Majeed C. 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 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944** **CRL.A NO. 268 OF 2017** **AGAINST THE ORDER/JUDGMENTSC 355/2015 OF ADDITIONAL DISTRICT COURT** **& SESSIONS COURT - V, THIRUVANANTHAPURAM / II ADDITIONAL MACT APPELLANT/ACCUSED:** MAJEED C., C.NO.1455, CENTRAL PRISON, TRIVANDRUM BY ADV P YEMUNA (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF KERALA BY SRI. ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Appeal No.268 of 2017 -2- **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------Crl. Appeal No.268 of 2017** **--------------------------------------------Dated, this the 27[th] day of July, 2022.** ## **JUDGMENT** ## **K.Vinod Chandran, J.** Revenge, is a fire which rages more fiercely than that of the purgatory, consuming both the person who nurses it and the one against whom it is leveled. The prosecution case is that, the accused, a life convict in an earlier case, attempted to murder the injured herein who was one of the star witnesses in the earlier case numbered as S.C. No.60/1991, disposed of by the Sessions Court, Thiruvananthapuram, wherein, the injured was prosecution witness No.3. 2. The accused stood trial in which 13 witnesses were examined on the side of the prosecution, through whom, 19 documents were marked as Exts. P1 to P17; two of them in series. The prosecution produced 8 material objects and defense marked one omission as Ext.D1. The accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- with default term of one year for the offence under Section 324 IPC. The accused was sentenced to a further period of RI for one year and both the sentences were Crl. Appeal No.268 of 2017 directed to run concurrently. The appeal arises from the conviction and sentence. 3. Adv. P. Yemuna, State Brief appeared for the appellant and Sri. Alex Thombra, learned Public Prosecutor, appeared for the respondent. The State Brief took us through the evidence and materials to contend that all the witnesses arrayed were head-load workers, colleagues of the injured. The alleged scene of crime was a public place near a bus stand and the police could have obtained independent witnesses. It is pointed out that PW9, the officer who recorded the FIS, spoke of a phone message by which the information of the crime was conveyed. The said message was not treated as a first information and despite the crime having occurred in the morning, the FIS was recorded in the afternoon, after the injured returned from the hospital. According to PW1 and the other witnesses, the colleagues of PW1 took him to the hospital. However the doctor who examined the injured, PW10, categorically stated that the injured was brought to the hospital by the police. The seizure of the dress of the injured is under suspicion, since seizure mahazar is drawn up and witnessed on the evening of the same day, while PW1 deposes that he surrendered the dress on the next day, at the police station. There is also considerable difference, from the testimony, about the color of the shirt worn by PW1. While PW1 asserts that he was wearing a sandal colored shirt, the witnesses spoke of the color as rose and a rose shirt Crl. Appeal No.268 of 2017 -4- was available in court. In the context of the seizure being put to jeopardy, the scientific evidence cannot at all be relied on. The learned Counsel would also point out that there is no evidence to indicate the blood group of the victim. It is prayed that the accused be acquitted, giving him the benefit of doubt. 4. The learned Public Prosecutor would, on the contrary seek for confirmation of the conviction and the sentence passed. The case is based on the eye witness testimony of two witnesses, one of whom is the injured. PW1, the injured has no reason to implicate falsely the accused or enable the real culprit to escape the clutches of law. The motive has been clearly established and PW1's evidence stands corroborated by the other eye witness, PW2. The medical evidence and the contemporary wound certificate offers further corroboration to the prosecution case. The deposition of PW1 with regard to surrender of his dress is only an obvious mistake and the body note in the FIS further supports the prosecution case. The scientific evidence is unassailable and both the dress of the accused and that of injured contained the same blood groups; clinching evidence against the accused. 5. PW1 is the injured victim who gave Ext.P1 FIS. PW1 is a head-load worker, who is a member of the CITU Union at the KSRTC Bus stand at Thambanoor. One Majeed (the accused), also a member of the identical union was accused with the murder of another member of the union, in which, he was convicted and sentenced to life imprisonment. PW1 was a witness to the Crl. Appeal No.268 of 2017 said crime and had deposed in favor of the prosecution before court. PW1 spoke of the vengeance nursed by the accused against him for having deposed in favor of the prosecution. It was also alleged that the accused used to often threaten PW1 that, when a suitable time came, PW1 also will be killed in the same way as Krishnan was killed earlier. On 18.11.2014, in connection with the union work, PW1 was standing inside the Ponnara park when the accused wielding a billhook, came near him. The accused then repeated the warning that he would hack PW1 to death and aimed the billhook at his neck. PW1 warded off the billhook with his left hand. The bill hook cut his hand, below the elbow and a piece of flesh fell on to the ground. Witnessing the profuse bleeding, the colleagues of PW1 boarded him into an auto-rickshaw and took him to the General Hospital. He was informed that since the flesh had detached itself from the arm, there could be no stitches and the wound has to be treated with medicines. He was directed to consult a plastic surgeon and the wound was bandaged with medicines. PW1, in the FIS reiterated that the attack was due to the grudge nursed by the accused against him for having been a loyal prosecution witness against the accused, in the earlier case. 6. PW1 spoke in tandem with his FIS, before court. He categorically stated that the attack occurred around 11.00-11.30 and his colleagues accompanied him to the General Hospital. After putting medicine in the wound he came to the police station where he gave Ext.P1, FIS. He also Crl. Appeal No.268 of 2017 -6- identified the accused in the dock and spoke of the earlier case in which the accused was convicted, wherein, he was a witness. He identified the weapon as MO1 and identified the shirt and lunki worn by him and the bath towel he had with him at the time of the attack as MOs. 2, 3 and 4. True, the color of the shirt was said to be sandal, but actually it was rose in color. We do not think that the color deposed by PW1, as per his perception, is relevant or that it confers any benefit of doubt on the accused. In this context we have to specifically note the body note of the victim, the first informant, in Ext.P1 which is marked as Ext.P1 (a). The body note speaks about the wound below the elbow on the muscle of the left hand, which was bandaged with cotton and cloth. It also speaks of the victim having worn a rose color shirt and a brown lunki with white checks. There cannot be any doubt regarding the dress worn by the victim at the time of the attack. 7. PW1, before Court and also in the FIS clearly spoke of the words uttered by the accused, when he approached PW1 and hacked him. The words spoken by the accused were that ' _I have told you often times that when time comes I will kill you'_ (sic-translation from the vernacular). PW2 who was sitting inside the park, nearby, heard these exact words and got up to see what was happening. He saw the accused aiming the billhook at the neck of PW1. PW1 warded off the billhook and he suffered an injury below the elbow. PW2 saw the billhook falling from the hands of the accused, which the ## Crl. Appeal No.268 of 2017 -7- accused picked up and ran away towards the direction of New Theater. A piece of flesh fell on the ground from PW1's arm. There was profuse bleeding from the wound which was tied with a bath towel and the injured boarded into an auto-rickshaw. PW2 also said that he can identify the offending weapon which had a length of 35 to 40 cms with one edge sharp and one side hooked. He clearly identified MO1. PW2 withstood searching cross-examination and the testimony of PW2 fully corroborated the testimony of PW1. 8. PW3 was another head-load worker in the same locality who attested Ext.P2 scene mahazar. PW4 again a head-load worker of the same locality attested Ext.P3 mahazar by which PW1 surrendered the dress worn by him at the time of attack. Ext P3 Mahazar is dated 18.11.2014 at 14.30 hrs. PW5 is a porter in the Thampanoor bus stand who was also acquainted with the victim. He attested the recovery of billhook by the accused who took it from amongst the garbage and handed it over to the Circle Inspector; which recovered weapon was identified as MO1. PW5 who attested Ext.P4 Recovery Mahazar, also confirmed that there were blood stains in the knife at the time of recovery. PW6 yet another head-load worker acquainted with PW1, did not witness the incident but, hearing a commotion came to the crime scene soon after the attack. He saw the victim in a bleeding state. He confirmed that along with himself PW4, assisted, to board the victim in an auto-rickshaw. He ## Crl. Appeal No.268 of 2017 -8- also confirmed having seen the surrender of the dress worn by PW1 at 4 O' clock on the same day, at the police station. The sole contradiction marked as Ext.P1 was from his S.161 statement. He confirmed that he had not told the police that when he came to the crime scene he saw the victim drenched or bathed in blood. The contradiction is not at all relevant since the testimony of the witness was that he saw the victim bleeding. 