Pradeep v. State of Kerala and Sub-Inspector Wadakkancherry Police Station

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940 CRL.A.No. 95 of 2012 SC 567/2008 OF THE SESSIONS COURT,THRISSUR DATED 23-03-2011 APPELLANT/ACCUSED PRADEEP, S/O KASAMMA @ PARU, THEKKUMKARA VILLAGE, THEKKUMKARA DESOM, THALAPPILLI TALUK, THRISSUR DISTRICT BY ADV.SRI.C.A.ANOOP RESPONDENTS/STATE & COMPLAINANT : 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUB INSPECTOR OF POLICE, WADAKKANCHERRY POLICE STATION BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.3.2018, THE COURT ON 09-04-2018, DELIVERED THE FOLLOWING: ## P.R.RAMACHANDRA MENON & A.M.BABU, JJ. - - - - - - - - - - - - - - Crl.Appeal 95 of 2012 - - - - - - - - - - - - - - Dated : 9[th] April, 2018 - - - - - - - - - - - - - - ## JUDGMENT A.M.Babu, J - 1.Appellant was charged under Sec.302 of IPC. He was convicted thereunder and sentenced. He is in appeal challenging the conviction and sentence. - 2.Prosecution case is this : It was at 7.15 pm on 15.5.2006 the incident. The person died in the incident was Radhakrishnan @ Kuttappan. The appellant had a grudge against Kuttappan. The former was assaulted and caused hurt by the latter since the former had teased and insulted the latter's relative by name Kavitha @ Reshmi. The said attack on the appellant by Kuttappan was the motive of the appellant to commit the crime. He inflicted severe injuries on the head of Kuttappan with a knife. The latter succumbed to the injuries at 8.15 pm on the date of incident at the hospital. The appellant is 2 ## **Crl.A.95/2012** ## guilty of committing the murder of Kuttappan. - 3.PW1 gave the fist information statement. The subinspector of Wadakkancherry police station registered the FIR. The lion's share of the investigation was conducted by PW24 who was the inspector of Wadakkancherry police circle. His successor-inoffice, PW23, completed the investigation and filed the charge-sheet. The case was taken on file by the judicial magistrate of the first class, Wadakkancherry. The learned magistrate committed the case to the court of session, Thrissur division. - 4.After hearing the prosecution and the defence, the learned sessions judge framed charge against the appellant under Sec.302 of IPC. The charge was read over and explained to him. He pleaded not guilty and claimed to be tried. Hence the prosecution entered on evidence. - 5.PWs 1 to 24 were examined and Exts P1 to P21 were 3 ## **Crl.A.95/2012** marked on prosecution side. Mos 1 to 14 were also marked on that side. - 6.On completion of the prosecution evidence, the learned trial judge examined the appellant under Sec.313 of Cr.P.C. He denied the incriminating evidence against him. He filed a written-statement of defence. The learned sessions judge found that there was no ground to acquit the appellant under Sec.232 of Cr.P.C. Therefore he was called upon to enter on his defence and adduce evidence. He did not adduce any evidence. - 7.The court below found the appellant guilty under Sec.302 of IPC. He was therefore convicted thereunder. He was sentenced to imprisonment for life and a fine of Rs 2,00,000/-. In default of payment of fine, he shall undergo rigorous imprisonment for one year. - 8.Heard Sri.C.A.Anoop, the learned counsel for the 4 ## **Crl.A.95/2012** appellant and Sri. S.U.Nazar, the learned public prosecutor. 9.Radhakrishnan @ Kuttappan admittedly had a homicidal death. That fact was proved by medical evidence. PW21 conducted post-mortem examination on the body of Kuttappan on 16.5.2006 while working as the lecturer in the department of forensic medicine at the medical college hospital, Thrissur. Ext P12 is the autopsy certificate issued by PW21. Initially he did not speak to the injuries seen and observed by him on the corpse of the deceased. As what the doctor deposes in court alone is substantive evidence as held by the apex court in State of UP v. Mohd.Iqram (AIR 2011 SC 2296) , we invoked the provisions of Sec.391 of Cr.P.C and directed the court below to recall PW21 and examine him further. Accordingly the learned sessions judge recalled PW21 and examined him. He deposed to the injuries noted by him. He mentioned in Ext P12 and spoke in court to 21 ante-mortem injuries found on the corpse. Of the 21 injuries, 19 were incised **Crl.A.95/2012** 5 wounds. We do not find it necessary to extract those injuries in this judgment as the trial court had extracted the injuries in its judgment. PW21 opined that injury Nos 1 to 4 and 14 were fatal injuries. He deposed that injury No.1 was sufficient to cause death. He opined further that all the incised wounds could be caused by MO1 knife. Most of the incised wounds were on the head and one was on the abdomen. The prosecution with the aid of medical evidence proved that Kuttappan was murdered. - 10.According to the prosecution, the murderer was the appellant. In order to prove his complicity, the prosecution relies on three items of evidence. One, ocular evidence. Two, dying