Krishnan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 CRL.A NO. 1306 OF 2018** **AGAINST THE JUDGMENT DATED 17.02.2017 IN SC NO.274/2014 OF THE ADDITIONAL DISTRICT & SESSIONS COURT - VI, THIRUVANANTHAPURAM / III ADDITIONAL MACT** **APPELLANT/ACCUSED:** **KRISHNAN NAIR, C.NO.1643 AGED 61 YEARS, CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADV.SRI.JOSEPH SEBASTIAN PURAYIDAM, STATE BRIEF** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BYSRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.1306 of 2018 2 **K. VINOD CHANDRAN & C. JAYACHANDRAN, JJ. ---------------------------------------------Crl.Appeal No.1306 of 2018** **---------------------------------------------Dated this the 3[rd] August, 2022** ## **JUDGMENT** **Vinod Chandran, J.** **The appellant herein was convicted for the murder of one Satheesan, who questioned his regular residence, at night, in the** _**'thidappilli'**_ **of a Temple. The Trial Court found the issue raised; whether there was proof beyond reasonable doubt of the accused having caused the death of Satheesan; by stabbing him with MO3 on 29.09.2012, with the intention necessary to constitute the offence of murder, positively against the accused and in favour of the prosecution. The accused was convicted and sentenced to life imprisonment under S.302 IPC with a fine of Rs.10,000/- payable to the mother of the deceased and in default, a further period of R.I for six months. The prosecution examined 16 witnesses, marked 22 documents as Exts.P1 to P21 and produced six material** Crl.Appeal No.1306 of 2018 3 ## **objects.** ## **2. Adv.Joseph Sebastian Purayidam, learned** **Counsel appearing for the accused asserted that the injury sustained was due to a fall on the incomplete construction adjacent to the temple and in the alternative urged for conceding the benefit of doubt to the appellant. It is argued that the deceased was the assailant, who came to the Temple where the accused was resting for the night and objected to his sleeping in the** _**'thidappilli'**_ **. Even the eye-witness speaks of a scuffle and when the deceased was the assailant, if at all the stab is found to have been delivered by the accused, it was only in self defense and there was never an intention to murder. The recovery under S.27 cannot be believed since the witness does not speak of the recovered objects having been taken by the accused, from the place of concealment. There is also no concealment evident from the confession and the evidence of the eye-witness speaks of the accused having run away from the scene** 4 Crl.Appeal No.1306 of 2018 **of occurrence, into the woods, on the back side of the Temple. There is no possibility of the accused having returned to the scene of crime from where, not only the alleged weapon, but also the blood stained dress of the accused was recovered. It is also argued that the deceased was in a critical stage and there was no scope of the victim having given the dying declaration as deposed by the witnesses. Further the numerous witnesses, who speak of the dying declaration, ought to raise a suspicion and the testimonies are to be found to be tutored and artificial. The deceased admittedly died after a week and it cannot be said that the death was due to the injury caused in the scuffle. The defense, reiterates the strong possibility of the victim having fallen in a drunken stupor, near the Temple and injury caused, by the gaping iron rods on the half constructed wall.** **3. The learned Senior Public Prosecutor Sri.Alex M.Thombra asserts that the impugned judgment is to be upheld on both the conviction and sentence** 5 Crl.Appeal No.1306 of 2018 **imposed. There is direct ocular evidence, which is fully corroborated by the dying declaration spoken of by three witnesses who came to the crime scene immediately after the incident. Two other witnesses who visited the victim at the hospital also speak of the dying declaration, further corroborated by the statement recorded of the victim by the Police which is admissible under Section 32 of the Evidence Act. The testimony of these witnesses, whose presence was natural cannot at all be termed to be artificial and it reinforces the finding of guilt entered by the Trial Court. The presence of PW1 to PW3 are mutually confirmed and PW1 is the person who narrated the history recorded in the Wound Certificate, Ext.P20. The medical evidence clearly establishes the homicide and the weapon recovered, as per the expert testimony, is possible of causing the injury, which, again as opined by the expert, is in the ordinary course capable of causing death. It is also pointed out that the scientific evidence regarding the blood found on** Crl.Appeal No.1306 of 2018 6 **the dress of the accused and the deceased, belonging to B[+ve] group clinches the guilt of the accused, especially when the deposition of PW13 indicates the blood group of the deceased to be identical to that detected in the dress.