Brilliant 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 22ND DAY OF JULY,2019/31ST ASHADHA, 1941** **CRL.A.No.194 of 2015** **[AGAINST THE ORDER IN CP 153/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS,SASTHAMCOTTA** ## **&** **AGAINST THE JUDGMENT IN SC 1226/2012 of ADDITIONAL SESSIONS COURT - IV, KOLLAM DATED 06-03-2014** **CRIME NO.608/2012 OF Sasthamcotta Police Station,Kollam]** ## **APPELLANT:** **BRILLIANT, AGED 37 YEARS, S/O. SADASIVAN,BRILLIANT VILASAM,** **PADINJATTUMMURI,KUNNATHOOR VILLAGE, KUNNATHOOR TALUK, MANAMPUZHA PO, KOLLAM DISTRICT PIN-695 553** **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, SASTHAMKOTTA POLICE STATION (CRIME NO.608/12), KOLLAM DISTRICT THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031** ## **OTHER PRESENT:** **PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, THE COURT ON 22.07.2019 DELIVERED THE FOLLOWING:** Crl.A.No.194 of 2015 :-2-: **A.M.SHAFFIQUE & N.ANIL KUMAR,JJ. ------------------------------------------------------Crl.A.NO. 194 of 2015 ------------------------------------------------------Dated this the 22[nd] day of July, 2019** ## **J U D G M E NT** ## **N.ANILKUMAR,J:** The appellant, who was the sole accused in S.C.No.1226/2012 in the court of Additional Sessions Judge-IV, Kollam, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 302 and 447 of the Indian Penal Code, 1860 (for short 'the IPC'). 2. The prosecution case in brief is that on 20.6.2012 at 19.50 hours, accused trespassed into the courtyard of the house of Kunjumol@Vijayalakshmi bearing Door No.440 in Ward No.I of Kunnathoor Grama Panchayath and stabbed on the left side of the abdomen of the aforesaid with MO4 knife and as a result of which, Kunjumol@Vijayalakshmi succumbed to the injuries on 21.6.2012 at 1.50 am while undergoing treatment at Padmavathi Hospital at Sasthamcotta. It is further Crl.A.No.194 of 2015 :-3-: alleged that the accused used to trouble deceased Kunjumol@Vijayalakshmi and her daughter PW3, for which they filed complaint before the Police earlier. Besides that, Kunjumol@Vijayalakshmi used to give shelter in her house to the mother of the accused. Due to the above enmity, the accused trespassed into the courtyard of the house of Kunjumol@Vijayalakshmi and committed the aforesaid offences punishable under Sections 447 and 302 of the Indian Penal Code. 3. Ext.P1 First Information Statement was given by PW1 Viswanatha Pillai, an independent witness residing at his house on the east north direction, nearly 4 to 5 houses from the house of the deceased. PW1 lodged Ext.P1 First Information Statement before PW19, the then Assistant Sub Inspector of Police, Sasthamcotta Police Station on 20.6.2012 at 2.30 am in the night. He recorded the statement of PW1 and lodged FIR for the offences punishable under Section 447 and 302 of the Indian Penal Code. PW22, who was the then Circle Inspector of Police, Sasthamcotta Police Station commenced the Crl.A.No.194 of 2015 :-4-: investigation on 21.6.2012. On that day, he prepared Ext.P3 inquest report in the presence of PW7. He visited the place of occurrence and prepared Ext.P4 scene mahazar in the presence of PW9 and took custody of the blood stained MO7 sand identified by PW13, Scientific Assistant. He also recovered blood stained MO2 towel from the platform of the well on the northern side. He further recovered MO5 lungi from the occurrence place. On 22.6.2012, PW22 recovered MOs.1 to 3 and MOs.5 and 6 clothes worn by the victim by Ext.P10 mahazar. 4. In the meanwhile, on 22.6.2012, the Station House Officer attached to the Police Station, Sasthamcotta PW21 received reliable information from the Cybercell that the accused was present at the KSRTC Bus Station, Ernakulam. He proceeded to the place and arrested the accused by Exts.P14 arrest memo, P15 custody memo and P16 inspection memo respectively. On 23.6.2012, PW21 produced the accused before PW22. PW22 recorded the confession statement of the accused. As per the confession made by the Crl.A.No.194 of 2015 :-5-: accused that MO4 was concealed in the septic tank on the northern side of his house, PW22 proceeded to the place as led by the accused where the knife was kept and recovered MO4. Later, the accused was produced before the learned Judicial First Class Magistrate, Sasthamcotta. The accused