Santhosh 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** **TUESDAY,THE 13TH DAY OF NOVEMBER 2018/22ND KARTHIKA, 1940** ## **CRL.A.No.341 of 2015** **AGAINST THE JUDGMENT DATED 01-12-2014 IN SC NO.537/2013 of ADDITIONAL DIST. & SESSIONS COURT, MUVATTUPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP NO.60/2013 of JUDICIAL MAGISTRATE OF THE FIRST CLASS, PERUMBAVOOR** **CRIME NO.51/2013 OF Perumbavoor Police Station** **APPELLANT/ ACCUSED NO.1:** **SANTHOSH, S/O.SHANKARAN, C.NO.3496, CENTRAL PRISON, KANNUR.** **BY ADV. FARIDIN.A.S(STATE BRIEF)** ## **RESPONDENT/STATE:** **STATE OF KERALA (PERUMBAVOOR POLICE STATION CRIME NO.51/2013)** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON 13.11.2018 PASSED THE FOLLOWING:** Crl. Appeal No.341 of 2015 :: 2 :: ## **JUDGMENT** ## **Somarajan, J.** Against the judgment of conviction and order of sentence in S.C.No.537 of 2013, dated 1.12.2014, of the Additional Sessions Court, Muvattupuzha, accused No.1 came up with this appeal. 2. Accused Nos.1 and 2 were charge sheeted for the offence punishable under Sections 302 and 201 read with S.34 of the Indian Penal Code. Accused No.2 was found not guilty of offence and hence acquitted by the learned Sessions Judge. No appeal is preferred against the order of acquittal. Hence, we are only concerned with the conviction rendered as against accused No.1, the appellant herein, for the offence punishable under Ss.302 and 201 IPC. 3. The alleged incident happened at about Crl. Appeal No.341 of 2015 :: 3 :: 6.30 p.m. on 13.1.2013 by which the deceased Sivan, son of Chandran, met with a sad death. The prosecution case is that it is accused Nos.1 and 2 in furtherance of a common intention to commit murder consumed alcohol along with the deceased in the room situated in Narayana Memorial Building and by 6.30 p.m. accused Nos.1 and 2 hit the head of the deceased against the wall, door frame and window frame causing serious injuries to him, accused No.1 throttled him with his hands, accused No.2 beat over his head with a wooden stick and crushed his genitalia by his hands and as a result, he succumbed to the injuries on the same day. The dead body was concealed under a cot and later on abandoned on the courtyard of the building between 8.30 and 9 p.m. on the same day. 4. There is no eye witness to the alleged incident. Hence the prosecution heavily relied on the circumstantial evidence, especially the last seen theory through PW3 and PW4 and Ext.P19 FSL ## Crl. Appeal No.341 of 2015 :: 4 :: report, to bring home the guilt of accused. The recovery of MO4 wooden stick, presence of blood stain in the room of accused No.1 and the oral evidence tendered by PW1 that he had seen accused No.1 cleaning the verandah of his room also relied on by the prosecution. 5. Accused No.1 was occupying a room in the first floor of the building. According to the prosecution, the alleged incident had happened by 6.30 p.m. inside the said room. PW1 is one of the residents in the neighbouring room. The dead body of the deceased was found lying on the courtyard of the said building. The incident happened on 13.1.2013, according to him. The abovesaid lodge is belonged to one Mohanan. PW1 was occupying the room next to the room of accused No.1. He was very much present in his room from 12.30 noon onwards on the ill fated day. It was the usual practice of accused Nos.1 and 2 to consume alcohol in their room. On the ill fated day he had seen accused Crl. Appeal No.341 of 2015 :: 5 :: No.2 proceeding towards the room of accused No.1 at about 6 p.m.. He heard some conversation from the room of accused No.1. There was an electricity power break by 8.30 p.m. on that day. He heard some sound by that time. So he came out of the room and seen accused Nos.1 and 2 engaged in cleaning and washing the verandah. He had also seen a person lying on the courtyard of the building. The only evidence brought out through PW1 is that he had seen accused No.2 going to the room of accused No.1 by 6.30 p.m. on that day and he had seen them cleaning the verandah by 8.30 p.m. At that time, the deceased was lying dead on the courtyard of the said building. 