** **4. PW1 is the first informant, who gave Ext.P1 FIS. As per the FIS, at around 7.45 p.m on 29.12.2012, PW3 called the first informant over the telephone and spoke of his mother's elder sister's son having been stabbed by the accused. When he received the call he was traveling in the bike of one Praveen and they turned around to proceed to the crime scene. When they reached near the Temple, the victim was found sitting on the culvert (** _**'kalingu')**_ **with his hands held tight on his chest. There was blood oozing from the wound and the victim told him that the accused had stabbed him. The first informant then telephoned PW3 and asked him to come with a vehicle. PW3 immediately came to the spot and PW1 to PW3 took the victim to the casualty of Thiruvananthapuram Medical College** Crl.Appeal No.1306 of 2018 7 **Hospital. The Doctor examined him and immediately advised surgery. It was also deposed that, on the way, the victim spoke of the accused having beaten him with a stick, a few days back and threatened to kill him. It was also the statement in the FIS that the accused nursed a grudge against the victim for having objected to the accused residing at night in the** _**'thidappilly'**_ **of the Temple.** **5. The first informant when examined as PW1 spoke in tandem with his FIS and also reiterated the dying declaration. Ext.P1 FIS, was marked and he deposed that it was recorded by the Police from the hospital. MO1 & MO2 shirt and lungi worn by the deceased was identified. He also deposed that the victim was brought to the ward [inpatient ward] on the next day and he died after two days. PW2 is an eyewitness, who was proceeding through the road in front of the Temple , when he heard sounds from near the** _**'thidappilli'**_ **of the Temple. On close observation he found the accused stabbing the deceased with a knife,** Crl.Appeal No.1306 of 2018 8 **which together with the handle, had a length of one feet. He graphically described the stab having been inflicted on the left side of the chest, which wound started bleeding. PW2 then hollered out, when the accused ran away. PW2 sat along with the injured victim and called PW1, who reached there within 10 minutes and summoned PW3. PW2 also spoke of the victim having spoken of the quarrel with the accused for reason of the accused unauthorizedly residing in the '** _**thidappilli'**_ **of the Temple. PW2 identified MO3, as the knife and also the dress of the accused as MO4 & MO5, shirt and lungi. Omission was brought out in cross-examination regarding the witness having not spoken to the Police about having heard shouts and abuses which attracted his attention. We do not think that the omission is very relevant or significant enough to disbelieve the ocular testimony.** **6. PW3 is the person who answered the summons of PW1 and came with a car to transport the victim to the hospital. He too spoke of the dying declaration in** 9 Crl.Appeal No.1306 of 2018 **tandem with that spoken of by PW1. PW4 is a friend of the victim who visited him in the hospital on 30.09.2012 and PW5 was the victim's mother, who too visited her son, in the hospital. Both of them spoke of the victim having told them about the stab having been inflicted by the accused. PW6 is the witness to the inquest report, Ext.P3 and PW7, the Station House Officer, who on registration of the FIR, in which S.307 alone was charged, carried out the preliminary investigation. PW8 is the witness to Ext.P5 scene mahazar and PW9 attested the recovery mahazar, Ext.P9, by which MO3 knife and MO4 to MO6 dress and bath towel of the accused were recovered from under the hard board seen at the '** _**thidappilli'**_ **. PW10 prepared the site plan, Ext.P14, and PW11, ASI recorded the FIS, Ext.P1 and registered the FIR, Ext.P1(a). PW12 is the I.O who filed the final report, PW13 the Doctor who conducted the postmortem examination, PW14 is the CPO who stood guard duty over the body, PW15 is the I.O who took over the investigation from PW7 and PW16 is** Crl.Appeal No.1306 of 2018 10 **the Doctor who first examined the victim.