was remanded to judicial custody. Before the death of victim Kunjumol@Vijayalakshmi, she filed Ext.P2 complaint before the Sub Inspector of Police, Sasthamcotta alleging that she and her two female children had been apprehending danger to their life from the accused. PW22 recovered Ext.P2 and produced before the court. The material objects produced before the court were forwarded to the Forensic Laboratory, Thiruvananthapuram by Ext.P19. After completing the examination, the Forensic Science Laboratory sent Ext.P21 report to the court. PW22 questioned the witnesses, recorded their statements and filed final report before the learned Judicial First Class Magistrate, Sasthamcotta whereupon the learned Magistrate took cognizance of the offences under Sections 447 and 302 IPC and numbered the case as C.P.No.153/2012. By order dated 1.11.2012, the learned Crl.A.No.194 of 2015 :-6-: Magistrate committed the case to the Sessions Court, Kollam after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence as aforesaid and registered the case as S.C.No..1226/2012 from where the case was made over to the Additional Sessions Judge-IV, Kollam for trial and disposal. 5. The accused entered appearance before the Sessions Court through a counsel of his own choice. After having heard both sides, charge under Sections 447 and 302 of IPC was framed against the accused on 13.9.2013. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. 6. Prosecution altogether examined PWs.1 to 22 and got marked Exts.P1 to P23 and 23(a) and 7 material objects as MOs.1 to 7. 7. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing in the evidence for the prosecution. His defence is one of total denial Crl.A.No.194 of 2015 :-7-: and maintained that he is innocent. 8. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 Cr.P.C. The accused was therefore called upon to enter upon his defence and adduce evidence which he might have in support thereof. However, no defence evidence was adduced. After conclusion of the trial, the learned Additional Sessions Judge by judgment dated 6.3.2014 convicted and sentenced the accused to undergo rigorous imprisonment for three months for the offence punishable under Section 447 of IPC and imprisonment for life and to pay fine of `20,000/-, in default to undergo rigorous imprisonment for 4 months for the offence punishable under Section 302 IPC. The above sentences were ordered to run concurrently. 9. We heard Sri.Manju Antoney, learned counsel for the appellant/accused and Sri.K.B.Udayakumar, the learned Senior Public Prosecutor appearing for the State. 10. The following points arise for consideration in this appeal:- Crl.A.No.194 of 2015 :-8-: 1. Whether the prosecution has succeeded in proving that Kunjumol@Vijayalakshmi died as a result of sustaining homicidal injuries on 21.6.2012 at about 1.50 a.m.? 2. Whether the accused criminally trespassed into the residence of the victim on 20.6.2012 at 19.50 hrs.? 3. Whether the prosecution has succeeded in proving that the accused intentionally and knowingly caused the death of Kunjumol@Vijayalakshmi by stabbing her to death? If so, has he committed the offence of murder punishable under Section 302 of IPC.? 4. Are the conviction entered and sentence ordered sustainable? 11. The fact that Kunjumol@Vijayalakshmi died as a result of homicidal injuries on 21.6.2012 at 1.50 am is undisputed. PWs.2,3 and 4 are eye witnesses to the occurrence. Ext.P3 inquest report and Ext.P8 Postmortem Certificate would indicate that the victim sustained homicidal injuries. As narrated earlier, Ext.P3 inquest report was prepared by PW22 the Circle Inspector of Police, Sasthamcotta in the presence of PW8 immediately after the death of the victim. In Ext.P3 inquest report in Columns 7,8 and 8(a), PW22 noted stab injury on the abdomen of Kunjumol@Vijayalakshmi. Crl.A.No.194 of 2015 :-9-: Column No.11 in Ext.P3 is pertaining to the apparent cause of death. PW22 noted that the victim died of stab injury inflicted by the accused with a knife. 