Rahul Varghese 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 MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939 CRL.A.No. 1408 of 2012 (A) --------------------------- AGAINST THE ORDER/JUDGMENT IN SC 358/2012 of ADDL.SESSIONS COURT-II, MAVELIKKARA DATED 14-11-2012 APPELLANT(S)/ACCUSED: -------------------- RAHUL VARGHESE, AGED 24 YEARS, S/O.JOSEPH VARGHESE MELEPANDIYIL PENNUKKARA POOMALA P.O ALA VILLAGE CHENGANNUR BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.VIPIN NARAYAN RESPONDENT(S)/COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-102017, THE COURT ON 11-12-2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal No. 1408 of 2012 ==================== Dated this, the 11[th] day of December, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ The appellant, the sole accused in SC No.358/12 has been convicted for offence punishable u/s 302 of Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. He is also ordered to pay a fine of `2 lakh and on default of which to undergo imprisonment for a period of two years. He is also sentenced to undergo simple imprisonment for 1 month u/s 341 IPC, R.I. for 7 years u/s 307 IPC and 6 months for offence u/s 323 of IPC. Certain fine is also directed to be paid. `2 lakhs received as fine is to be paid to PW1 and PW4. 2. The prosecution case is that a girl named Varsha, (PW1) was travelling along with her father in a scooter at about 5.45 a.m. The accused came in another scooter and hit on the scooter driven by the victim's father. The victim as well as her father fell down. The accused grabbed the girl and uttering that he would kill her, Crl.Appeal No.1408/2012 -:2:- stabbed her thrice on her back. When her father attempted to rescue her, the accused stabbed her father as well on his left shoulder, left stomach and left armpit. The father of the girl succumbed to the injuries. Hence, after conducting investigation, case was chargesheeted for offence punishable u/s 341, 323, 307 r/w 302 of IPC. 3. Prosecution examined PWs 1 to 28 and Exts.P1 to P33 were marked. The material objects identified were MO1 to MO17. The accused was questioned u/s 313 Cr.P.C. He denied the incriminating circumstances against him and after hearing the matter, the learned Sessions Judge convicted him as stated above. 4. In the appeal, learned counsel for the appellant/accused contended that the prosecution had not proved the case beyond reasonable doubt. There are various infirmities in the prosecution case which was not considered by the Court below. 5. On the other hand, learned Public Prosecutor supported the judgment of the Court below. It is contended that the attempt of the accused was to commit murder of the girl and Crl.Appeal No.1408/2012 -:3:- when her father tried to intervene and prevent him from stabbing his daughter, he was also stabbed and the injuries were very grievous and he succumbed to the injuries. It is submitted that the evidence of PW1, the girl itself is enough to prove the prosecution case and other circumstances clearly indicate the complicity of the accused to the crime. 6. PW1 is the girl who suffered injuries at the hands of the accused. At the time of incident, she was studying for MBA at MAC Fast College, Thiruvalla. Her father was driving the scooter and she was the pillion rider. In the scene of crime, another scooter driven by the accused came and hit on their scooter. Her father stopped his scooter by the side of a shop room. Accused stopped his scooter, caught hold of her, pulled her down and started kicking her. Then he took a knife and stabbed her uttering that she will be killed. She was stabbed thrice. Father came for her rescue. He uttered that her father also will not be spared and stabbed her father also. He suffered grievous injuries. Her father suffered an injury on the left side of his chest. On seeing this, she ran towards a house which was on the opposite side of the road. When she went there and looked back, she saw her father lying Crl.Appeal No.1408/2012 -:4:- down. The residents of the house came down. A police jeep came immediately and they were taken to Thiruvalla Pushpagiri Medical College hospital. She also deposed that she knew the accused, Rahul. He had intimated to her that he likes her and he would like to marry her. But she was not interested. Complaint was also given to the police against Rahul stating his nuisance and that was the reason for his having grudge against them. She also deposed that he had made several allegations against her to the Administrator and Department Director of the College. He had also created a fake identity in Orkoot and the photograph of PW1 and Rahul were published as if to declare that she herself had published that their marriage was over. She had not seen the orkoot publication. Her parents had seen it. Her father's friend after seeing the same had called her father and her father also saw the same in the internet. Her father called Rahul and asked him to remove it and failing