Shaji alias Karuvan Shaji 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** **WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939** **CRL.A.No. 762 of 2014 () -------------------------** **AGAINST THE JUDGMENT IN SC 124/2013 of III ADDITIONAL DISTRICT AND SESSIONS COURT, PALAKKAD DATED 14.2.2014** **(IN CP 28/2003 of JFCM, MANNARKAD CRIME NO. 48/2002 OF NATTUKAL POLICE STATION , PALAKKAD** **APPELLANT/ACCUSED:** **-----------------------** **SHAJI ALIAS KARUVAN SHAJI, AGED** 37 YEARS **S/O MADHAVAN,KUNNEL HOUSE, PRAVITHANM KACHUR, PALA, KOTTAYAM.** **BY ADV. SUNIL J (STATE BRIEF)** **RESPONDENT/COMPLAINANT: ----------------------** **STATE OF KERALA, REPRESENTED BY S.I OF POLICE, NATTUKAL POLICE STATION (CRIME NO.48/2002)** ## **BY ADV. PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2.11.2017, THE COURT ON 13-12-2017, DELIVERED THE FOLLOWING:** ## **A.M.SHAFFIQUE & P.SOMARAJAN, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 762 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of December, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## **SHAFFIQUE, J.** The accused has preferred this appeal challenging the judgment dated 14.2.2014 in S.C.No.124 of 2013 on the file of the Court of Sessions, Palakkad by which he was found guilty and sentenced to imprisonment for life and to pay a fine of Rs 10,000/- with default sentence of 1 year for offences punishable under Section 302 of the India Penal Code (for short the IPC) and to suffer simple imprisonment for 6 months for the offence punishable under Section 324 of the IPC. 2. The accused was charged with the crime of having committed murder of his son Prajeesh. His son was only aged 9 years. Prosecution case was that on 7.4.2002 at about 4 pm, the accused tried to stab his wife which was warded of by the daughter in which they suffered injuries. The reason for the attack was that, the accused saw his wife talking with another person. The wife and daughter ran away from the scene. At this time, CW3 and deceased Prajeesh were coming to the house with their goats and the accused caught hold of Crl.A. No. 762 of 2014 -2- one of the goats and attempted to slaughter it. Prajeesh rushed towards him to prevent slaughtering of the goat. But the accused slaughtered the goat and then chased Prajeesh who ran away from the scene. Accused ran after him and caught hold of him and stabbed on his left thigh below the buttock with a knife. He succumbed to the injuries. 3. Crime was registered based on the statement given by the daughter of the accused. The Circle Inspector of Police conducted investigation into the crime and final report was filed before the Judicial Magistrate of First Class, Mannarkkad. The case was committed to Court of Sessions and numbered as S.C.No.413 of 2004. Since the accused did not turn up and was absconding, the case was registered as L.P.No.12 of 2005. Thereafter, the accused was arrested and produced and the case was renumbered as S.C.No.124 of 2013. 4. To prove the case of the prosecution, PW 1 to 19 were examined and reliance was placed on Exts. P1 to P20. MO1 to MO9 were marked as material objects. The accused was questioned under Section 313 of the Cr.P.C. DW 1 was examined Crl.A. No. 762 of 2014 -3- on the side of defence and after hearing, the accused was convicted and sentenced as stated above. 5. Since the memorandum of appeal was forwarded by the Superintendent of Central Prison, Kannur and there was no appearance on behalf of the accused, Adv. Sunil J was appointed as counsel to argue the case of the appellant. The learned counsel for the appellant argued that the evidence was not sufficient to bring home the case against the accused. It was argued that there were several discrepancies in the evidence which were not taken note of by the court below and therefore, re-appreciation of evidence is required for a clear understanding of the factual aspects. It is argued that accused is not guilty of the offences. 6. On the other hand, the learned Public Prosecutor while supporting the judgment of court below submitted that the accused committed a heinous crime by inflicting major injury on his son only because the deceased tried to prevent him slaughtering a goat. Further he tried to inflict stab injuries on his wife as well. The evidence in the case proved the said fact and Crl.A. No. 762 of 2014 -4- therefore the court below is justified in convicting the accused. He also places reliance on the judgment of the Apex Court in **Virsa Singh v. State of Punjab (** AIR 1958 SC 465), in order to emphasis the degree of proof, while considering the evidence for committing murder under Section 300 of the IPC. Paragraph 12 to 15 and 17 are relevant which reads as under: “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. **13** . Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter Crl.A. No. 762 of 2014 -5- that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. 