12. PW14 Dr.K.S.Meena, Associate Professor of Forensic Medicine, Medical College, Thiruvananthapuram conducted autopsy on the body of the deceased and prepared Ext.P8 postmortem certificate. PW14 noted the following ante mortem injuries on the body of the deceased. ## “ **INJURIES** (ANTE-MORTEM):- 1. Incised penetrating wound, sutured, 3.5cm long, oblique on the left side of abdomen, its upper inner sharp end 14 cm outer to midline and just below the costal margin. The lower outer end was rounded. The abdominal cavity was seen penetrated by piercing the diaphragm, punctured back wall of stomach and adjacent part of greater curvature (11cm from the cardiac end and was seen sutured for a length of 2cm), outer wall of aorta (1x0.2cm) and terminated in the inner surface of back wall (1x0.5cm). The wound was directed backwards and to the right for a total minimum depth of 7.5 cm. Abdominal cavity contained 10ml of blood stained fluid. 2. Sutured surgical laparotomy wound, vertical limb 25cm long on the front of abdomen in midline, 19cm below top of breast bone, oblique limb on left side 10 cm long, joining with the vertical limb 6cm from its upper end. 3. Surgical drainage wound 2cm long on the left side of abdomen, 12cm outer to midline and 11cm below costal margin. Crl.A.No.194 of 2015 :-10-: 4. Surgical drainage wound 1.5cm long, on the right side of abdomen 12.5cm outer to midline and 14cm below costal margin. 5. Abrasion 1x1cm on the front and inner aspect of right wrist. 6. Contusion 3x2x0.3cm on the back of left arm 9.5cm above elbow. 7. Contusion 7x6.5x0.5cm on the back of head in midline 10cm above root of neck.” PW14 stated before the trial court that the death of Kunjumol@Vijayalakshmi was due to penetrating injury sustained on the abdomen. When examined before court, PW14 opined that the injury cited supra could be caused with a weapon like MO4 and the injury is fatal and sufficient to cause death in the ordinary course of nature. Thus it is clear that Kunjumol@Vijayalakshmi died as a result of sustaining fatal injuries on 21.6.2012 at 1.50 am. 13. PW1 is one of the independent witnesses examined in this case. Accused is his neighbour. While he was returning from a temple through the canal road on 20.6.2012 around 7.15 p.m., he had occasion to see the accused coming to the northern side of the house owned by Kunjumol@Vijayalakshmi in search of his mother. The mother of the accused was a Crl.A.No.194 of 2015 :-11-: frequent visitor to the house of Kunjumol@Vijayalakshmi whenever she was troubled by the accused. On seeing Kunjumol@Vijayalakshmi, the accused stabbed on her left side with MO4 knife and thereafter, ran towards his house along with MO4 knife. Consequently, Kunjumol@Vijayalakshmi fell down. According to PW1, after tying the wound with MO2 towel, she was taken to Padmavathi Hospital, Sasthamcotta in an autorickshaw. However, destiny determined otherwise. On 21.6.2012, Kunjumol @ Vijayalakshmi died. PW1 saw the occurrence from the electric light available at the residence. 14. PW2 is the husband of Kunjumol@Vijayalakshmi. He identified MO1 maxi, MO2 towel used to tie the wound sustained to Kunjumol@Vijayalakshmi, MO3 cloth kept on the body of the deceased and MO4 knife before court. PW2 stated before court that around 7.15 p.m. on 20.6.2012 while his wife was stitching clothes on the northern side of the sit out in a shed, he found the accused walking through the way uttering obscene words. While so, their children were studying at the sit out. Kunjumol@Vijayalakshmi told the accused that it was Crl.A.No.194 of 2015 :-12-: not proper for him to shower obscene words in front of her house especially when female children were at home. His wife told him that she would be constrained to inform his misbehaviour to the Police. To his surprise, after 15 minutes, the accused returned and came towards his house in search of his mother. Suddenly, he entered into the courtyard and stabbed on the left abdomen of his wife with MO1 knife. As a result of sustaining grave injury to his wife, she fell down. However, the accused ran away towards his house. Hence he extended help to tie the wound with MO2 towel and his wife was taken to Padmavathi Hospital, Sasthamcotta by an autorickshaw. Although a surgery was conducted at the hospital, his wife succumbed to the injuries around 2 a.m. on the same day. According to him, the accused had previous enmity towards his wife as she filed Ext.P2 complaint against him before Police. PW2 stated that the accused was inimical towards the family for giving asylum to his mother. He also identified MO5 lungi recovered by the Police from the accused. 