Rajesh @ Biju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA,** ## **1944** **CRL.APPEAL NO. 555 OF 2006** **AGAINST THE JUDGMENT DATED 22.02.2006 IN S.C.NO.601 OF 2003 THE ADDITIONAL SESSIONS JUDGE (FAST TRACK-III),** **THIRUVANANTHAPURM** ## **APPELLANT/ACCISED:** **RAJESH @ BIJU, S/O. KRISHNAN NAIR, KUNNIL VEEDU, ALATHARA, IST WARD,, CHERUVAIKAL VILLAGE.** **BY ADV SMT.P.A.ANITHA** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV. SANAL.P. RAJ (GP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 25.11.2022, THE COURT ON 11.01.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.555 of 2006 ## **JUDGMENT** The appellant was the 1[st] accused in S.C.No.601 of 2003 on the file of the Additional Sessions Court (Fast Track-III), Thiruvananthapuram. He was convicted for offences punishable under Section 307 read with Section 34 of Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.20,000/-, in default to undergo further period of imprisonment for two years. It was also directed that the fine amount, if realised shall be paid to PW2, Sreekantan, towards compensation for the injury sustained by him under Section 357(1)(b) of the Code of Criminal Procedure, 1973. The appellant challenges the said conviction and sentence in this appeal filed under Section 374(2) of the Cr.P.C. 2. The appeal was admitted on 14.03.2006. Execution of the sentence imposed on the appellant was suspended on execution of a bond for Rs.20,000/- with two solvent sureties each for the like amount to the satisfaction of the court below. 3 Crl.Appeal No.555 of 2006 3. The allegations based on which the appellant stood charged are the following: On 18.08.2001, PW2 Sri.Sreekantan was driving his autorickshaw bearing Reg.No.KET 784 along the main road at overbridge junction, Thiruvananthapuram. The appellant boarded the autorickshaw demanding to take him to Chakka. After passing half a kilometres from the Statue of Sreenarayana Guru at Chakka, the autorickshaw was got stopped and the appellant went out. He came back along with the 2[nd] accused, who was not available for trial along with the appellant. They together continued the travel in the autorickshaw and enroute they fetched water from a shop. The appellant and the 2[nd] accused started having drinks inside the autorickshaw. PW2 was also offered drinks, which he declined. When reached the highway where the road work was in progress, PW2 felt suspicion and he stopped the autorickshaw. Immediately, the appellant stabbed PW2 at the nape of his neck using a sword. PW2 ran out and tried to escape. Soon he fell down. The appellant and the 2[nd] accused 4 Crl.Appeal No.555 of 2006 followed. It was about 8 o’clock in the night. They together attacked PW2 with swords. The appellant chopped off his right foot and threw the foot away. They have also inflicted extensive cut injuries using sword at both of his hands. They did so out of previous enmity with the intention of causing death of PW2. 4. Upon framing charge, the trial started. PWs.1 to 17 were examined and Exts.P1 to P15 were marked on the side of the prosecution. MOs.1 to 5 were identified. During examination under Section 313(1)(b) of the Code, the appellant denied all the incriminating circumstances appeared in evidence against him. He stated that he did not know PW2. He saw PW2 first time in court. He was arrested by the police without stating any reason. He has maintained that he was innocent. No defence evidence was adduced. 5. The learned Additional Sessions Judge (Fast Track Court-III), Thiruvananthapuram, after considering the evidence tendered by the prosecution, found that the evidence was enough to find the appellant along with the 2[nd] 5 Crl.Appeal No.555 of 2006 accused guilty of inflicting grievous injuries to PW2 in furtherance of their common intention of doing him away with. The contentions raised by the appellant that the evidence of PW2, which alone is available to prove the incident, contained several inconsistencies, and therefore his evidence unreliable was repelled. There has been staring consistency with respect to the place of occurrence and evidence regarding availability of light at the place of occurrence was not credible. Identity of the appellant was not proved at all and that the evidence was totally lacking to establish that the amputated foot recovered from the river, Parvathy Puthanar, was that of PW2. Those contentions of the learned Additional Sessions Judge were repelled. As far as failure to conduct a test identification parade is concerned the learned Sessions Judge found fault with the prosecution. However, it was held that the said lapse does not discredit the evidence of PW2 and other circumstantial evidence, which has proved that the appellant along with the 2[nd] accused had attacked and inflicted serious injuries to PW2. Holding that 6 Crl.Appeal No.555 of 2006 injuries inflicted were sufficient in the ordinary course to cause death of a person, the Sessions Court concluded that an offence under Section 307 of the I.P.C. was committed by the appellant. 