14. We were referred to a decision of Lord Goddard in R. v. Steane 1947-1 All ER 813 at p. 816 (A) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that S. 300 "thirdly" requires, and how is it to be proved? 15. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the Crl.A. No. 762 of 2014 -6- jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted". We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: “No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged". That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three place. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.” “17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an Crl.A. No. 762 of 2014 -7- inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.” 7. The fact that Prajeesh suffered very serious injuries and had died on 7.4.2002 is not disputed. Ext.P11 is the postmortem certificate and the ante mortem injuries are stated to be as under: “Incised penetrating wound 4.2x1.8x7.2 cm, transversely oblique, on front and outer aspect left thigh, lower inner end at 6cm outer to left side of root of penis and 3.6 cm below midpoint of groin. The upper outer end was 8 cm below top of hip bone and 10 cm outer to mid line front of abdomen. Both ends of the wound were sharp cut. The wound cut the sub-cutaneous tissues and muscles underneath including fibers of sartorius, iliacus, psoas and pectineus, cutting through the femoral triangle. The wound cut the blood vessels on upper part of front of thigh, including the femoral Crl.A. No. 762 of 2014 -8- artery and femoral vein. The wound just cut into inner border of medial part of obturator foramen. The wound was 7.2 cm deep and was directed downwards, backwards and to right.” 8. Postmortem was conducted by PW16. He had stated that Prajeesh died due to the bleeding from incision including femoral artery and vein. PW14, daughter of accused has given the First Information Statement to the police marked as Ext.P7. The statement was recorded by PW15. FIR is marked as Ext.P10. 9. PW14, PW17 and PW18 are the eye witnesses to the incident. PW14 had deposed that the accused is her step father and she along with her mother, two brothers and a sister are residing with the accused. Her father had died and thereafter her mother married the accused. She was 8 years at the time when the incident occurred. She deposed that the accused was cruel to everyone and mother was usually assaulted. On the previous day of the incident, he had gone stating that he is going to Malayattoor where he met his brother and they went to Perinthalmanna. His brother found out the address and came along with a neighbour Joy (CW4). PW14 along with the sister Crl.A. No. 762 of 2014 -9- was in house. Mother and brother had gone to graze goats along with CW5. She informed her mother that the brother of accused had come. She came to the house and asked them to sit and she went to the kitchen for making tea. At the time when tea was given to him accused came to the house. Accused had some previous enmity with Joy (CW4). Accused became angry and he asked why he has come and start quarreling. Mother told him not to make any problem as his brother was visiting them for the first time. Accused caught hold of her nighty and pushed her. He thereafter went inside the room and took knife and stabbed her mother. She tried to obstruct and she also suffered injury on her fingers. Seeing this brother of the accused and Joy went away from the house. She along with her mother and her sister ran towards to the nearest rock and hid behind the same being afraid of the accused as he was chasing Joy with the knife. 10. After sometime the accused came back, calling them. At that time her brothers along with one Retna (DW1) came with the goats. When the goats reached the courtyard, accused caught hold of one goat and slaughtered. On seeing this Crl.A. No. 762 of 2014 -10- Prajeesh ran to him and said that the said goat belongs to him and the accused should not harm it. At this time, accused turned to Prajeesh with the knife and seeing the same, he ran towards the rubber plantation. Accused ran behind him and when they reached the fence he stabbed him. Prajeesh fell down. CW5, on seeing this went to the nearest house. The youngest brother also ran along with them. Blood was oozing from the knife. He had the knife with him and they saw him running down the property. She and her mother went to the house of Muthu (CW7) and informed about the incident. Muthu went to the neighbouring house and telephoned to the shop in the town and gave information about the incident. After some time a person name Kurian came in a jeep and took them to hospital. She identified the knife used for the crime as MO1. She also identified the MO2 chappals of the deceased as MO3 T-shirt and MO4 trouser of Prajeesh. MO5 is the cover of knife, MO6 is the dothi of the accused, MO7 nighty(maxy) of mother, MO8 shirt of the accused and MO9 is the lungie of the accused. PW14 further deposed that police had come to the hospital and recorded her statement Crl.A. No. 762 of 2014 -11- which has been marked as Ext.P7. She had given statement before the Magistrate which has been marked as Ext.P8. 