Manikandan 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** **THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940** ## **CRL.A.No. 1168 of 2015** **AGAINST THE JUDGMENT IN SC 399/2014 of ADDL.DISTRICT AND SESSIONS COURT,THODUPUZHA DATED 09-09-2015** **CP 18/2014 of J.F.C.M.-II, PEERUMEDU** **CRIME NO. 440/2014 OF Kumily Police Station , Idukki** **APPELLANT/ACCUSED:** **MANIKANDAN, C.NO.396, CENTRAL PRISON, TRIVANDRUM-12** **BY ADV. ALEX .A.K (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA.** **BY ADV. SPECIAL PP FOR OFFENCES AGAINST WOMEN AND CHILDREN SMT. S. AMBIKA DEVI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2018, THE COURT ON 08.11.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.1168/15 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the sole accused challenging the judgment passed by the First Additional Sessions Judge, Thodupuzha in S.C. No. 399 of 2014 by which he was found guilty under S. 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced to undergo imprisonment for life. 2. Prosecution case is that on 21.04.2014 at about 8.15 a.m., the deceased Annalakshmi, while she was going for her work with her mother, was murdered by the appellant herein by inflicting many stab injuries on her neck, chest and abdomen area by using MO1 knife, due to his enmity to her owing to her refusal to accompany him to his native place Ramanathapuram, 3. Prosecution examined PWs 1 to 11, marked documents Exts. P1 to P12 documents and identified material objects MOs 1 to 13. Defence marked Ext.D1 fitness certificate of the appellant through their witness DW1, Dr. Ajeesh. 4. The learned counsel for the appellant contended that the appellant is innocent in this case. He is falsely implicated. Prosecution failed to prove the case beyond reasonable doubt. Crl.Appeal No.1168/15 -:3:- There is no motive for the crime. The witnesses cannot be believed as they are familiar to the family of the deceased. Shibu was a key witness and he was not examined. The blood group of the deceased is not determined and hence the forensic evidence cannot be relied on as conclusive. The investigation was not proper. The Court below erred in finding the appellant guilty. He relied on the following decisions of the Apex Court to substantiate his contentions:- (i) In _**Balu v. State of Maharashtra**_ [(2015) 3 SCC 409], the Apex Court convicted appellants under 304 Part I of I.P.C. holding that the crime had arisen out of a sudden quarrel and intention to commit murder is lacking, (ii) In _**State of Rajasthan v. Santosh Savita**_ [(2013) 12 SCC 663], Apex Court held that evidence only establishes that the accused had caused death of deceased recklessly with knowledge that it is likely to cause death and hence convicted him u/s 304 Part II. (iii) In _**Budhi Singh v. State of H.P**_ [(2012) 13 SCC 663], the Apex Court altered conviction from S.302 to S.304 Part I holding that there is absence of premeditation or intention to kill Crl.Appeal No.1168/15 -:4:- and grave and sudden provocation resulting from deceased abusing father of the appellant led to the incident. 5. On the other hand, the learned Special Public Prosecutor argued that there are clinching evidence available to prove the involvement of the appellant including eyewitnesses. PWs 1 and 3 are the eye witnesses to the incident. The depositions of PWs 1, 3 and 8 are credible and reliable. The medical and other scientific evidence conclusively proves the guilt of the appellant. The reason for committing this brutal murder was that the deceased did not accompany the appellant to his native home. The incised ante-mortem injuries found on the body of the deceased show the brutality of the appellant. All available evidence is rightly appreciated by the trial Court and the decision arrived at is right and hence need not be disturbed. To substantiate the insignificance of proof of blood grouping in the light of other evidence, she relied on the decision of the Supreme Court in _**Gura Singh v. State of Rajasthan**_ (AIR 2001 SC 330). Paragraph 20 reads thus:- _**“20** . In view of the authoritative pro-nouncements of this Court in Teja Ram's case (1999 AIR SCW 1514 : AIR_ Crl.Appeal No.1168/15 -:5:- _1999 SC 1776 : 1999 Cri LJ 2588) (supra), we do not find any substance in the submissions of the learned counsel for the appellant that in the absence of the report regarding the origin of the blood, the trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding this circumstance as proved beyond doubt against the appellant.”_ 6. We heard the learned counsel for the appellant and the learned Special Public Prosecutor in detail and perused the records. 7. The question to be considered is whether the evidence at hand is sufficient to justify the decision of the trial Court in convicting the appellant. 