declaration. And three, discovery of an incriminating fact admissible under Sec.27 of the Indian Evidence Act. We shall consider the evidence. - 11.Three witnesses were examined as ocular witnesses. Of them, only one supported the prosecution. He was **Crl.A.95/2012** 6 PW1. PWs 2 and 3 turned hostile to the prosecution. They denied having seen the incident. Portions of the statements of PWs 2 and 3 recorded under Sec.161 of Cr.P.C were contradicted with them and even marked as Exts P2 and P3 respectively, subject to proof. But those contradictions were not proved since they were not put to PW24 who recorded the statements of PWs 2 and 3 under Sec.161 of Cr.P.C. The prosecution did not get any ocular evidence against the appellant from the depositions of PWs 2 and 3. 12.PW1 deposed that the incident was at 7.15 pm on 15.5.2006. His evidence is stated below : Himself, Ramakrishnan (PW2), Ummer (PW8) and one Madhu were sitting on the bridge called the canal bridge. The appellant was also near them. Kuttappan came there and had a casual conversation with PW1. Kuttappan moved towards his house. He was followed by the appellant. After a little while, PW1 heard the cry of Kuttappan. PW1 went there and saw the appellant executing a cut on Kuttappan. There was the light **Crl.A.95/2012** 7 from the headlamp of the bike of Kumaresan (PW3) and also the light from the house of one Hamsa. PW1 shouted. Then the appellant ran away through the property of Karunakaran holding a knife. Kuttappan was lying in the ditch near the house of Hamsa. PW1 informed the mother and the brother-in-law of Kuttappan. Kuttappan died at 8.15 pm on the same day. PW1 went to the police station and gave Ext P1 FI statement. 13.The evidence of PW1, if acceptable, is sufficient to prove the incident. For, he said he saw the appellant execute a cut on the person of Kuttappan. PW1 was cross-examined. But his evidence was no way damaged. In cross-examination too he asserted that he saw the incident. He deposed in cross-examination that when he went near the scene of occurrence, the appellant was inflicting a cut on Kuttappan. The witness added that he saw the appellant cut on the head of Kuttappan. PW1 repeated in cross-examination that when he shouted, the appellant ran towards the **Crl.A.95/2012** 8 eastern direction. PW1 denied that he was giving false evidence. He denied that he abused the appellant a week before the incident. PW1 denied further that against him a complaint was filed by the appellant before the police. The attempt to make it appear that PW1 and the appellant were on hostile terms was not successful. About the source of light, PW1 deposed in cross-examination too that there was light from the house. His evidence that he saw the incident in the light from the headlamp of the bike of PW3 was not challenged in cross-examination. All that could be brought out in cross-examination was that Kuttappan was a distant relative of PW1's wife. That relationship is quite insufficient to doubt the evidence of PW1. We do not find any reason whatsoever to disbelieve PW1. He can be termed a sterling witness. His evidence proves that the murder was committed by the appellant. 14.The prosecution is relying on the dying declaration allegedly made by Kuttappan. A written or verbal **Crl.A.95/2012** 9 statement made by a person who is dead is relevant under Sec.32 of the Indian Evidence Act when the statement is made by him as to the cause of his death. It is relevant in cases where the cause of death of that person comes into question. The witnesses examined by the prosecution to prove the dying declaration of the deceased were PWs 4 to 6, 9 and 11. We next discuss their evidence to find whether the alleged dying declaration is proved. 15.PW4 is the widow of the deceased. PW4 spoke to the time and date of the incident. She was, however, not an eyewitness. But her evidence suggests that she reached the scene of occurrence soon after the incident. Her evidence in her examination-in-chief is stated below : She was informed about the incident by Ummer (PW8). PW4 rushed to the scene of crime along with her two daughters (PWs 5 and 6) and one Kavitha (PW11). PW4 saw her husband lying in the drainage near the house of Hamsa. PW4 and others removed the injured from the drainage and made him to lie on the **Crl.A.95/2012** 10 road. PW4 asked her husband who caused him the injuries. He told her that the cuts were inflicted on him by the appellant. Her husband had injuries on many parts of his body including the head. She bandaged the wounds on the head with a cloth brought by one of her daughters. Kuttappan was taken in an autorikshaw by PW8 and two others to the medical college hospital. PW4 knew later that her husband died. - 16.PW4 was cross-examined. She asserted in crossexamination that her husband was conscious when she attended him and while he talked to her. She added that he did not become unconscious during their conversation. She spoke that he fell unconscious only when he was taken inside the autorikshaw. Absolutely nothing was brought out in the cross-examination to discredit the evidence of PW4. She withstood the cross-examination. She proved herself to be a believable witness. She proved the statement made to her by her husband that the cuts were inflicted on **Crl.A.95/2012** 11 him by the appellant. What Kuttappan stated to PW4 would amount to a dying declaration admissible and relevant under Sec.32 of the Evidence Act. The prosecution through PW4 positively proved the dying declaration made by the victim who succumbed to the injuries he sustained. 17.PW6 is one of the daughters of the deceased and PW4. PW6 also spoke to the dying declaration. She deposed that she heard her father telling her mother that the cuts were inflicted by the appellant. But PW6 did not state so to the investigating officer while giving statement under Sec.161 of Cr.P.C. Although PW6 was assertive that she did state to the police that she did hear the dying declaration made by her father, the witness did not answer when she was given the opportunity to explain why the police did not record any such statement of hers. PW24 who recorded the statement of PW6 deposed that PW6 did not mention the dying declaration in her statement given under Sec.161 of Cr.P.C. There was therefore an omission **Crl.A.95/2012** 12 amounting to contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. The said omission amounting to contradiction was proved by the defence through PW24. We therefore do not rely on the evidence of PW6 on dying declaration. 18.PW8, Ummer by name, was the person who informed PW4 about the incident. PW8 saw Kuttappan lying in the ditch with blood oozing wounds. The fact that PW8 saw the victim lying in the ditch in a pool of blood and the fact that PW8 was the person who gave information to PW4 were not disputed when the witness was crossexamined. But the purpose of examination of PW8 was to prove the dying declaration. He spoke to it. He stated that he heard Kuttappan telling PW4 that the cuts were inflicted by the appellant. But PW8 was in utter confusion while giving evidence. He was so during his examination-in-chief, cross-examination and re-examination. He stated that Kuttappan was not fully conscious, but was able to talk and was talking. The witness who stated so has also stated 13 ## **Crl.A.95/2012** that Kuttappan was not conscious. It was also the evidence of PW8 that Kuttappan was in such a state that he was unable to recognize people. The witness deposed to the effect that the speech of Kuttappan was incoherent. It is not clear from the evidence of PW8 as to at what point of time the speech was incoherent and the victim fell unconscious. We do not think it safe to rely on the evidence of PW8 on dying declaration. We therefore do not take his such evidence into confidence. 19.The evidence of PW6 on dying declaration cannot be relied on. So is the evidence of PW8. But the depositions of PWs 5, 9 and 11 lend a fine support and corroboration to the evidence of PW4. - 20.PW5 is another daughter of PW4. The former stated in court all what the latter deposed to. PW5 spoke that she heard the statement of her father made to her mother that the father was inflicted with injuries by the appellant. The cross-examination was not 14 ## **Crl.A.95/2012** effective. Nothing could be brought out in crossexamination to suspect the evidence of PW5. She asserted that her father was conscious when the dying declaration was made. The evidence of PW5 inspires confidence. We accept it. - 21.PW9 is the brother-in-law of the deceased. The information about the incident was given to PW9 by PW1 as stated by both. When PW9 reached the locale of the crime, Kuttappan was lying on the lap of PW4. Kuttappan stated to PW4 that he was cut by the appellant, said PW9. No damage was caused to the evidence of PW9 in cross-examination. In fact, he was not seriously cross-examined to challenge his evidence on dying declaration. He asserted that the speech of Kuttappan was not incoherent. The witness denied the suggestion that he did not see the deceased alive after the incident. The evidence of PW9 is believable, reliable and acceptable. - 22.Another witness who spoke to the dying declaration **Crl.A.95/2012** 15 was PW11 (Kavitha). She said that she was in the house of PW4 when PW8 informed about the incident. PW11 accompanied PW4 and PW4's daughters to the scene of incident. PW11 spoke that she saw Kuttappan lying in the ditch with wounds. PW11 testified that she heard Kuttappan stating to PW4 that he was inflicted with cut wounds by the appellant. The said statement of PW11 was not subjected to cross-examination. What was challenged was the question put to Kuttappan by PW4 as to the cause of the injuries. Even that challenge was only to bring it as an omission in the statement of PW11 recorded under Sec.161 of Cr.P.C. But no such omission was put to the investigating officer and therefore not proved as a contradiction. PW11 also proved the dying declaration of Kuttappan made to PW4. 23.The depositions of PWs 4, 5, 9 and 11 about the dying declaration made by Kuttappan are reliable. The victim immediately after the incident stated to PW4 in the view and hearing of PWs 5, 9 and 11 that the **Crl.A.95/2012** 16 person who inflicted the injuries was the appellant. The said statement of Kuttappan as to the cause of his death is relevant and admissible in evidence under Sec.32 of the Evidence Act. The ocular evidence of PW1 also proves that the appellant was the person who inflicted injuries on the person of the deceased, although PW1 witnessed only the execution of one cut. - 24.Sec.27 of the Indian Evidence Act is pressed into service by the prosecution. MO1 is a knife. According to the prosecution, Kuttappan was inflicted with incised wounds by the appellant with MO1. PW21 who conducted autopsy opined in court that all the incised wounds found on the corpse of the deceased could be caused by MO1. The defence did not challenge the said opinion given by PW21. PW1 spoke that the appellant ran away holding a knife. PW1 deposed that he could identify the said knife. The evidence of PW1 that he saw the appellant holding a knife while fleeing from the place of occurrence was not challenged in cross-examination. The claim of PW1 **Crl.A.95/2012** 17 that he could identify the knife was also not challenged. PW1 identified MO1 to be the said knife. He denied the suggestion in cross-examination that the appellant had no connection with MO1. The prosecution proved that MO1 was the knife with which Kuttappan was inflicted with incised wounds including the fatal wounds. The prosecution, by evidence, could connect the appellant to MO1. 25.The appellant was arrested on the next day of the incident. He was arrested by PW24 at 7.15 pm on 16.5.2006 near the railway station at Wadakkancherry. PW24 prepared Ext P15 memorandum of arrest and Ext P16 memorandum of inspection. He denied the suggestion put to him in cross-examination that he did not arrest the appellant from the place stated by him. He denied that he arrested the appellant only because of a mere suspicion. The arrest is proved. The time, date and place of arrest are also proved. 26.The evidence of PW24 suggests that he interrogated **Crl.A.95/2012** 18 the appellant after the arrest. The witness spoke that the appellant made a disclosure statement and that it was recorded. Ext P10 is the said disclosure statement recorded by PW24. He deposed to the precise words in the disclosure statement. He stated that he was told by the appellant that while running away the appellant had thrown the knife into a ditch near an electric post. It was also deposed to by PW24 that the appellant volunteered to show the knife if the appellant was taken there. PW24 denied the suggestion that he fabricated a disclosure statement. No other question was put to PW24 to challenge the disclosure statement given by the appellant and recorded by PW24. PW24 proved that the appellant did give a disclosure statement. The precise words of disclosure statement were also proved by the prosecution. 27.The evidence of PW24 in his examination-in-chief suggest these, namely, (i) he was led to the place of concealment of the knife by the appellant himself, (ii) the knife was shown to PW24 by the appellant and **Crl.A.95/2012** 19 (iii) the appellant himself took the knife and handed it over to PW24. PW24 identified MO1 to be the said knife. It was suggested to PW24 in cross-examination that the knife was recovered from the very same ditch in which Kuttappan was lying after the incident. PW24 denied the suggestion. He spoke that the ditch in which Kuttappan lay was two kilometres away from the ditch from where MO1 was recovered. PW24 admitted that the said ditch was by the side of the road, but he stated that the area was bushy and therefore would not catch the attention of the people. The evidence of PW24 regarding the recovery of MO1 knife was not damaged in cross-examination. We accept his evidence that MO1 was recovered from the place of concealment on the basis of the disclosure statement made by the appellant and at his instance. 28.PW24, however, did not state the date of recovery of MO1. PW17 deposed that it was on 17.5.2006. He was examined as a witness to prove the recovery of MO1. Ext P9 is the seizure mahazar relating to the **Crl.A.95/2012** 20 recovery of MO1. It recites that the recovery was at 10.30 am on 17.5.2006. The date of recovery stated by PW17 is thus supported by Ext P9 seizure mahazar. PW17 stated that he attested Ext P9 as a witness. He testified that the appellant took the knife and handed it over to the circle inspector (PW24). It was also the evidence of PW17 that it was about 10 - 10.30 am then. PW17 identified MO1 to be the said knife. He denied the suggestion put to him in crossexamination that he did not see anything. He denied having borrowed money from the appellant. The witness denied that he had a grudge against the appellant. The evidence of PW17 is also believable. 29.The recovery of MO1 at the instance of the appellant is proved. MO1 is proved to be the knife with which the appellant inflicted fatal injuries on the person of the victim. The discovery of an incriminating fact against the appellant is thus proved. The discovery of the fact was on the basis of the information given by the appellant as deposed to by PW24. Sec.27 of the ## **Crl.A.95/2012** 21 Indian Evidence Act is attracted. The third set of evidence produced by the prosecution also goes against the appellant. - 30.The prosecution alleges a specific motive for the crime. The motive alleged is the alleged grudge of the appellant towards Kuttappan. The reason for the grudge, according to the prosecution, was the attack on the appellant by Kuttappan. The prosecution would allege that the appellant was attacked and even caused hurt since he insulted a girl by name Kavitha who was a relative of Kuttappan. The prosecution is relying on the evidence of PWs 1, 4, 5, 8, 9 and 11. - 31.PW11 is the girl who was allegedly insulted by the appellant. She, Kavitha, spoke that on 6.12.2005 the appellant caught hold of her hand and pulled her bag. The witness said that she informed his brothers and mother. According to PW11, her brothers and Kuttappan questioned the appellant, quarrelled with him, beat him and caused him hurt. PW11 stated in cross- **Crl.A.95/2012** 22 examination that she was not aware whether anybody had witnessed the incident occurred on 6.12.2005. There was no further cross-examination on the said incident. PWs 1, 4, 5, 8 and 9 also spoke that the appellant had grudge against Kuttappan as the former had questioned the latter and caused him hurt. It was also the evidence of the said witnesses that the appellant demanded compensation from Kuttappan, that Kuttappan refused and that the appellant used to say that he would kill Kuttappan. Some questions were put to the witnesses in cross-examination, but nothing was brought out to damage their such evidence. Even the appellant in his written-statement of defence stated that he was attacked and caused grievous hurt by Kuttappan and his goons. There is sufficient evidence to prove the motive. 32.The learned counsel for the appellant submitted that the prosecution should have examined all the persons whose names were stated by PW1 in Ext P1 FI statement. The FI statement refers to Sundaran, **Crl.A.95/2012** 23 Kuttan, Ambi, Mohan, Kabir and Chandran. Going by the FI statement, those persons came to the place of occurrence after the incident. There is no indication in the FI statement or in the evidence of any of the witnesses examined in court that the aforesaid persons saw the incident. What PW1 stated in the FI statement was that himself, Ramakrishnan, a person hailing from Tamil Nadu and some neighbours had seen the incident. Ramakrishnan was examined as PW2. The person from Tamil Nadu referred to in the FI statement was the person who came on a bike. The light from the headlamp of his bike was one of the sources of light for PW1 to see the incident. The said person was examined as PW3, Kumaresan by name. PW1 did not mention any other name in the FI statement. The argument of the learned counsel for the appellant is devoid of merit. 33.The learned counsel submitted that the incident was at 7.15 pm and the death was at 8.15 pm, but the FI statement was given only at 10.00 pm. The delay, if 24 ## **Crl.A.95/2012** at all there was any, was not much. The short delay in lodging the FI statement cannot be magnified. It is so particularly when no prejudice is seen to have been caused to the appellant by reason of the short delay in lodging the FI statement. 34.Another argument of the learned counsel was that PW1 did not speak to the dying declaration. He needs to speak to the dying declaration only if he had heard it. There is nothing in the evidence to suggest that he heard it. No witness spoke to the presence of PW1 when the dying declaration was made. PW1 was the person who went to the house of PW9 and informed him about the incident. PW1's evidence suggests that by the time he returned to the place of occurrence, Kuttappan was removed from the scene of occurrence in order to take him to the hospital. Therefore PW1 had no occasion to hear the dying declaration. We do not find any merit in the said argument too. 35.We conclude. The prosecution established by evidence 25 ## **Crl.A.95/2012** that the appellant committed the murder of Radhakrishnan @ Kuttappan. The appellant was liable to be convicted under Sec.302 of IPC. The substantive sentence imposed on him was the minimum sentence under Sec.302 of IPC. We do not consider the quantum of fine and the default sentence excessive. The appeal fails. The same deserves to be dismissed. ## 36.Dismissed. **Sd/-** P.R.RAMACHANDRA MENON Judge Sd/A.M.BABU Judge Mrcs/2.4 /True copy/ P.S.To Judge