11. PW17 is the wife of the accused. She deposed that in the first marriage she had two children. She had not lawfully married the accused but she had three children in the relationship with the accused. The deceased Prajeesh is the elder son born in the relationship with accused. The life with the accused was not happy and he used to assault her and children occasionally. He is a rubber tapper by profession. She had deposed in the manner in which PW14 had stated. She further deposed that she had come to know about the death of her son while in hospital. She had also given a statement before the Magistrate under Section 164 of the Cr.P.C. which is marked as Ext.P12. She also identified MO1, knife. 12. PW18 is another eye witness to the incident. He is the son of the accused and younger brother of deceased. He deposed that at the time when the incident occurred he was 4 years old (at the time of giving evidence he is 16 years). He deposed that he had gone to graze the goat along with his Crl.A. No. 762 of 2014 -12- brother and mother. Mother came back home initially and after some time they also came with the goats. CW5 was also present along with them. On seeing goats accused caught hold of one and slaughtered it. It was brother's goat. Brother cried and the accused chased him with a knife. He also ran behind them and when they reached near the fence, the accused stabbed Prajeesh and came back. His brother fell down at the spot. He witnessed the incident at a distance of 4-5 meters. He sat there and cried. He called his brother but he was not speaking. He also identified MO1 knife used for stabbing. He had also given a statement before the Magistrate which has been marked as Ext.P13. The only cross examination asked was whether he had stated every thing to the police and in the 164 statement. He said he had mentioned everything and has nothing else to state. 13. Though PW14 and PW17 were cross examined at length, other than a contradiction marked as Ext.P7(a), nothing was brought to indicate that the evidence suffers from any infirmity. Therefore the evidence of PWs14, 17 and 18 clearly proves the fact that the accused had committed the aforesaid Crl.A. No. 762 of 2014 -13- crime. PW1 is a neighbour who had also deposed to the fact that she was accompanying the wife and children of the accused for grazing goat. They had gone at about 2 pm. After some time, on listening to a loud sound and cry from the house of the accused, she saw the accused coming with a knife. He threatened her that if she wants to see her daughter, she may see her now or it may not be possible to see her again. She got frightened and ran to house of Joy. She heard the cry of the children calling their mother. She saw the accused coming with a knife. Joy was not there. His family members were there. On the threatening of the accused she left through kitchen door and went to her house. Her brothers house was nearby and PW14 was in the said house. She was injured. After sometime it was heard that the child was dead. People were running towards the said place. The child was lying dead in the rubber plantation. 14. PW4 is a neighbour of the accused. He heard the news about the incident while he was in the shop. He proceeded along with two other persons towards the place of incident. He saw a goat slaughtered with a cut on its neck. They saw the son Crl.A. No. 762 of 2014 -14- of the accused lying in the plantation. He had an injury. He was dead. Another child of accused was standing there crying. They came back to Ponpara with the child. The accused was apprehended by the people in the locality and he was tied near the shop and police came and arrested him. He had a knife with him when the police came and took him. In cross examination he deposed that the information was given to him by the child around 3-3.30 pm and reached there by 4 'O clock. They came back to Ponpara by about 5 and the police came and arrested the accused between 8 and 9pm. 15. PW6 is another person in the locality who deposed that PW14 came to his house injured. She told that there was quarrel between the father and mother. On seeing this she made a phone call to Nani's shop and asked 3 or 4 persons to come to residence of the accused. She made the call from the house of Jayakrishnan. After some time, a few people came and they saw a goat slaughtered in front of house. They also saw the child lying there and younger child crying nearby. Jayakrishnan came back and again made a call over phone to Nani's shop and went Crl.A. No. 762 of 2014 -15- to Ponpara. He saw the accused tied to a telephone post near the shop. Injured were taken to the hospital. 16. PW7 is a person in the locality who owns a stationery shop. He got a call from Jayakrishnan. At that time accused was in the shop. Thereafter the accused left the shop. He saw blood over the body of the accused and on the knife held by him. The accused told him that the police will immediately come. After the phone call, he asked the people to get hold of the accused. The people gathered there apprehended him and tied onto the telephone post. Somebody informed the police. The police came and arrested the accused. 17. PW2 is an attestor to Ext.P1 inquest report. PW3 is an attestor to Ext.P2 scene mahazar. PW5 is a witness to recovery of knife MO1 from the accused. He deposed that the accused was apprehended and tied to a telephone post and police had come and arrested him by 6.00-6.30 pm. 18. PW9 is Dr. Anilkumar, who had examined PW17 at about 4 pm. He had taken note of the injuries on her. The incident was stated to be caused by her husband with a knife. Crl.A. No. 762 of 2014 -16- The following were the injuries notes." a shallow incised wound 2 cm long on the tip of the left thump". Ext.P3 is the certificate. He had also examined PW14 and on examining her the following injuries were noted. “1). Incision on the front of tip of right thump 3cm long and 2mm deep 2). A laceration 5cm long 2mm deep on the front of right middle finger. 3). Incised wound 3x3 cm on the front of root of left thump. The Doctor opined that the injuries could be caused as alleged in Ext.P4 certificate. 19. PW11 is another witness who deposed that the accused was tied to a post near the shop of Nani and the police had come and taken him. 20. DW1 is the Magistrate who had recorded the 164 statement of CW1 to 3 marked as Exts. P8, P12 and P13. In his evidence he stated that in Ext.P8 statement PW1 has not stated that she saw the accused stabbing Prajeesh near the fence and on his waist. She did not depose that Rajeesh was running along with them nor has she stated anything regarding slaughtering of the goat or stabbing Prajeesh. She has also denied the portion of deposition which is marked as Ext.P7(a). With reference to Crl.A. No. 762 of 2014 -17- Ext.P12, it is sated that she did not give any statement regarding revealing of personal feelings and therefore the deposition could not be recorded. With reference to Ext.P13 the age was recorded as '2' and he had not stated that Prajeesh came towards father crying and that father went behind with knife and he ran behind them. He also did not depose that the father had stabbed his brother near the fence and he fell down in the same place. With reference to Ext.P8 it is again stated that PW14 had given a statement stating that she ran down to call people in the locality and nothing had happened to the children. 21. The main contention of the counsel for the appellant is with reference to contradiction in 164 statement and evidence adduced before court. 22. Prajeesh was found dead near the rubber plantation. This fact is evidenced from the deposition of PW4 and PW6. PW14 and PW17 who were injured at the hands of the accused deposed that Prajeesh was stabbed by the accused. There is no reason to disbelieve them. When the accused was apprehended he was seen with knife and people had caught him and tied to a Crl.A. No. 762 of 2014 -18- telephone post from where the knife was recovered and the accused was arrested. The presence of the accused in the scene of occurrence is spoken to by PW1 who saw the accused chasing Joy even to his house with a knife. Therefore the accused wielding the knife and chasing Joy is proved. All the while, according to PW14 and PW17, they were hiding behind the rock, being afraid of the accused. The presence of the accused is proved and PW1 clearly stated that she had come along with the children including Prajeesh. It is true that the exact place of stabbing Prajeesh had not been specified or the dead body was found at a place near to the ridges. Therefore it could be concluded that Prajeesh was stabbed not at the courtyard but at a place 62.5 meters away from the house. Despite the fact that PW18 had not stated before the Magistrate that he had seen his father stabbing his brother, in his evidence he had clearly stated the said incident. PW7 in his evidence also states that, after the incident, he saw the accused holding a knife with blood. All these factual aspects clearly proves the complicity of the accused to the crime. Crl.A. No. 762 of 2014 -19- 23. Taking into account all these factual situation we are of the view that the case alleged against the accused had been proved by substantive evidence. Apart from the eye witnesses giving evidence about the incident, the other factual circumstances including apprehending the accused with a knife by the people in the locality and the statement of witnesses that the accused was holding a knife and threatening Joy, all leads to the conclusion that the accused alone had committed the crime. Hence, we do not think that any grounds have been made out for interference. The appeal is therefore dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **P.SOMARAJAN, JUDGE** kp