9. All the above witnesses are head-load workers of the very same locality and colleagues of PW1. It is hence, the learned Counsel for the appellant raised a contention that all the witnesses are interested witnesses and the police failed to array independent witnesses, despite the crime having occurred in a busy area. It is trite that the testimonies of witnesses cannot be eschewed merely because there was some connection with the victim. There should be some interest shown in them to foist a false case or speak falsely about an incident; to favour one or to implicate another. There is no such interest shown and the head-load workers of the locality are the most natural witnesses the police could array in the instant case. Further, the bus stand, though a public place, has a floating population and it is very difficult for the persons from the public to speak on a crime especially when the assailant and the victim are not known to them. It also has to be emphasized that despite a number of colleagues of the victim having been arrayed, except one, none spoke of having witnessed the actual crime; which enhances their credibility. Crl. Appeal No.268 of 2017 We find no reason to exclude or disbelieve the ocular testimony of PWs 1 & 2 , the former of whom is an injured victim. 10. We also find sufficient corroboration from the medical evidence adduced. PW10 is the Casualty Medical Officer at the General Hospital, Thiruvananthapuram. On 18.11.2014, PW1 was brought to the hospital and the history recorded was clearly that of _'alleged assault by Majeed at Thampanoor at around 11.30 a.m'(sic)_ . On examination, the Doctor found a lacerated wound on the left forearm with loss of tissue. He marked Ext.P14 wound certificate and also testified that the injury caused therein could be caused by MO1 weapon. The alleged cause as spoken of by PW1 , according to the Doctor, is a clear possibility. It was the Doctor's categorical statement that the injury can be 'a warding off injury'. The learned Counsel had assailed the testimony on the ground that the doctor testified that the victim was brought by police. However the wound certificate itself indicates that the victim was 'brought by' Mohanan (friend). There need not be any weight attached to the Doctor's statement, for reason of the passage of time and also since the victim came from the scene of crime, a busy bus stand and a police man on duty also could have accompanied him. 11. PW7 is the Scientific Assistant who collected dark brown stains in cotton cloth from the scene of occurrence. It was also stated that the collected samples including the control sample of cotton were packed, labeled, sealed ## Crl. Appeal No.268 of 2017 -10- and handed over to the Sub Inspector of Police Thampanoor. PW8 is a CPO who attested Ext.P5 mahazar by which the shirt and lunky of the accused were seized. PW9 is the Investigating Officer(I.O). He spoke of a phone call informing the assault, upon which he reached the scene of crime, when the victim was already taken to the hospital. He identified FIS, Ext.P1 and the body note Ext.P1(a) and confirmed the registration of Ext.P6 FIR. As per the instruction of Circle Inspector of Police, he summoned the Scientific Assistant who took the samples from the locality which mahazar was marked as Ext.P2. The samples were entrusted to the CI of Police and at around 4.30 in the evening the dress worn by the defacto complainant was seized, on PW1 surrendering the same at the police station; by Ext.P3 mahazar. The property list by which the items were transmitted to the Court was marked as Ext.P7. The samples taken by Scientific Assistant marked as S1 and S2, were also forwarded to the Court by Ext.P8 property list. He witnessed the samples being taken specifically from the scene of occurrence, with the help of cotton, which was marked as MO5. The control cotton sample was marked as MO6. At around 7.30 p.m the accused was apprehended and at 8 pm the arrest was recorded, by Ext.P9 arrest memo. The inspection memo of the accused was also produced and marked as Ext.P10. 12. PW9 then handed over the investigation to CW15, Y Kamarudheen; who expired before the trial commenced. PW9 assisted the I.O and he also Crl. Appeal No.268 of 2017 -11- identified his signature. It was CW15 who recorded the confession from the accused, about the concealment of the offending weapon. The confession was recorded on 19.11.2014 and PW9 accompanied the I.O, who followed the accused, to a property near the New Theater; bounded by a compound wall. The confession was specifically spoken of as the accused having stated that he would lead the police to the place where he concealed the offending weapon. On reaching the spot, to which the accused led the police party, there was a heap of plastic covers from amongst which the offending weapon was retrieved by the accused. PW5, the attestor to the Mahazar, as we already saw, identified MO1 and also marked Ext.P4 recovery mahazar. The confession statement was marked as Ext.P4(a). The accused was produced before the Court and the dress seized from him as per Ext.P5, was forwarded to the Court as per Ext.P11 property list. The samples collected by the Scientific Assistant from the scene of crime, the dress of both the accused and PW1, the victim, and the offending weapon was transmitted to the FSL by Expt.P13 forwarding note. PW9 also identified the accused from the dock. PW11 is the Village Officer who prepared Ext.P15 site plan. PW12 is the CI who took over the investigation on 24.11.2014 and filed final report, after conclusion of investigation. He produced the certified copy of the judgment in SC No. 60/91, marked as Ext.P16. 