6. The learned counsel appearing for the appellant would submit that the findings of the learned Sessions Judge insofar as credibility of PW2 is totally faulty. Considering the fallible nature of evidence of PW2, the same ought not have been acted upon in the absence of any independent evidence. Even going by the oral testimony of PW2, he did not have prior acquaintance with the appellant. The appellant was never shown to PW2 during the investigation, much less, conducting of a test identification parade, and therefore, identification of the appellant by PW2 first time in court was unsafe to be acted upon. Regarding the place of occurrence also, the learned counsel pointed out certain inconsistencies, which according to him are sufficient to doubt the veracity of the prosecution case. 7 Crl.Appeal No.555 of 2006 7. The incident occurred on 18.08.2001. PW2 is an autorickshaw driver by profession. He was driving his autorickshaw on the fateful day and when reached at overbridge Junction in Thiruvananthapuram at about 6.30 p.m. the appellant boarded his autorickshaw. They went to Chakka and enroute the 2[nd] accused joined. They went to a place Karikkikam and came back to the place from where the 2[nd] accused joined. From there, they again went in that autorickshaw to the National Highway bypass road and reached Chakka. In between, the appellant and the 2[nd] accused started taking drinks inside the autorickshaw. PW2 was also offered, but he declined. All such incidents created some suspicion in the mind of PW2. PW2 deposed that he therefore stopped the autorickshaw, but immediately the appellant stabbed behind his neck using a sword. The 2[nd] accused also stabbed him, which resulted an injury behind his right ear. PW2 proceeded to say that he tried to escape by taking on his heels, but he could not go long since he fell down. The appellant and the 2[nd] accused chased him and 8 Crl.Appeal No.555 of 2006 inflicted cut injuries using swords. Going by the version of PW2 and the nature of injuries noted in Ext.P10 wound certificate issued by the Doctor, who examined him at the Medical College Hospital, Thiruvananthapuram, it can be seen that it was a brutal attack. His left foot was chopped off. Both of his hands were tried to be cut off. The appellant had shown the audacity of rubbing the chopped off foot of the PW2 on the floor and thrown it away to the Parvathy Puthanar. 8. Hearing the cry of PW2, people from the neighbourhood rushed to the spot and then the assailants escaped. It was police, who reached the spot immediately, took PW2 to the Medical College Hospital, Thiruvananthapuram. One Dr.Muhammed Nazeer attended him at the hospital and prepared the wound certificate. Ext.P10 is the certificate. Dr.Muahmed Nazeer was not available for examination before the court. So one of his colleagues, PW15, Dr.Arun deposed before court proving Ext.P10. He duly had identified the signature in it and explained the injuries noted in the certificate. Following are 9 Crl.Appeal No.555 of 2006 ## the injuries:- - “(1) Right lower limb traumatic amputation lower third. - (2) Left upper limb near total traumatic amputation at wrist level distal vascularity is doubtful. - (3) Right upper limb incised wound of 8 x 5 x 5 cm. over right upper third fore arm. Ulna was fractured. Incised wound of 5 x 3 x 3 exposing wrist joint and part of distal radius. - (4) Lower limb tendo achilles cut with a wound 10 x 3 x 3 cm. - (5) Incised wound of 15 x 10 x 10 cm. over nape of neck.” 9. Knowing the incident, PW1, brother of PW2 reached the Medical College Hospital. He could not gather much details regarding the incident from PW2, who was then experiencing excruciating pain and not able to respond and speak out properly. Immediately, PW12, a Head Constable attached to the Petta Police Station reached the Medical College Hospital and recorded the statement of PW1. Ext.P1 is the statement. On the basis of it, a crime was registered, F.I.R. for which is Ext.P1(a). 10 Crl.Appeal No.555 of 2006 10. PW14 is the Sub Inspector of Police, Petta Police station. He deposed that on getting information that a foot of a human being was located in the Parvathy Puthanar, he reached there. He took the body part into custody and a crime was registered under Section 174 of the Code. Ext.P9 is the F.I.R. He has prepared an inquest regarding that amputated foot. The investigation in the case was held by PW16, Circle Inspector of Police, Petta. He sent the foot recovered by PW14 for examination by a forensic expert. PW13, Dr.Sasikala, who was the Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College Hospital, Thiruvananthapuram, held a detailed examination of the amputated stump. After having necessary examination of the foot and collecting details of PW2, came to the finding that the foot he received for examination was the chopped off right stump of PW2. Ext.P8 is the post-mortem certificate issued by PW13 to that effect. 11. PW16 deposed before court that he had arrested the appellant. He has also inspected the place of occurrence 11 Crl.Appeal No.555 of 2006 on 19.08.2000 at 9.00 a.m. and prepared Ext.P4 scene mahazar. At the time of his inspection, he saw the autorickshaw bearing Reg.No.KET 784, which belongs to PW2 parking there. Blood stains were seen at the place which was shown to him by PWs.3 and 4. He collected such bloodstained soil, which was forwarded to the Forensic Science Laboratory, Thiruvananthapuram. Ext.P7 is the report obtained from the Forensic Science Laboratory to the effect that the samples contained human blood. PW16 also stated that from the place of occurrence, he could recover three pieces of a broken sword, which are identified in court as MO1 series by PW2. He also recovered a pair of slippers from the place of occurrence, which PW2 identified as his own. 12. PW16 further deposed in court that on 29.10.2010 at 9.00 a.m. he had arrested the 2[nd] accused. While in his custody, the 2[nd] accused gave a statement that the sword he kept under the Idamala bridge could be shown if he was taken to that place, and on the basis of that statement, PW16 took the 2[nd] accused to that place from where the sword was 12 Crl.Appeal No.555 of 2006 located and recovered. Ext.P11 is the mahazar prepared for the said purpose. PW9 is an attestor to this document. But he did not support the case of the prosecution. However, the oral testimony of PW16 supported by the contemporaneous document, Ext.P11 mahazar would substantiate that at the instance of the 2[nd] accused, the sword was recovered, which is MO3. PW2 had identified that sword before the court as MO3. 13. Apart from the oral testimony of PW2, recovery of MO1 series from the place of occurrence and recovery of MO3 under the provisions of Section 27 of the Evidence Act, 1872 are mainly relied on by the prosecution to prove the charge against the appellant. 14. The incident occurred at about 8.00 p.m. The appellant got into the autorickshaw of PW2 at about 6.30 p.m. For about 1½ hours, the appellant and also the 2[nd] accused were there along with PW2. Several incidents transpired in between, namely, the appellant alighted from the autorickshaw to fetch the 2[nd] accused, alighted at another place to get water from a shop and also speaking them to 13 Crl.Appeal No.555 of 2006 each other at several occasions. Therefore, there has been enough time and opportunity for PW2 to get acquaintance between them. Those incidents were followed by the attack on PW2. In such circumstances there would not be any difficulty for PW2 to identify the appellant or the co-accused at any later point of time. He duly had identified the appellant pointing him out before the court. The contention of the appellant that no test identification parade was held and therefore identification of the appellant by PW2 before the court cannot be acted upon has no legs to stand. 15. In the aforesaid facts and circumstances, there was absolutely no necessity for the conduct of a test identification parade. Identification of the appellant before the court by PW2 can certainly be acted upon. Hence the decision of the Apex Court in **Lakhwinder Singh and others v. State of Punjab** **[(2002) 10 SCC 295]** on which the learned counsel for the appellant placed reliance has no application in this case. 16. PW2 succinctly narrated the nature of attack on him. While he was sitting in the driver seat, he was stabbed at 14 Crl.Appeal No.555 of 2006 the nape or his neck using a sword first by the appellant and then by the 2[nd] accused. When he fell down on his attempt to escape, both of them approached him and inflicted the remaining injuries. While he was lying down his leg was chopped off. Both of his hands were cut using the swords by the appellant and the 2[nd] accused. The nature of injuries would suggest that the attack was so brutal and inhuman and the intention of the assailants would be nothing else than causing death of PW2. PW15 deposed before the court that the injuries noted in Ext.P10 certificate are sufficient in the ordinary course to cause death of a person. It can undoubtedly be said that unless timely medical attention was provided, the inevitable result was his death. 