Kuriakoose @ Peter v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** **CRL.A.No.1192 OF 2017** **SC 97/2015 OF 1st ADDITIONAL SESSIONS COURT ,THODUPUZHA** **CP 60/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM CRIME NO.132/2012 OF Cumbummettu Police Station , Idukki** ## **APPELLANT/ACCUSED** **KURIAKOSE @ PETER, C.NO.1812 CENTRAL PRISON, THIRUVANANTHAPURAM** **BY ADV. .ANUROOPA JAYADEVAN (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REP. BY DGP, HIGH COURT OF KERALA, ERNAKULAM** ## **OTHER PRESENT:** **SR. PP ALEX M THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2020, THE COURT ON 23-09-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1192/2017 2 ## **JUDGMENT** ## Dated : 23[rd] September, 2020 ## **M.R. Anitha, J.** 1. This appeal has been filed against the conviction and sentence passed by the First Additional Sessions Judge, Thodupuzha in S.C.No.97/2015. 2. Prosecution case in short is as follows: - On 09.04.2012 at about 7.45 p.m at Kootar junction in Karunapuram village accused out of previous enmity with an intention and preparation of causing the death of the deceased Manoharan repeatedly stabbed at his neck, chest,left and right shoulders, with a knife by sitting on his belly resulting in his instantaneous death and thereby committed his murder. 3. Immediately after the incident, PW1 reached the spot on information received from PW3 Madhu and also the extra judicial confession made by the accused and thereafter he lodged the FIS at Cumbummettu police station. PW14 who was the Sub Inspector of Police of Cumbummettu police station registered the FIR after recording the FIS lodged by Crl.A.No.1192/2017 3 PW1. Thereafter, PW16 the C.I. Nedumkandam conducted the investigation, arrested the accused questioned the witnesses and collected the documents and finally filed the final report against the accused. 4. On the side of the prosecution PWs 1 to 16 were examined and Exts.P1 to P16 were marked. MOs 1 to 9 were identified. PW2 is the witness in the inquest which is marked as Ext.P2. Pw6 is the brother of the deceased who was present at the time of inquest at Taluk Hospital, Nedumkandom. PW7 is the jeep driver who took the deceased from the place of occurrence and he also stated that as intimated by PW1 the member he reached the spot and deceased was lying in a pool of blood opposite to the road in front of the house of Santhosh. PW8 is the witness in Ext.P3 scene mahazar. PW9 is the village officer who prepared the scene plan, Ext.P4. PW11 was the ASI attached to Nedumkandom police station and witness in Ext.P6 seizure mahazar of MO1 and 2 prepared at the police station. He is also a witness in Ext.P7 seizure mahazar while entrusting packets received by the CPO from the doctor who conducted the post-mortem on the body of the deceased. PW12 was on bodyguard duty of the deceased and took the body for post-mortem to the medical Crl.A.No.1192/2017 4 college hospital and subsequently handed over to the relatives. PW15 who has been working as Home guard Cumbummedu police station and is a neighbour of the deceased, on getting information regarding murder aided to take the deceased in jeep to the hospital. 5. After closure of the prosecution evidence, accused was questioned under S.313 (1) (b) Cr.P.C. He denied all the incriminating facts and circumstances put to him. There was no defence evidence. After hearing both sides court below found the accused guilty under Section 302 IPC and convicted and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (five thousand rupees only) in default to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence passed against the appellant/accused, he came up in appeal for the various grounds stated in the memorandum of appeal. 6. Heard the learned counsel appointed for the appellant/accused as State Brief and learned public prosecutor. Lower court records were called for and perused. 7. The fact that the death of the deceased was a homicide is not seen disputed. Moreover evidence of PW10 - the Lecturer and Assistant Police Surgeon, Medical College Crl.A.No.1192/2017 5 Hospital, Kottayam who conducted the post-mortem on the body of the deceased Manoharan and Ext.P5 post-mortem certificate would prove the factum regarding the death of the deceased. Ante mortem injuries noted are as follows: “1. Incised punctured wound 3x0.8x5cm. Oblique on left side of front of neck, its upper inner sharp end 9cm outer to midline and 2cm above jaw margin. 2. Incised punctured wound 2.5 x 0.8 x 4cm horizontal on left side of front of neck, its inner sharp end 6.5cm outer to midline and 1.8 cm below jaw margin. 3. Incised punctured wound 2x0.8 x 4cm, oblique, on left side of front of neck, its lower inner sharp end 4 cm outer to midline and 8 cm above collar bone. 4. Incised wound 5x1.5x3.5cm, horizontal on left side of front of neck, the inner sharp end at midline 6 cm above sternal notch and 0.5 cm below thyroid cartilage. The strap muscles, thyroid gland beneath cut and trachea at the level of 1[st] tracheal ring seen partially cut. 5. Incised wound 3 x 0.5 x 5 cm horizontal on front of neck across midline 0.3 cm below previous injury and 5 cm above sternal notch. The trachea at at the level of II ring was partially cut. 6.Incised wound 3 x 0.5 x 4 cm horizontal on left side of front of neck, its inner sharpened 0.5 cm, outer to Crl.A.No.1192/2017 6 midline and 2.5 cm above sternal notch. Strap muscles and the left jugular, vein and carotid artery beneath seen cut. Test for air embolism was done and found negative. 