13. PW13 is the Assistant Director (Serology) of the FSL Crl. Appeal No.268 of 2017 Thiruvananthapuram. She confirmed receipt of a parcel in connection with the instant crime which contained four sealed packets. There were eight items inside the sealed packets, items 1 to 3 were the full sleeve shirt with blood stains , lunki, again with blood stain and one bath towel, also with blood stains. These are the dress of the accused seized as per Ext.P3 seizure mahazar. Item 4 and 5 were the samples collected by the Scientific Assistant, cotton cloth with blood stains and the control sample. Item No.6 was the metallic chopper with length of 35cm and item Nos, 7 and 8 were blue colour full sleeve shirt and lunky both with blood stains found on it. Item no 7 and 8 obviously was the dress of the accused, seized as per Ext.P5 mahazar. The report of scientific examination was marked as Ext.P17 and each of the items from MO2 to MO4 and MO7 , MO8 as also MO1 , MO5 and MO6 were identified by the witness. In tune with the FSL report, PW13 testified that item Nos. 1 to 4 the dress worn by the accused surrendered as per Ext.P3 mahazar and the sample collected by the Scientific Assistant from the scene of occurrence as also item nos. 7 and 8, the dress worn by the accused at the time of arrest, seized by Ext.P5 mahazar, contained human blood belonging to group B. Item No.6 which was the offending weapon MO1 also contained blood, but with insufficient quantity to determine the origin and group. 14. We will now discuss the incriminating circumstances from the evidence led by the prosecution. PW1 and 2 are the injured victim and the on- ## Crl. Appeal No.268 of 2017 -13- looker, both of whom clearly spoke about the attack on the victim. The presence of PW2 is attested by PW1 and is unquestionable. His deposition fully corroborates that of PW1, the injured victim. The testimony of both the witnesses also indicate a clear attempt to murder the victim. The attack by the chopper was aimed at the neck of the victim and he escaped only because the same was warded off with his left hand. The force with which the cutting action was made, is very clear from the fact that while warding off the attack, the victim suffered injury on his hand and a piece of flesh, from his forearm, fell on to the ground. PW2 witnessed the attack and saw the weapon falling from the hands of the accused, which he picked up and ran towards the New Theater, from near which the recovery of the weapon was made. The victim was immediately taken to the hospital and the medical evidence we discussed, fully corroborates the ocular testimony of the witnesses. Ext.P14 wound certificate issued by PW10, the Doctor who examined the victim first, also recorded the history as an attack by the named accused. Contemporaneous recording of the history of the attack, in Ext.P14, further supports the prosecution case. The victim was subjected to an attack with the intention to kill, as discernible from the evidence discussed above and also from the utterance made by the accused, in the course of the attack. The intention of the accused is very clear from the words spoken of by him at the time of attack, testified by both the ocular witnesses, the injured witness PW1 and the ## Crl. Appeal No.268 of 2017 -14- onlooker, PW2. There is no doubt that S.307 IPC is attracted. 15. Motive is not imperative even in cases based only on circumstantial evidence and the present case is one in which there is direct ocular evidence. All the same, we cannot but notice the strong motive that has been proved by the prosecution. Ext.P16 is the certified copy of the judgment in the earlier trial for murder, in which the very same accused was convicted to life imprisonment. Therein, the conviction was mainly based on the evidence of the prosecution witnesses in that case. The 3[rd] prosecution witness in that case is the injured in the present case whose evidence fully supported the prosecution case. PW1, specifically spoke of the accused having threatened him before, that when time comes, he also would be killed in the same manner in which the earlier murder was committed. When the instant attack was made on PW1, the accused by specific words, recanted the threat , in the course of the attack. The motive is another clinching circumstance proved against the accused, unequivocally. 