George Varghese 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** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941 CRL.A.No.508 OF 2015(A)** **AGAINST THE JUDGMENT IN SC 928/2012 DATED 21-04-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - II, PATHANAMTHITTA CRIME NO.390/2009 OF Adoor Police Station, Pathanamthitta** ## **APPELLANT:ACCUSED :-** **GEORGE VARGHESE, C.NO.53, CENTRAL PRISON, TRIVANDRUM-12.** **BY ADV. SMT.RAJATHA.P.JACOB** ## **RESPONDENT:COMPLAINANT :-** **STATE OF KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA.** **SRI.ALEX.M.THOMBRA - SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2019, THE COURT ON 04.09.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.508/2015 :-2-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** Appellant is the accused in S.C.No.928/2012 on the file of the Additional Sessions Court-II, Pathanamthitta. By judgment dated 21.4.2015, the court below convicted and sentenced the accused to undergo imprisonment for life for the offence punishable under Section 302 of I.P.C. Challenging the conviction and sentence, the appellant filed this appeal from the Central Prison, Thiruvanathapuram. 2. The prosecution case in brief is that on 11.4.2009 at about 7.30 p.m., the accused assaulted and inflicted injuries to the deceased C.C.Joy in front of the house bearing No.XIV/593 of Erathu Panchayath, which is the matrimonial home of his daughter Teena Joy(PW2). PW2's husband was employed in Gulf on the date of occurrence. Hence, PW2 was residing along with her mother-in-law at the matrimonial home stated supra. The deceased received reliable information from PW2's Crl.Appeal No.508/2015 **==> picture [25 x 10] intentionally omitted <==** husband that there was a quarrel between PW2 and mother-in-law on the date of occurrence. Pursuant thereto, the deceased along with his son (PW1) proceeded to the residence of PW2 as instructed by the husband of PW2 over telephone. When they reached the house, the accused and his mother had reached there. When the deceased questioned the act of PW2's mother-in-law touching the quarrel between them, suddenly, the accused without any provocation took a knife secretly kept by him and stabbed on the stomach and various parts of the body of the deceased indiscriminately. Although the deceased was taken to the hospital immediately after the occurrence, he succumbed to the injuries later. 3. Ext.P1 First Information Statement was given by PW1, who is none other than the son of the deceased. PW14 recorded Ext.P1 and registered Ext.P9 FIR on 11.4.2009 for the offence punishable under Section 302 of IPC. PW15 the then Circle Inspector of Police, Adoor took over the investigation on 11.4.2009, the very same day Crl.Appeal No.508/2015 :-4-: itself. On 12.4.2009, he prepared Ext.P2 inquest report in the presence of witnesses. By verifying MOs.2,3,4 and 7 clothes removed from the body of the deceased, he prepared Ext.P10 scene mahazar. He also took custody of blood stained soil and two pairs of chappals from the spot as per Ext.P10 scene mahazar. PW15 arrested the accused on 14.4.2009 at 8 p.m. by Ext.P12 series. On being questioned, the accused confessed that the knife was kept in the lungi worn by him at his residence and he would show the same, if he was taken there. Based on the confession, PW5 proceeded to the residence of the accused as led by the accused and recovered MO1 knife and MO2 kaily as pointed out by the accused in the presence of witnesses by Ext.P13. Thereafter, the accused was produced before the learned Magistrate by Ext.P13. The accused was remanded to judicial custody. The material objects were produced before the court by Ext.P14 series. He also submitted Ext.P15 forwarding note before the court for chemical analysis. Crl.Appeal No.508/2015 :-5-: 4. PW15 completed investigation in this case and laid charge sheet before the learned Judicial First Class Magistrate, Adoor, where the case was taken on file as C.P.No.223/2009. By order dated 29.6.2012, the learned Magistrate committed the case to the court of Sessions, Pathanamthitta after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence under Section 302 of IPC and registered the case as SC No.928/2012 from where the case was made over to the Additional Sessions Court-II, Pathanamthitta for trial and disposal. 5. Accused entered appearance before the Sessions Court through a counsel of his own choice. He was later enlarged on bail. After having heard both sides, charge under Section 302 of IPC was framed. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined PWs.1 to 15 and got marked Exts.P1 to P15 and 7 material objects Crl.Appeal No.508/2015 :-6-: as MOs.1 to 7. 6. 