which he was told that her father would file a complaint before the Cyber Cell. After some time, when her father verified it, the said news was not seen as Rahul himself has deleted the same. It was taking into account the aforesaid fact also that complaint was given to the Circle Crl.Appeal No.1408/2012 -:5:- Inspector of Police. She further stated that she knew Rahul as he had come to repair a computer at their residence. She knew him since June, 2010.She had also identified MO1 the knife by which he had stabbed both of them. She has given First Information Statement to the police. Ext.P1 is the First Information Statement. The complaint given by her father to the police is marked as Ext.P2. MO2 was the cream colour shirt she was wearing at the time of incident which was stained with dry blood. The back side of MO2 was torn thrice. She also identified her other dresses MO3, MO4, father's dress MO5 which also was blood stained with dry blood, MO6 pants and MO7 chappals. She also identified MO8 jacket, MO9 jeans and MO10 shirt which the accused was wearing at the relevant time. MO11 was the footmat of a kinetic honda scooter, which the accused used at the relevant time. The accused had a school bag with him which was marked as MO12. She deposed that they were friends and they were not having any love affair and she was not interested to marry him. 7. PW2 is one Saji. He deposed that, on 22/3/2011, he heard a girl crying aloud. He opened the door and came out and saw a girl standing outside immediately in front of his gate. On Crl.Appeal No.1408/2012 -:6:- the other side of the road, he saw a person lying down. When asked, she told him that a person had attacked them. However, he does not remember whether the attacker was standing there itself. When he saw the person lying on the road, he thought that it was some accident. Immediately a police jeep came from the south towards north. They were taken in the police jeep. PW1 was the girl who was attacked on the said day. He had not verified whether the other man had suffered any injury. He denied ignorance regarding the complicity of the accused. 8. PW3 deposed that she knew the incident where a father and daughter were stabbed in front of their house. She also stated that when she came down, she saw the girl and a person was running towards the east. Her father was lying on the road. She did not go near them. At that time, Saji (PW2) was there. There was a two wheeler at the place where he was lying. She was asked whether she had seen an youngster standing nearby. She denied the same. She was declared hostile and cross examined. 9. PW4 is the mother of PW1. In her evidence, she had stated that she knew the accused and on the fateful day in the Crl.Appeal No.1408/2012 -:7:- morning, her husband had gone along with her daughter to the College in their kinetic honda scooter. He had taken her to drop her at the college. They started from the house at 5.45 a.m. She heard about the incident. PW1 had called her. But she could not contact her. She called back. Then her daughter asked the mother to come immediately and that Rahul had stabbed and killed her father and that she was also stabbed. She had gone to the place along with the neighbours in a car. By the time they reached, three-four persons were taking her husband in a jeep and daughter was sitting in the jeep. She also deposed that the accused was also standing there. They proceeded behind the jeep. When they reached the hospital, husband was declared dead. Daughter was taken to the causality. She also stated that they knew the accused. He has proposed to marry her, but she was not interested. She also narrated the incident stated by PW1. She also identified various material objects belonging to her daughter and her husband. During cross examination, Ext.D1 contradiction was marked. 10. PW5 is a neighbour of the deceased. He is an attestor to Ext.P4 seizure mahazar. Crl.Appeal No.1408/2012 -:8:- 11. PW6 is the former employee of the accused. He was examined to prove that the accused was working with him. He turned hostile. 12. PW7 is the security guard of MAC Fast College. He proved Ext.P5, the visitors register of the radio room. The entry indicates that the accused visited the college on 17/1/2011. 13. PW8 is an attestor to Ext.P6 inquest report. 14. PW9 is an attestor to the scene mahazar Ext.P7. 15. PW10 is the Circle Inspector of Police who received Ext.P2 complaint from the deceased. He deposed that he had called the accused and warned him not to bother the girl. 16. PW11 is a police officer who is an attestor to Ext.P8 seizure mahazar which are the jacket and mobile of the accused. 17. PW12 is a another police officer of Chengannur police station who is an attestor to Seizure mahazar Ext.P9 for taking Ext.P2 complaint. 