Rajan S/o Puthuveettil Raman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/5TH AGRAHAYANA, 1940** ## **CRL.A.No. 202 of 2013** **AGAINST THE JUDGMENT IN SC 704/2005 of ADDITIONAL SESSIONS COURT, THRISSUR DATED 18-01-2013** ## **APPELLANT/ACCUSED:** **RAJAN S/O.PUTHUVEETTIL RAMAN, PONJANAM DESOM, KATTOOR VILLAGE.** **BY ADV. SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.202/13 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the appellant who is the sole accused, challenging the judgment of conviction and order of sentence passed by Additional Sessions Judge, Thrissur in S.C. No. 704 of 2005 by which the appellant is found guilty under Section 302 of the Indian Penal Code, 1860 ( for brevity 'IPC') and sentenced to undergo imprisonment for life and a fine of `50,000/- in default of which to undergo rigorous imprisonment for one year. 2. Case of the prosecution is that, on 27/05/2004 at 11.00 a.m., due to the enmity and suspicion that the deceased was responsible for the suicide of the brother of the appellant one year back, the appellant Rajan committed murder of Sivadasan by cutting at his neck at the Canal bund near Thanissery-Kallada temple, after taking him from his workplace at St. Mary's Industries. 3. Prosecution examined PWs 1 to 9 as witnesses, marked documents Exts.P1 to P11 and identified MO1 to MO10. Crl.Appeal No.202/13 -:3:- 4. During 313 examination, the appellant denied the prosecution evidence and he pleaded innocence. According to him, he has nothing to do with the case. He works as a coconut climber, for plucking coconuts. Only after coming to his house, he came to know about the incident. PW1 Thilakan and some others came and took him to the Police Station. He and deceased Sivadasan were good friends and they had no enmity. 5. No evidence is adduced from the side of the defence. Only Exts.D1 and D2 contradictions were marked. 6. Learned Senior counsel appearing for and on behalf of the appellant submitted that the Court below erred in convicting the appellant for the offence of murder. The appellant is innocent. He is falsely implicated in the case. There is no direct evidence in the case. Prosecution relies on circumstantial evidence. There is a gap of 4½ hours between the alleged last seen and discovery of corpse. Anything could have happened in between. Some other persons might have committed the crime and no investigation is directed in that line. The incident allegedly took place at canal bund that too in the broad day light in a place in State of Kerala where people are densely inhabited. The alleged extra-judicial Crl.Appeal No.202/13 -:4:- confession made by the appellant to PW1 is not at all believable. Even according to PW1, he is a Congress leader and the appellant and the deceased are LDF workers. At no stretch of imagination, we could conclude that the appellant approached an opposition party leader for help especially giving the alleged extra-judicial confession about a grievous crime like murder. The evidence of PW8 and PW1 when read together would show that the FIR is not believable and it is concocted. The alleged recovery is also a fabricated one. Regarding the motive for the crime, there is no evidence on record. Even according to PW3, the son of the deceased, the appellant was in the habit of staying in their house for months and they also stayed in appellant's home as well. They were in good terms. The appellant is implicated out of suspicion. Only one injury is noted in Ext.P3 by PW5. Regarding the nature of injury also, there is no evidence. PW4's evidence cannot be believed. During cross-examination, PW4 gave a hint that she came to know from the Manager of the Company that the deceased went along with the appellant. The time of death is not certain. No human blood is detected in MO1. According to the Senior counsel, it is thoroughly unsafe to believe the versions of Crl.Appeal No.202/13 -:5:- PW's 1, 3 and 4 and convict the appellant u/s 302 of I.P.C. . 7. On the other hand, the learned Public Prosecutor submitted that the prosecution proved the guilt of the appellant beyond reasonable doubt. The evidence of extra-judicial confession made by the appellant to PW1 is natural, credible and believable. It is not a tutored one. It is true that motive though projected, is not proved sufficiently by the prosecution. Motive is in the heart of a man. There is pre-meditation and pre-plan. Injury was inflicted to the most vital part of the body i.e., neck, to make sure death on the spot. MO1 weapon was blood-stained though origin could not be determined. The evidence in its totality would unerringly point to the guilt of the appellant alone. The Court below is justified in convicting the appellant and hence there is no need to disturb the finding. 8. Evidence adduced in the case, in brief, is as follows: 9. PW1 is the _de facto_ complainant. He gave Ext.P1 FIS. PW2 is an attestor to Ext.P2 inquest report. PW3 is the son of the deceased. PW4 is the co-worker of the deceased. PW5 is the Doctor who conducted autopsy. Ext.P3 is the post-mortem certificate. PW6 is an attestor to Ext.P4 seizure mahazar. Billhook Crl.Appeal No.202/13 -:6:- is MO1. PW7 is the Village Officer. Ext.P5 is the site plan. PW8 is the then ASI, Kottoor Police Station. He recorded Ext.P1 FIS of PW1 and registered Ext.P1(a) FIR. PW9 is the Investigating Officer. He arranged the scene to be guarded, arranged photographs to be taken, prepared Ext.P2 inquest report, seized MOs 2 to 10 of the deceased, arrested the accused, questioned him and recorded his statement. Ext.P6 is the arrest memo. MO1 billhook (Vaakkathi) was seized based on Ext.P7 disclosure statement of the appellant through Ext.P4 mahazar. Ext.P8 is the scene mahazar. Ext.P9 is the property list of MO's 1 to 9. Ext.P10 is the forwarding note of the MO's for chemical examination. Ext.P11 is the chemical analysis report. Ext.P5 is the site plan. He completed the investigation and submitted charge-sheet. 10. Trial Court relied on the following circumstances primarily to arrive at the present conclusion:- (i) Evidence of PW1 regarding the extra-judicial confession made to him by the appellant. (ii) Motive for the crime is gathered from the evidence of PW1 and PW3. (iii) Last seen together theory is proved by the evidence of Crl.Appeal No.202/13 -:7:- PW4. (iv) Recovery of MO1 bill hook u/s 27 is based on the disclosure statement of the appellant and at his instance by PW9, through Ext.P4 to which PW6 is an attestor. Exts.P9 to P11 also corroborates the same. 11. The question to be determined is, in the light of the available evidence, whether the trial Court was justified in arriving at the conclusion that the appellant committed the murder of Sivadasan as alleged by the prosecution. 12. PW1 is a social worker and was the DCC member of Congress party. At the time of incident, he was the President of Kattoor Block of Congress party. According to him, the appellant and the deceased were LDF workers. He knew the appellant very well and has friendship with him. He had come to his house for some repair works also. He categorically deposed that on 27/05/2004 at about 1.00 p.m., the appellant came to his house and told him that he killed his friend Sivadasan by cutting at his neck using a billhook (vaakkathi). He sought for help and also requested to save him from Police torture. It is his version that he told the appellant that it is a murder case and he was not in a Crl.Appeal No.202/13 -:8:- position to help him. He advised him to consult an Advocate and then go to the Police Station along with the Advocate. On hearing this, the appellant left the place in an autorickshaw arranged by him. It is his version that soon he informed the matter to the Police and went to the Police Station by 2.00 p.m. and by that time the appellant had already surrendered to the Police. Ext.P1 FIS contains the following: '' 27/5/2004 ത�യത� പകൽ 1 മണ�യയ�ടകട� എന�ക� വർഷങള�യ� പര�ചയമള പപ�ഞന� അമലത�പ$ അടത ത�മസ�കന പതവ�ട�ൽ ര�മൻ മകൻ ര�ജൻ എപ$ വ�ട�ൽ വന� അവപ$ കടക�രൻ പവള�ന� പവർഹ1സ�ന ക�ഴകവഴ� യക�ളന�യ�ൽ ത�മസ�കന ശ�വദ�സപന പതങകയറത�ന ഉപയയ�ഗ�കന വ�കത�പക�ണ� ത�ണ�യ;ര� കലട അമലത�ന മൻവശ� ഉള കന�ൽ ബണ�ൽപവച� കഴത�ൽ പവട� പക�ലപ@ടത�യ�ടണ�. എപന സഹ�യ�കണപമന� യപ�ല�സ� ഉപദവ�ക�പത യന�കണപമന� പറഞ.'' and it corroborates his testimony before Court. Ext.P1 contains the following which throws light to the motive for the crime: “ ന� എന�ന�ണ അവപന പക�നപതന യച�ദ�ചയ@�ൾ, എപ$ യചടൻ ഒര വർഷ� . മൻപ� വ�ഷ� കഴ�ച മര�കവ�ൻ ഇടയ�യത� ശ�വദ�സൻ ക�രണമ�ണ അത�പ$ വവര�ഗMത�ന ഞ�ൻ അവപ$ യജ�ല� സലത� ന�ന� വ�ള�ചപക�ണയപ�യ� ത�ണ�യ;ര� കന�ൽ ബണ�ൽ പവച� പവട�പക�നത�പണന� പറഞ.” PW1 deposed the same before Court as well. He identified the appellant. Crl.Appeal No.202/13 -:9:- 13. PW3 is the son of the deceased. He was residing with his deceased father, mother and elder brother in their house. According to him, the appellant is his father's friend and he used to visit his house along with his wife and children and used to stay in their house. His father was working at St. Mary's Industries, Kattoor (Manufacturer of a stabilizer brand 'Defender') as a winder. It is his version that on the previous day of the death of his father, the appellant had come to their house at 8.30 p.m. At that time, his father was not there. PW3 was suffering from burn injuries and was bed-ridden during those days. The appellant came inside the house and enquired about how PW3 sustained injuries. Appellant was in an intoxicated state. PW3 further deposed that the appellant told him that he would chop his father's head. PW3's mother also heard it. At that time, PW3 thought it was only a joke as the appellant was under the influence of liquor. It is his version that he did not take it seriously as the appellant was a frequent visitor to his house and a friend of his father. After some time, his father came. His father and the appellant went to another room. By the time, one Shyam, who is a friend of his father, also came there. He enquired the Crl.Appeal No.202/13 -:10:- well being of PW3. After some time, Shyam left the place. PW3 heard the appellant telling his father that his father was responsible for the suicide of appellant's brother. Thereafter, by 11.30 p.m., the appellant left his house taking a torch light from their house. On the next day, his father went for job. Later he heard that his father was dead. 14. PW4, Simi was a co-worker of the deceased. She knows the deceased. It is his version that, on 27.05.2004, by about 10.00 a.m., the appellant came to St. Mary's Industries, Kattoor where she and the deceased were working as winders and called Sivadasan and took him along with him. It is her version that, at that time, the appellant was carrying MO1 billhook with him. She identified the appellant in Court. She also identified MO1 as the weapon (billhook) the appellant was carrying at the time when he came to take away the deceased. It is her further deposition that after some time, she called one Shyam, friend of the deceased and told him that the appellant had taken the accused with him. 15. PW5 is the Doctor who conducted the post-mortem examination of the deceased. She issued Ext.P3 post-mortem Crl.Appeal No.202/13 ## -:11:- certificate. The following ante-mortem injuries were noted by her in Ext.P3:- _“Incised wound 14.5x5.5x1 to 5 cm horizontally placed on the right side of neck, its front end was 6 cm outer to midline and 7 cm below the ear lobule. The muscles (platyama, sterno cloido mastoid, trapezius and levator scapulae) muscular vessels, back portion of the internal jugular vein (0.4x0.3 cm) and the transverse process of third cervical vertebra (0.8 cm deep) were seen cut. The right ventricle of the heart contained air bubbles.”_ _Flap dissection of neck was done under bloodless field. All other neck structures were normal and intact.”_ According to her, the cause of death of Sivadasan is the injury sustained to the neck. 16. PW6 is an attestor to Ext.P4 seizure mahazar. He deposed that he knew the appellant. According to him, on 27/05/2004, at about 6.00 p.m., he had seen the appellant taking a billhook from the canal near Kallada temple and handing it over to the Police. He signed Ext.P4 mahazar and that MO1 is the weapon so seized. 17. Admittedly, there is no eye-witness to the incident and the case at hand rests on circumstantial evidence. The following circumstances are proved by the prosecution: Crl.Appeal No.202/13 -:12:- (i). Evidence of PW3, the son of the deceased, PW5 the Doctor who conducted the post-mortem and Ext.P3 post-mortem certificate read with Ext.P2 inquest report would prove that the death of Sivadasan was a homicide and it was due to neck injury. (ii). On the previous night of the incident, the appellant went to the house of the deceased and told PW3 that he would chop off the head of Sivadasan. Mother of PW3 also heard it. The appellant told the deceased that the deceased was responsible for the death of the appellant's brother. (iii). The deceased was last seen together with the appellant by PW4. PW4's evidence would show that on 27/05/2004 at about 10.00 a.m., the appellant came to the work place of the deceased and took him along with him. At that time, he was carrying a billhook (MO1). Thereafter, nobody had seen Sivadasan till his dead body was found at about 1.00 p.m. (iv). The extra-judicial confession made by the appellant to PW1 regarding motive for the homicide, the weapon used, the place of offence and the manner in which the offence was committed. (v). Subsequent conduct of the appellant in contacting PW1 Crl.Appeal No.202/13 -:13:- and making extra-judicial confession and his surrender before police. (vi). MO1 billhook was recovered as per Ext.P4 mahazar based on the disclosure statement Ext.P7 of the appellant to which PW6 is an attestor. (vii). Ext.P11 shows that MO1 was found with blood, but origin could not be determined due to lack of sufficient quantity. 18. Learned Senior Counsel submitted that he is dutybound to point out one aspect which is seen from records. According to him, PW5, the Doctor did not depose before Court as to the fact whether the injury caused was sufficient in the ordinary course of nature to cause death. It is a serious lapse, the benefit of which should go to the appellant. Considering the fragility of the prosecution case and evidence, he argued that it is unsafe to convict a person for murder. He pleaded that, at any rate, in the event of finding that the accused has committed the crime, only an offence Section 304 Part II of I.P.C. is made out. 19. It is a fact that PW5 did not depose specifically the nature of injury. She did not say that the injury is sufficient in the ordinary course of nature to cause death. But it is pertinent to Crl.Appeal No.202/13 -:14:- note that only one major injury is noted by PW5 in Ext.P3 and her opinion as to cause of death of Sivadasan is neck injury. Under such circumstance, in the present case, the lapse on the part of the prosecution in failing to elicit the nature of injury specifically from the Doctor, is not fatal. Needless to say the relevance of such specific medical aspects in the trial of serious offences, particularly murder cases. Judicial Officers and Prosecutors ought to keep in mind that mere marking of the post-mortem certificate would not bring the contents of it in evidence unless it is deposed to by the Doctor in Court. The contents of post-mortem certificate is only an opinion and unless it is specifically deposed by the Doctor before Court and forms part of the deposition, it cannot be treated as evidence. 20. It is also true that Police received information about the offence at least one hour prior to the registering of the present FIR (Ext.P1(a)). PW9 also deposed that the appellant was brought from the Police Station to the place of occurrence. These are lapses on the part of the investigating agency. But, what is to be considered is whether such lapses would render any assistance to the defence to create any doubt regarding the Crl.Appeal No.202/13 -:15:- prosecution case. Each case has to be decided on its own facts. 21. In _**Hema v. State**_ [(2013) 10 SCC 192], the threeJudge Bench of the Apex Court held that, even if there is some defect in the investigation or lapse on the part of the investigating officer, it cannot be the ground for acquittal. It is the obligation on the part of the Court to scrutinize the prosecution evidence _de hors_ such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth. 22. In _**Gajoo v. State of Uttarakhand**_ [(2012) 9 SCC 532], the Apex Court held that, a defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the Court. The defect in the investigation or omission on the part of the investigating officer, cannot prove to be of any advantage to the accused. 23. The appellant was arrested only at 5.35 p.m by bringing him to the place of occurrence. Even before that, he had surrendered to the police. Recovery of MO1 was effected after the arrest. Extra-judicial confession made by the appellant to PW1 Crl.Appeal No.202/13 -:16:- soon after the incident is credible and reliable. It also proves the subsequent conduct of the appellant as well. 24. Appellant has no case that PW1 was having any enmity towards him. No much cross-examination to PW1 is done regarding the aspect of extra-judicial confession. It is also proved from the evidence of PW4 that the appellant had taken the deceased from his work place on the fateful day at 10.00 a.m. Thereafter, the dead body of Sivadasan was found within a few hours with a neck injury. PW4's evidence would further show that the appellant was having MO1 billhook with him while he came to call the deceased. It is in the evidence of PW5 Doctor that injury no.1 noted in Ext.P3 is possible by using MO1 as weapon. MO1 was blood-stained though the origin could not be traced. 25. A combined reading of all the above-mentioned circumstances unerringly points to the guilt of the appellant. There is pre-meditation to commit the murder is evident from the fact that deceased was taken to the place of occurrence from his work place. The intention to cause death is evident from the nature of injury inflicted on the deceased using MO1, a sharp- Crl.Appeal No.202/13 -:17:- cutting deadly weapon belonging to the appellant. Hence, we do not find any error in the conclusion of the trial Judge. In the result, the appeal is dismissed. **Sd/A.M.SHAFFIQUE JUDGE Sd/SHIRCY V.** Rp //True Copy// **JUDGE** PS to Judge