8. Coming to the evidence, PW5, the Additional S.I. of Police registered Ext.P4 FIR on the basis of the FI Statement given by PW1. PW11 is the Circle Inspector of police who conducted the investigation and filed the charge-sheet. Ext.P2 is the inquest Crl.Appeal No.1168/15 -:6:- prepared by PW11 to which PW2 is an attestor. PW6 prepared Ext.P5 scene plan. PW10 is the scientific assistant who collected the materials for FSL examination and it was seized by PW11 through Ext.P6 mahazar. Ext.P7 is the scene mahazar prepared by PW11 and PW9 is an attestor to it. PW4, Dr. Deepu T. issued Ext.P3 post-mortem certificate and it is proved through him. 9. PW8 is the father of the deceased Annalakshmi. He is not an eyewitness but he throws light to the circumstances that led to the sad death of his daughter. According to him, the appellant and the deceased were married people. Appellant fell in love with Annalakshmi and he took her to Ramanathapuram in the pretext of work. Subsequently, PW8 and Kannan, the husband of Annalakshmi went to Ramanathapuram and persuaded Annalakshmi to come back to her original husband. She agreed and came with them to Kumily and began to stay with her husband Kannan and children. According to PW8, even after that, the appellant called her many times and compelled her to stay along with him at Ramanathapuram. Annalakshmi was not ready for the same and hence the appellant became inimical to Annalakshmi. PW8 deposed this as the reason for the appellant to Crl.Appeal No.1168/15 -:7:- commit the offence. 10. PW1 is an eyewitness to the incident. He gave Ext.P1 FI Statement to the police and based on which Ext.P4 FIR was registered. PW1 deposed that he is a taxi driver and he witnessed the incident. According to him, on 21.04.2014 at about 7.45 a.m., while he was sitting in a taxi jeep in the taxi stand situated near Rosapookandom road at Kumily, he saw the appellant and the deceased quarreling with each other. It is his version that after sometime, they went to the back side of the taxi stand and suddenly he heard a loud cry. He got out from the jeep and had a look at the place from where the cry was heard and he saw Annalakshmi lying on the ground and the appellant stabbing her. According to him, the appellant had stabbed two or three times on the chest, abdomen etc. He and one Shibu tried to stop the appellant. Then the appellant wielded the knife against Shibu. Then PW1 hit him on the back with his hand and the knife fell down from the hands of the appellant. Thereafter, they forcefully took the appellant to the nearby police station at Kumily. Police reached the place of occurrence and took Annalakshmi to hospital and she was declared dead. PW1 identified the appellant Crl.Appeal No.1168/15 -:8:- as the person who inflicted the injuries on Annalakshmi and MO1 knife as the weapon used for the offence. 11. PW3, Anilkumar is another eyewitness. He is an autorikshaw driver in the area. He deposed that he saw the appellant and the deceased quarrelling each other on the road at the relevant time. He deposed that the appellant was compelling the deceased to come along with him. The deceased was not agreeing to the same and the mother of the deceased asked the appellant to go away. They together walked for sometime and thereafter the mother of the deceased went towards the bus stand for some purpose. According to PW3, at that time, the appellant caught hold on the hair of the victim and stabbed on the neck and on other parts of her body. It is his further version that due to the injuries, the victim lady fell down and the appellant stabbed her again many times. PW1 and Shibu took the appellant and handed him over to police. He identified the appellant as the aggressor and MO1 as the weapon of offence. 12. PW4 is the Doctor who conducted the post-mortem examination of the deceased on 22.04.2014. He issued Ext.P3 post-mortem certificate. The following ante-mortem injuries were Crl.Appeal No.1168/15 -:9:- ## noted in Ext.P3:- _“1. Incised penetrating wound 2.6x1.5 cm, oblique, on left side of front of chest, its lower inner sharp end 13 cm below sternal notch in midline._ _The wound entered the left cavity by sharply cutting the body of sternum on the left side (3x0.5 cm) in between the 5[th] and 6[th] costal cartilages. The wound terminated by penetrating the right ventricle near its apex (1.5x0.2 cm) and left ventricle (1x0.2 cm) involving its full thickness by cutting through the inner ventricular septum. Pericardial cavity contained 200 ml of fluid blood. Left chest cavity contained one litre of blood with clots. The track of the wound was directed downwards, backwards and to the left with a minimum depth of 8 cm. Left lung (110gm) was collapsed and was pale._ _2. Incised penetrating wound 3.5x1.1 cm, oblique on left side of front of chest, its lower inner sharp end 7.5 cm outer to midline and 5 cm below collar bone._ _The wound entered the chest cavity by cutting through the 3[rd] intercostal space, transfixed the upper lobe of left lung (3x1x5cm) Track of the wound was directed