7. Incised wound 2 x 1 x 2 cm vertical, on right side of front of neck, its lower sharp and 1 cm outer to midline and 4 cm above sternal notch, sternocledomastoid muscle beneath seen cut. 8. Incised wound 1.5x 0.3 x 0.8 cm horizontal on right side of front of neck, its inner blunt and 2.5 cm outer to midline and 2 cm above collar bone. 9. Incised wound 2.8x1x0.5 cm, horizontal on right side of front of neck, its inner blund end at midline 6 cm above sternal notch. 10. Indiced wound 2.5x0.4x1 cm on right side of neck 9 cm outer to midline and 6 cm above collar bone. 11. Incised wound 3 x 1x 1 cm, horizontal on right side of front of neck, inner end at midline 7 cm below jaw bone and 1.5 cm above adams apple. 12. Incised wound 2.5x0.8x1 cm, horizontal on right side of front of neck 5 cm outer to midline and 2.5 cm below angle of jaw bone. 13. Incised wound 2 x 0.8 x 8 cm on right side of root of neck 11 cm below ear lobule; the wound terminated 1.8x0.5 cm, on right side of back of chest, 8 cm outer to midline and 3.5 cm below top of shoulder. Crl.A.No.1192/2017 7 14. Incised penetrating wound 2x0.5cm oblique on right side of front of chest, its upper inner sharp end 3 cm outer to midline and 11 cm below collar bone. The wound piercing the chest cavity through 5[th] intercostal space just outer to costal attachment, and terminated by piercing the lung. The wound track directed downwards, backwards for a minimum depth of 5 cm, right chest cavity contained 500 ml of blood. 15. Incised wound 3.5 x 1x2.5 cm on back of right of forearm 2.5 cm below elbow. 16. Incised wound 2.5x1.5 cm, oblique on back of right forearm its lower end 5 cm above wrist. 17. Contusion 4x2x1 cm on inner aspect of left arm 11 cm below front fold of armpit. 18. Incised wound 2x0.5x1 cm, vertical, on back of left of forearm 10 cm below elbow. 19. Incises wound 2x0.2x0.3cm, vertical on back of left forearm, 6.5cm above elbow. 20. Abrasion 1x0.5cm on back of middle of left middle finger. 21. Incised wound 1x0.5x0.5cm on top of left shoulder 2 cm outer to root of neck. 22. Linear abrasion, 6cm, horizontal on right side of front of chest 19 cm below front fold of armpit. 23. Abrasion 3x1cm on inner aspect of right thigh 9 cm above knee. 24. Abrasion 2x1 cm on front of right knee.” Crl.A.No.1192/2017 8 8. PW10 - the doctor further deposed that the injuries can be caused with a sharp edged weapon and the same weapon can cause all the incised injuries. He also opined that the death was due to injuries sustained to the neck and chest and he was not seriously cross-examined and the only serious challenge is that majority of the injuries are on the neck region and it may affect him shouting. But he would depose that he can make noise.Weapon could not be recovered in this case though strenuous effort was taken by PW16 by preparing an observation mahazar and visiting the site for recovery of the weapon and the observation mahazar is marked as Ext.P8 . PW13 is the witness in the observation mahazar. He deposed that though enquiry was conducted by the police for recovery of the knife, it could not be found out. He also deposed that accused was also present along with the policemen and inspection was conducted near the Riverbank, in the river, in the property of Raju and Government puramboke land. PWs 3 and 5, the eyewitnesses deposed in corroboration that they have seen the accused stabbing the deceased by sitting on his belly repeatedly at his neck and chest. So there is no room for any doubt to conclude that the death of the deceased was Crl.A.No.1192/2017 9 due to the injuries sustained to neck and chest by a sharp edged weapon. Hence, we do not have any hesitation to find that the death of the deceased was a homicide. 9. The main contention of the learned counsel for the accused is that the evidence of PWs 3 and 5 are contradictory to each other and hence it cannot be based upon to find the guilt against the accused. It is also her contention that extra judicial confession alleged to have been made by the accused to PW1 is a weak piece of evidence and hence it ought not have been accepted by the court below. It is further her contention that accused in private defence might have caused the injuries since it has come out in evidence that the deceased was an accused in a murder case and is involved in illicit liquer manufacturing cases and is a man of bad antecedents and hence she seeks for the benefit of Section 100 of IPC also. 10. To prove the occurrence, prosecution mainly relies upon the evidence of PW3 and PW5 the occurrence witnesses. PW3 deposed about the altercation and push and pull between the accused and the deceased at 1.30pm on the date of incident (09.04.2012) at Kootar junction. At that time he separated both of them and returned. Again he came at Kootar junction at about 6.30 p.m and PW5 was Crl.A.No.1192/2017 10 present in the shop of PW4 and both of them had chewed betel leaf and at that time knife was not there in the shop and hence PW5 gave a piece of areaca nut, cutting by tooth to him. Thereupon deceased came and abused him alleging that because of of him he could not assault the accused. Then he pushed the deceased and he fell down and after getting a soda from the bunk-shop of PW4, it was sprinkled at the face of the deceased and by giving a hand the deceased was aided to get up from the ground. Thereupon accused came stating that he would send away the deceased and took him by putting his hand around his shoulders and went towards Kootar. After sometime himself and PW5 and one Jobin went to the house of Achan Kunju who died on that day. While they were about to turn towards the house of the deceased Achan kunju, they heard the alarm by the deceased requesting not to kill him. Thereafter all of them went there and PW3 reached first and near the opening of the road to the house of Santhosh he saw the accused stabbing the deceased by sitting on the deceased with a pointed knife repeatedly at his neck. The blood was oozing out. Though he asked the accused not to do it and caught him from the back, accused stated that he also wanted to live and again stabbed the deceased. On going Crl.A.No.1192/2017 11 towards the house of Achan Kunju, he saw PW1 - the Ward Member and informed him about the incident. He also informed the people who were present at the junction. He further stated about the prescence of light from the house of Santhosh, from the chicken shop and also the electric post. He also identified the dhothi and shirt of the accused as MOs 1 and 2 and MO3 as the footwear of the accused and MO4 as the footwear of the deceased. 11. PW5 also deposed in corroboration with PW3 about the incident took place in the evening. He also stated that though he searched for knife for cutting the arecanut, it was not found and PW3 also came and they together chewed betel leaf and he gave arecanut piece by cutting with tooth to PW3. Thereafter all the incident took place after the deceased reached the spot and abusing PW3 since he could not assault the accused at noon and PW3 pushing the deceased etc., has been narrated by him as PW3. 12. Both PWs 3 and 5 stated that while they came from the place of occurrence accused was standing with a knife. PW5 also speaks about the presence of light from the electric post, from the chicken shop and the light from the house of Santhosh. He also identified MO1 to 4 as that of the accused and deceased respectively. Crl.A.No.1192/2017 12 13. PW4 is the shop owner. He is in acquaintance with the deceased and accused and PWs 3 and 5. He speaks about the quarrel between the accused and the deceased took place at 1 - 1.30 in front of his shop and PW3 separating them. Further he deposed that deceased came to his shop in the evening and asked for blade, since the deceased earlier had inflicted injury to one Raju with blade he did not give blade to him. During evening accused came to the shop and returned after chewing betel leaf and accused himself cut the arecanut with knife .He would also depose that he informed the accused that the deceased had come in search of blade and he has to be careful and thereafter accused returned. Further he stated about the arrival of PW3 and 5 in the shop and both of them chewed betel leaf and they stated that knife was not there. Then deceased came and told something to PW3 and there was a quarrel and PW3 purchased soda and went out and brought the empty bottle after sometime. Further he stated that deceased was fully drunk and he heard some ruckus. But further he was not prepared to admit that accused came and took away the deceased from there. 14. As stated earlier the main contention of the learned counsel is with regard to the inconsistency in the evidence Crl.A.No.1192/2017 13 of PW3 and 5. But on going through the evidence of PW3 and 5 it could be seen that they have deposed almost in corroboration in all the aspects except the fact that PW5 was not present in front of the shop while the altercation took place between the deceased and accused at 1.30 p.m on that day. In all other aspects their evidence run in corroboration. Moreover PW4 the shop owner though was not prepared to fully support the prosecution case with respect to the accused coming to his shop and taking the deceased from there towards Kootar, he deposed in corroboration with PW3 regarding the incident at noon between the deceased and accused. He also stated that accused had been to his shop before PW3 and 5 arrived in the evening and asked for blade and he did not give the same to the deceased since previously there was an incident of accused inflicting injury with blade to one Raju. He also depose in corrobration about the altercation between PW3 and deceased and PW3 purchased Soda and bringing the bottle empty after some time. He also stated that Manoharan was fully drunk. That much evidence of Pw4 can be read in corroboration with PW3 and 5 15. Prosecution also relies upon the extra judicial confession made by the accused to PW1 that he has Crl.A.No.1192/2017 14 stabbed the deceased. That fact has been deposed by PW1 at the time of giving FIS in Ext.P1 and also during his chief examination. But no question whatsoever is seems to have been put during cross-examination challenging the above aspect. So the extra judicial confession given by the accused to PW1 remains unchallenged. 