Jaison v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 11TH DAY OF JANUARY 2013/21ST POUSHA 1934 ## **CRL.A.No. 1581 of 2008 (C)** AGAINST THE JUDGMENT IN SC.NO.269/2007 OF THE SESSIONS COURT,ERNAKULAM DATED 13-06-2008 APPELLANT/ACCUSED: ---------------------------------- JAISON, S/O.AUGUSTY, AGED 29, SUB STATION, ELAVANADU KARA, KOTHAMANGALAM VILLAGE ERNAKULAM DISTRICT. BY ADVS.SRI.JOHN K.GEORGE SRI.P.K.VARGHESE SRI.K.S.ARUNKUMAR RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.R.RANJITH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------Crl. Appeal No.1581 of 2008 C ---------------------------------------------------Dated this the 11[th] day of January, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The appellant, who was the accused in S.C.No.269 of 2007 on the file of the Court of Sessions, Ernakulam, was convicted for the offence under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life. The appellant challenges the conviction and sentence in this appeal. 2. The prosecution case is that on 31.8.2004 at 4.45 PM, the accused stabbed Aji near Malanad Bar at Kothamangalam, on account of previous enmity and, on his way to hospital, Aji succumbed to the injuries. A family restaurant is also there in the Malanad Bar. PW9 (Asokan) gave Ext.P6 First Information Statement at 5.15 PM on 31.8.2004. PW19, the Sub Inspector of Police, Kothamangalam, registered Ext.P15 First Information Report on the basis of the statement given by PW9 (Asokan). PW22, Circle ## **Crl. Appeal No.1581 of 2008 C** :: 2 :: Inspector of Police, Kothamangalam, conducted the investigation, which was continued by his successors PW20 and PW21. PW21, the successor in office of PW20, laid the charge. 3. The prosecution examined PW1 to PW22 and marked Exts.P1 to P17 and MOs. 1 to 14. On the side of the accused DW1 was examined and Exts.D1 and D2 were marked. 4. The prosecution alleged that on the date of incident, the deceased, PW1 (Sibi Chandran), Prasanth and Ajeesh went to see Kittu Vaidyan for the treatment of the deceased. After massage, they went to Perumbavoor for inviting persons for the marriage of the deceased. By about 4.30 PM, they came back to Kothamangalam and went to Malanad Bar for taking liquor. They met their friend Manoj in front of the Bar. They realised that money would not be sufficient for having drinks for all of them. Therefore, `200/- was contributed by Manoj and they decided to purchase liquor from the Beverages Corporation. Ajeesh and Prasanth went to the Beverages Corporation by a bike. PW1, the deceased (Aji) and Manoj could not go by using one bike and therefore, Aji alone took ## **Crl. Appeal No.1581 of 2008 C** :: 3 :: the bike. PW1 and Manoj hired an autorickshaw. The deceased rode the bike in front of the autorickshaw. After they covered about ten feet from the Bar, the accused intercepted Aji, caught hold of him and stabbed him twice with MO1 knife at the chest and abdomen. Even after sustaining the injuries, the deceased rode the bike. By that time, the accused stabbed him on his head twice. When the deceased reached the main road, he fell from the bike and he ran along the side of the road and thereafter, he fell on the side of the road. PW1 and Manoj followed the accused, who ran away and escaped. After coming back to the scene of occurrence, PW1 and Manoj came to know that the deceased was taken to the hospital by PW9 (Asokan) and two others. Inquest was conducted by PW22. Ext.P11 inquest report was attested by PW17. 5. PW16 (Dr.K.Valsala) conducted postmortem examination on 1.9.2004 and issued Ext.P10 certificate. Ext.P10 certificate shows that the deceased had sustained thirteen antemortem injuries. The antemortem injuries noted in Ext.P10 certificate are the following: ## **Crl. Appeal No.1581 of 2008 C** :: 4 :: - “B. Injuries (Antemortem) 1. Incised bone deep wound 7.4 x 1 cm on the right side of back of head, oblique, the upper front end 6 cm above top of ear and lower back end 8cm behind ear and 15 cm above root of neck. 2. Incised bone deep wound 5 x 0.5 cm transverse, over left parietal area, inner end 2cm outer to midline of head. The outer end was 10 cm above top of ear. 3. Contused abrasion 1.5 x 0.8 cm on upper part of left ear. 4. Superficial incised wound 2.5 x 0.3 cm at the outer half of left upper eye lid. 5. Contused abrasion 12 x 8 cm over left side of face, 2 cm below outer end of eye brow, extending to jaw margine. 6. Incised penetrating wound 3.7 x 1.5 cm oblique on left side of chest. Upper back end was blunt and 12.5 cm below collar bone and 3.5 cm outer to midline. The lower front sharp cut end was 5.5 cm outer to midline and 20 cm above umbilicus. The wound continued cutting 4[th] inter costal space, 5[th] rib and lower border of 4[th] rib and entered the chest cavity transfixing the left lung at upper lobe (8x2x1 cm) and at lower lobe 7x1x1 cm and back aspect of pericardial sac (6x1 cm) and terminated by transfixing the heart (7x1x1 ## **Crl. Appeal No.1581 of 2008 C** :: 5 :: cm). Pericardial sac contained 110 gm. of clot and left chest cavity contained 1800 ml of blood. The wound was directed upwards, backwards and to the right with minimum depth 6 cm. ## 7. ## 8. ## 9. 10. Incised penetrating wound, 7x2 cm vertical at the right side of abdomen. The upper blunt end was 29 cm below inner end of collar bone and showed contused margins, the other end was sharp cut with a taining of 0.5 cm. The wound entered the abdominal cavity, 3cm below rib margin and cutting the under surface of left lobe of liver (5x2 cm) and partially, cutting the caudate lobe and then cutting the diaphragm entered the chest cavity and cutting the under surface of lower lobe of left lung towards the inner border and terminated near the hilar side. The abdominal cavity was smeared with blood. The wound directed upwards, backwards and slightly to the left with minimum possible depth 8 cm. Incised wound 3x0.9 cm muscle deep, transverse on the back of left wrist 6.5 cm above knuckle of middle finger. Incised wound 3.7x0.2 cm on the back of left hand, transverse 5 cm below wrist joint and cutting the extensor tendon of the index finger. Contused abrasion 1.5x 1cm on the outer aspect of left knee. ## **Crl. Appeal No.1581 of 2008 C** :: 6 :: 11. Multiple contused abrasions 9x5cm on the left leg, front aspect, just below knee. 12. Contused abrasion 2.5x1 cm on the front of right knee. 13. Contused abrasion 4x1 cm on the outer aspect of right knee.” 6. The prosecution alleged that a few days before the incident, there was a quarrel between the deceased and his friends on the one hand and the accused and his friends on the other and Crime Nos.389 of 2004 and 390 of 2004 were registered by the police. It was alleged that when it was proposed to the accused that the difference of opinion between the deceased and the accused should be settled, the accused stated that everything would be settled and the accused would not be allowed to marry. 7. PWs1 and 2 are the eye witnesses to the incident. They narrated the incident as stated above. PWs. 3 and 4, who were cited by the prosecution as eye witnesses, turned hostile and Ext.P1 series and Ext.P2 series of contradictions were marked through them. PW5 was examined to depose in tune with the statement to the police that he saw somebody falling in front of his shop. PW5, ## **Crl. Appeal No.1581 of 2008 C** :: 7 :: however, turned hostile and Ext.P3 series of contradictions were marked through him. PWs. 6 and 12 were examined to speak about the quarrel between the deceased and the accused on a previous occasion. However, PW6 turned hostile. 8. From the scene of occurrence, MO2 (sheath of MO1 knife) belonging to the accused was seized as per Ext.P8 scene mahazar, along with the belongings of the deceased which were marked as MO3, MO4, MO5 and MO14. The accused was arrested on 1.9.2004 and he was released on bail on 15.11.2004. 9. It would appear that the case of the prosecution is that MO1 was recovered as shown by the accused after he gave a confession statement to PW22. However, the mahazar under which MO1 was seized was not marked in the case. PWs.19 to 22 also did not speak anything about the recovery of MO1. From the original records, it is seen that the mahazar under which MO1 was seized was produced along with Ext.P8 scene mahazar and both these mahazars were tied together. However, at the time of marking the document, the mahazar under which MO1 was seized was not ## **Crl. Appeal No.1581 of 2008 C** :: 8 :: marked and only the scene mahazar was marked as Ext.P8. Learned Public Prosecutor did not give any satisfactory explanation as to why PWs.19 to 22 did not speak anything about the recovery of MO1 knife. 10. Learned counsel for the appellant submitted that the prosecution failed to prove the incident and the complicity of the accused in the case. It is submitted that the specific case of the accused is that the deceased sustained injuries as a result of fight between two goonda gangs, the deceased himself being a known goonda in the locality. It is submitted that PWs.1 and 2 had given different versions regarding the place of occurrence, that the eye witnesses are the persons involved in criminal cases, that the prosecution failed to adduce any evidence as to the recovery of MO1 knife and that the prosecution failed to prove the alleged motive. It is submitted that the evidence of PW2 and PW9 are contradictory in terms, making the prosecution story unbelievable. Learned counsel also submitted that the deceased sustained several injuries and that would probabilise the defence version that he sustained injuries in a fight between two goonda gangs. The learned counsel also ## **Crl. Appeal No.1581 of 2008 C** :: 9 :: submitted that if the prosecution version is true, there would be blood stains on the motor cycle and it was not examined by an expert. It is also submitted that the clotted blood which was collected from the scene of occurrence as per Ext.P8 scene mahazar was not examined in the Forensic Science Laboratory. Learned counsel for the appellant relied on the decisions in **Babu and Others** v. **State of U.P.** (AIR 1983 SC 308), **Keshav Ganga Ram Navge and Another** v. **The State of Maharashtra** (AIR 1971 SC 953), **Karunakaran** v. **State of T.N.** (AIR 1976 SC 383), **Akoijam Ranbir Singh** v. **Govt. of Manipur** (AIR 1976 SC 2191) and **Miran Bux** v. **Laloo and Others** (1993 Suppl. (3) SCC 379) in support of some of the contentions mentioned above. 11. On going through the aforesaid decisions, it is seen that the relevant paragraphs cited by the learned counsel were rendered on the basis of the facts of those cases and no dictum as such was laid down which could be applied to the facts of the present case. 12. We have meticulously gone through the evidence, oral and documentary. We have also gone through the findings rendered ## **Crl. Appeal No.1581 of 2008 C** :: 10 :: by the court below. The oral evidence of PWs. 1 and 2 would clearly establish the case of the prosecution that the accused stabbed the deceased with MO1 knife at the place of occurrence as alleged. Though PWs.4 and 5 turned hostile, that does not weaken the prosecution case. All the material particulars relevant for consideration have been stated in the evidence of PWs. 1 and 2. Though they were cross examined at length, nothing was brought out in cross examination to disbelieve the evidence of PWs.1 and 2. PW13 stated in evidence that the accused hired his autorickshaw and he had seen blood on the body of the accused. It is stated by PW13 that the accused stated to him that he sustained injuries in an accident. The evidence of PW10, PW11 and PW12 would clearly indicate that there was a quarrel between the accused and his friends on the one hand and the deceased and his friends on the other. Two crimes were registered in that regard against the accused and others as well as the deceased and others, as spoken to by PW19. The motive alleged by the prosecution is also established by the oral evidence in the case. The medical evidence in the case consists of the oral evidence of PW16 and Ext.P10 postmortem certificate. The medical evidence would clearly establish that the ## **Crl. Appeal No.1581 of 2008 C** :: 11 :: injuries sustained by the deceased were caused by a weapon like MO1 knife. 13. The learned counsel for the appellant submitted that in the absence of any evidence with regard to the recovery of MO1 knife, the conviction cannot be sustained. Learned counsel submitted that there is no legal evidence in the case to establish that the injuries on the deceased were caused using MO1 knife. 14. Learned Public Prosecutor submitted that the oral evidence in the case would clinchingly establish that the accused committed the offence. He also relied on the decision of the Supreme Court in **State of Rajasthan** v. **Arjun Singh and Others** (AIR 2011 SC 3380) and submitted that the failure to bring out details regarding recovery of MO1 knife would not be fatal to the prosecution. In **State of Rajasthan** v. **Arjun Singh and Others** (AIR 2011 SC 3380), the Supreme Court held thus: “10. Learned senior counsel for the accused persons contended that in the absence of recovery of pellets from the scene of occurrence or from the body of the injured persons, it is highly doubtful as to the scene ## **Crl. Appeal No.1581 of 2008 C** :: 12 :: of occurrence and whether such incident did take place in the manner suggested by the prosecution. Learned counsel appearing for the complainant pointed out that though there was an entry in Malkhana Register (Ext.P31A) wherein it was stated that a sealed packet containing pellets was deposited but prosecution failed to lead any evidence on this point. It was also pointed out that though a report was received from the Forensic Science Laboratory, no evidence regarding recovery of the pellets was produced. As rightly pointed out by the learned Additional Advocate General appearing for the State that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, blood stained clothes etc. cannot be taken or construed as no such occurrence had taken place. As a matter of fact, we have already pointed out that the gun shot injuries tallied with medical evidence. It is also seen that Raghuraj Singh and Himmat Raj Singh, who had died, received 8 and 7 gun shot wounds respectively while Raj Singh (PW-2) also received 8 gun shots scattered in front of left thigh. All these injuries have been noted by the Doctor (PW-1) in his reports Exts.P1-P4.” 15. MO1 knife was produced before Court. The eye witnesses identified MO1 knife and stated that the accused stabbed ## **Crl. Appeal No.1581 of 2008 C** :: 13 :: the deceased with that knife. The knife was shown to PW16 medical officer, who conducted the postmortem examination, and she stated that the fatal injuries noted as injury Nos.6 and 7 could be caused by MO1 knife. She stated that injury Nos.1, 2, 4, 6, 7, 8 and 9 could be caused by a weapon like MO1. In the examination of the accused under Section 313 of the Code of Criminal Procedure, various questions were put with reference to MO1 and as spoken to by the witnesses. For most of the questions, the accused stated that he does not know. It is true that production of the weapon of offence and evidence regarding recovery of the weapon are important aspects in the proof of the prosecution case. Even if the weapon of offence could not be traced out or produced in a particular case, that by itself is not a ground to acquit the accused, provided the complicity of the accused and the guilt of the accused are proved by other cogent evidence. When direct evidence in respect of the incident is available in the form of acceptable ocular evidence, failure to produce the weapon of offence or failure to produce evidence regarding recovery of the same by itself would not be sufficient to hold that the guilt of the accused is not proved. There may be instances where it is impossible to trace out the ## **Crl. Appeal No.1581 of 2008 C** :: 14 :: weapon of offence for various reasons. Sometimes, though the weapon of offence is produced, the evidence regarding seizure of the same may be shaky. The failure of the prosecution to adduce evidence regarding recovery of the weapon may not as such be relevant when direct evidence is available as to the complicity of the accused, place of occurrence and the nature of injury sustained by the deceased. In the case on hand, the sheath of MO1 knife was produced as MO2. The prosecution alleged that MO2 is the sheath of MO1 knife. There is no challenge to the same. 16. Learned counsel for the appellant submitted that PWs.1 and 2 are members of the gang of the deceased and, therefore, no credence can be given to their evidence. In **State of U.P.** v. **Kishan Chand and others** (AIR 2004 SC 4671) and in **Kuldip Yadav** v. **State of Bihar** (AIR 2011 SC 1736), the Supreme Court held that the mere fact that the witnesses are related to the deceased is not a ground to discard their evidence. In **State of Uttar Pradesh** v. **Farid Khan and others** (AIR 2004 SC 5050), it was held that the evidence of an eye witness cannot be discarded on the ground that he was convicted and sentenced in a criminal case. The question is ## **Crl. Appeal No.1581 of 2008 C** :: 15 :: whether the witness was really an eye witness. If his evidence that he saw the incident and his presence could not be doubted, the evidence of such eye witness should not be discarded only on the ground that he was convicted and sentenced in a criminal case. 17. We are of the view that the flaws in the investigation and the flaws in the conduct of the prosecution case before the Sessions Court are not grounds for holding that the appellant is not guilty, when we find that his guilt has been proved by other acceptable evidence. For the aforesaid reasons, we do not find any ground to interfere with the conviction and sentence. The Criminal Appeal is, accordingly, dismissed. ## **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/