State of Kerala v. Murukan @ Kala Murukan, Hashim and Fery @ Fredy

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** **CRL.A.No. 787 of 2015** **AGAINST THE JUDGMENT IN SC 16/1998 of SESSIONS COURT,THIRUVANANTHAPURAM DATED 28-09-2001** **CP 56/1997 of J.M.F.C.-III,THIRUVANANTHAPURAM** **CRIME NO. 131/1996 OF Vanchiyoor Police Station , Thiruvananthapuram** **APPELLANTS/ACCUSED NO.2, 1 AND 4:** - 1 **MURUKAN @ KALA MURUKAN, AGED 48, S/O KUMARA SWAMI ASSARI, TC 21/534, MELATHIL PUTHEN VEEDU, NEAR NEDUMCAUD, PALLITHANAM MANNADI BHAGAVATHI TEMPLE, NEDUMCAUD WARD, MANACAUD VILLAGE.** - **2 HASHIM, AGED 41, S/O JAMAL,SHERENE MANZIL, SULAIMAN-THERUVU, VALLAKADAVU WARD, MUTTATHARA VILLAGE.** - **3 FERY @ FREDY, AGED 37, S/O FANCIS, PUTHUVAL PURAYIDATHIL, NEAR SEWAGE FAR, VALIYATHURA WARD, MUTTATHARA VILLAGE.** **BY ADVS. SRI.RENJITH B.MARAR SRI.V.R.REKESH** Crl.Appeal No.787/2015 -:2:- ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SENIOR PUBLIC PROSECUTOR SRI S U NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.8.2018, THE COURT ON 5.10.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.787/2015 -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by accused 1, 2 and 4 in SC No.16/1998 challenging judgment dated 28/9/2001. Accused Nos. 1 to 3 were convicted and sentenced to undergo imprisonment for life for the offence u/s 302 I.P.C. and accused No.4 is convicted and sentenced to undergo imprisonment for life for offence u/s 302 r/w S.34 of I.P.C. They are also convicted for offence u/s 392 r/w S.34 of I.P.C. and S.341 I.P.C. and sentenced to undergo rigorous imprisonment for a period of one month for the offence u/s 341 and to undergo rigorous imprisonment for a period of 10 years each for the offence u/s 392 r/w S.34 I.P.C. 2. The accused had been charge sheeted for the aforesaid offences based on an investigation conducted in Crime No.131/1996 of Vanchiyoor Police Station. Investigation was conducted by the Circle Inspector of Police, Pettah and a final report was filed before the Judicial First Class Magistrate Court-III, Thiruvananthapuram. The case was committed to the Court of Sessions and accordingly trial was conducted and the accused Crl.Appeal No.787/2015 ## -:4:- were convicted as stated above. 3. The prosecution case as revealed from the records discloses murder of one Binulal who was a videographer of Paramount Studio at Thiruvananthapuram. On 10/7/1996, at about 8.30-8.45 pm, Binulal was consuming liquor from Chithira bar. After consuming liquor, he proceeded towards the north through the western gate of the bar. While Binulal reached a place known as Thakaraparambu, the accused, who were armed with weapons and with an intention to commit robbery, restrained Binulal. The first accused took out a knife and stabbed Binulal on his chest and abdomen. The 2[nd] accused also stabbed him on his back a few times. Third accused who had a knife with him, stabbed Binulal on his buttocks. 4[th] accused restrained him from moving away. On sustaining the injuries, Binulal fell on the side of a drainage canal. The first accused took the purse from the rear pocket of Binulal and 4[th] accused took his watch. Accused thereafter proceeded towards MG road and then towards Parthas Junction along with their loot and weapons. Several persons saw the incident and the matter was informed to the police. Police party reached the scene of occurrence and found Binulal lying Crl.Appeal No.787/2015 -:5:- unconscious. They took Binulal in their jeep to Medical College Hospital where he was declared dead. It is based on the aforesaid incident that crime was registered and further investigation was conducted. On the same day, according to the prosecution, the very same gang attempted to rob one Ramayyan and when the police party reached there and tried to intervene, one Police Constable Sri.Vijayan was stabbed by the accused causing his death. The said case was registered as Crime No.157/1996 of Thampanoor Police Station. 4. To prove the prosecution case, PWs 1 to 17 were examined and they relied upon Exts.P1 to P17. MO1 to MO13 were the material objects which were produced and identified. 5. The learned counsel for the appellants argued that the Court below had committed serious error in finding the accused guilty in so far as there is no evidence worth mentioning to find the guilt against them and for convicting them. Though attempt was made to prove the incident through the evidence of a few eyewitnesses, PW2 turned hostile. There are several omissions and contradictions in the evidence of PW3 and PW4, and they are tutored witnesses. Therefore, a true and correct appreciation of Crl.Appeal No.787/2015 -:6:- the evidence would show that the prosecution has not proved the case beyond reasonable doubt. 6. On the other hand, learned Public Prosecutor supported the stand taken by the Court below and contended that the accused with an intention to commit robbery had brutally murdered a youngster and enough evidence had been adduced by the prosecution to ensure that the offenders are convicted. There is no reason to interfere with the judgment of the court below. 