** **7. We will first look at the medical evidence led before the Trial Court. PW16 is the Assistant Professor of Surgery in the Medical College Hospital, Thiruvananthapuram, who examined the victim at 8.20 p.m on 29.12.2012. The victim was brought to the casualty with the allegation of history of assault by a known person. The victim had a penetrating stab injury on the left side of chest, with dimension 5x2 c.m. Lung parenchyma was seen protruding through the wound and air entry into the lungs on the left side was decreased. The patient's pulse was raising, the BP considerably reduced and the vitals were not stable, but he was conscious and oriented. Ext.P3 is the Wound Certificate issued by PW16, who also deposed that the victim was admitted on the same day and the casesheet, which he perused in Court, revealed an emergency thoracic consultation, wound exploration and ICD insertion in the operation theater. It was also deposed that during night, after the wound exploration** Crl.Appeal No.1306 of 2018 11 **and surgery, the patient was transferred to Ward 7, as per the case-sheet marked as Ext.P21. It was opined by the witness that the injury sustained was fatal and was sufficient in the ordinary course of nature to cause death. MO3 knife was also deposed as possible of causing such a wound. PW16 also testified that from the condition of the victim, the Doctors would not have permitted the Police Officer to record his statement, but the patient was capable of making such statement on the next day. In cross-examination it was also deposed that on 05.10.2012 the patient was transferred to ICU and another surgery was done, even after which he was having breathing difficulty. The patient died while in the ICU on 06.12.2012.** **8. PW13 is the Doctor who conducted postmortem. Five wounds were noticed along with two abrasions, in the Postmortem Certificate produced as Ext.P15. Injuries noted as item Nos.1 to 4 were surgical wounds and drainage wounds. Injury No.5 is the incised penetrating wound sustained to chest,** 12 Crl.Appeal No.1306 of 2018 **which was sufficient to cause death in the ordinary course of nature. MO3 knife confronted to the witness was possible of causing the wound, according to the witness. The witness also confirmed the Blood Group of the deceased as determined at the Blood Bank to be B Rh positive. The death was homicidal and despite the surgical interventions, the victim passed away for reason of the stab injury inflicted on him.** **9. We have already noted the ocular evidence of PW2, who saw the stabbing and also summoned PW1 to the crime scene. PW1's testimony corroborates the testimony of PW2 insofar as the presence of PW1 at the crime scene, when PW1 arrived there. There is further corroboration from PW3; who was summoned to the crime scene by PW1, in whose car the victim was taken to the hospital. PW1 to PW3 spoke of the dying declaration of the victim. The victim told them that it was the accused who stabbed him and there was an altercation a few days back, when he threatened to take the life of the victim. It is also pertinent that Ext.P20 Wound** Crl.Appeal No.1306 of 2018 13 **Certificate shows the history as, stabbing by a known person, which history was narrated by PW1, further establishing the presence of the witness. PW4, a friend of the victim, and PW5 the mother of the victim, both spoke of the victim having told them about the stab being inflicted by the accused, when they visited the accused in the hospital. Merely because there are numerous witnesses who spoke of a dying declaration, it cannot be said that the same is artificial and tutored. PW1 to PW3 were with the victim immediately after the stab injury was inflicted. They took him to the hospital and even according to PW16 Doctor who first examined the victim, he was conscious and oriented. When the victim was conscious and oriented at the time of admission, the factum of the victim having spoken of the assailant, to the persons who took him to the hospital is plausible and quite believable. Likewise, the other witnesses spoke of the victim having identified the assailant clearly, when they visited him in the** Crl.Appeal No.1306 of 2018 14 **hospital. Again it is the testimony of PW16 as seen from the case-sheet that after the surgery conducted on the day of admission, he was shifted to the inpatient ward and then taken back to the ICU only on 05.10.2012, after which he remained in the ICU and succumbed to the injury. So when PW4 & PW5 visited the victim at the hospital, he was in the inpatient ward and capable of making the dying declaration.