immaterial that no motive has been proved. Going by the direct evidence and the circumstances proved by the prosecution, we have no hesitation to hold that it was the accused who committed the murder and in that view of the matter, absence of motive is immaterial. 17. Once it is proved by the prosecution that the accused was present at the time of occurrence and the deceased suffered a homicidal death, the burden was heavy on the part of the accused to show how the deceased suffered a homicidal death. The injuries inflicted all over his body as held by the trial court were caused by attacking him forcibly is a strong circumstance against the accused, which cannot be ignored lightly. 18. The contention next raised is that the appellant had no intention to cause death because he did not intend to cause injuries to any vital part of the body of the deceased. According to the rule laid down in **Virsa Singh v. State of Punjab [AIR 1958 SC 465]** even if the intention of the CRL.A.NO.51 OF 2015 :-15-: accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be of murder. To consider as to whether the act was done with the intention of causing death, all the acts, utterances and circumstances could be counted together. PW15, the Doctor, who conducted the postmortem examination categorically deposed before the court below that injury No.1 sustained by the deceased on the chest is sufficient in the ordinary course to cause death. No evidence was adduced by the accused to show that he did not contemplate that the death was likely to result or acted as a reasonable man. On going through the evidence of PW15, it is clear that the accused inflicted grievous injury on the chest of the deceased with MO1 knife and the nature of the overt act suggests that the act was an impulsive act and rather the manner in which the act was done clearly establish that the act was a premeditated one. In the case at hand, the injury sustained to the deceased was sufficient in the ordinary course of nature to cause death. There is nothing to show that injury was caused accidentally or negligently. In the decision reported in **Pulicherla Nagaraju@Nagaraja Reddy** v. **State of A.P.** [(2006) 11 SCC 444], the Apex Court held that whether there was an intention to cause death has to be gathered from several circumstances and one of the circumstances mentioned is whether the weapon was carried by the accused or was picked up from the spot. In the case on hand, it is brought out that MO1 was carried by CRL.A.NO.51 OF 2015 :-16-: the appellant right from the beginning and that may be one of the circumstances to indicate that there was an intention to cause death if it was used for attacking the deceased on the vital parts of his body. The act of complete destruction of most vital parts of the body in the manner indicated in Ext.P10 Postmortem Certificate could never be termed as intending to cause bodily injury alone and rather we should say it was an act done with an intention of causing death. Prosecution has succeeded in proving express and implied malice on the part of the accused. Since the injury was caused in such a brutal manner, we find no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the appellant or its consequences. In view of the above, we are of the view that there are no sustainable grounds to alter the conviction of the accused from one under Section 302 to that under Section 304 Part II of IPC. In our opinion, the judgment and order of conviction passed by the trial court was based on proper appreciation of evidence. Irrelevant details which do not in any way corrode the credibility of the witnesses cannot be labelled as omissions or contradictions. Difference in some minor details which does not otherwise affect the credit of the prosecution case, even if present, would not itself prompt to reject the evidence on minor variations. In the instant case we have not come across any major contradictions either in the evidence of the witnesses or in the medical or ocular evidence. CRL.A.NO.51 OF 2015 :-17-: In view of the above, we do not find any merit in this appeal. The judgment and order of conviction of the trial court dated 26.11.2014 is affirmed in its totality. The appellant will suffer the remaining sentence imposed by the court below. Sd/- **A.M.SHAFFIQUE, JUDGE** Sd/- **N.ANIL KUMAR, JUDGE** MBS/