18. PW13 is an attestor to Ext.P10 seizure mahazar relating to the records of the scooter with which the accused had hit the father and daughter. As per the details of registration, the scooter belongs to the father of the accused. Crl.Appeal No.1408/2012 -:9:- 19. PW14 is the father of the accused. He was summoned to prove Ext.P11 by which notice had been issued to him to give details of the driver of the vehicle at the relevant time. 20. PW15 is the head of Department of MBA at MAC Fast College. He has attested Ext.P12 seizure mahazar to prove Ext.P5 visitors' register of radio room. 21. PW16 is an attestor to Ext.P13 mahazar for seizure of the records of the scooter belonging to the deceased. 22. PW17 is an attestor to Ext.P14 seizure mahazar regarding recovery of MO2 to MO4, cots of PW1. 23. PW18 is a Casuality Medial Officer of Pushpagiri Medical College who had issued the wound certificate of PW1, Ext.P15. Following are the injuries suffered by her. _“Patient drowsy, conscious oriented. There is a stab wound over left back of chest. Bleeding profuselyRight hypochondrium 1.5x1cm over the lumbar spine-1.5x1cm. Right Lumbar region in the back1.5x1cm.”_ 24. PW19 is the Professor in Head of the Department of Surgery, Pushagiri Medical College hospital, Thiruvalla. He had issued Ext.P16 discharge certificate of PW1. Crl.Appeal No.1408/2012 -:10:- 25. PW20 is the Assistant Chemical Examiner who had submitted Ext.P17 chemical analysis report. 26. PW21 is the Scientific Assistant, Biology in the Xerology division of FSL Department who had given Ext. P18 chemical analysis report. 27. PW22 is the Village Officer who had prepared Ext.P19 scene plan. 28. PW23 is the Sub Inspector of Police who had recorded the First Information Statement and registered Ext.P20 First Information Report. 29. PW24 is the Deputy Police Surgeon, Associate Professor of Medical College, Alappuzha who conducted post mortem examination on 22/3/2011 of the deceased, who prepared Ext. P21 post mortem certificate. The following were the ante-mortem injuries suffered by the deceased:- _“1. Incised wound 4.5x1.5x4cm in front of left arm transversely oblique upper inner end 7 cm below tip of shoulder and 20cm to the left of midline. Underneath this injury, muscles were partially cut. The wound was directed upwards, inwards and to the right._ _2. Incised wound 1.5x0.4x19 cm on outer aspect_ Crl.Appeal No.1408/2012 -:11:- _of left side of trunk, 20cm below armpit. The wound entered abdominal cavity, through the intercostal space of 11[th] and 12[th] rib and perforating left kidney 1.5x0.2x5cm, through the renal pelvis and cutting the front portion of abdominal aorta 8cm above its bifurcation, 4x0.2cm. The retroperitonial space contained 900 gm of blood and clots. The omentem and mesenteries were blood stained. The wound was directed horizontally to right and backwards. Abdominal wall thickness was 3cm._ _3. Abrasion 1.5x1cm on front of left knee._ _4. Superficial laceration over an area 1x0.5cm involving tip of thumb of left hand._ _5. Multiple abrasions over an area 4x3cm over the top of right shoulder 7cm to the root of neck._ _6. Superficial laceration 0.3x0.3cm over outer aspect of trunk, left side, 8cm below armpit.”_ 30. PW24 deposed that the death of the deceased was caused due to the stab injury to abdomen namely injury No.2. He also opined that injury no.1 and 2 can be caused by MO1 and MO2, injury no.4 can be caused by coming to contact with tip portion of MO1. Injury Nos.3, 5 and 6 are possible by fall on a scooter after receiving injury Nos.1 and 2. He stated that injury No.2 is sufficient to cause death in the ordinary cause of nature. MO1 is not an ordinary weapon. He has not seen such a weapon. 31. PW25 is the Circle Inspector of Police who had Crl.Appeal No.1408/2012 ## -:12:- conducted investigation in the matter. 32. PW26 is the Sub Divisional Deputy Superintendent of Police who also conducted investigation from 25/3/2011 to 21/7/2011. 33. PW27 is the Assistant Professor of Forensic Medicine, Medical College Hospital, Alappuzha. He recorded the extra judicial confession of accused. He had also examined the accused and collected nail clippings and scalp hair. He had issued Ext.P33 certificate after examining the accused. 34. PW28 is the Deputy Superintendent of Police, Chengannur who submitted the final report before Court. 35. The accused also examined Dr.P.A.Jacob as DW1 who had issued Exts.D2 and D3 which are treatment records of PW1. PW1 is the injured. She had clearly stated as to what happened on the fateful day. According to her, the accused had previous animosity with her father and herself for not acceding to his demand for the marriage and that apart, her father had filed a complaint before the Circle Inspector of Police. That there was an incident by which PW1 and the deceased were attacked in front of the house of PW2 and PW3 is borne out by their evidence. But Crl.Appeal No.1408/2012 -:13:- they have not actually seen the incident. They further deposed that the injured were taken in a police jeep. No one else has seen the incident except PW1. PW5 in his evidence would say that he is a neighbour of the deceased and PW1, and when he reached the scene of crime along with certain others including PW4, he saw PW1 sitting in the jeep. She was crying. The deceased was lying by the side of the road. The accused was also standing there. He knew the accused earlier. After they reached, deceased was taken in a Sumo and proceeded to the hospital. They followed. He was a witness when school bag MO12 was recovered. The bag was taken by the accused. The police opened it. It contained 1 litre petrol in a plastic bottle which is marked as MO13, another knife which is marked as MO14, 2 packets of 100200 grams of chilly powder which are marked as MO15 series. Near the bag there was a knife. The knife was marked as MO1. Ext.P4 mahazar was prepared on 22/3/2011 at 4.00 p.m. 36. During questioning, the accused in his disclosure statement stated that he would show the place where he had thrown the bag and the knife. The bag was recovered from the compound of one Chacko Mathew. They recovered a bag as well Crl.Appeal No.1408/2012 -:14:- as a knife. It was found near the scene of occurrence as well and inside the compound of Chacko Mathew. Learned counsel submitted that the recovery was not in accordance with law and cannot be taken as a circumstance to implicate the accused in the matter. There was no concealment of the bag. Further PW1 does not have a case that the accused was having a bag with him. Learned counsel also relied upon a judgment of the Apex Court in _**Dudh Nath Pandey v. State of U.P**_ (AIR 1981 SC 911). That was a case in which a pistol was recovered at the instance of the accused. It was held that if the statement accompanying the discovery is vague to identity the authorship of concealment, the pointing out of the weapon may at best prove the knowledge of the accused as to where the weapons was kept. But that was a case in which the testimony of eye witnesses was not of the standard required and the case was dependent wholly on circumstantial evidence. The Court observed that some doubts may arise in the matter relating to concealment of the weapon that too in broad daylight on a public thoroughfare. But it could be seen that the facts in _**Dudh Nath Pandey**_ (supra) may not have application to the facts of the present case. Here, the accused Crl.Appeal No.1408/2012 -:15:- was arrested on the very same day. He said that the bag and the knife were thrown to a compound and he had taken the investigating officer to the said place and it was recovered. The fact that he had knowledge about the weapon and it was hidden at a particular place clearly indicates that the recovery is proper in terms of S.27 of the Evidence Act. 37. Yet another circumstance pointed out by the learned counsel is that accused was wearing a jacket. Though there was blood stains in his shirt, there was no bloodstain in his jacket. We do not know how the stab injuries were caused by the accused. It is purely within his knowledge. PW1's evidence is that he caught hold of her and stabbed her thrice on her back. Then her father tried to interfere and thereafter he was stabbed. It may not be an instance where blood has sprayed into his body which might be the reason that his jacket was not blood stained. If the jacket was open, that would have been the reason for his shirt to have blood stain. 38. Yet another argument raised by the learned counsel for the appellant is that the accused was not arrested immediately which clearly gives a suspicion. PW4 and PW5 have stated that Crl.Appeal No.1408/2012 -:16:- they had seen the accused at the scene of occurrence. It could be seen that First Information Statement Ext.P1 was recorded only at 8 a.m. PW1 was in a panic and shock at the time of incident. She was stabbed and she ran to the nearby neighbour. Her father was lying there severely stabbed. She may not have the time to point out the accused to the police. That apart, though the witnesses say that a police jeep had come, no evidence is available to show that there was a policeman in the jeep. In Ext.P1 First Information Statement, she had stated that the accused had committed the crime. There is no contradiction in Ext.P1 with reference to her deposition as PW1. Therefore the police had come to know about the complicity of the accused only when she had given a statement. Nobody else has seen the incident. That of course explains the delay in arresting the accused. 39. Learned counsel further submits that there is an attempt to manipulate the case by embellishments, and veracity of the FI statement is doubtful. It is argued that the FI statement was given in very great detail which was quite unlikely. But it could be seen that after reaching the hospital, when she was conscious, it was always possible for her to give all the details. Crl.Appeal No.1408/2012 -:17:- Probably she was answering the questions put by the police and therefore it was recorded in detail. That there was a detailed First Information Statement will not be a circumstance to doubt its veracity. 