16. The learned counsel took our attention to **Joseph v. State of Kerala [1966 KLT 649]** and would contend that extra judicial confession is a weak piece of evidence. But that position has been changed subsequently and moreover that was a case in which extra judicial confession given was retracted and the scope and ambit of retracted confession was dealt with and held that it cannot be solely based upon for conviction and there should be corroboration to connect the same with accused. But here there is no case of retraction of the confession and moreover the position of law with regard to the extra judicial confession is now well settled. The extra judicial confession made by the accused appears to be deliberate and voluntary confession of guilt and such confession are held to be the most effectual proves in law ( **Chattar Singh & Another v. State of Haryana (2009 KHC 4308 : AIR 2009 SC 378)** . It is also relevant in this context to quote **Silash Singh @ Kurid v.** Crl.A.No.1192/2017 15 **State (2018 KHC 4660)** wherein it has been held that corroboration of extra judicial confession in all cases is a sine qua non is neither just nor reasonable preposition. If extra judicial confession is found to be unbiased ,untainted coming from evidence of trustworthy and reliable witness who has to test of cross-examination against whom there is no remote suggestion or allegation of enmical terms, same can be the basis for holding accused guilty. 17. In **Ponnuswamy v. State of Tamil Nadu (2008 Crl.L.J 2563 [SC])** it has been held that extra judicial confession if found to be voluntary and medical report supported prosecution case conviction of the accused for murder was found to be proper. 18. Here PW1 is the member of Karunapuram Panchayath Ward No.16.He is in acquiatance with accused and deceased and residing in the same locality. His evidence with regard to the confession made by the accused remains unchallenged. Defence also has no case that he has got any ill will towards the accused. So the extra judicial confession given by the accused to PW1 is quite admissible in evidence. In corroboration with that the oral evidence of PW3 and PW5 the eyewitnesses leaves no room for doubt to prove the guilt of the accused. Crl.A.No.1192/2017 16 19. It is true that the learned counsel for the accused would also contend about the non recovery of weapon and that according to her is fatal to prove the involvement of the accused in the act alleged. But in a case of direct evidence where the ocular witness deposed in corroboration with regard to the overt act of the accused, non recovery of weapon is of little significance. **(Mohan Mochi v State of Bihar AIR 2002 SC 1965)** 20. The learned counsel would further contend that though Ext.P16 FSL report has been marked,it is inconclusive with regard to the origin and group of blood contained in MO1 and 2, the lungi and shirt worn by the accused. It is true that Ext.P16 FSL report would state that item Nos.6 and 7 which are MO2 and 1 though contained blood , is insufficient for determining the origin and group. 21. As I stated earlier, recovery of the weapon and the scientific evidence would be more relevant in cases where direct evidence is lacking. 22. So also the learned counsel for the accused would further contend about the absence of proof with regard to the presence of light at the place of occurence. But PW3 and 5 deposed in corroboration about the presence of light at the place of occurrence from the electric post and also Crl.A.No.1192/2017 17 from the chicken stall and the house of Santhosh situated nearby. PW1 who has lodged the FIS and reached the spot immediately after the incident also stated during evidence that there are shops on the side of the road near the place of occurrence and there are light in the shops, Moreover, Pw3 and 5 and the deceased and accused are quite familiar to each other and the evidence of PW3 and 5 is also to the effect that they rushed to the spot on hearing the cries of the deceased. So there won't be any difficultly for them to identify the accused. 23. The learned counsel would also contend about the protection under Section 96 and 100 IPC and according to her it has come out in evidence that deceased is already involved in a murder case and is involved in Abkari cases and it might be the deceased who had attacked the accused and as a private defence the accused might have attacked the deceased. 24. In this context the learned counsel would take our attention to **Abdul Rasheed v. State of Kerala [2013 (1) KLT 236]** wherein it has been held while dealing with Section 100 IPC that even presence of injury on accused may not be an inevitable requirement to establish the defence plea under Section 100 IPC. But it is also held Crl.A.No.1192/2017 18 therein that whatever circumstances accused proposes to prove to bring his case within Section 100 IPC, the Court shall regard non-existence of such circumstances as “proved” until it is disproved. It is also held therein that the burden of proof under Section 105 of Evidence Act can be discharged by the accused, either by adducing independent evidence or by relying upon the circumstances which may emerge from the evidence and other materials available in court. He may even take to his support, deliberate withholding of evidence, by prosecution, or suppression of material facts by the witnesses or prosecution, if any, to prove his defence plea under Section 100 IPC and also to rebut the presumption referred to in Section 105 of Evidence Act. 25. First of all the accused did not have any such contention so far and no question to that effect has been put to any of the witnesses apart from a passing reference by the court below in the judgment in that regard. Moreover it has come out from the evidence of PW3 and 4 that the deceased was fully drunk and was not in a position to control himself and that is why when PW3 just pushed him, he fell down and only after sprinkling soda on his face he got up and PW3 and 5 deposed in corroboration that Crl.A.No.1192/2017 19 thereafter accused caught him by putting his hands around his shoulders and moved towards Kootar road. So deceased being in such a condition it is most unlikely that he would attack the accused and as a private defence the accused attacked him. It is also very pertinent in this context to remember that defence has no case that accused has sustained any injury at all. So the right of private defence put forwarded by the learned counsel for the accused is not at all sustainable. 26. The learned counsel for the accsed also take to our attention that charge was framed twice in this case I.e on 31.12.2015 and also on 18.03.2016 and the year of incident noted in the charge dated 18.3.2016 is wrong. 27. There is no provision for framing charge twice for a Criminal court and hence the charge framed on 31.12.2015 can be taken as the proper one .That would show the way in which the cases are being handled by the Additional Sessions Judge. On a glance through the proceedings sheet it could have been easily verified. However no objection was raised by the defence during the course of trial with regard to the second charge and accused also cross examined all the witnesses on the point of actual involvement of the accused and hence no prejudice is seen Crl.A.No.1192/2017 20 to have been caused . Hence the irregularity in framing the charge again will not vitiate the trial ( **Annayappa alias Krishnappa and Another v. State fof Karnataka [2015 KHC 2532 kar. H.C.** ]. 28. In **Fainul Khan v. State of Jharkhand and Another [2019 KHC 7017 (SC)** it has been held that objejciton about the defective charge without any evidence of the prejudice caused, raised for the first time before the Apex Court and hence merits no consideration. In this case also no question was seen to have been put to any of the witnesses with regard to the difference in the year mentioned in the second charge framed and there is nothing to show that any prejudice has been caused to the accused due to the framing of second charge on 18.3.2016. 29. During the course of hearing of the appeal it was found that the Additional Sessions Judge has also not extracted the ante-mortem injuries in the deposition of PW10 - the doctor. That appears as highly improper . 30. In this context we may quote paragraph No.38 of the judgment in **Joseph Mathai @ Jose v. State of Kerala [2019 KHC 934]** which reads as follows : - “...... In criminal cases pertaining to offences against Crl.A.No.1192/2017 21 human body, medical evidence has a decisive role to play. A medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Supreme Court in Nagindra Bala Mitra and Another v. Sunil Chandra Roy and Another (1960 KHC 657 : AIR 1960 SC 706 : 1960 (3) SCR 1 : 1960 Crl.LJ 1020) as follows: “43. Further, the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also an independent testimony, because it may establish certain facts, quite apart from the other oral evidence.” In View of the dictum in Nagindra's case (supra), we are of the view that the trial courts are bound to record the contents of postmortem certificate pertaining to offences against human body when medical witness is examined before court”. 31. However, on a close scrutiny of the facts and circumstances and evidence adduced from the side of the prosecution, we are of the considered view that there is no reason whatsoever to interfere with the conviction and sentence passed against the accused. 32. In the result, appeal is devoid of any merit and hence Crl.A.No.1192/2017 22 dismissed.We direct the Registry to forward a copy of this judgment to the trial judge who passed the impugned judgment where ever he is, for future guidance. Sd/- **A.HARIPRASAD Judge M.R.ANITHA Judge** Sd/- Shg True copy P.S.To Judge