15. In support of the evidence let in by PW2, PW3 who is Crl.A.No.194 of 2015 :-13-: the daughter of PW2 and the deceased Kunjumol@ Vijayalakshmi adduced evidence to show that the accused used to trouble her when she was returning from school for which her mother filed a complaint before the Police. She was an eye witness to the occurrence and stated verbatim reproduction of the facts narrated by PW2. She also identified MOs.1,2,4,5 and 6 before court. 16. PW4 is the uncle of PW2. He also supported the evidence let in by PWs.1 and 2. On a perusal of the entire evidence adduced by PWs.1 to 4, there are no material contradictions. Nothing is brought out in evidence to discredit their versions of the occurrence before the court. PWs.1 to 4 stated that there was electric light at the place of occurrence. The existence of electric light was supported by the version of PW11, the Assistant Executive Engineer, KSEB at Kadampanad. He issued Ext.P6 certificate stating that power supply was available at the place of occurrence from 7 p.m till 8.30 p.m on 20.6.2012. 17. PW10 prepared Ext.P5 report stating that no Crl.A.No.194 of 2015 :-14-: poison was detected on examination of four sealed bottles containing the viscera and contents of the deceased. PW15 examined the deceased on 20.6.2012 at 8.10 p.m. while he was working as Administrator of Padmavathi Medical Foundation, Sasthamcotta. He issued Ext.P9 wound certificate noting an injury on the abdomen and left lower chest of the victim 3x2 cm left subcostal region. 18. The proved circumstances in this case are the following:- 1. The accused committed the act of stabbing Kunjumol@Vijayalakshmi with a definite motive. 2. Apprehending danger, the victim filed Ext.P2 complaint before the Sub Inspector of Police, Sasthamcotta seeking protection for her life and children. 3. PWs.1 to 4 are the occurrence witnesses. They saw the accused stabbing the victim with MO4. 4. MO4 was recovered in accordance with the procedure prescribed under Section 27 of the Evidence Act. 5. After inflicting grievous injuries on the victim, the accused escaped from the scene of occurrence. 6. The conduct of the appellant/accused on the fateful day would indicate that he trespassed into the residence of the victim, went inside her Crl.A.No.194 of 2015 :-15-: house, took MO1 knife and inflicted fatal injury on the left side of the abdomen of the victim. 7. PWs.1 to 4 stated that the appellant trespassed into the residence of the victim and was present at the occurrence place. 8. PW14 stated that the injury found on the victim was antemortem and is sufficient to cause death. 9. PW2 and others took the deceased to the hospital and the appellant left the place immediately after the occurrence. - 10.PWs.1 to 4 stated in clear terms touching the sequence of events linking the accused with the commission of murder. 11. During the examination under Section 313 Cr.P.C. the accused did not set up a probable defence. - 12.MO5 lungi abandoned by the accused was seized by PW22 Circle Inspector of Police at the time of preparing Ext.P4 Scene Mahazar. MO5 was sent for examination before the Forensic Science Laboratory and Ext.P21 report was obtained. Ext.P21 FSL report discloses that it contained bloodstains of Group A which is consistent with the blood group of the victim in Ext.P8 postmortem report. Accused had no explanation as to how Group A was detected in MO5 used by him. 19. Challenging the appreciation of evidence and finding recorded by the learned trial judge, the learned counsel Sri.Manju Antoney appearing on behalf of the accused highlighted various points which, according to him, were Crl.A.No.194 of 2015 :-16-: wrongly relied on by the trial court for basing its judgment of conviction and order on sentence. According to the learned counsel, the accused was not present at the scene and date of occurrence. It is further contended that actually the victim sustained injury from the hands of PW2 on a quarrel and a false case was cooked up against the mentally challenged accused by influencing the police. According to the learned counsel, there is no motive or intention on his part to murder the victim. The alleged recovery made by PW22 in accordance with Section 27 of the Evidence Act lacks in material particulars, it has been contended. According to the learned counsel, PWs.1 to 4 are unreliable witnesses and there are no connecting links to connect the accused with the crime. 20. Per contra, the learned Public Prosecutor appearing on behalf of the State submits that the allegation of criminal trespass and murder are proved based on cogent and convincing evidence. The learned Public Prosecutor further submits that evidence tendered by PWs.1 to 4 are reliable and nothing is brought out in cross-examination to discredit the Crl.A.No.194 of 2015 :-17-: evidence tendered by them. It is also submitted that the recovery of material objects was effected in accordance with the scheme of the Evidence Act and the defence failed to challenge the mode of recovery effected by the Police before the trial court. It is thus submitted that the entire facts and circumstances inter alia would show that the murder was committed by the accused and none else. 21. For the present appeal, it would be suffice to notice the relevant evidence of eye witnesses and the recovery effected by the investigating officer in accordance with Section 27 of the Evidence Act. Ext.P3 inquest report and Ext.P8 Postmortem Certificate issued by PW14, Ext.P5 report of the Chemical Examiner, Ext.P9 wound certificate issued by PW15, Ext.P11(a) confession statement and recovery of MO4 knife by Ext.P11 mahazar and Ext.P21 FSL report and the material objects recovered also require a special notice. 22. In a case of direct evidence, the motive becomes immaterial. It is well settled proposition of law that the failure to discover the motive of an offence does not signify its non- Crl.A.No.194 of 2015 :-18-: existence. When facts are clear, it is immaterial that no motive has been proved. However, it is true that normally there is a motive behind every criminal act and that is why the court while examining the complicity of an accused, first try to ascertain as to what was the driving force which compelled the accused to commit the crime in question. In the case at hand, PWs.1 to 4 had seen the occurrence and they had narrated the incident. Ext.P2 petition was filed by the victim on 23.11.2010 before the Sub Inspector of Police, Sasthamcotta stating that the accused was causing trouble to the victim and her daughters. PW3 the daughter of the victim supported the version of PW2. As per the prosecution case, both parties were summoned to the Police Station and matter was settled by giving a warning to the accused. To prove the same, Ext.P23 petition register was marked. Ext.P23(a) entry would show that both parties were present at the Police Station and the accused was warned and let off. Ext.P23(a) contains the signature of the victim and the accused. The oral evidence of PW6 supported the versions of PWs.2 and 4. PW6 stated that one day while she was returning along with PW3, the accused made an attempt to Crl.A.No.194 of 2015 :-19-: abuse her. In view of the evidence adduced by the prosecution, proof of motive on the part of the accused to commit the offences alleged has proved beyond doubt. 23. PW14, who was then working as Associate Professor of Forensic Medicine, Thiruvananthapuram Medical College conducted postmortem examination on the body of the victim. According to PW14, he noted seven injuries, the details of which have been mentioned by him in Ext.P14 wound certificate. Based on injuries 1 to 7, particularly with reference to injury No.1, PW14 opined that the victim died of incised penetrating wound on the left side of abdomen. On crossexamination, PW14 specifically stated that injury No.1 could be caused by MO4 weapon which, according to him, is capable of causing death. The fact that Kunjumol@Vijayalakshmi met with homicidal death is undisputed. 