7. Before proceeding further, it will be useful to give a brief description of the evidence tendered by the prosecution. 8. As far as the death of Binulal is concerned, there cannot be any dispute that he died due to the injuries sustained by him on the fateful day i.e., on 10/7/1996 at or about 10.00 p.m. 9. PW1 is a Police Constable who reached the scene of occurrence after getting information of the incident, through wireless message. When he reached the scene of occurrence at about 10.15 p.m, he found Binulal lying face down on the eastern drainage channel of Chithra home road with grievous injuries. He Crl.Appeal No.787/2015 -:7:- took Binulal to Medical College Hospital and on examination by the Casualty Doctor, it was found that Binulal was dead. Inquest was conducted by PW17 on the next day morning at 10.15 am and thereafter postmortem was conducted by PW13. Ext.P9 is the postmortem certificate which would indicate that Binulal suffered 14 ante-mortem injuries. 10. PW13 in his evidence has stated that injury Nos.1 to 3 are independently sufficient in the ordinary course of nature to cause death. Injury Nos. 1 to 3 are incised penetrating wounds. First injury was inflicted on the chest which penetrated to chest cavity. The second and third injury penetrated into the abdominal cavity. Therefore, this is a case in which the attempt of the assailants was to ensure that the victim dies immediately. In the said circumstances, we do not find any error on the part of the trial Court in arriving at a conclusion that Binulal died on account of the injuries suffered by him and the injury Nos. 1 to 3 in the ordinary course were sufficient to cause death. 11. Prosecution had arrayed PWs 2 to 4 as eyewitnesses. PW2 is the Security Guard of Chithira Bar where Binulal had gone on the fateful day. He was on duty near the western gate of Crl.Appeal No.787/2015 -:8:- Chithira Bar. The gate directly opens to Chithra home road. However, PW2 did not support the prosecution case. He deposed that he did not see the incident by which Binulal was attacked. He was cross examined by the prosecution. PW2 however stated that he heard some sound at about 10 p.m from Chithra home road which was on the northern side of the western gate of Chithira Bar. However, he did not go to the scene of occurrence. 12. PW3 was an employee of Chithira Bar. He deposed that he saw Binulal consuming liquor from Chithira bar, and then leaving. While he was engaged in his work, PW2 called him and told him that something was happening on the Chithra home road. He proceeded near to PW2 who was standing near the western gate of Chithira bar and both of them moved towards the road. From there they could witness the incident which took place on the northern side of the western gate. PW3 deposed that Binulal was restrained by four persons. Accused 1 to 3 were armed with knives. He saw the first accused inflicting injuries on the chest and abdomen of the deceased. He identified MO8 knife. He saw 2[nd] accused stabbing the deceased on his back two or three times. He identified MO7 knife used by the 2[nd] accused. He Crl.Appeal No.787/2015 -:9:- saw the third accused stabbing the deceased on his buttocks several times and the deceased falling on to the ground with face downwards. He also saw 2[nd] accused taking the purse from the rear pocket of Binulal. 4[th] accused removed the watch which Binulal was wearing at that time. After committing the aforesaid acts, all of them walked away towards Thakaraparambu road and that too in front of the western gate of Chithira bar. Even at that time, accused 1 to 3 were holding the weapons used by them. After the accused left the scene, PW3 along with others proceeded to the scene. He knew that it was Binulal who was being attacked. He came back to the Bar and informed the incident to the Manager. Manager along with other staff came to the spot. After some time, a police jeep came and took the injured to the hospital. PW3 identified MO5 pants and MO6 shirt which the 2[nd] accused was wearing at the relevant time. He identified all the accused in the witness box. He also identified MO7 to MO9 weapons and MO10 watch, Binulal was wearing on the date of incident. 13. PW4 is another eyewitness. He knew the deceased Binulal. He saw Binulal at about 8.30 and 8.45 pm sitting near a Crl.Appeal No.787/2015 -:10:- table and consuming liquor in Chithira bar. He saw Binulal paying the bill and leaving the bar through the western gate. PW4 left after some time and when he reached the road through western gate, he found four persons attacking the deceased. He narrated the manner in which the accused had inflicted injuries and after committing the crime, all of them walked towards the south through the western gate of the bar. But he did not identify the accused. According to him, since he consumed alcohol his vision was blurred. 