6. It is through PW3 and PW4 the prosecution tried to invoke last seen theory as against accused Nos.1 and 2. PW3 testified that he had seen accused No.1 along with deceased Sivan proceeding in a bike towards Perumbavoor by 3 p.m. on the ill fated day. The oral evidence tendered Crl. Appeal No.341 of 2015 :: 6 :: through PW4 further shows that both the accused and the victim came there in a bike by 3 p.m. on the ill fated day and both of them climbed the stair case and went to the room of accused No.1. The dead body of the deceased was found lying in front of the said building by 8.30 p.m. PW1 had seen both accused Nos.1 and 2 by 8.30 p.m. and they were found cleaning and washing the verandah of the room. 7. The medical evidence tendered would show that the victim had sustained the following antemortem injuries: “ _Injuries (ante-mortem)_ _1. Abrasion 11x3 cm on forehead left side lower end at eyebrow, incorporating a laceration 2x1cm x muscle deep over inner angle of eyebrow and another laceration 3x0.5x bone deep._ _2. Abrasion 3x2 cm on outer angle of left eye with surrounding contusion._ _3. Contusion 7x5cm on right cheek incorporating few abrasions._ _4. Abrasion 8x4cm on front of nose_ Crl. Appeal No.341 of 2015 :: 7 :: _extending to upper lip. Underneath nasal bones were fractured._ _Scalp contusion over left frontal, parietal and occipital regions. Skull was intact. Brain showed subarachnoid bleed over frontal at left parietal lobes._ _5. Multiple abrasion of varying size 2x0.3cm on front on neck._ _6. Abrasion 1x1cm on root of neck back aspect._ _7. Abrasion 3x3cm on left angle of jaw._ _On flap dissection of neck contusion over strap muscles (sternohyoid, thyrohyoid muscles). Fracture of right horn of hyoid, greater horn of thyroid right side and body with surrounding blood infiltration._ _8. Contusion 9.5cm on right shoulder blade and top of shoulder (2x2cm)._ _9. Contusion 8x5cm just below right collar bone._ _10. Patterned abrasion 'C' shaped (7x1cm) on outer aspect of left arm, 12cm below shoulder._ _11. Abrasion 3x2cm and 2.5x2cm, below injury No.10._ Crl. Appeal No.341 of 2015 :: 8 :: _12. Multiple abrasions over outer aspect of left elbow and wrist._ _13. Multiple abrasions 6x3cm over left hip bone and right hip bone prominences._ _14. Grazed abrasion 16x9cm upwards on front and inner aspect at left thigh._ _15. Grazed abrasion 13x7cm over inner aspect of right thigh._ _16. Contusion 15x7cm on front of right thigh, upper end at hip bone._ 17. Contusion over scrotum and both testicles.” 8. The opinion as to cause of death is stated to be due to injuries sustained to head, neck and genitalia. The Doctor who conducted postmortem examination was examined as PW13 and according to him injury Nos.1,2,3 and 4 can be caused if the head is forcefully pushed against a wall. Injury Nos.5, 6 and 7 can be caused by throttling with hands. Injury Nos.8 and 9 can be caused by beating with a wooden stick. Injury No.10 can be caused by beating. Injury No.17 can be caused by stamping. But no medical opinion was Crl. Appeal No.341 of 2015 :: 9 :: obtained as to whether these injuries would be sufficient to cause death in its ordinary course. Though an attempt was made to prove that these injuries could be caused by falling on a rough surface or an accidental fall from the first floor of the building, the same was rejected by the Doctor. Further, an accidental fall from the first floor of the said building can safely be ruled out as injury Nos.1 to 4, which are fatal, are the result of pushing of head as against a wall and injury Nos.5,6 and 7 are the result of throttling with hands. The injury to genitalia also noted as ante-mortem injury No.17. Grazed abrasion having measurement of 13x7 cm over the inner aspect of right thigh and another grazed abrasion 16x9cm upwards on front and inner aspect of left thigh were also noticed by the Doctor who conducted autopsy which would prima facie show crushing of genitalia both the testicles with force and the struggle resulted thereon. Crl. Appeal No.341 of 2015 :: 10 :: 9. The subsequent conduct of accused No.1 along with accused No.2 also brought out by the prosecution as they were found cleaning the verandah of the room in and around 9 p.m. on that day so as to disappear the blood stain, if any, present there. Ext.P2 mahazar was prepared under which MOs 9 and 10 shirts kept in the room of accused No.1 were recovered. Blood stain was found in both the shirts, on chemical analysis. PW15, Scientific Assistant had collected blood stain from the place of occurrence. Under Ext.P8 report human blood was detected in item Nos.1, 2,3,8,10,14 to 18, 20, 23 and 24. Human blood was detected on the blood stain collected from the place of occurrence. Human blood stain was also detected on the dress worn by accused No.1, identified as MO9 shirt under Ext.P9 mahazar. This has to be read along with the subsequent act of accused No.1 in washing the room and verandah of the building for the second time. The oral evidence tendered by PW5 also supports the oral ## Crl. Appeal No.341 of 2015 :: 11 :: evidence tendered by the other two witnesses, PW3 and PW4, that they had seen the victim accompanying the accused to his room. The presence of human blood inside the said room as well as in the verandah would sufficiently show that the alleged incident had happened inside the said room. Injury Nos.1 to 4 could be possible by hitting the head against a wall. The human blood stain on the wall inside the house would support the main substratum of the prosecution case that the victim's head was dashed against a wall several times. The evidence adduced by the prosecution thus establishes that the victim was in the company of accused No.1 in his room in and around the time in which the alleged incident had happened and there were human blood stain inside the room, outside the room, on the window pan, door pan and also on the wall of the room. The two shirts recovered from the room were also found to be stained with human blood. So, it can be safely concluded that the alleged incident had Crl. Appeal No.341 of 2015 :: 12 :: happened within the room of accused No.1 while the victim was in his company. The subsequent conduct of accused No.1 in cleaning and washing away the blood stain from the floor of the room as well as verandah is another incriminating circumstance pointing towards the guilt of accused No.1. No explanation was offered by accused No.1 during his examination under Section 313 Cr.P.C. why he had cleaned and washed the room and the verandah and how the room, window pan, room wall, verandah and his two shirts got stained with blood. 10. The acquittal of accused No.2 on the same set of facts may not be sufficient to acquit accused No.1. The legal position was summarized in _**Gurucharan Singh and another v. State of Punjab**_ _**(AIR 1956 SC 460)**_ by a three Judge Bench of the Apex Court and also in _**Brathi @ Sukhdev Singh v. State of Punjab (AIR 1991 SC 318)**_ and another three Judge Bench of Apex Court in _**Khujji @ Surendra Tiwari v. State of M.P. (AIR 1991 SC 1853)**_ . Hence, there is no merit in the argument ## Crl. Appeal No.341 of 2015 :: 13 :: that accused No.1 also deserves same treatment. 11. The injuries noted as ante-mortem would sufficiently show an indiscriminate attack on the victim. Both the testicles of the victim was crushed by hand. There are grazed abrasions on inner side of both the left and right thigh which would prima facie show the struggle and attempt on the part of the victim to escape himself from the attack. The cruelty meted out in the hands of accused No.1, pushing his head as against wall, window pan and door and crushing of both the testicles would sufficiently show what actually intended by accused No.1. The various acts itself will show knowledge on the part of the accused as to the consequences of his act and hence satisfies all the ingredients which would constitute S.300 IPC and no exceptions attached to the said Section either brought out or let in evidence. Hence, the conviction of accused No.1 for the offence under S.302 IPC does not call for Crl. Appeal No.341 of 2015 :: 14 :: any interference by this Court. The act of accused in concealing the evidence by washing the blood stain found in the floor and verandah of the room and also keeping the body till the power break of electricity on that day would attract offence under S.201 IPC. Hence the conviction of accused both under Sections 302 and 201 IPC deserves no interference by this Court. 12. The sentence awarded for the offence under Section 302 IPC being the lesser one need not be interfered. The sentence awarded for the offence under Section 201 strikes a balance. Hence deserves no interference. Appeal fails. Hence dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** ## **Sd/-** ## **P.SOMARAJAN** ahz/ **JUDGE**