Farooq, S/o Mohammed Ilyas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936 CRL.A.No. 558 of 2010 ( ) -------------------------- SC 697/2005 of II ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM DATED 19-05-2009 APPELLANT/ACCUSED: ---------------------------------------- FAROOQ, S/O. MOHAMMED ILLYAS, AGED 39 YEARS, RESIDING AT KIZHAKKETHIL VEEDU, NEAR KALATHAPALLI ELAKAMAN DESOM, AYROOR VILLAGE. BY ADVS.SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN SRI.RAJNEESH M.M. RESPONDENT/STATE: ---------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2014, THE COURT ON 01.08.2014 DELIVERED THE FOLLOWING: smv ## **THOTTATHIL B.RADHAKRISHNAN** ## **&** ## **P.B.SURESH KUMAR, JJ.** **----------------------------------------------Crl. Appeal No.558 of 2010 ----------------------------------------------Dated 1[st] August, 2014.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The accused in S.C.No.697 of 2005 on the file of the Additional Sessions Court, Thiruvananthapuram, is the appellant in this appeal. He has been found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code, hereinafter, referred to as 'the IPC', for short. 2. The case of the prosecution is that on 23.5.2002, at about 9.30 p.m., the accused stabbed one Shammy at the premises of the house of the accused and Shammy died on account of the injuries sustained by him. According to the prosecution, on Crl.A.No.558/10 2 the basis of the information furnished by PW1, a case has been registered by Varkala Police in connection with the said incident. In the course of the investigation of the said case, the accused was arrested and based on his disclosure, PW11, the Sub Inspector of Police recovered MO1 knife as per Ext.P7 mahazar. On completion of the investigation, a final report was filed against the accused alleging commission of the offence punishable under Section 302 of the IPC. 3. On appearance, the accused pleaded not guilty. Consequently, the prosecution was called upon to adduce evidence in the matter. The prosecution, thereupon, examined 14 witnesses as PW1 to PW14 and marked 16 documents as Exts.P1 to P16. 10 material objects were also caused to be identified by the witnesses. In the course of the trial, Exts.D1, to D3 case diary statements of the Crl.A.No.558/10 3 witnesses were also marked at the instance of the accused. After the evidence of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure, concerning the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained that he is innocent. Since this was not a case of no evidence for the prosecution, the accused was called upon to enter on his defence and thereupon, he examined one Nazeer on his side as DW1. 4. The Court of Session, on a meticulous analysis of the evidence on record, found that the injuries on the body of the deceased have been inflicted by the accused with MO1 knife with the intention of causing death and the accused is, therefore, guilty of the offence punishable under Section 302 of the IPC. Crl.A.No.558/10 4 5. We have heard the learned counsel, Sri. Ayyappan Sanker, for the appellant and the learned Public Prosecutor for the State extensively. 6. The issue to be adjudicated upon is as to whether the accused is guilty of the offence punishable under Section 302 of the IPC or not. 7. Ext.P4 is the post mortem certificate issued by PW6, the Associate Professor of Forensic Medicine and Deputy Police Surgeon, attached to the Medical College Hospital, Thiruvananthapuram. The ante mortem injuries noted by PW6 on the body of the deceased, as recorded in Ext.P4 post mortem certificate, read thus : “1. Incised penetrating wound 3x1 cm vertically placed on the left side of chest, with its upper sharply cut end 6 cm below the middle of armpit. Its lower end was round in shape. The chest cavity was seen penetrated after cutting the fourth left intercostal space and the upper lobe of left lung punctured (2.3x0.5x5 cm). The wound Crl.A.No.558/10 5 was directed to the right for a total minimum depth of 9.5 cm. Left chest cavity contained 250G of blood clot and 450 ml of fluid blood. Left lung was partially collapsed. 2. Incised penetrating wound 3x1 cm vertically placed on the left side of back of trunk with its upper sharply cut end 7 cm to the left of midline and 21 cm below the top of shoulder. Its lower end was rounded in shape. The abdominal cavity was seen penetrated below left eleventh rib and the back aspect of left kidney punctured (1.5x0.3x0.5 cm). There was a film of perirenal haematoma around. The wound was directed downwards and forwards for a total depth of 8 cm. 3. Incised wound 1.5x0.3x1.5 cm obliquely placed on the left side of back of chest with its lower inner end 16 cm to left of midline and 14 cm below top of shoulder. 4. Incised wound 2x0.5x1.5 cm obliquely placed on the left side of back of chest with its lower inner end 20cm to left of midline and 17.5 cm below top of shoulder. Crl.A.No.558/10 6 Injury Nos. 3 and 4 were connected by a wound track in the muscle plane for a length of 4 cm. 5. Incised wound 1.5x0.5x0.2 cm on the lower outer quardrant of left buttock.” It is certified in Ext.P4 that the death of the deceased was due to the penetrating injuries sustained by him in his chest and abdomen. PW6 has given evidence that the injuries in the chest and abdomen of the deceased could be caused by MO1 knife. Ext.P4 certificate and the evidence tendered by PW6 would establish that the death of Shammy was a homicide. 8. The prosecution relies on the oral evidence of Pws.1 to 3 and 5 to establish the complicity of the accused. PW1 is the brother of the deceased. He deposed that on the relevant day, at about 8.30 p.m., while he was sitting at his family house, the deceased came there and enquired about their elder brother Javed (PW2) and their mother told him that he was not at home. According to PW1, after Crl.A.No.558/10 7 some time, he left for the Mosque for preparing food in connection with the celebration on the following day. PW1 stated that after some time, the deceased came to the Mosque and enquired again about PW2 and somebody told him that PW2 had gone to the house of the accused. According to PW1, after some time, he heard a noise from the house of the accused and when PW1 proceeded to the house of the accused, he found the accused and the deceased involved in a scuffle. PW1 has explained in his evidence that he also found PW2 attempting to dissuade the accused and the deceased from the scuffle. PW1 has further explained in his evidence that when the accused and the deceased were pulled away from the scuffle, the accused went inside his house and came back all of a sudden with a knife and stabbed on the left side of the chest and on his back and also on his left buttock. PW1 has also stated that Crl.A.No.558/10 8 though PW2 has attempted to get the knife from the accused, PW2 could not succeed and he also sustained an injury in that process on his left hand. PW1 has identified MO1 knife. 9. PW2, who is another brother of the deceased, testified that he used to go to the house of the accused and on the relevant day, when he was sitting at the house of the accused, the deceased came there and asked him as to why he was not coming for business and there was a quarrel thereafter between him and the deceased in connection with their business. PW2 also testified that the accused intervened in the quarrel and told the deceased that they shall not quarrel at his house and consequently, there was a quarrel, followed by a scuffle between the accused and the deceased as well. According to PW2, he could dissuade the accused and the deceased from the quarrel and while they were proceeding to their house, the accused Crl.A.No.558/10 9 came back suddenly from his house with a knife and stabbed the deceased. PW2 has testified that when he attempted to get the knife from the accused, he also sustained an injury to his hand. PW3 is the wife of another brother of the deceased and PW5 is the brother-in-law of the deceased. Among them, PW5 is residing in the property adjacent to the house of the deceased. PW3 and PW5 also gave evidence more or less on the same line in so far as the occurrence is concerned. The witness examined by the accused as DW1 deposed that he is residing in the neighbourhood of the house of the accused and on the relevant day, when he was on his way to his house, he found the deceased and PW2 involving in a scuffle, and PW2 was carrying a knife with him. 10. As indicated above, the evidence tendered by Pws.1 to 3 and 5 as to the occurrence were consistent. All of them are probable witnesses, Crl.A.No.558/10 10 as they are residing in the neighbourhood of the house of the accused. All of them had identified MO1 knife as the weapon used by the accused to inflict injuries on the deceased. Though they have been crossexamined thoroughly, nothing was brought out in the cross-examination to suspect the veracity of their evidence. There is nothing unusual or improbable in their evidence. Their evidence corroborates each other in all material particulars. 11. As stated above, PW6, the doctor who conducted the autopsy had given evidence that the injuries found on the body of the deceased could be inflicted with MO1 knife. The recovery of MO1 knife based on the disclosure made by the accused as per Ext.P7 mahazar was established through the evidence of PW11, the Sub Inspector of Police. Ext.P6, the report of the Forensic Science Laboratory recites that item No.7 referred to therein, which is MO1 knife, Crl.A.No.558/10 11 contained blood of human in origin and the blood group is B, which is the blood group of the deceased. The evidence tendered by PW6, the doctor, the evidence tendered by PW11 as regards the recovery of MO1 knife and Ext.P6 report of the Forensic Science Laboratory, therefore, corroborate the ocular evidence. 12. The learned counsel for the appellant contended that Pws.1 to 3 and 5 could not have witnessed the occurrence as, going by their own evidence, they went to the house of the accused only after hearing the noise. In other words, according to him, all the witnesses reached the house of the accused only after the occurrence. He has also contended that the presence of MO7 newspaper at the scene of occurrence and the injury sustained by PW2 would establish that PW2 is the assailant. He has relied on the evidence tendered by DW1 to buttress Crl.A.No.558/10 12 the argument that PW2 is the assailant. 13. The evidence tendered by Pws.1 to 3 and 5 would indicate that they proceeded to the house of the accused hearing a noise and when they reached the said house, they saw the scuffle involving the accused and the deceased. All of them were consistent in their version that PW2 dissuaded the accused and the deceased from their fight and pulled them away. According to them, while the deceased and PW2 were proceeding to their house, the accused came from back and inflicted the injuries on the diseased. The argument which proceeds on the basis that all the said witnesses have reached the house of the accused only after the occurrence is, therefore, without any substance. As far as the injury sustained by PW2 is concerned, the evidence tendered by Pws.1 to 3 and 5 is categoric that he sustained the injury when he attempted to get the knife from the accused Crl.A.No.558/10 13 to prevent further injuries on the deceased. The said evidence is convincing and there is nothing on record to infer that PW2 had inflicted injuries on the deceased and that PW2 sustained the injury to his hand in that process. MO7 is the newspaper seized as per Ext.P3 mahazar from the scene of occurrence. Ext.P3 mahazar indicates that, at the time of preparation of the mahazar, MO7 appeared to have been used for covering something brought to the house of the accused. The argument of the learned counsel for the appellant is that the presence of MO7 at the scene of occurrence would only lead to the inference that MO1 knife was brought to the scene by somebody other than the accused and if MO1 is a weapon brought to the scene by somebody other than the accused, it can only be inferred that PW2 brought the same to the house of the accused and therefore, he is the assailant. There is no merit in this argument also, as Crl.A.No.558/10 14 there was no reason at all for PW2 to carry a knife to the house of the accused to cause the death of the deceased. 14. In view of the facts and circumstances stated above, we agree with the finding of the Court of Session that the prosecution has succeeded in establishing the complicity of the accused in the crime. 15. The learned counsel for the appellant has then argued that the proved facts in this case do not make out a case of murder punishable under section 302 of the IPC. Relying on the decision of this Court in **Johny v. State of Kerala** (2010(1) KHC 585), he has contended that, at any rate, the accused can be convicted only under Part I of Section 304 of the IPC. We find force in this argument. The place of occurrence is the residence of the accused. It has come out in evidence that the occurrence would not Crl.A.No.558/10 15 have happened had the deceased not gone to the house of the accused. The prosecution is not attributing any previous animosity for the accused to cause the death of the deceased. As such, it cannot be said that the accused intended to cause the death of the deceased. Even going by the evidence tendered by Pws.1 to 3 and 5, the deceased came to the house of the accused to meet PW2 and the quarrel and the fight between the deceased and the accused had ensued when the accused intervened in the quarrel between the deceased and PW2. There is nothing on record to indicate as to the abusive words used by the deceased and the accused against each other. Ext.P3 scene mahazar shows that the scene of occurrence was just in front of the house of the accused. The injuries have been inflicted by the accused immediately after the fight. In these circumstances, it is evident that the injuries have been inflicted by the Crl.A.No.558/10 16 accused on the deceased either due to loss of self control on account of the provocations made by the deceased or due to heat of passion in a sudden fight upon a sudden quarrel. We are, therefore, of the view that the prosecution has not made out a case under Section 302 of the IPC and the accused is liable to be convicted only under Part I of Section 304 of the IPC. 16. In view of the nature of the weapon used by the accused and the injuries caused to the deceased, we feel that rigorous imprisonment for a period of ten years would be the appropriate sentence to be imposed on the accused in the interests of justice. In the result, the conviction of the appellant is altered to Part I of Section 304 of the IPC and the sentence imposed on him is modified to rigorous imprisonment for a period of ten years. The appellant would be entitled to set off under Section 428 of the Code of Criminal Procedure. The appeal is allowed to Crl.A.No.558/10 17 the extent indicated above. Sd/- ## **THOTTATHIL B. RADHAKRISHNAN, JUDGE.** Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs/smv (true copy) P.S. to Judge.