downwards, backwards and to the right, for total minimum depth of 12 cm._ _3. Incised penetrating wound 2.5x1cm, oblique, on left side of front of chest, its lower sharp right end 1.4 cm outer to midline and 3.5cm below collar bone._ _The wound entered the chest cavity by cutting through the second intercostal space._ _4. Incised penetrating wound 4x0.6cm, horizontal, over the nipple and areola on the left side its inner sharp_ Crl.Appeal No.1168/15 -:10:- _end 7.5 cm outer to midline and 13 cm below collar bone._ _The wound entered the chest cavity by cutting through the 5[th] intercostals space._ _5. Incised penetrating wound 3x1.3 cm on left side of front of abdomen, its upper sharp inner end 3.5 cm outer to midline and 1.5cm below rib margin with a small loop of intestine protruding out._ _The wound entered the abdominal cavity by cutting through the greater omentum, right lobe of liver (2.5x1.5x0.5cm) and interior venacava. Abdominal cavity contained 750ml of fluid blood with clots, with infiltration into the mesenteries. Track of the wound was directed upwards, backwards and to the right with a minimum depth of 12 cm._ _6. Incised wound 9x1.8x3cm, horizontal, on front of neck across midline, extend 8 cm above the sternal notch with a side cut 5x0.2cm from the upper margin on the left side directed upwards and to the left. Tailing present from the right end._ _Flap dissection of neck was done in a bloodless field. Sternohyoid and thyroid muscles and fasciae were cut and separated. The jugular veins, carotid vessels, cartilages and bones of neck were intact. Test for air embolism was negative._ _7. Superficial incised wound 1.5x0.2x0.2cm, oblique, on left side of front of neck, its lower inner end 6.5cm outer to midline and 3.5cm below angle of jaw._ _8. Incised wound 3.5x1cm muscle deep, vertical, on front of right forearm on its outer aspect, its lower_ Crl.Appeal No.1168/15 -:11:- _sharp end 3 cm above wrist._ _9. Incised wound 4x1x4cm, vertical, on front of right palm on its outer aspect, its upper end 3 cm below wrist._ _10. Incised wound 4x1cm, vertical, on back of right hand on the outer aspect, its lower sharp end 3.4cm above the root of index finger communicating with the previous injury._ _11. Incised wound 2x0.2x0.3cm, vertical, on inner aspect of left thumb, 1.5cm below its root”._ 13. He opined that the deceased died due to the incised penetrating injuries sustained to chest and abdomen. It is his version that injury no.5 is sufficient in the ordinary course of nature to cause death. He deposed that the injuries noted in Ext.P3 can be caused by using a weapon like MO1. 14. From the above, it is vivid that the deposition of PW3 clearly corroborates what PW1 has stated in evidence. We don't find any reason to disbelieve the version of PW1 and PW3 who are independent witnesses. The appellant has no case that these witnesses had any enmity towards him. Their deposition inspires full confidence and the medical and forensic lab results tally with their version. Ext.P11 is the FSL report. In the said report, Crl.Appeal No.1168/15 -:12:- Dr.Sreekumar, Asst. Director (DNA), FSL, Thiruvananthapuram concluded that the DNA profile of the blood stain found in item no. 11 showed that it contained a mixture of blood stains belonging to the deceased person Annalakshmi to whom the blood stain in item 12(a) belonged and to Manikandan to whom the blood sample in item 13 belonged. The defence marked Ext.D1 wound certificate of the appellant through DW1 and it is admitted fact that he suffered a shallow incised wound 2x2 c.m. on the left forearm. (History stated – Caused by his own knife). Considering all these aspects, the contention taken by the learned counsel for the appellant that no grouping of blood was done, is not of much consequence. 15. Lastly, learned counsel for the appellant contended that the appellant had no pre-meditation or intention and he acted on grave and sudden provocation and hence if at all he is held liable, he need only to be punished under Section 304 Part II of the I.P.C. He relied on the judgments already cited herein. But, the facts and circumstances of this case do not support his contention. There is no evidence to show that there was any provocation from the part of the victim. On the other hand, there Crl.Appeal No.1168/15 -:13:- is evidence to show that the weapon of offence was carried by the appellant and the injuries were multiple and fatal. 15. This case is another instance of atrocity against a helpless women. The appellant mercilessly butchered the young lady with the knife he carried, on the prime area of the city and in broad day light. 16. The trial Court is fully justified in appreciating the evidence and convicting and sentencing the appellant as stated above. No interference is needed. In the result, the appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE Judge** **Sd/-** **P.SOMARAJAN** Rp //True Copy// **Judge** PA to Judge