Raman @ Ramachandran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** **CRL.A.No. 923 of 2014** **AGAINST THE JUDGMENT DATED 03-04-2014 IN SC 24/2009 of SESSIONS JUDGE, KALPETTA, WAYNAD** ## **APPELLANT/ACCUSED:** **RAMAN @ RAMACHANDRAN, S/O CHATHAN, AGED 45 YEARS, CHEEPRATHIL HOUSE, THRIC.NO.2755 CENTRAL PRISON, KANNUR** **BY ADVS. SRI.C.KHALID SMT.K.K.NESNA SMT.K.S.HASEENA SMT.K.REEHA KHADER SRI.N.A.JOSEPH SRI.PHIJO PRADEESH PHILIP SRI.T.P.SAJID** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY SUB INSPECTOR OF POLICE, MEPPADI POLICE STATION, (IN CRIME NO.160/06 OF MEPPADI POLICE STATION REP.BY PUBLIC PROSECUTOR HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2018, THE COURT ON 14.11.2018 PASSED THE FOLLOWING:** Crl.A.No.923/2014 2 ## **A.M.SHAFFIQUE &** ## **R.NARAYANA PISHARADI, JJ.** ************************** Crl.A.No.923 of 2014 ---------------------------------------------Dated this the 14[th] day of November, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The appellant is the sole accused in Sessions Case No.24/2009 of the Court of Session, Kalpetta. He challenges the judgment dated 03.04.2014 passed by that court by which he was convicted of the offences punishable under Sections 302 and 307 of the Indian Penal Code. He was sentenced to imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- for the offence punishable under Section 307 IPC. 2. The prosecution case is that, on 01.10.2006, at about 17.30 hours, the accused committed murder of his neighbour Babu by stabbing him on the neck, chest and abdomen with a knife. When the wife of the deceased intervened to save her Crl.A.No.923/2014 3 husband, the accused also made attempt to murder her by stabbing her with the kinife. 3. On the basis of Ex.P1 first information statement regarding the incident given by PW1, Crime No.160/2006 of Meppadi Police Station was registered by PW14 Sub Inspector. The investigation of the case was conducted by PW15 Circle Inspector. After completing investigation, final report was filed before the Chief Judicial Magistrate, Kalpetta. After complying with necessary formalities, learned Magistrate committed the case to the Court of Session, Kalpetta. 4. The Sessions Court framed charge against the accused for the offences punishable under Sections 302 and 307 IPC. The accused pleaded that he is not guilty of the offences charged against him. The prosecution examined 15 witnesses as PW1 to PW15 and marked Exts.P1 to P17 documents and material objects MO1 to MO13. After completion of the prosecution evidence, the court below examined the accused under Section 313 Cr.P.C. The Sessions Court found that it was not a case to be disposed of under Section 232 Cr.P.C and he was called upon to enter on his defence. No evidence was adduced by the accused. Crl.A.No.923/2014 4 5. The Sessions Court found that the testimony of PW1 to PW3 regarding the incident is very much reliable and trustworthy. On the basis of their evidence, the Sessions Court found that the prosecution was able to prove the case against the accused beyond reasonable doubt. 6. We heard at length learned counsel for the appellant and also the learned Public Prosecutor. We have also perused the records. 7. There is no dispute with regard to the fact that the deceased had a homicidal death. PW13 is the doctor who conducted autopsy. Ext.P11 is the postmortem certificate. The evidence of PW13, along with the postmortem certificate, proves that the deceased had sustained nine antemortem injuries. PW13 has deposed that injury No.5 shown in Ext.P11 postmortem certificate, which entered the chest and pierced the heart, is fatal. This injury is described in the postmortem certificate as follows: _“ Incised wound 2.3 x 0.6 cm left side of chest, oblique upper inner end 7 cm outer to midline 15 cm below color bone. Both ends sharp. On the outer border it had an angulation with blunt end, 1 cm below_ Crl.A.No.923/2014 5 _upper end. The wound entered the chest cavity cutting the 4[th] rib at the costo chondral junction and then entered the heart on the right ventricle close to the interventricular septum anterior surface mid portion piercing the pericardium. The wound was directed upwards, backwards and inwards with a total minimum depth of 7 cm”._ PW13 has opined that the deceased had died due to the above mentioned injury. 8. PW2 Sathidevi is the wife of the deceased. She has stated that the accused was her neighbour and that there was dispute with him over a pathway. PW2 has narrated the occurrence as follows: On 01.10.2016, at about 14.30 hours, her husband had asked her to cut the grass on the pathway leading to their house for feeding the cow. At about 17.30 hours, she went to the pathway to take the grass which was cut and kept there. The accused then came from the opposite direction. He pushed her husband asking him who had told him to cut the grass and leave it on the pathway. The accused took a knife from his waist and stabbed on the chest of her husband. PW2 then held her husband. The accused then stabbed on his neck and abdomen with the knife. He also stabbed her on the right chest stating that he would also kill her. He also stabbed Crl.A.No.923/2014 6 her on the back with the knife. PW2 tried to prevent the accused and then he caught hold of her and rolled on the ground. Then, PW3 reached the spot. Hearing the cry of PW2 and PW3, PW1 also came there. PW1 asked the accused to put down the knife. The accused then went to his house with the knife. PW2 identified MO1 in the court as the knife used by the accused to stab her and her husband. 9. PW9 is the Doctor who examined PW2 in the hospital at 18.40 hours on 01.10.2006 and issued Ext.P7 wound certificate. The evidence of PW9 alongwith Ext.P7 wound certificate would show that PW2 had sustained the following injuries: (1) Incised deep wound medial aspect of the right breast on the upper quadrant 4 x 2 x 5 cm in size. (2) Incised deep wound left scapular region 5 x 2 x 4 cm in size. (3) Incised wound left forearm on the flexar aspect 1 x 0.5 cm in size. (4) Incised wound left hand flexar aspect 1 x 0.5 cm in size. PW9 has given evidence that the aforesaid injuries could be caused by a weapon like MO1 knife. 10. All the injuries noted in Ext.P7 wound certificate are incised wounds. They could be caused by a sharp edged weapon like MO1 knife. The injuries noted as items (1) and (2) in Ext.P7 Crl.A.No.923/2014 7 wound certificate corroborate the evidence of PW2 that the accused stabbed her on the right chest and back with MO1 knife. 11. There is no material discrepancy in the evidence of PW2 with regard to the occurrence. Nothing has been brought out in her cross-examination to discredit the veracity of her testimony. All the more, her presence at the scene of occurrence cannot be doubted. She is a witness injured in the incident. It is highly improbable that she would implicate a wrong person and allow the real culprit, who murdered her husband and made attempt to kill her, to escape from the clutches of law. 12. The testimony of an injured witness has its own relevance and efficacy. The injured witness stands on higher pedestal than ordinary eye-witness. 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. Normally, injured witnesses would not implicate wrong persons to the crime so as to allow the real culprits to escape unpunished. The testimony of the injured witness is accorded a special status in law. The testimony of an injured witness is generally considered to be very reliable, as he is a Crl.A.No.923/2014 8 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 in order to falsely implicate someone. He will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Convincing evidence is required to discredit an injured witness. Deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. 13. On a careful scrutiny of the testimony of PW2, we find no reason to disbelieve her with regard to the material particulars of the incident. Minor discrepancies in her testimony do not make it unworthy of acceptance. Deposition of witnesses would always contain normal discrepancies, howsoever, honest and truthful they may be. Minor discrepancies on trivial matters not touching the core of the case would not ordinarily permit rejection of the evidence. PW2 is a rustic witness. The discrepancies noticed in the evidence of a rustic witness should not be blown out of proportion. Rustic witnesses cannot be expected to lay down the chain of events with precision. If the evidence of PW2 is appreciated as a whole, it can be found that Crl.A.No.923/2014 9 it has got a ring of truth. The minor inconsistencies in her evidence do not go to the root of the matter. They pertain to insignificant aspects. Her evidence regarding the incident is reliable and trustworthy. 14. PW1 George is the person who gave first information statement regarding the incident to the police. He has deposed that he reached the scene of the incident hearing a commotion. He then saw the deceased lying on the pathway. He saw PW2 and the accused together rolling on the ground. PW1 has deposed that he caught hold of the collar of the shirt of the accused and made him stand up. There was a knife in the hands of the accused which was soaked in blood. PW1 asked the accused to put down the knife. Then the accused went away in the direction of his house with the knife. 15. PW1 identified MO1 in the court as the knife which he found in the hands of the accused. He deposed that there were injuries on the chest and back of PW2. PW1 has also deposed that PW2 told him that the accused stabbed and killed her husband. The deceased was lying on the ground unconscious, bleeding from his body. PW1 has stated that the deceased had sustained injuries on the neck and the chest. Crl.A.No.923/2014 10 16. Nothing has been brought out in the crossexamination of PW1 to disbelieve his evidence. It is true that he did not see the accused stabbing either the deceased or PW2. But his evidence proves that, at the spot of the incident itself, PW2 told him that the accused stabbed and killed her husband. The evidence of PW1 in this regard is corroborated by the testimony of PW2. PW2 has deposed that she had told PW1 that the accused stabbed her husband. 17. Section 6 of the Indian Evidence Act deals with relevancy of facts forming part of same transaction. It states that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) to Section 6 of the Indian Evidence Act reads as follows: “A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact”. 18. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae. This rule is, roughly speaking, an exception to the general rule that Crl.A.No.923/2014 11 hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. 19. PW2 had told PW1 that the accused stabbed her husband. This statement to PW1 was made by her at the spot of the occurrence itself, just after the accused committed the act. There was not even a slight interval of time enabling PW2 to make any fabrication or concoction. The statement made by PW2 to PW1 that the accused stabbed her husband forms res gestae evidence. 20. PW3 is the wife of PW1. She has given evidence that hearing the loud cry of PW2 from the pathway, she reached the scene of the incident and then she saw the deceased lying on the ground and PW2 lying on the deceased and the accused stabbing PW2 on the back. She has also deposed that PW2 and the accused rolled on the ground. PW3 identified MO1 in the Crl.A.No.923/2014 12 court as the knife used by the accused for stabbing. 21. There is no reason to disbelieve the evidence of PW3 also. Her evidence partly corroborates the testimony of PW2. 22. PW15 is the Circle Inspector who conducted the investigation of the case. He has deposed that he arrested the accused on 05.10.2006. He also deposed that the accused gave him information that he had kept the knife and he would take the knife and produce it. PW15 has deposed that on the basis of such information given by the accused he reached the house of the accused. He stated that the accused took the knife which was kept below the roof of the cattle shed in the compound of his house and gave it to him. PW15 has also deposed that he seized the knife as per Ext.P8 mahazar. PW15 identified MO1 in the court as the knife seized as per Ext.P8 mahazar. 23. PW10 is an attestor to Ext.P8 mahazar. He has deposed that he saw the accused taking the knife and giving it to the investigating officer. He identified MO1 in the court as the knife produced by the accused before the investigating officer. Though in the cross-examination PW10 has stated that he was not sure whether MO1 was the same knife which was taken and produced by the accused before the investigating officer, his Crl.A.No.923/2014 13 evidence is sufficient to corroborate the evidence of PW15 that the accused had taken a knife and produced it before him. 24. Ext.P17 report of the Forensic Science Laboratory shows that there was human blood on MO1 knife. The accused has not offered any explanation for the presence of human blood on MO1 knife which was kept in his house. 25. Thus, the evidence of PW2 would establish beyond reasonable doubt that the accused stabbed her husband on the chest with MO1 knife and caused his death. Her evidence also proves beyond doubt that the accused stabbed her on the chest and back with MO1 knife. 26. Learned counsel for the appellant submitted that the accused had sustained injury in the incident and the prosecution has suppressed that fact and it is fatal to the prosecution case. Learned counsel would contend that the prosecution witnesses suppressed the fact that the accused had sustained injuries in the incident and it would make their testimony unbelievable. Learned counsel would rely upon the decisions in Lakshmi Singh v. State of Bihar **:** AIR 1976 SC 2263, Rajender Singh v. State of Bihar : (2000) 4 SCC 298 and State of Rajasthan v. Rajendra Singh : (2009) 11 SCC 106 in support of his contention in this Crl.A.No.923/2014 14 regard. 27. There is no merit in the contention that the prosecution had suppressed the fact that the accused had sustained injury in the incident. Even in Ext.P1 first information statement given by PW1 to the police, it is mentioned that he had heard that the accused had sustained injury in the incident. Of course, PW1 has stated during cross-examination that he did not see any injury on the body of the accused. But he has stated that he came to know that the accused was treated in the Medical College Hospital, Kozhikode. There is no wilful suppression of any fact by PW1. It is probable that he actually did not see any injury on the body of the accused at the time of the incident. No question was put to PW2 and PW3 in the crossexamination with regard to the injury sustained by the accused in the incident. Therefore, it cannot be found that these witnesses made wilful suppression of such a material fact. 28. It is also significant that the accused did not adduce any evidence to prove that he had sustained injury in the incident. Not even a suggestion was made to PW2 in the crossexamination that she or her husband had attacked the accused. No plea of private defence was raised by the accused during the Crl.A.No.923/2014 15 trial of the case. Plea of the right of private defence cannot also be inferred from the circumstances brought out in the crossexamination of the prosecution witnesses. 29. PW15 Circle Inspector has stated on crossexamination that a case had been registered as Crime No.161/2006 on the basis of the complaint given by the accused. PW15 has stated that the aforesaid case was also investigated by him and it was referred as a false case. 30. Even assuming that the accused had sustained injury in the incident, it is very much probable that he sustained it when he rolled on the ground together with PW2. At any rate, no suggestion was made to PW1 to PW3 in the crossexamination that the accused sustained injury from an attack by PW2 or the deceased. 31. Learned counsel for the appellant would contend that the deceased was carrying a knife with him at the time of the incident. There is no evidence in this regard. PW2 has denied the suggestion made to her in the cross-examination that MO1 knife belonged to her house. She has admitted that her husband had a knife with him at the time of cutting the grass on the pathway. But she would say that the knife used by her Crl.A.No.923/2014 16 husband for cutting the grass was thereafter kept in the house. She has also clarified that it was not a knife but a sickle. PW2 also denied the suggestion made to her in the cross-examination that her husband was cutting the grass at the time of the incident. Therefore, there cannot be any doubt with regard to the fact that the deceased was not armed with any knife when the occurrence took place. 32. In the aforesaid circumstances, the decisions cited by the learned counsel for the appellant, which have been referred to earlier, have no application to the facts of the present case. Even assuming that the accused had sustained some minor injury in the course of the incident, non-explanation of it by the prosecution, by itself, is not fatal to the prosecution case. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood, the mere fact that the injuries, if any, sustained by the accused, are not explained by the prosecution cannot by itself be a ground to reject such evidence. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused (See **Ram Sunder Yadav v. State of Bihar :** Crl.A.No.923/2014 17 ## **AIR 1998 SC 3117** ). 33. Learned counsel for the appellant contended that even assuming that the prosecution case is true, only an offence under Section 304 Part II is made out. Learned counsel for the appellant would rely upon the decision in Manjeet Singh v. State of H.P : (2014) 5 SCC 697 in this regard. This decision has no application to the facts of the present case. The evidence in the case clearly indicates that the accused stabbed on the neck and chest of the deceased with MO1 knife. The injury was inflicted with such a force that it entered the chest and penetrated the heart of the deceased. The accused was carrying the knife with him. The nature of the fatal injury sustained by the deceased, as evident from the post-mortem certificate, would improbablise the case of the accused that he had no intention to cause death or the intention of causing such bodily injury as is likely to cause death. The case clearly falls within the definition of culpable homicide amounting to murder and does not come under any of the exceptions under Section 300 IPC. The offence punishable under Section 302 IPC is clearly attracted. Inflicting of injury on the chest of PW2 with with MO1 knife also clearly indicates the intention of the accused to kill her and such act attracts the Crl.A.No.923/2014 18 offence punishable under Section 307 IPC. 34. In the aforesaid circumstances, we do not find any error in the judgment of the Sessions Court convicting the accused for the offences punishable under Sections 302 and 307 IPC. The sentence imposed on the accused also does not warrant any interference. Consequently, the appeal is dismissed. (sd/-) ## **A.M.SHAFFIQUE, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/12/11/2018 True Copy PS to Judge