16. We have already discussed the medical evidence and now we go to the scientific evidence. As was rightly argued by the learned Counsel for the appellant, there is no clarity as to the time when the dress of the victim was seized and there is no evidence led regarding the blood group of the victim. Both these circumstances according to the learned Counsel should persuade this Court to eschew the scientific evidence totally. We are unable to accede Crl. Appeal No.268 of 2017 -15- to the above argument of the learned Counsel for the following reasons. The offending weapon MO1, was recovered by the accused, based on a confession statement under S.27 of the Evidence Act, clearly admissible and proved to the hilt. The police party was led to the spot of concealment by the accused pursuant to the confession and the recovery was made by him in the presence of independent witness, PW5. The I.O who carried out the recovery and to whom the confession was made, though had expired, PW10 the SHO of the jurisdictional police station, who accompanied the I.O, during the recovery, spoke of the same graphically. The recovery mahazar also was attested by independent witness, one of whom , PW5, confirmed it. MO1 knife was transmitted to the Court and it was forwarded to the FSL wherein blood was detected in the weapon. The independent witness PW5 who was present at the time of recovery, also spoke of blood stains on the knife at the time of recovery. The recovery and the scientific evidence of trace of blood found on the weapon, again is a very incriminating circumstance. 17. We agree with the learned Counsel for the appellant that there is some anomaly with respect to the seizure of the dress of the accused. The accused spoke of the dress having been surrendered on the next day, while Ext.P3 seizure mahazar was at 4.00 p.m on the day of the crime . Hence, the scientific evidence regarding the blood found on the dress of the victim cannot be relied on by us. However that does not detract from the fact that, ## Crl. Appeal No.268 of 2017 -16- the accused was inflicted with an injury at the crime scene, on the particular day, at the specified time. Immediately after the incident, the police reached there and the scientific assistant was summoned. There was recovery made from the scene of occurrence, by the scientific assistant, of the blood, sprayed on the ground . The sample blood taken from the scene of occurrence was tested to be of human origin, of group B positive, obviously of the victim. The accused on arrest was detected with blood on his dress. The dress was seized by Ext.P5 mahazar and transmitted to the Court, from where it was forwarded to the FSL. Both the dress of the accused, on scientific examination, was revealed to have blood stains of human origin and group, B positive. The scientific evidence to that extent incriminates the accused unerringly, with the attempt to murder, as framed by the prosecution. 18. The offence stands unequivocally proved from the evidence led by the prosecution and the conviction has to be upheld. Regarding the sentence, we find s.307 is made punishable with imprisonment of either description for a term which could extend to ten years and fine and if hurt is caused in the commission of such crime, the offender could be made liable, even to imprisonment for life. As far as attempts by life convicts undergoing the said sentence, it could even lead to punishment with death. In the present case the accused is a life convict, presumably released after 14 years. In any event, _AIR1983SC473 [Mithu v. State of Punjab]_ Crl. Appeal No.268 of 2017 -17- struck down as unconstitutional, the mandatory imposition of death sentence under S.303, as provided for a life convict. The classification off all life convicts as a single class, disregarding the nature of offence and eshewing judicial discretion totally, was held to be harsh, oppressive and unjust. Even the punishment as prescribed under S.307, for attempts on life, by life convicts, is not mandatory, looking at the word 'may' and following the dictum in the above cited decision. That there is hurt caused, that too of a grievous nature is very clear from the evidence led in the above case. That the accused was an earlier life convict, for the very same offence of murder also stands established. That the victim, in this case was one of the star witnesses, whose testimony also led to the conviction of the accused in the earlier case stands proved beyond doubt. That the accused nursed a murderous vengeance against the victim herein, is spoken of by PW1 who was threatened repeatedly, which threat was recanted by the accused, in the course of the attack . That the motive existed, which is of a very heinous nature, goes without saying. That the accused premeditated, on his vengeance, for more than two decades, waited for an opportune moment, all these years and attempted a strike in a public place, when the victim was least expecting it, reveals the uncompromising and unrepentant nature of the accused with macabre focus on the depraving intention of killing another. We perfectly agree with the learned Sessions Judge, that this is a case in which life Crl. Appeal No.268 of 2017 -18- sentence has to be imposed, on the convicted accused. We uphold the sentence imposed by the trial Judge. The criminal appeal stands rejected. **==> picture [483 x 33] intentionally omitted <==** Sd/- K.VINOD CHANDRAN JUDGE Sd/- C.JAYACHANDRAN JUDGE uu/jma