E. Soman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **CRL.A.No. 643 of 2014** **AGAINST THE JUDGMENT IN SC 675/2011 of SESSIONS COURT, KOZHIKODE DIVISION DATED 28-02-2014** **CRIME NO. 530/2010 OF ELATHUR POLICE STATION, KOZHIKODE** ## **APPELLANT/ACCUSED:** **E.SOMAN, S/O.PADMANABHAN, C.NO.2622, CENTRAL PRISION, KANNUR** **BY ADV. SRI.S.SACHITHANANDA PAI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADV.SR.PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018 THE COURT ON 23.1.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.643/14 ## -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the appellant challenging the verdict passed by the learned 5[th] Additional Sessions Judge, Kozhikode in S.C. No. 675 of 2011 by which the appellant was found guilty under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and is sentenced to undergo imprisonment for life and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for one year. 2. Prosecution case is as follows: The appellant and the deceased were employees of PW2 who was in the job of cooking meals for parties and marriage functions. In connection with the marriage of the daughter of one Pallikkara Ashokan, PW2 and his team including the appellant and the deceased were engaged in the preparation of food for the feast on 27/12/2010. As the marriage and lunch was over, the cooking party was in the process of packing up. While so, at about 02.30 p.m., owing to the dispute regarding missing of knife of the appellant, there occurred a quarrel between the appellant and the deceased. The appellant took a knife and inflicted a stab Crl.Appeal No.643/14 -:3:- injury on the abdomen of the victim and the deceased breathed his last due to the same. The said incident happened at the kitchen room of the partly constructed house of Rahulan who is the younger brother of Pallikkara Ashokan, situated near to the house of said Pallikkara Ashokan. 3. Prosecution examined PWs 1 to 27 as witnesses, marked Exts.P1 to P32 documents and identified MOs 1 to 9 as material articles. During 313 examination, the appellant pleaded innocence. According to him, he attended the marriage function but he left the place at about 01.00 p.m. after completing the work. He pleaded complete ignorance about the incident. Ext.D1 was marked on his side. 4. Learned counsel appearing for and on behalf of the appellant Sri.S.Sachithananda Pai argued that the appellant is innocent in this case. There is no eye-witness in the case. There is no proof for motive. Evidence adduced by PW2 and PW3 cannot be believed. There is absolutely no evidence to show how the incident happened. The question, who is the actual aggressor, is not proved by the prosecution. The alleged recovery is effected from an open place. No finger print was taken from MO4 knife for Crl.Appeal No.643/14 -:4:- further test. Inquest report did not state major injury allegedly noted on the body of the deceased in Ext.P13 certificate. It is a serious lapse on the part of the prosecution. Only one injury is found on the body of the deceased. Prosecution failed to prove the case beyond reasonable doubt and the Court below erred in arriving at the impugned conclusion. He pleaded for extending benefit of doubt to the appellant and to acquit him. He relied on the decision of the Apex Court in _**Arjun and Another v. State of Chhattisgarh**_ (AIR 2017 SC 1150) to reiterate the settled position in regard to the legal requirements to differentiate S.302 and S.304 of I.P.C. 5. Learned Senior Public Prosecutor Sri.S.U.Nazar argued that Court below is justified in arriving at its present conclusion. There is cogent circumstantial evidence to prove the guilt of the appellant herein including last seen, recovery evidence, medical evidence and forensic evidence. Evidence of PW2 and PW3 are believable. They deposed what had happened during the relevant time. The weapon of offence is a dangerous one and the injury inflicted resulted in his immediate death. Intention to commit murder is evident from the overt act of the appellant. He argued Crl.Appeal No.643/14 -:5:- that there is no need to disturb the findings of the trial Court. 6. Evidence adduced by the prosecution, in brief, is as follows: PW1 who is the brother of the deceased is the defacto complainant. Based on the FI Statement given by PW1, PW22 registered Ext.P14 FIR. PW2 is the main cook with whom the deceased and the appellant worked together. PW3 is another cook working under PW2. PW4 and PW5 are attestors to Ext.P4 inquest report. PW6 is also a witness to the inquest proceedings. PW7 is an attestor to Ext.P5 scene mahazar. PW8 is an attestor to Ext.P6 search list. He also identified MO1 shirt and MO2 lunki. PW9 and PW10 are attestors to Ext.P7 seizure mahazar. PW11 is an attestor to Ext.P8 seizure mahazar. He identified MO4 knife. PW13 deposed that in his car, the deceased was taken to hospital and PW12 accompanied him. PW14 deposed that the appellant and the deceased were present for preparing the wedding feast of his elder brother's daughter. PW15 is a free-lance photographer who had taken MO5 series photos of the dead body of the deceased and MO6 series negatives. PW16 is the then ASI of Police of Nadakkavu Police Station. He is an attestor to Ext.P9 seizure mahazar. PW17 is the police constable who did guard the Crl.Appeal No.643/14 -:6:- scene along with two home guards. PW18 released the body to relatives after post-mortem examination as per Ext.P10 kaichit. PW19 prepared Ext.P11 site plan. PW20 has issued Ext.P12 possession certificate. PW21 is the Doctor who conducted autopsy and he issued Ext.P13 post-mortem certificate. PW22 registered Ext.P14 FIR based on Ext.P1 FIS given by PW1. PW23 is the son of the deceased. He identified MO7 chappal of the deceased. PW24 is the owner of the house in which the alleged incident took place. He turned hostile to the prosecution. PW25 is the then Circle Inspector of Police who conducted the investigation and PW26 is the one who continued the investigation and laid charge after completing investigation. PW27 produced Ext.P32 certificate to show that the house was not numbered at that time. 7. PW21 is the then Assistant Professor and Deputy Police Surgeon, Medical College Hospital. He issued Ext.P13 certificate after autopsy. He deposed that he noted the following injuries on the deceased:- _“1. Incised punctured penetrating wound 6.5 cm long seen on the left side of upper abdomen gaping through which bowel loops and omentum was protruding outside._ Crl.Appeal No.643/14 ## -:7:- _The wound was obliquely placed with a right upper end and left lower end The right end was 1 cm to the left of midline and 4 cm above the umbilicus at 1'O clock position. The left end was 5.5 cm to the left of midline and 5 cm outer to umbilicus at a level of the upper margin of umbilicus. The right end appeared pointed, left end was blunt and margins sharply clean cut. The wound was above and outer to umbilicus extended from 1'O clock to 3'O clock position with the middle of the wound 2.5 cm away from umbilicus. The injury pierced the abdominal wall, peritoneum and entered the peritoneal cavity injuring the bowel loops and terminated near the tail of the pancreas by piecing the omental fat and dividing superior mesenteric artery. Three superficial cuts involving the serosa seen on the small bowel measuring 2 cm, 2.5 cm and 2.8 cm. Another injury seen on the jejunum 3 cm long perforating the bowel wall. Mesenteric cut (3cm long) seen adjacent to the bowel injury and another one 8 x 3 cm nearby. Peritoneal cavity contained 2.5 litre of blood and clots. The wound had a total minimum depth of 5.5 cm (Abdominal wall 3 cm thickness) and was directed backwards and upwards._ _2. Abrasion 2.5 x 1.5 cm on the outer aspect of right elbow._ _3. Abrasion 2.5 x 1.3 cm on the front of right knee.”_ 8. He opined that the death of Rajan happened due to incised punctured penetrating injury (stab injury) sustained to the abdomen involving a major blood vessel. The injury was fatal. Ext.P4 is the inquest report. The above evidence would show that the deceased met with a homicidal death. Crl.Appeal No.643/14 -:8:- 9. Court below found that the said injuries were caused by the appellant herein and the offence is murder. Both findings are under challenge and hence it is necessary to look into the evidence in detail to see whether the Court below is justified in arriving at its present conclusion. 10. Prosecution relied on the following circumstances to prove the guilt of the appellant:- - (i) Last seen circumstances/evidence. - (ii) Conduct of the accused/appellant. (iii) Seizure of blood-stained weapon and cloth at the instance of the accused/appellant. - (iv) Motive. 11. Coming to the evidence in detail, PW1 is not an eyewitness though he gave Ext.P1 FIS based on hearsay information. Mainly, evidence of PW2 and PW3 are relied upon by the prosecution to prove the case against the appellant. 12. Evidence of PW2 runs as follows: PW2 deposed that he is a cook by profession and PW3, PW4, deceased and the appellant were his co-workers. According to him, on 26/12/2010, at about 01.00 p.m., they reached the house Crl.Appeal No.643/14 -:9:- of Pallikkara Ashokan for preparing wedding feast for the next day as the marriage of his daughter was on 27/12/2010. After preparing the same, the workers went to change their dresses. PW2 was preparing some curry. Between 02.30 p.m. and 02.45 p.m., he heard the deceased Rajan saying that “he stabbed me.” He rushed to the place and saw the deceased sitting there pressing his stomach. Appellant/accused was standing near the deceased. However PW2 did not identify the appellant in the Court. He also deposed that Ext.P2 is the 164 statement he had given to the learned Magistrate. 13. PW3 deposed that he was working under PW2 as cook and they went to prepare wedding feast of Pallikkara Ashokan's daughter. They reached on 26/12/2010 and the incident took place on 27/12/2010 at about 02.30 p.m. According to him, the feast was prepared in the nearby house which was under construction. The said house is situated on the back of Ashokan's house. On the date of incident, after finishing work, PW3 went to clean himself up. At that time, the appellant/accused told him that his knife was missing. PW3 showed his bag to the appellant and told him that he had not taken it. It is his further version that Crl.Appeal No.643/14 -:10:- he heard the deceased saying that if the knife is not recovered, he will beat the appellant/accused. Then he heard the appellant/accused saying that the deceased will not return there after beating him. Then he heard the deceased asking the appellant/accused to check in the appellant's bag. It is his version that then he heard the voice of the deceased saying that Soman stabbed him and he is going to die. On hearing the same, he rushed to the spot and saw the deceased standing there covering his stomach with his hands. He also saw the stab injury on the deceased. Immediately, he took a bath towel and tied around the injury to stop bleeding. He also stated that he found the injured and the appellant herein in the same room. The injured was taken to hospital by people including PW2 and PW4 and later he came to know that the injured is no more. In re-examination, he identified the appellant in Court. He stated that Ext.P3 is the S.164 statement which he had given to the learned Magistrate. 14. It is true that evidence was brought on record by the prosecution by asking leading questions using 164 statements of PW2 and PW3. Such practice is illegal and unacceptable and cannot be looked into. Keeping the same aside, the other Crl.Appeal No.643/14 -:11:- evidence have to be evaluated independently. 15. On going through the testimonies of PW2 and PW3, it can be seen that the appellant and the deceased were available at the place of occurrence at the relevant time. During 313 examination, the appellant admitted to the extent that he was engaged along with PW2 and others in preparing the wedding feast in the house of Pallikkara Ashokan on 26/12/2010 and he was present there till 01.00 p.m., next day. He also admitted the fact that the wedding feast was prepared at the building alleged by the prosecution. 16. PW3 is a crucial witness. He deposed that he saw the appellant and the deceased engaging in a wordy altercation. 17. PW3 deposed that he heard the deceased telling the appellant to check whether knife was found in deceased's bag. PW3 also stated that he heard the deceased saying to the appellant that if the knife is not found in the bag, the deceased would beat the appellant. To the same, the appellant replied that the deceased will not return from there, after beating the appellant. 18. It is the version of PW3 that he heard the voice of the Crl.Appeal No.643/14 -:12:- deceased saying that the appellant Soman had stabbed him and that he was going to die. On reaching the spot, PW3 found the deceased standing there covering his stomach with his hands. PW3 also had seen stab injury on the stomach of the deceased. PW3 took a bath towel and tied around the abdomen of the deceased. PW3 also deposed that at the time they reached the room in which the incident took place, they saw the appellant along with the injured. 19. PW2 deposed that he heard the deceased saying: “ ര�ജൻ, എന� കത� എന ഉറന� പറയ�ത� ക�ട� ഞ�ൻ ഓട� ന�ന. അക��ൾ മര�ച ര�ജൻ വയറ നപ�ത� പ�ട�ച� ഇര�ക�ത� �ണ. ഓൻ എന� കത� എന ര�ജൻ പറഞ. കറച മ�റ� പത� ക)�മൻ ന�ൽകനണ�യ�രന.” PW2 rushed to the spot and found the deceased with injuries on his stomach. He was standing there covering his abdomen using his hands with injuries. According to PW2, the appellant was standing near the deceased at that time. The deceased was taken to hospital and the appellant did not accompany them. 20. The appellant was absconding. According to the prosecution, he stayed in National Lodge, Vadakara for three days and he was arrested by PW25 later on 31/12/2010 at 02.30 p.m. Crl.Appeal No.643/14 -:13:- from Vadakara as per Exts.P18 and P19 memos. 21. Based on Ext.P8(a) disclosure statement of the appellant, PW25 effected the recovery of MO4 knife from beneath a tree at Thakkaripparamba as per Ext.P8 recovery mahazar. PW11 is an attestor to the same. Evidence of PW11 would show that the said parambu was not easily accessible to the public. 22. PW21 Doctor deposed that injury no.1 noted in Ext.P13 is possible to be inflicted using MO4 knife which is a sharp cutting weapon. PW21 denied the suggestion that injury nos. 2 and 3 (abrasions) are defensive wounds by MO4. 23. Ext.P30 chemical lab report shows that item No.1 (MO4 knife) is stained with human blood. Ext.P31 is the report regarding shirt and lungi of the deceased. They are found with human blood of B group. 24. Of course, it is true that the prosecution failed to prove the motive for the crime. PW25 admitted the fact that he did not notice the injuries noted in Ext.P13 as injury nos.2 and 3, while preparing the inquest report. But defence does not have a case that such injuries were caused during a scuffle. Defence pleaded alibi and it is proved to be false. No records are produced to Crl.Appeal No.643/14 -:14:- prove the fact that the appellant had stayed in National Lodge, Vadakara for three days soon after the incident. All these are lapses on the part of the prosecution in conducting investigation. But all these lapses have to be seen in the light of other available evidence. It is settled law that lapse in conducting investigation in not so major aspects shall not fade or erode the shine of other available evidence that unerringly points to the guilt of the appellant. The appellant and the deceased were last seen by PW3 in the room in which the incident took place. Though actual act of stabbing is not seen by the witnesses, they categorically deposed that the deceased told them that he got stabbed and he would die. Both the witnesses had seen the appellant in the room at that time. Exts.P2 and P3 cannot be taken in evidence as it is inadmissible. The utterances of the deceased form part of the same transaction and is clearly admissible under Section 6 of the Indian Evidence Act, 1872. Recovery of MO4 weapon at the instance and based on his disclosure statement need not be doubted in the factual scenario of the case at hand. Dress of the deceased were also seized. They are stained with human-blood. As already discussed above, we agree with the finding of the trial Crl.Appeal No.643/14 -:15:- court that the medical evidence and other scientific evidence adduced by the prosecution when read together with the oral version of PW2 and PW3 would show that the appellant herein is the one who inflicted the fatal injury on the deceased on the fateful day using MO4 knife. 25. Whether the above act done by the appellant would attract offence under Section 302 of I.P.C. is the remaining question to be determined. Analysis of available evidence would show that the deceased and the appellant were co-workers. The deceased was working with PW2 for seven years and the appellant was working with PW2 for three years prior to the incident. It is also in evidence that they came together for preparing wedding feast. Nothing is brought in evidence to show the motive of the appellant for the crime. It can also be seen that the appellant had no pre-meditation to commit the crime. Admittedly, there was a wordy altercation. Only one stab was inflicted by the appellant. It is also in evidence that all of them were under the influence of alcohol. The genesis of the incident is not so convincingly brought in evidence by the prosecution. It is also not proved, to whom the weapon of offence belonged. All Crl.Appeal No.643/14 -:16:- these facts would show that the appellant had no intention to kill the deceased though necessary knowledge could be attributed to the appellant. We are, hence, of the view that the Court below is wrong in finding the appellant guilty under Section 302 of I.P.C. However, he will be liable to be convicted under Section 304 Part II of I.P.C. In the result, the appeal is partly allowed. Conviction and sentence passed by the learned Sessions Judge under Section 302 of I.P.C. is hereby set aside. The appellant is found guilty under Section 304 Part II of IPC and sentenced to suffer rigorous imprisonment for eight years. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/-** **SHIRCY V.** Rp //True Copy// PS to Judge **JUDGE**