40. Though it is argued by the learned counsel that there was delay in preparing the First Information Report, we do not think so. PW23 is the Sub Inspector of Police who had recorded Ext.P1 First Information Statement and registered Ext.P20 First Information Report. In his evidence, PW23 has stated that he had gone to Thiruvalla Pushpagiri Medical College Surgical ICU at 8 am on 22/3/2011 and had recorded the statement of PW1. Her thumb impression was also obtained. The body note was also prepared which was marked as Ext.P1(a). He thereafter went to the police station and crime was registered. In cross examination, he stated that somebody called at 6.15 a.m. and immediately he had proceeded to the scene. He also stated that in the FIR he had mentioned the time based on the intimation received from the hospital. When cross examined why he has obtained a thumb impression, he said that she was not feeling good for putting a signature as she found her hands to be weak. He admitted that in Crl.Appeal No.1408/2012 -:18:- the First Information Statement, there was no mention of the accused having a bag. From Ext.P20, it is seen that it was dispatched to the Magistrate on the same day. We do not find any reason to come to a conclusion that there was delay in preparing First Information Report. 41. It was also argued that in the evidence it was deposed by PW1 that she has signed the FI statement. However, she had clarified it by saying that by signature, she meant, thumb impression. We do not find any infirmity in the said evidence. 42. The thrust of the argument of the learned counsel for the appellant is that the appellant was not the assailant. Somebody else had committed the crime and PW1 has deliberately stated that the accused had committed the crime. The law is well settled and as held by the Apex Court in _**Abdul Sayeed and others v. State of Madhya Pradesh**_ [(2010) 10 SCC 259] that the evidence of an injured eye witness has to be given high probative value. Para 28 and 29 are relevant, which reads as under:-- _**“ 28.** The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been_ Crl.Appeal No.1408/2012 ## -:19:- _extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.” [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]_ _**29.** While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)_ _“28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied_ Crl.Appeal No.1408/2012 -:20:- _upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.”_ 43. The medical evidence adduced in the case proves the injury on PW1. The certificates in that regard is Ext.P15 read with evidence of PW18 and P16 read with evidence of PW19. PW24 who had conducted postmortem of the deceased had also stated that the injuries could be caused by MO1 knife and the cause of death was the injury suffered. There cannot be any dispute regarding the aforesaid facts. The accused is faced with two situations. One is his presence being proved by PW1, PW4 and Crl.Appeal No.1408/2012 -:21:- PW5 in the scene of occurrence and PW1 clearly stating his involvement in the crime. Second is the recovery of bag and knife from the place where it was hidden by the accused. When these facts are proved, the complicity of the accused is clear. In fact, accused had even given a confession to PW27. But, as rightly pointed out by the counsel for the appellant, since the accused was in the custody of police, the said confession may not be relevant for considering the complicity of the accused to the crime as held in _**Salim v. State of Kerala**_ (2012 (2) KLT 66). 44. Further evidence adduced in the case would show that the accused had attempted to visit PW1 in her college. The said fact is evident from the deposition of PW7 and Ext.P5 deposition of PW15 and Ext.P12. There is no reason to doubt the version of PW1 and PW4 regarding the proposal made by the accused to marry PW1 and the denial by them. This is further evident from Ext.P2 complaint given by the deceased to the Circle Inspector of Police. The Circle Inspector of Police had deposed before Court as PW10 that he had warned the accused. Such being the situation, the reason for enmity to commit the crime is proved by prosecution. He had clear animosity towards her and her father Crl.Appeal No.1408/2012 -:22:- for denying his demand for marriage which apparently resulted in the crime. There is no reason for PW1 to render falsehood before Court. Added to it, recovery of the knife and the bag containing petrol, chilly powder, another knife etc., are all incriminating circumstances which have been proved in the case to infer that the accused was planning to commit a crime against them in different forms. Under such circumstances, we are of the view that no grounds had been made out to interfere with the judgment of the Sessions Court. The punishment given is also commensurate with the crime that he has committed. Appeal is, therefore, dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge