Jayalal @ Lal v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940 CRL.A.No. 1458 of 2012 AGAINST THE JUDGMENT IN SC 400/2012 of SESSIONS COURT, THIRUVANANTHAPURAM DATED 29-11-2012 CP 18/2012 of J.F.C.M.-II,THIRUVANANTHAPURAM ## APPELLANT/ACCUSED NO.3 JAYALAL @ LAL, S/O JAYAN, CHEMBU PARAMBU VEEDU, EDAVACODE JUNCTION, CHELLAMANGALAM WARD, ULIYAZTHARA VILLAGE. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN ## RESPONDENT/COMPLAINANT/STATE: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.1149/2011 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT.) BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5-02-2018, ALONG WITH CRL.APPEAL NOS. 68/13, 121/13 & 189/13, THE COURT ON 10/4/2018 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 ================================ Dated this, the 10[th] day of April, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals are filed by the accused 1 to 4 in SC No.400/2012 of the Sessions Court, Thiruvananthapuram. They challenge judgment dated 29/11/2012 by which accused 1 and 2 were sentenced to undergo imprisonment for life u/s 302 I.P.C. r/w S.34 I.P.C. with a rider that they shall not be released from prison for a period of 20 years. They were also sentenced to a fine of `25,000/- each u/s 302 I.P.C. r/w S.34 I.P.C. in default of which to undergo rigorous imprisonment for two years. Accused 3 and 4 were sentenced to undergo imprisonment for life and a fine of `25,000/each u/s 302 r/w S.34 I.P.C. in default of which to undergo rigorous imprisonment for two years. All the accused were sentenced to undergo rigorous imprisonment for one year u/s 323 I.P.C. r/w S.34 I.P.C. They were also sentenced to undergo rigorous imprisonment for two years u/s 506(i) I.P.C, the sentences to be run concurrently. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:2:- 2. The aforesaid case had originated by registration of Crime No.1149/2011 of the Peroorkada Police Station alleging offences u/s 120B, 302, 323, 506(i), 201 and 212 r/w S.34 I.P.C. Prosecution alleged that in furtherance of a common intention and in furtherance of criminal conspiracy entered into between accused 1 to 7 and with the preparation to cause death of one Shaji, on 2/11/2011, accused 1 to 4 waited near the water tank in the pipeline road at Kowdiar. They knew that Shaji will be coming at that place by that time. Shaji was proceeding from his house along the pipeline road in a motorcycle. PW1 Ajith Kumar was the pillion rider. When they reached near the place where the accused were waiting, first accused pushed Shaji. Shaji and PW1 fell down from the motor cycle. Though the first accused attempted to inflict a cut injury on Shaji with a chopper, it was averted by PW1 by getting hold of the hand of the first accused. The third accused immediately caught hold of PW1. At that time, 2[nd] accused inflicted several injuries on the hand and legs of Shaji with the chopper. First accused also inflicted injuries on his hands, legs and waist with another chopper. The third accused fisted PW1 on his chest and back and threatened him that he would be killed. PW1 ran away from the scene and 2[nd] accused followed Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:3:- him. The accused thereafter fled away from the scene in a Santro car which was driven by the 4[th] accused. The injuries inflicted on Shaji were sufficient to cause death. It is further alleged that 5[th] accused facilitated accused 1 to 4 to escape from the place by giving `4,000/- and the 6[th] accused harboured accused Nos. 1 to 4 at the house of PW11. Accused 8 and 10 also harboured accused 1, 2 and 4 at Chandini Guest House at Sivaji Nagar in Bangalore. 3. In order to prove the aforesaid allegations, prosecution examined 28 witnesses as PW1 to PW28 and relied upon Exts.P1 to P70. The material objects produced were MOs I to MO XXXIV. The defence examined 3 witnesses as DW1 to DW3 and relied upon Exts.D1 to D11 of which Exts.D1 and D2 are portions of statement of PW2 and PW5 respectively which were marked as contradictions. The Court below found that the prosecution had established the case beyond reasonable doubt as far as the complicity of accused 1 to 4 are concerned and accordingly convicted them as stated above. 4. The learned counsel for the appellants made separate arguments with reference to each of the accused. According to them, the evidence against the accused were fabricated and on a proper appraisal of the entire evidence, it could be seen that the Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:4:- prosecution had not proved the case beyond reasonable doubt. 5. On the other hand, learned Public Prosecutor supported the judgment of the Trial Court and contended that the evidence in the case was sufficient enough to implicate all the accused to the crime and there is no reason why a different view is to be taken in the matter. 6. Before proceeding further, it would be useful to analyse the evidence in the case. 7. PW1 is an eye witness to the incident. His evidence is supported by PW2. PW1 in his evidence has stated that, on 2/11/2011, at about 8.10 a.m, while he was proceeding to Toll junction as a pillion rider in a motor cycle driven by Shaji (deceased), accused 1 to 4 were waiting near the water tank on the pipeline road leading to Toll junction from Kowdiar. Accused 3 and 4 were sitting inside the car which was parked at the middle of the pipeline road. When they reached the place where the Santro car was parked, first accused who was standing behind the Santro car came and pushed Shaji from the motor cycle and both of them fell down along with the motorcycle. Shaji attempted to get up and in the meantime, the first accused tried to inflict an injury on Shaji with a chopper. PW1 caught hold of the hand of Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:5:- first accused. Immediately accused 2 and 3 came out from the car. 3[rd] accused caught hold of PW1. The 2[nd] accused inflicted injuries on Shaji with a chopper. First accused also joined the attack on Shaji. Thereafter the 2[nd] accused attempted to inflict injuries on PW1. However, he ran away from the scene. Thereafter accused 1 to 3 left in the same Santro car which was driven by the 4[th] accused. After the accused had left, PW1 came near to Shaji. Shaji asked for water. PW1 brought water from the nearby house and gave it to Shaji. He also procured a shawl from the said house and tied it along the leg of Shaji where there were cut injuries inflicted by the accused. He rang up for an ambulance and when the ambulance came, Shaji was taken to Medical College Hospital. The Doctor on examining Shaji declared him dead. PW1 further deposed that Shaji had told him that if he dies, police should be informed that the assailants were Krishnakumar (A1) and Sanish (A2). PW1 went to Peroorkkada police station and had given Ext.P1 First Information Statement to the Circle Inspector of police stating the incident. He had also stated that the 3[rd] accused fisted PW1 on his back and chest. He was also threatened by the third accused that in the event of making any noise, he will also be killed. He identified accused 2 to 4, MO1 chopper used by the Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:6:- first accused and MO3 chopper used by the second accused. He also identified the dress Shaji was wearing at the relevant time, his helmet, spectacles, chappal, purse, mobile phones, driving licence, threads tied on the hand of Shaji during the relevant time, pen and hat which were the belongings of Shaji. He also identified the shawl collected by him from a neighbouring house with which he had tied around the leg of deceased. He had also given Ext.P2 statement before the Magistrate u/s 164 Cr.P.C. 8. PW2 is another eye witness. According to her, she was on her way to consult a Homoeo Doctor who is having a dispensary on the side of pipeline road. On 2/11/2011, at 8.10 a.m, while she was proceeding to see the Homoeo Doctor, she saw a car parked near the water tank on the pipeline road. She saw a person standing on the back side of the car which she identifies as first accused. She saw a bike coming from Kowdiar side and when the bike reached near the water tank, first accused pushed the bike. Rider and pillion rider fell down along with the bike. The rider was deceased Shaji and immediately first accused attempted to inflict injuries on Shaji with a chopper. The pillion rider got up and caught hold of hand of the first accused. At that time, two persons came out from the car. The third accused Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:7:- caught hold of the pillion rider and the other person inflicted cut injuries on Shaji several times. She also identified the second accused which was followed by the first accused inflicting injuries on Shaji. She also saw the third accused fisting PW1. Thereafter the 2[nd] accused attempted to inflict injuries on PW1 who ran away. The accused thereafter proceeded towards Kowdiar side in the car. After some time, she proceeded towards the deceased and the people assembled there informed that it was a person by name Shaji. She also identified MO1 chopper used by the first accused and MO3 chopper used by the 2[nd] accused. Shaji was thereafter taken to a hospital in an ambulance. The contradiction in the CD statement of PW2 was her statement before police that Shaji was taken to the hospital in 108 Ambulance and he was dead. 9. PW3 turned hostile. He was the elder brother of the fifth accused. 10. PW4 has been examined to prove the acquisition of silver coloured Santro car. He deposed that second accused requested him to arrange a car to go to Sabarimala on 1/11/2011. He along with another person Agath took a silver coloured Santro car with Regn.No.KL-01/BB 4899 from one Tony and the same was handed Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:8:- over to the second accused. The vehicle was given at 8.30 pm on 1/11/2011 during which time the 4[th] accused was also present. On 2/11/2011, by evening, he collected the key of the car from Lakshmi Hotel near General Hospital. He took the car from the said place. He had also given Ext.P3 statement before the Magistrate. He identified accused 2 and 4. 11. PW5 also supports the version of PW4. He was running a business of rent a car and was having a Santro car bearing Regn.No.KL-01/BB 4899. He deposed that PW4 and one Sri.Agath used to take cars from him on rent. They took a car on 1/11/2011 and returned it at 5.00 pm on 2/11/2011. 12. PW6 is an attestor to Ext.P4 inquest report and PW7 is an attestor to Ext.P5 scene mahazar. PW8 was the Scientific Assistant, State Forensic Science Lab who had examined the scene of crime. She collected four items from the scene of crime, blood in cotton gauze, blood stained solid, control soil and control cotton gauze. Those items were separately packed, labelled and handed over to the investigating officer. Ext.P6 is the report. 13. PW10 is an attestor to Ext.P8 mahazar in connection with seizure of Santro car bearing Regn.No.KL-01/BB 4899. 14. PW14 is the owner of the Santro car bearing Regn.No.KL- Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:9:- 01/BB 4899. He deposed that during November, 2011, the said car was entrusted with PW5 for the business of rent a car. 15. PW15 is the Associate Professor, Forensic Medicine and Deputy Police Surgeon in the Medical College Hospital who conducted postmortem on the body of Shaji. Ext.P14 is the postmortem certificate. He deposed that injury Nos.11, 15, 24 and 25 are individually and collectively sufficient in the ordinary course of nature to cause death. He also deposed that the incised wounds including injury Nos.11, 15, 24 and 25 can be caused by using MO1 and MO3 choppers. He also stated that the arteries and veins on four places were cut and there was profuse bleeding in the case. According to him, death was due to multiple injuries caused on the body of victim. 16. PW16 is a witness to recovery of MO1 and MO3 choppers. Those were recovered on the basis of disclosure statement given by the first accused. Ext.P15 is the mahazar. He deposed that when the police party reached the house near to LIC lane with the first accused, the first accused took out a bag from the roof of the house beneath a tin sheet. He identified the said bag as MO20 and, MO1 and MO3 choppers were kept inside MO21 cover which was kept in the bag. He also identified the first Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 ## -:10:- accused. 17. PW19 Village Officer had prepared Ext.P17 scene plan. PW28 is the Circle Inspector of police who conducted investigation in the case. As far as the commission of crime and the involvement of accused 1 and 2 in inflicting injuries on deceased Shaji are concerned, evidence of PW1 and PW2 supported by the evidence of PW15, the Doctor who conducted post mortem is very much sufficient. The fact that Shaji died on account of the injuries sustained by him is also proved. Therefore the fact that Shaji died on account of a homicide stands proved by the ocular evidence of PW1 and PW2 supported by the expert evidence of the Doctor. 18. The first question is whether the deposition of PW1 and PW2 is believable or not. Despite the contradictions mentioned as Exts.D1 and D2, we do not find any material to discredit the evidence of PW1 and PW2. The contention urged on behalf of the learned counsel for appellants is that PW1 cannot be believed and PW2 is a witness who was closely connected with Shaji and she was planted by the police. It is pointed out that though several persons had assembled in the locality after the incident as spoken to by the witnesses, no independent witness has been examined to prove the said fact. But on going through the evidence of PW1 Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:11:- and PW2, we do not find any infirmity in the said evidence warranting a different view to be taken other than what is found by the Court below. Further, PW1 had clearly spoken to the fact that deceased Shaji had spoken to him before he was taken in the ambulance and asked him to inform the police, in the event he dies, that he was attacked by Krishnakumar and Sanish. The first contention is that PW1 has not identified the first accused. But it has to be noticed that PW1 was the pillion rider. He had seen the first accused clearly on account of the fact that he is the first one to push them out of the bike and tried to inflict an injury on first accused. PW1 prevented the said attack. Immediately, second accused came and inflicted injuries on Shaji. PW1 was held back by third accused and after inflicting injuries on Shaji, when the second accused turned towards him, he ran away from the scene. According to him, he came back and gave water to Shaji and he even collected a shawl from a nearby house and tied it on the leg of Shaji and the shawl was also recovered by the police which was identified by him as MO15. Therefore, his presence in the scene of crime cannot be disputed. But before Court, when he does not identify the first accused, we have to find out whether there is any other evidence to prove the presence of first accused. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:12:- 19. Learned counsel for appellants have contended that PW1 had not identified the first accused. He had identified first accused as 10[th] accused. However, he had identified accused 2 to 4. Prosecution had put questions stating that PW1 was afraid of first accused. But it could be seen that in the FI statement, marked as Ext.P1, PW1 has stated that four persons inflicted cut injuries on Shaji due to the enmity he had with accused 1 and 2. In evidence, he had clearly stated that the injuries were caused by accused 1 and 2. As far as first accused is concerned, he refers him by his name. He would have misidentified him but that does not mean that his evidence had to be discarded. But even if such lacuna is there, PW2 is categoric when she identifies first accused. Attempt had been made by the learned counsel for appellants to suggest that PW2 was a planted witness. But she had deposed that she had come to see a Homoeo Doctor, who was residing nearby. Therefore, as far as the identity of first accused is concerned, there cannot be any dispute. 20. Yet another contention urged is that in Ext.P1 statement, PW1 has stated that the vehicle was a Wagon R car. Only in the subsequent statement he states that it was a Santro car. This is not a lacuna which can give rise to a situation to disbelieve PW1. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:13:- He had given the statement immediately after the crime has been committed. Later, he could recollect that the car was a Santro car. Therefore, we do not think that there is any reason to disbelieve PW1. 21. Now as far as PW2 is concerned, though it is contended by 2[nd] accused that there is no such Homoeo Doctor near to the place of occurrence, PW19 had given evidence stating that there is a Homoeo clinic near to the place of occurrence. DW1, the Councilor of the said ward also has given evidence about a Homoeo clinic near to the place of occurrence. The argument of the learned counsel for appellants is that PW2 did not know the name of the Doctor. She said she could not remember. The name of the Doctor was Mirza Hussain as spoken to by PW28. The Trial Court observed that a rustic villager like PW2 cannot be expected to identify the Doctor by his name and normally they mention a Doctor as Doctor and a Homoeo Doctor as Homoeo Doctor. This view cannot be faulted with in any manner. Therefore the fact that PW2 had come to visit a Homoeo Doctor cannot be disbelieved. In her evidence she states that after seeing the incident she left for her home and did not see her Doctor also and that she had left home even before the ambulance reached. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:14:- 22. Yet another argument raised is that the statement of PW2 was recorded at her house as spoken to by PW2 herself whereas PW28 the investigating officer states that a statement was recorded at the Police Station and therefore PW2 cannot be believed. In evidence PW2 has stated that she had given a statement to the police station as well and she was not aware as to whether the same was recorded or not. Evidence would show that she was questioned on 3/11/2011 and on 4/11/2011. Therefore, the aforesaid infirmity cannot be taken as a ground for rejecting the evidence of PW2. 23. Another argument raised was that Test Identification Parade was not conducted in the case as PW1 or PW2 had no previous acquaintance with the accused and therefore their evidence regarding identity of the accused cannot be accepted. As already stated, in the present case, PW1 and PW2 had sufficient opportunity to see the assailants for a considerable time and when they have identified the accused before Court and the Court felt that their evidence can be believed, there is no reason why such evidence is to be discarded. That apart, Test Identification Parade is conducted for the purpose of investigation, and it is not at all fatal to the prosecution. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:15:- 24. Further, at the instance of the first accused, MO1 and MO3 choppers were recovered. Ext.P15(a) is the disclosure statement of the first accused. PW16 is a witness to the recovery of MO1 and MO3. It is argued that Ext.P15(a) disclosure statement does not contain the authorship of concealment and the recovery pursuant to the said statement is not having any probative value u/s 27 of the Indian Evidence Act and therefore the first accused cannot be connected to the commission of the offence. What the accused had disclosed and is relevant is that “if I am taken, the place and choppers will be shown”. It is based on the aforesaid statement that as led by the first accused, PW28 and his team of officers reached the dilapidated building from which he had taken MO20 bag and the choppers were concealed in the said bag and Ext.P15 is the recovery mahazar. PW16 stated that he had witnessed the recovery. Though he was subjected to lengthy cross examination, nothing has been brought out to discredit his evidence. When the fact of recovery is proved by sufficient evidence, it cannot be stated that the recovery is bad in law and the statement so given is not relevant u/s 27 of the Indian Evidence Act. 25. The prosecution has also relied upon the dying Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:16:- declaration of Shaji. He told PW1 that if he dies, PW1 should tell the police that the injuries were inflicted by Ambalamukku Krishnakumar and Sanish who were accused 1 and 2 respectively. Ext.P1 FIS was given at 10 am on the date of occurrence. The incident happened by about 8.10 am on the same day. This information was passed on to PW1 by Shaji before Shaji was taken in the ambulance. It is argued that Shaji would have become unconscious immediately after sustaining injuries. But it is relevant to note that Shaji has asked for water. PW1 went to a nearby house and had given him water. Further, he had also taken a shawl and tied the bleeding on the leg of Shaji. This statement was given by Shaji immediately after the injuries were inflicted on him. He did not die immediately but he was profusely bleeding. Therefore, the statement given by deceased Shaji to PW1 is clearly admissible as a dying declaration u/s 32(1) of the Evidence Act. In the said circumstances, the involvement of accused 1 and 2 cannot be ruled out and the prosecution had clearly proved the said fact. 26. Now coming to the complicity of the other accused to the crime, the Trial Court had already found that there is no evidence of any conspiracy. The accused were convicted u/s 302 r/w 34 Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:17:- IPC. As far as the 4[th] accused is concerned, he is a person who was driving the vehicle at the relevant time. Apparently accused 3 and 4 had not inflicted any injuries on deceased Shaji. The 4[th] accused was sitting in the car. He had not committed any overt act. From the evidence of PW1 and PW2, it is evident that 3[rd] accused had come and held back PW1. He appears to have fisted PW1. The overt acts regarding death of Shaji was caused by accused 1 and 2 alone. The question is whether accused 3 and 4 had any common intention to commit offence of murder. That they were present along with accused 1 and 2 by itself cannot be a reason for inferring a common intention. Apparently, the 4[th] accused was sitting in the car itself. He did not come out. The fact that accused 1 and 2 had weapons with them while sitting in the car may not by itself be a factor which 4[th] accused would know and even assuming that he knows that they had weapons, he may not know that it is to commit murder. Unless there is some evidence to indicate that he too had the intention of committing the murder, the 4[th] accused cannot be implicated for the offence. As far as the 3[rd] accused is concerned, evidence is that he came out of the car, caught hold of PW1 and prevented PW1 from interfering with the crime or obstructing accused 1 and Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:18:- 2. Therefore, 3[rd] accused apparently participated in the crime by getting hold of PW1 and it could be said that he entertained an intention to commit murder of Shaji. But as far as the 4[th] accused is concerned, he stands in a different footing. He only knew that a crime was about to be committed. But he may not have entertained a common intention to commit murder or homicide. Under such circumstances, we are of the view that the 4[th] accused is to be given the benefit of doubt and he should be exonerated of the charges levelled against him. 27. The Court below had sentenced accused 1 and 2 for a period of 20 years. The sentence so imposed is without jurisdiction. The position of law has been well settled in the judgment of the Apex Court in _**Union of India v. Sriharan and Other**_ **s** [(2016) 7 SCC 1]. Life imprisonment means the entirety of life of the prisoner unless curtailed by remissions validly granted under Section 432 of I.P.C. A life convict has the right to claim remission as provided under Articles 72 and 161 of the Constitution of India on well settled principles as held in _**Swamy Shraddanada (2) v. State of Karnataka**_ (2008) 13 SCC 767]. Only the High Court or the Apex Court can interfere with the right of a convict to seek remission. Crl.Appeal Nos. 1458/2012, 68, 121 & 189 of 2013 -:19:- 28. Having regard to the aforesaid factual situation, we are of the view that the appeal filed by accused 1, 2 and 3 deserves to be interfered only with reference to the sentence and the appeal filed by the 4[th] accused has to be allowed. Accordingly, Crl.Appeal Nos.68/2013, 121/2013 and 1458/2012 are partly allowed confirming the conviction. However, the sentence of accused 1 to 3 shall be for life imprisonment. Crl.Appeal No.189/2013 is allowed setting aside the conviction and sentence of the 4[th] accused. He shall be set free if his presence is not required in any other case. **Sd/-** ## **A.M. SHAFFIQUE, JUDGE** **Sd/-** ## **P.SOMARAJAN, JUDGE** //True Copy// PS to Judge Rp