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 against him. His defence is one of total denial. He stated that he was residing at Nirakathu Melethil Kizhakkethil house on the date of occurrence. According to him, no occurrence took place in his residence as alleged by the prosecution.The Police had not recovered anything from his residence as alleged. According to him, the occurrence took place at Idakathu Melethil House owned by Annamma. The victim Joy sustained injuries pursuant to the occurrence took place at the residence of Annamma and he had succumbed to the injuries later. He further stated that he was not arrested by the Police. According to him, he surrendered before the Police voluntarily. He also stated that he sustained injuries on his ear and hand on account of a fall from the bicycle. He maintained that he is innocent. Crl.Appeal No.508/2015 :-7-: 7. The learned Sessions Judge, who conducted trial, did not deem it fit and proper 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. The accused examined DWs.1 to 3 and marked Exts.D1and D2 on his side. Exts.X1 and X2 were marked as court exhibits and proved through DWs.1 and 2 respectively. His contention is that the occurrence took place not in his house, but at the residence of one Annamma, whereby the deceased sustained injuries and succumbed to the injuries. 8. We heard learned counsel for the appellant Smt.Rajatha.P.Jacob, and Sri.Alex M.Thombra, the learned Senior Public Prosecutor, who defended the State. 9. The fact that victim -Joy died as a result of homicidal stab injury sustained by him on 11.4.2009 at Crl.Appeal No.508/2015 :-8-: about 7.30 p.m. is not in dispute. PWs.1 and 2, who were the eye witnesses to the occurrence, had deposed before court that the accused stabbed the deceased with MO1 knife on 11.4.2009 at about 7.30 p.m. in front of the house of PW2. As indicated earlier, Ext.P2 inquest report was prepared by PW15, the Circle Inspector of Police on 12.4.2009. In Ext.P2 inquest report in column Nos.7 and 8(a), PW15 noted the fatal injury on the stomach of the deceased. Column No.11 in Ext.P2 is pertaining to the apparent cause of death. PW15 noted that the deceased died as a result of stab injury inflicted by the accused with a knife. 10. PW10, the Doctor, who examined the deceased on 11.4.2009 at 8 pm issued Ext.P7 wound certificate. As per Ext.P7 wound certificate, the deceased sustained 1) **stab injury on the abdomen with part of intestine outside** and 2) **multiple lacerated wound over left forearm** . Consequent to the death of the victim, PW11 Crl.Appeal No.508/2015 :-9-: conducted postmortem examination on the body of the deceased and issued Ext.P8 Postmortem Certificate noting the following ante mortem injuries. - “1. Incised penetrating wound 2.5x0.5cm horizontally placed on the left side of abdomen, the inner blunt end was 12 cm to the left of midline and 7cm below the costal margin. The wound perforated jejunum (entrance wound 1.8x0.2cm and exit wound 1.6x0.2cm) through and through at a point 30cm distal to duodenum. The track of the wound was directed backwards and to the right for a minimum depth of 6.5cm. Abdominal cavity contained 2 litre of blood and 500gm blood clots. 2. Incised wound 2x0.2x0.5cm oblique on the left side of back of abdomen, the lower inner sharp end was 10cm above top of hip. 3. Incised wound 2x0.2x1cm oblique on the back of left shoulder. 4. Incised wound 5.5x1.5x0.5cm oblique on the inner aspect of left forearm 6cm above wrist. 5. Incised wound 3x0.6x0.5cm oblique on the inner aspect of left forearm 9cm above wrist. 6. Incised wound 1x0.3x0.2cm oblique on the back aspect of right wrist. 7. Incised wound 2.3x0.7x0.5cm horizontal on the back of right forearm 7cm above wrist. Crl.Appeal No.508/2015 :-10-: Air passages contained blood stained froth. Lungs were congested and oedematous. Stomach was 3/4[th] full with soft rice and other; food materials having an alcohol like smell mucosa normal. All other internal organs were pale. Otherwise normal.” According to PW11, the death was due to the penetrating injury sustained to the abdomen. When examined before court, PW11 opined that injury No.1 cited supra can be caused with a weapon like MO1 and the injuries are fatal and sufficient to cause death in the ordinary course of nature. Thus, it is clear that victim Joy died as a result of sustaining fatal injuries on 11.4.2009 at about 7.30p.m. 11. PW1 is none other than the son of the deceased. PW2 is the daughter of the deceased. PW2 married the brother of the accused and he was in Gulf on the date of occurrence. PW2's husband received reliable information that there was a quarrel on the date of occurrence between PW2 and her mother-in-law. According to PW1, PW2's husband informed the incident to his father over telephone. Hence PW2 and his father Crl.Appeal No.508/2015 **==> picture [31 x 10] intentionally omitted <==** decided to proceed to the residence of PW2 to enquire into the matter. When they reached the residence of PW2, her mother-in-law was not there. When his father was talking with PW2, her mother-in-law suddenly reached the spot and there was exchange of words between his father and PW2's mother-in-law. While so, the accused came in front of the deceased and stabbed the deceased with MO1 knife. His father sustained serious injuries. Although his father was taken to the hospital, he succumbed to the injuries on the way. PW2 supported the version of PW1 in full. According to PW2, the accused was residing near to the place of occurrence. He is the brother of her husband. PWs.1 and 2 adduced evidence to show that when they reached the residence of PW2, her mother-in-law was not there and while the deceased was talking with PW2, her mother-in-law reached the place accompanied by the accused, who is none other than her son. When the deceased enquired about the quarrel, then the accused suddenly took MO1 knife uttering that he will disclose the Crl.Appeal No.508/2015 :-12-: reason and stabbed the deceased with MO1. PW2 stated that thereafter, the accused left the place with MO1 knife. PWs.1 and 2 identified MO1 knife used by the accused to inflict injuries to the deceased. 12. Soon after the attack, the deceased was taken to the Government Hospital, Adoor where the Doctor examined the deceased at 8 p.m. and issued Ext.P7 wound certificate. In Ext.P7 wound certificate, it is clearly stated that the deceased sustained stab injury with a knife at 7.30 p.m on 11.4.2009 where the deceased was at the residence of his daughter. During the evidence, it was brought out that the cause of injury and details were furnished by one Joby, an autorickshaw driver in whose autorickshaw, they reached the place of occurrence as well as at the hospital. PW1 testified before court that the history and alleged cause of injury was furnished by Joby. 13. Learned counsel for the appellant submits that PWs.1 and 2 are interested witnesses and their evidence cannot be relied on. It is settled principle of law Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** that related witnesses cannot be said to be interested witnesses merely by virtue of being a relative of the victim. The witness may be called interested only when he or she derives some benefit from the result of litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons. The relative witness is not necessarily an interested witness. On the other hand, being close relation to the deceased, they will only try to prosecute the real culprit by stating the truth. Going by the evidence of PWs. 1 and 2, there is nothing to show that they have testified before this Court to implicate falsely against the accused and screen the real culprit to escape unpunished. It is also very difficult to get independent witnesses at the matrimonial home of PW2. Therefore, no adverse inference can be drawn against the prosecution for nonexamining any independent witness from the locality. PWs.1 and 2 are natural witnesses. The occurrence took Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** place in the night at the residence of PW2. We are of the view that PWs.1 and 2, who are the son and daughter of the deceased are only the natural witnesses, who were available in the scene of occurrence on that day. 14. As indicated earlier, the quarrel between PW2 and her mother-in-law was brought out in evidence through the oral evidence of PW3. PW3 was the Panchayat member of Ward No.14 of Erathu Panchayath. He adduced evidence before court that the quarrel between PW2 and her mother-in-law was informed him earlier and he had made every attempt to settle it through mediation. According to him, on 11.4.2009, while the mediation was conducted, Chinnamma, who is the motherin-law of PW2, informed that there was a quarrel between PW2 and Chinnamma, thereafter PW2 attacked Chinnamma with a knife and thereby Chinnamma sustained injuries. Hence, he hired an autorickshaw and sent her to the hospital. On the same day itself, he again went to the house of Chinnamma and requested Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** Chinnamma to live peacefully at her residence along with PW2 without any quarrel whatsoever. Evidence tendered by PW3 would irresistibly lead to the inference that Chinnamma and PW2 were at loggerheads. 15. In addition to the evidence let in by PWs.1 to 3, PW5 testified before court that on 14.4.2009, he saw the Police party along with the accused reaching at the residence of the accused. MO1 knife with a kaily thereon was recovered as identified by the accused and handed over to the Police. The evidence of PW5 would show that the recovery was effected in accordance with Section 27 of the Evidence Act pursuant to the information furnished by the accused. On going through the evidence of PWs.5 and 15, it is clear that MO1 was recovered based on the confession made by the accused in accordance with law. 16. One of the major contentions taken by the accused is that the occurrence place is different. To substantiate the plea, PWs.1 to 3 were examined and marked Exts.X1 and X2. On a consideration of the Crl.Appeal No.508/2015 :-16-: evidence, the court below, on well-founded reasons, had entered into a finding that the place where the occurrence took place has been spoken by PWs.1 and 2 in clear terms and the occurrence place is correctly identified. According to the trial court, the nomenclature of the house as per the charge sheet is not material. We agree with the finding of the trial court. 17. In a murder case, it is invariably not necessary to prove the occurrence through scientific evidence particularly in a case where direct evidence is available. In this case, PWs.1 and 2 adduced evidence to prove the offence. Under the circumstances, it is not necessary to carry out grouping with the blood of the deceased on MO1 weapon or to conduct DNA analysis to prove the offence. The fact that PW2 and her mother-inlaw Chinnamma were not on good terms is proved through evidence. The deceased and PW1 reached the house of PW2 to enquire about the dispute between PW2 and Chinnamma as instructed by PW2's husband from the Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** Gulf country. The prosecution has succeeded in proving the motive to commit the crime as well as the circumstances leading to the death of the victim. 18. The contention next raised is that the appellant has no intention to cause injuries to the vital part of the body of the deceased. According to the learned counsel for the appellant, the facts and circumstances in this case would indicate that the intention was not for causing death and rather it was limited to the intention to inflict bodily injuries. According to the rule laid down in **Virsa Singh** v. **State of Punjab** [AIR 1958 SC 465], even if the intention of the 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. Ext.P7 Wound Certificate and Ext.P8 Postmortem Certificate inter alia would show that the deceased sustained incised stab injury and the injury sustained was sufficient in the ordinary course of nature to cause death. Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** The manner in which MO1 was used to inflict injuries on the body of the deceased rules out the possibility that the accused used MO1 only to overpower the deceased. MO1 was applied deep in the body of the deceased resulting in his death. This would lead to the inference that the accused inflicted the injuries with the intention of causing death of the deceased. This categorical opinion of the Doctor was not controverted in cross-examination. There is nothing in evidence to show that the injuries were caused accidentally or negligently. The motive for committing the crime was to wreak revenge on PW2 for inflicting injury on her mother-in-law and make problems, thereafter. In the case on hand, it is brought out that the accused carried MO1 weapon right from the very beginning and that may be one of the circumstances to indicate that there was an intention to cause bodily injury to cause death. 19. We are satisfied from the forensic evidence and other circumstances that the deceased was attacked Crl.Appeal No.508/2015 **==> picture [32 x 10] intentionally omitted <==** by the accused within the compound of PW2's residence immediately outside the house. It is unlikely that someone would attack the deceased just outside the house and we have no hesitation to reject such a possibility in the light of the oral evidence let in by PWs.1 to 3. Since the injuries were 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. We are of the view that the present case does not fall under any of the exceptions mentioned in Section 300 IPC nor has any such exception been proved by the appellant during the trial. All the acts of the accused would squarely fall within the first category of Section 300 of IPC as these acts were done with the intention of causing death. The victim also succumbed to the injuries within a short time due to the injuries sustained to him. Crl.Appeal No.508/2015 :-20-: 20. In view of the discussions made herein above, we are of the view that there are no valid grounds to alter the conviction of the appellant/accused from one under Section 302 to that under Section 304 Part II of the IPC. In our opinion, the judgment and order of conviction passed by the trial court was based upon proper appreciation of evidence and the materials placed on record. In the result, we uphold the judgment of conviction and order of sentence passed by the court below. The appeal is dismissed. The appellant will suffer the remaining sentence imposed by the court below. Sd/- **A.M.SHAFFIQUE,** JUDGE sd/- **N.ANIL KUMAR** , JUDGE MBS/