** **10. The dying declaration spoken to the witnesses is a very incriminating circumstance against the accused; which stands reinforced by Ext.P6 statement taken from the victim by PW6, the S.I of Police. Ext. P6 is saved from sub-section (1) of S Section 162, as per sub-section (2). The statement clearly records the cause of death of the victim coming under Section 32 of the Evidence Act. He speaks of the accused having resided in the '** _**thidappilly'**_ **of the temple, at night, hiding from the Police, which was questioned by him. He also stated that three days back the accused beat him with a stick and when he ran** 15 Crl.Appeal No.1306 of 2018 **away, the accused threatened to kill him. On the fateful day, while he approached the temple, the accused came out of the shadows and stabbed him, which the victim confirmed was seen by his relative, Ranjith, who is PW2. The victim also spoke of PW2 having taken him to the hospital along with Vinod, who is PW1.** **11. Now we come to the recovery as carried out by PW7, the Sub Inspector of Police and attested by PW9, an independent witness. Ext.P9 is the recovery mahazar in which the confession is also recorded. The confession is only “** _**if you take me, I shall show**_ **” [transliteration of 'എന� ന��ണ�പ��യ�ൽ ��ണ�ച� തര��']. But Ext.P10 records a more detailed version of the accused having agreed to point out the knife and dress worn by him. There is no confession regarding any concealment and there is no statement of who placed the objects, in the place from which it was recovered. In** _**Duth Nath Pandey v. State of U.P [AIR 1981 SC 911]**_ **, the evidence of recovery of weapon at** Crl.Appeal No.1306 of 2018 16 **the instance of the accused, was held to be not by itself proof of the offence having been committed by him. If the statement leading to the discovery is vague and identification of authorship of concealment, is not discernible, the discovery of the weapon on the same being pointed out by the accused at best, only proves his knowledge as to where the weapon was kept. In the instant case there is also two confessions having been recorded making the recovery more dubious.** **12. Further, the Police party was led to the '** _**thidappilly**_ **' of the Temple and the recovery is of the knife, the shirt, lungi and a bath towel, all allegedly of the accused. The said material objects, according to the evidence of PW7 & PW9 were concealed under a hardboard placed on the '** _**thidappilly'**_ **. Pertinent is the fact that the independent witness does not speak of the material objects having been taken out by the accused. According to him, the material objects were taken out by the Police. It also has to be emphasized that according to the eye-** Crl.Appeal No.1306 of 2018 17 **witness, PW2, the accused, after stabbing the victim, ran away with the knife. In cross-examination PW2 also deposed that the accused, holding the knife, ran through the back of the '** _**thidappilly**_ **' towards east, into the woods. Hence there is no possibility that the accused would have returned to the crime scene and less so, that he would have hidden the knife under the hardboard on the '** _**thidappilly'.**_ **More intriguing is the fact that even the dress worn by the accused was recovered from under the hardboard on the '** _**thidappilli'**_ **. We are of the opinion that the recovery cannot, at all be trusted and in that circumstance, the scientific evidence proffered by Ext.P19 FSL report of the knife and dress of the accused, item Nos.1 to 3 (M.Os 3 to 5) in the report, containing blood insufficient for determining origin and group, has to be completely eschewed and so has to be eschewed the presence of human blood found on item No.4, the bath towel, MO6 again recovered from the** _**'thidappilly'.**_ Crl.Appeal No.1306 of 2018 18 **13. The above case is one in which there is direct ocular evidence and dying declaration, both clinching evidence against the accused. There is also motive spoken of by the deceased to witnesses and independently confirmed by the witnesses. Despite the recovery having been totally eschewed, we find the ocular testimony with the dying declaration, as spoken by the witnesses, sufficient to uphold the conviction. The sentence imposed by the Trial Court is also not liable to be interfered with. We reject the appeal.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/03/08/2022**