24. Recovery of MO4 knife was in accordance with Section 27 of the Evidence Act. The most important circumstances for the prosecution in the case are the disclosure statement of the accused and recovery of MO4 Crl.A.No.194 of 2015 :-20-: property at the time of occurrence upon such statement. The admissibility of the statement made by the accused to PW22 is challenged mainly on two grounds. Firstly, factually no such statement was made. Secondly, the statement made was inadmissible in evidence and alleged recovery was not effected. On going through the evidence let in, in this case, we are satisfied that the prosecution adduced reliable evidence in accordance with the procedure provided under Section 27 of the Evidence Act. 25. The learned counsel for the accused submitted that the materials on record sufficiently prove the plea of insanity set up by the accused during trial. On a careful perusal of the entire evidence adduced in this case, there was no credible evidence to establish the legal insanity at the time of commission of the offence so as to entitle the appellant to the benefit of Section 84 of the IPC. The burden of bringing the case of the accused under Section 84 of IPC lies exclusively upon the accused claiming benefit of the said provision. On a consideration of Section 105 of the Indian Evidence Act, we are Crl.A.No.194 of 2015 :-21-: of the view that the burden to prove an exception is upon the accused and the court shall presume the absence of circumstances which may bring his case within the ambit of Section 84 of the IPC. No probable circumstances are made out to infer that the accused was suffering from mental illness on the date of occurrence. 26. The contention next raised is that the appellant has no intention to cause death because he did not intend to cause bodily injuries on the victim to murder. In other words, it is contended that the bodily injuries found on the victim were not intentionally inflicted by the appellant on the victim. To consider as to whether the act was done with the intention of causing death, all acts, utterances and circumstances are to be counted together. It is a fact that the prosecution has to establish beyond doubt that the bodily injuries were present on the victim and injury No.1 is sufficient to cause death in the ordinary course of nature. 27. To put it shortly, the prosecution has succeeded in proving that the bodily injury was present, that the nature of Crl.A.No.194 of 2015 :-22-: injury was fatal, that the injury was inflicted by the accused on the abdomen, that the injury was not accidental or unintentional or that the accused was intended to inflict some other kind of injury and that the injury of the type sustained by the deceased is sufficient to cause death in the ordinary course of nature. In **State of Madhya Pradesh** v. **Kalicharan and others** [Crl.A.No.1411/2013] the Apex Court held that even in a case of single blow, but on the vital part of the body, the case may fall under Section 302 IPC and the accused can be held guilty for the offence under Section 302 IPC. In the facts and circumstances of the case and considering the evidence on record in the case, more particularly, the medical evidence and the manner in which the incident took place, we are of the opinion that the accused is guilty for the offence under Section 302 of IPC. 28. Since the injury was caused in such a brutal manner there is 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. This is a clear Crl.A.No.194 of 2015 :-23-: case of premeditated attack with the intention to cause death. This case does not fall under any of the exceptions mentioned in Section 300 IPC and nor has any such exception being proved by the accused during trial. In this connection, the fact that the deceased succumbed to the injuries within a short time is a relevant fact. 29. In view of the conclusions and findings based on the prosecution evidence with regard to the accused, there are no valid grounds to alter the conviction of the accused from one under S.302 to that under Section 304 Part II of IPC. In our opinion, the judgment and order of conviction passed by the trial court contained positive proof, credible evidence, sequence of events, factual proof and circumstances linking the accused with the commission of murder. The prosecution has succeeded in proving the offence under Section 447 and Section 302 of IPC beyond reasonable doubt. In view of the above and for the reasons stated above, the present appeal is devoid of any merit and is liable to be dismissed. Consequently, we uphold the judgment of Crl.A.No.194 of 2015 :-24-: conviction and order on sentence passed by the court below. The judgment of conviction and order on sentence passed by the trial court is hereby confirmed. This Criminal Appeal is dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/