17. As pointed out above, from the place of occurrence, PW16 seized the autorickshaw of PW2 and his chappals, besides bloodstained earth. The blood found on the earth collected by PW16 from the place of occurrence was proved to be human blood. The said circumstances are enough to prove that the place of occurrence was correctly located by PW16. 15 Crl.Appeal No.555 of 2006 PW4 is an attestor to Ext.P4. It is true that he did not state having seen the incident. He maintained that he was not available in his shop situated near to the place of occurrence. He however explained that immediately after the incident he reached there and the people found there told him regarding such an incident. From that place, PW16 could see and seize autorickshaw, chappals and bloodstained mud. His oral testimony therefore renders support to the evidence tendered by PW16 regarding the place of occurrence. An electric post was noted by PW16 near the place of occurrence. Therefore, even the place where PW2 fell down there was enough light available. That fact anyhow has no much relevance since PW2 had had enough acquaintance with the assailants prior to that incident itself. 18. One of the contentions of the learned counsel appearing for the appellant is that considering the shabby nature of the prosecution evidence, lack of proof about the motive is fatal to the prosecution. It is true that going by the oral testimony of PW2 and also his brother PW1, no motive for 16 Crl.Appeal No.555 of 2006 the appellant to attack PW2 could be gathered. The motive is a mental element, which cannot ordinarily be deciphered. The case of the prosecution was that in connection with an attack on the appellant by PW2 one year before at Apollo Colony he entertained the motive for the attack. But there is no such evidence in that regard. Also, the contention raised by the appellant that some other persons having enmity towards PWs.1 and 2 in connection with the murder of their Uncle, Sri.Krishnankutty, who was a Sub Inspector of Police, ought to have attacked PW2, is also not supported by any piece of evidence. The evidence brought on record by the prosecution sufficiently had proved that the appellant in association with the 2[nd] accused attacked PW2. When the oral testimony of PW2 and other evidence proved beyond doubt the said fact, absence of evidence regarding the motive alleged by the prosecution does not have any importance. 19. In the light of the aforesaid facts and circumstances, I am of the view that the findings rendered by the learned Additional Sessions Judge that the appellant 17 Crl.Appeal No.555 of 2006 together with the 2[nd] accused attacked PW2 and inflicted him injuries as noted in Ext.P10 certificate, does not suffer from any infirmity or irregularity. There is no reason to interfere with the said finding. The conviction of the appellant for the offence under Section 307 read with Section 34 of the I.P.C. recorded by the learned Additional Sessions Judge is therefore confirmed. 20. The sentence imposed by the learned Additional Sessions Judge on the appellant is to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.20,000/-, in default to undergo further period of imprisonment for two years. The learned counsel appearing for the appellant would submit that considering the long lapse of time since the incident and the fact that the appellant committed the offence at his young age, he deserves a lenient view in the matter of sentence. From the narration of the incident and the injuries inflicted, gravity of the offence is quite clear. By such acts, PW2 has become a physically challenged person leaving him without means of livelihood. A 18 Crl.Appeal No.555 of 2006 driver by profession, PW2 could not continue his avocation. Taking all such aspects into account, I am of the view that the sentence is liable to be modified to a limited extent. 21. Accordingly, the appeal is allowed in part. On confirming the conviction, the order of sentence is modified. The appellant is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.20,000/(Rupees twenty thousand only), failing to pay the fine, to undergo rigorous imprisonment for a further period of one year. The fine amount, if realised, shall be paid to PW2Sri.Sreekantan. The learned Additional Sessions Court (Fast Track-III), Thiruvananthapuram will take immediate steps for the execution of the sentence. **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr