GOPINATHAN PILLA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** **CRL.A.No.330 OF 2016** **AGAINST THE JUDGMENT IN SC 624/2015 DATED 30-01-2016 OF III ADDITIONAL SESSIONS COURT, KOLLAM.** **AGAINST THE ORDER/JUDGMENT IN CP 30/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOTTARAKKARA.** **CRIME NO.996/2014 OF PUTHOOR POLICE STATION, KOLLAM.** **APPELLANT/ACCUSED :** **GOPINATHAN PILLA, C.NO.759, CENTRAL PRISON, TRIVANDRUM.** **BY ADV. ADV. MANOJ KUMAR.V (STATE BRIEF).** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SR.PP.ALEX M. THOMBRA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.330 of 2016 2 ## A.HARIPRASAD & N.ANIL KUMAR, J J. -------------------------------------- Crl.Appeal No.330 of 2016 -------------------------------------Dated this the 13th day of January, 2020 ## J U D G M E N T ## A.HARIPRASAD, J Puthoor Police registered Crime No.996 of 2014 under Section 302 of Indian Penal Code alleging that the appellant committed murder of his second son Ratheesh by stabbing on vital parts of his body with MO1 knife. After investigation, a final report was filed before the Judicial First Class Magistrate Court – II, Kottarakara. Learned Magistrate, on finding that the case is exclusively triable by a Court of Session, committed it to the Sessions Court, Kollam. When it was made over, the 3rd Additional Sessions Judge, Kollam, tried S.C No.624 of 2015 and convicted the appellant for the aforementioned offence. He challenges the conviction and sentence in this Crl.Appeal No.330 of 2016 3 appeal. 2. Heard Sri.Manoj Kumar V, the learned counsel, appointed state brief, for the appellant and Sri.Alex M Thombra, the learned Senior Public Prosecutor. 3. After considering the oral evidence of 17 witnesses and Exts.P1 to P19 on the side of the prosecution along with the material objects 1 to 9 and also noticing that there was no defence evidence, the learned Sessions Judge convicted the appellant and imposed imprisonment for life and a fine of Rs.2 lakhs. Default sentence was imposed. 4. Ext.P1 is the First Information Statement (F.I.S) lodged by first son of the appellant (brother of the deceased). He was examined as PW1. PW1 appeared before Puthoor Police Station at 18.30 hours on 19-07-2014 and lodged Ext.P1 that his brother was found murdered and was lying in his house. PW2 Shibu informed him through phone at about 4.40 that there was an incident in his home and wanted PW1 to go home Crl.Appeal No.330 of 2016 4 urgently. When he reached home, he found the front door ajar. He opened the door, entered the bedroom and found his younger brother lying drenched in blood on receiving stab injuries. At that time, the appellant (father of PW1 and the deceased) was not seen there. 5. After registration of the crime, investigation of the case was taken over by PW16 Circle Inspector of Police. PW16 conducted inquest at 7.00 am on 20-07-2014 and prepared Ext.P2. Ext.P3 is the scene mahazar prepared by PW16 on the same day. Thereafter, at 11.30 am on 20-07-2014, the appellant was arrested. Exts.P9 to 11 are the documents revealing arrest of the appellant. After his arrest, the appellant was questioned and he deposed while in custody that he had concealed MO1 knife at a secret place in his house. On the basis of the information furnished by the appellant while in custody, PW16 went to the house and found out MO1 knife from the secreted place. Witnesses were also present at the time of recovery of MO1 knife through Ext.P5 seizure mahazar. Crl.Appeal No.330 of 2016 5 Ext.P5(a) is the confession of the appellant which led to the recovery of MO1 knife. As informed by the appellant, the dress materials worn by him were also recovered. That apart, blood stained clothes worn by the deceased at the time of incident were also recovered. At the time of preparing scene mahazar, Scientific Assistant was present for collecting material objects from the crime scene. Materials were forwarded to the Forensic Science Laboratory, Thiruvananthapuram for analysis as per Ext.P12 forwarding note. On detecting a mistake in the address of the accused, Ext.P13 report was filed for correcting the same. Sketch and site plan were caused to be obtained through the Village Officer concerned. Ext.P15 is the F.S.L report. In the report, MO1 knife and dress materials worn by the deceased tested positive for human blood of 'B' group. Ext.P7 post-mortem report also shows that the blood group of the deceased was 'Group B'. Investigation was completed by PW16 and PW17 his successor filed the final report. 6. Learned counsel for the appellant strongly contended that this Crl.Appeal No.330 of 2016 6 is a case wherein no direct evidence was adduced by the prosecution and the case solely rests on circumstantial evidence. According to him, the circumstances are not properly proved and there are lot of cleavages in the chain of circumstances. It is also contended that last seen together theory propounded by the prosecution was not established by reliable evidence. Further, material contradictions in the testimony of crucial witnesses also weakened the prosecution case. It is the further case that PW's 2 and 4 are witnesses artificially planted by the prosecution to fill up the lacuna in the prosecution case. Testimony of PW1 is completely unreliable, according to the learned counsel for the appellant. 7. Per contra, learned Senior Public Prosecutor would contend that the circumstances in this case are established by reliable testimony. PW3, who is the mother of the deceased and wife of the appellant did not support the appellant to any extent. Like wise, PW8 Thlaseedharan Pillai, who is the brother of the appellant also refused to support the appellant. Crl.Appeal No.330 of 2016 7 These two witnesses along with PW's 1, 2, 4, 5, 6 and 7 would prove the prosecution case. Learned Public Prosecutor also contended that the investigation was meticulous and all evidence collected would only take us to the inference that the appellant was responsible for murdering of his son as alleged. 8. PW1 testified that on 19-07-2014 Saturday after 4.00 pm., his brother was killed. Admittedly, he is not an eye witness. While he was plucking tapioca, he received a phone call from PW2 Shibu. According to PW1's testimony, his father told Shibu about some happenings inside the house and wanted PW1 to come home to see the incident personally. PW1 proceeded to his house on a motorbike. When he reached near a shop of PW4 Chandrasekharan Pillai, he was informed that there was no visible fight between the father and son. When he opened the half closed door, he found his brother lying in a pool of blood on the floor. PW1 cried out for help and at that time, people gathered at their house. After sometime, he Crl.Appeal No.330 of 2016 8 went to the Police station and lodged Ext.P1 F.I.S. PW1 deposed that MO1 steel knife was used by his father for peeling arecanut. PW1 was subjected to serious cross examination. It is brought out in cross examination that in Ext.P1 he had mentioned that bleeding body of the deceased was found lying on bed. It is also brought out that he did not inform police that he found the body on the floor. It is true that where the body was found by PW1 for the first time has not been properly established. The fact remains that the body was lying inside a room in the appellant's house. Documents are also produced to show that the appellant himself was the owner of the house. That apart, the appellant owes a responsibility to explain as to how his son met with an unnatural death inside the house. Especially when it is an admitted case that the appellant along with PW3 and the deceased were dwelling in the house. Suggestion put to PW1 that he was responsible for his younger brother's death has been stoutly denied by him. It is come out in evidence through the testimony of PW's 1, 3, 6 and 8 that the deceased Crl.Appeal No.330 of 2016 9 was in the habit of drinking and in an intoxicated state he used to pick up quarrel with his parents. We find minor contradictions in PW's evidence, but it will not make it unreliable. 9. PW2 Shibu also supported the prosecution case to a great extent. According to his chief examination, appellant informed PW2 on 19- 07-2014 evening at about 4.00 pm that deceased Ratheesh was unwell and he was bleeding. He asked PW2 to go to appellant's house. At that time, he along with his wife was about to leave to his wife's house. Immediately, he called PW1 and asked him to go home. After sometime, PW1 called PW2 to rush to his house. At that time, he found Ratheesh lying with bleeding injuries. Although, he is not an eye witness to the incident, cross examination on him at length has not effected his credibility. Testimony of PW2 probabilizes the presence of the appellant in the house at the time of the incident. 10. PW3 is the mother of the deceased and wife of the appellant. Crl.Appeal No.330 of 2016 10 She testified in chief examination that on 19-07-2014 after making bed tea she went to a cashew factory where she was working. Her duty time was from 8.00 am to 5.00 pm. Somebody informed her about the incident and on seeing the dead body of her son, she fainted. She was taken to the house of PW8 Thulaseedharan Pillai. She heard people saying that her husband was responsible for killing her second son. Suggestion put to this witness in cross examination that PW1 committed the murder was strongly denied by her. But at the same time, she did not shield her husband. 11. PW4 is the owner of a petty shop situated near the house of the appellant. According to his testimony on 19-07-2014 he found the deceased entering home just before 3.00 pm. Thereafter, he opened his shop at 3.00 pm and after sometime the appellant came out of his house and called PW8. PW8 gave a phone number which was written down by PW4 and the number was handed over to the appellant. Then he walked away. After 4.00 pm., PW1 approached him and asked whether any fight Crl.Appeal No.330 of 2016 11 had happened in his house to which he said that he was not aware. Immediately after PW1 entered his house, he heard a loud cry. He went there and found the dead body of Ratheesh. In cross examination, no reason has been elicited to discard his testimony. 12. PW5 Somasekharan Pillai heard a loud cry emanating from the house of the appellant and on going there, he found PW1 shouting for help. He found Ratheesh lying with serious bleeding injuries. At that time, appellant was not present in the house. PW5's testimony supports the version of PW1. 13. PW6 Sajeev along with the deceased and one Satheesh (auto rickshaw driver) consumed alcohol in the noon on the date of occurrence. At about 1.00 pm, all of them went to their respective houses. After sometime, he went to the petty shop of PW4 for having a cup of tea. At that time, appellant came there and informed PW6 that Ratheesh might not come for plucking tapioca on the next day onwards. Time was about 3.00 Crl.Appeal No.330 of 2016 12 pm when the appellant informed this fact to PW6. Thereafter, appellant borrowed Rs.100/- from him and went away. After 4.00 pm, factum of death of Ratheesh was known to the public. He also found the body of Ratheesh lying with stab injuries. It was suggested in cross examination that auto rickshaw driver Satheesh was responsible for the murder. This was denied by PW6. It is pertinent to note that in the examination of appellant under Section 313 Cr.P.C, he submitted a written statement wherein it is mentioned that auto rickshaw driver Satheesh was responsible for the death of his younger son. But the suggestions made in the cross examination on many witnesses, it would indicate that insinuation was against PW1 for causing the death of his brother. 14. PW7 Aji Kumar is a witness to Ext.P2 inquest report. 15. PW8 Thulaseedharan Pillai is the younger brother of the appellant. While he was proceeding on his scooter, the appellant stopped his vehicle and asked for the phone number of Ravindran Pillai, who is the Crl.Appeal No.330 of 2016 13 brother of PW8 and the appellant. He asked PW7 to write down the number and it was handed over to the appellant. Thereafter, the appellant informed PW8 that he achieved his goal. When asked as to what was the goal, the appellant told PW8 that it would be known in the course of time. Immediately thereafter, PW8 left the place. Later he understood that the appellant had killed his son. In the cross examination, it was suggested to PW8 that he assumed that the appellant might have committed murder because the deceased was in the habit of drinking and assaulting his parents in a drunken bout. This suggestion is fatal to the defence case. It is a well settled proposition that suggestion made in the cross examination by the defence can only be the defence case. In other words, the defence cannot shirk from the responsibility of the case suggested in the cross examination. If we consider the suggestion made to PW8, it can only be understood that the deceased was in the habit of drinking and making problems in the household. Prosecution case is that fed up with this habit of Crl.Appeal No.330 of 2016 14 the deceased, father killed him on the fateful day. Viewing from this angle, the suggestion made to this witness is fatal to the defence case. 16. PW9 Thulseedharan Pillai is a witness to Ext.P3 scene mahazar. 17. PW10 Gopika was the Scientific Assistant, F.S.L, Thiruvananthapuram. She collected the material objects and blood sample from the crime scene. There is no effective cross examination on this witness. 18. PW11 Ratheesh is a witness to recovery of MO1 knife as pointed out by the appellant. He is a witness to Ext.P5 seizure mahazar. In chief examination, he has emphatically stated that the appellant showed the place were MO1 was concealed. Despite cross examination, testimony of this witness remains credible. Prosecution relies on the principles in Section 27 of the Evidence Act to prove that the appellant was aware of the place where MO1 knife was secreted after the incident. It is also pertinent to note that MO1 knife tested positive for human blood of 'B' group which matches Crl.Appeal No.330 of 2016 15 with that of the deceased. 19. PW12 is a witness to the recovery of blood stained clothes at the instance of the appellant. He is a witness to Ext.P6 seizure mahazar. Chemical analysis report Ext.P15 show that the dress recovered at the instance of the appellant tested positive for 'B' group human blood. 20. PW13 is a Police officer, who showed MO1 knife to PW14, who conducted autopsy on the body of the deceased on 22-07-2014. 21. PW14 Dr.Rama on 20-07-2014 conducted the autopsy on the body of Ratheesh. Ext.P7 is the post-mortem certificate. Injuries noted are as follows : - “ 1. Incised wound with avulsion of lower margin 3 x 1.5 x 1 cm obliquely placed on right side of under chin its lower inner end 1 cm behind tip of chin. 2. Incised wound 1.5 x 0.9 x 0.5 cm obliquely placed on left side of front of neck, its lower inner end 7 cm outer to midline and 4 cm below lobule of ear. Crl.Appeal No.330 of 2016 16 3. Incised wound 3 x 1 x 0.5 cm on left side of front of neck, oblique and parallel to injury no.2 and 1 cm below it. 4. Incised would 3 x 2 x 2 cm, oblique on left side of front of neck, its upper inner end 3.5 cm to left of midline and - 3 cm below jaw bone with a tailing 1 cm long directed horizontally outwards from its lower end. The sterno mastoid muscle underneath was seen cleanly cut. The carotid artery was found punctured and the wound track was directed downwards and to right behind trachea and esophagus for a depth of 5.5 cm producing a clean cut on the body of third cervical vertebra. 5. Incised wound 9 x 4 x 1 cm, obliquely placed on front of neck, its upper right end 2cm below and 1 cm inner to right angle of jaw bone. Aside cut 2.5 x 0.5 cm was seen along lower margin 4 cm inner to right end. 6. Incised would 7 x 1.5 x . 0.5 cm obliquely placed on front of neck 1 cm below injury no.5. The cricothyroid muscles were seen cleanly cut and thyroid cartilage Crl.Appeal No.330 of 2016 17 exposed. 7. Incised wound 2.5 x 1 x 0.5 cm on the front of right shoulder. 8. Incised wound 2 x 1 x 0.5 cm on the front of right shoulder 1 cm below injury no.7. 9. Incised wound 2 x 1 x 0.5 cm on the front of right shoulder 1 cm below injury no.8. 10. Two incised wounds 2.5 x 2 x 2.5 cm and 2 x 1.5 x 2 cm side by side 0.9 cm apart on the front of right shoulder 1cm below injury no.9. 11. Incised wound 3.5 x 1 x 3.5 cm, vertical on the front of right arm 1 cm below top of shoulder. 12. Incised penetrating wound 11 x 3 cm, horizontal on right side of front of chest and adjacent part of front fold of armpit. 9.5 cm to right of midline and 8 cm below collar bone. Its inner end was rounded and the chest cavity was penetrated through second intercostal space - (7 x 1 cm). The upper and lower lobes of right lung were transfixed for depth of 4 cm and 2 cm respectively. Crl.Appeal No.330 of 2016 18 - Chest cavity contained two handfuls of blood clot and 500 ml of fluid blood. Right lung was partially collapsed. The wound was directed backwards and downwards for a total minimum depth of 5 cm. 13. Incised penetrating wound 3.3 x 1 cm with side cut 1 cm long along lower margin, obliquely placed on right side of front of chest its lower inner rounded end 4 cm outer to midline and 4.5 cm below collar bone. The chest cavity was seen penetrated through third intercostal space (3.5 x 0.5 cm) and the wound was directed backwards and downwards for a total minimum depth of 3 cm. 14. Incised penetrating wound 3 x 1 cm, horizontal on left side of front of neck 4 cm to left of midline and 4 cm below jaw bone. The chest cavity was seen penetrated through the apex along the space behind collar bone and upper lobe of left lung transfixed for a depth of 2.5 cm. The wound was directed downwards for a depth of 4 cm. Left chest cavity contained 900 ml of fluid blood Crl.Appeal No.330 of 2016 19 and left lung partially collapsed. 15. Incised wound 6 x 2 x 3 cm obliquely placed on left side of front of chest 5cm to left of midline and 3 cm below collar. 16. Incised wound 3 x 1 x 0.5 cm, vertical on the back of right ring finger 2 cm above its tip.” 22. According to the testimony of PW14, injury Nos.4, 12, 13 and 14 are proved to be fatal and it could be caused with a weapon like MO1 knife. Absolutely no dent or discredit could be made in the testimony of PW14. 23. PW15 is the Police officer, who recorded Ext.P1 F.I.S. As mentioned above, PW16 Circle Inspector of Police conducted a major portion of the investigation and PW17 submitted the final report. 24. Learned counsel for the appellant contended that there is inordinate delay in producing MO1 knife before court. Despite the fact that MO1 knife was recovered on 20-07-2014, it was produced only on Crl.Appeal No.330 of 2016 20 31-07-2014. In this regard, we have to consider the recitals in Ext.P19 report submitted by PW16 before the Magistrate on 20-07-2014. He requested the court to grant some time to produce the dress materials sent for analysis as he wanted to dry the blood sticking on to the clothes. Similarly, he has requested time for producing MO1 knife before court as he wanted to identify the knife after showing it to the material witnesses. It is therefore clear from the testimony of PW16 as well as Ext.P19 that chance of falsely producing MO1 knife at a later point in time before the court is very remote. At the first instance itself, PW16 honestly sought permission of the court to keep custody of the materials for investigation purposes. 25. Another contention raised by the learned defence counsel that the circumstances do not prove the guilt of the accused also cannot be accepted. We have to consider the fact that this is a murder happened inside a room in a house, where the appellant, his wife (PW3) and the Crl.Appeal No.330 of 2016 21 deceased were residing at the material point in time. Conduct of the appellant, as spoken to by the aforementioned witnesses, immediately after the incident is quite unnatural. At the time of cross examination of these witnesses, there was no explanation advanced by the appellant, in the form of questions in cross examination, as to how the incident had happened. We are aware of the fact that at the time of examination of the appellant under Section 313 Cr.P.C, he put in a written statement suggesting that the deceased attempted to misbehave towards the wife of PW1 and in the scuffle the deceased sustained stab injury from a knife in the possession of auto rickshaw driver Satheesh. This case is not probabilised if we consider Ext.P7 post mortem report and the testimony of PW15, the Doctor who conducted the autopsy. Though the prosecution tried to project a case based on last seen together theory, we find that no rigidity can be insisted on proving a last seen together theory in the factual settings of this case because the appellant is charged with murder of his son inside his house. Crl.Appeal No.330 of 2016 22 There is no material contradictions sufficient to discard the testimony of witnesses cited by the prosecution to prove the circumstances. Contention of the appellant that PW's 2 and 4 are witnesses planted by the prosecution to falsely testify also cannot be accepted. Minor contradictions on the part of the prosecution witnesses will not destabilise the prosecution case. 26. On an evaluation of the entire evidence, we are of the view that the prosecution has established the charge of murder against the appellant by adducing reliable evidence. All the circumstances put together form a completed chain and the circumstantial evidence adduced will only point to the guilt of the accused and his innocence is not at all probabilised. Therefore, we are of the view that the appellant is responsible for the death of his son. 27. Learned counsel for the appellant contended that if at all the evidence suggests that the appellant had inflicted the injuries, it cannot fall within the definition of murder in Section 300 I.P.C. Relying on Arunkumar Crl.Appeal No.330 of 2016 23 v. State of Kerala ( 2018(5) K.H.C 651) , learned counsel for the appellant contended that this is a case wherein the appellant should be punished only under Section 304 Part II I.P.C. We have gone through the facts in the above decision. The facts in Arun Kumar 's case (supra) and this case are entirely different. Moreover, in a case where four stab injuries made on the extremely important parts of human body viz.; neck and chest with a dangerous weapon like MO1 knife cannot be considered to be an unintentional act or an act without knowing its consequences. We are not impressed about the contention of the appellant that this is a case wherein the charge can be altered to 304 Part II I.P.C. 28. After considering the entire materials, we find that the appellant has committed murder of his son and his conviction and substantive sentence under Section 302 I.P.C is legal and proper. Hence, we confirm it. However, we have reduced the quantum of fine imposed on the appellant to Rs.20,000/- (Rupees twenty thousand only) and in default of Crl.Appeal No.330 of 2016 24 payment of fine, he shall undergo simple imprisonment for a period of three months. With these modifications, the appeal is disposed of. All pending interlocutory application will stand closed. A. HARIPRASAD, JUDGE. N.ANIL KUMAR, JUDGE amk