14. PW5 was a salesman of Thiruvananthapuram restaurant. During the relevant time, the restaurant also had a foreign liquor shop and the restaurant was not functioning. He deposed that, on 10/7/1996, at about 9 p.m, he found four persons standing near the counter of the liquor shop purchasing liquor. At that time, some arrangement was made for persons buying liquor to consume the same from a room behind the godown. He saw the aforesaid four persons proceeding towards the room after purchasing liquor and they came back after some time. He thereafter saw all the four walking towards Thakaraparambu side through Chithra home road. He identified Crl.Appeal No.787/2015 -:11:- all the accused in the box as those persons. He further deposed that, after some time, he heard about the incident and he saw people gathered around there. He found the deceased lying unconscious after sustaining the injuries. He further stated that police had come and taken the injured to the hospital. 15. PW6 turned hostile. PW8 is an attestor to the scene mahazar Ext.P4. PW10 attested the seizure mahazar Ext.P6, PW11 attested the seizure mahazar Ext.P7 and PW12 attested the seizure mahazar Ext.P8. PW14 has prepared Ext.P11 mahazar. PW15 had registered Ext.P12 FIR, based on Ext.P1 report of PW1. PW17 is the investigating officer who conducted the inquest and obtained various reports from the competent authorities. 16. The Sessions Court found that evidence of PW3 who is a natural witness is corroborated by the oral testimony of PW2 and PW4 in certain particulars. It is also found that even though PW2 and PW6 had turned hostile, they did not support the prosecution case only on account of fear as the accused were members of a gang who were capable of committing various criminal acts. According to the prosecution, after committing the Crl.Appeal No.787/2015 -:12:- aforesaid crime, the accused got involved in another crime in which a police constable was stabbed to death and the accused is suffering sentence of life imprisonment in that case as well. The contention urged by learned counsel for appellants is that the evidence of PW3 is not believable. First of all, PW3 appears to have given evidence identifying all the material objects including the dresses the accused were wearing and also the watch which Binulal was wearing at the relevant time. It is also argued that accused have not been properly identified and that PW3 is not a natural witness, but a tutored witness. 17. As already mentioned, though PW2 turned hostile, he had given evidence clearly indicating the presence of PW3. Ext.P4 scene mahazar establishes the fact that the scene of occurrence is close to an electric post and it had lighted tube lights. Therefore, it was not difficult for PW3 to see the incident. His testimony clearly indicates that he was standing near the western gate of Chithira bar and the incident happens on the northern side of the said gate by the side of the road. PW3 testified that within two months from the date of occurrence, he left his employment from Chithira bar. There is also evidence to show Crl.Appeal No.787/2015 ## -:13:- that the incident occurred just 33.4 metres towards the north of Chithira bar. Therefore, the fact that PW3 would not have seen the incident cannot be accepted. Nothing has been brought out in the cross examination to make it appear that PW3 was giving false evidence. The contention urged that he could not have identified the watch of the deceased may be true and might be treated as an embellishment. But the fact remains that he could see the entire incident and there was sufficient light for him to see the attack on Binulal and the subsequent events. Further, the accused after committing the criminal act, walked in front of him, as he was watching the incident from the western gate. When the eyewitnesses had a clear picture of the accused and when the Court finds that he can be believed, his evidence cannot be discarded on account of minor discrepancies or embellishments. 18. Yet another argument raised is that police had not conducted any Test Identification Parade (TIP). It is argued that none of the witnesses had any previous acquaintance with the accused and therefore they could not have identified them. It is trite that TIP is being conducted only to enable the investigating officer to make sure that the investigation is in the right direction. Crl.Appeal No.787/2015 -:14:- Identification before Court is the substantive evidence. PW3 in his evidence has stated that after the accused were arrested, he was summoned to the police station and he had identified all the accused. The Sessions Court found that the evidence of PW3 who is a natural witness was believable in so far as his evidence discloses trustworthiness and is creditworthy. Therefore, there is nothing wrong in relying upon the oral testimony of PW3 who had clearly identified the accused before Court. That apart, PW3 has absolutely no connection whatsoever with the accused and there is no reason for him to falsely implicate the accused. When the Court finds that the witnesses are speaking the truth and they have actually witnessed the incident, and they identified the accused before Court, absence of conducting TIP will not affect the prosecution case. Therefore, from the evidence of PW3, duly supported by the evidence of PW4, it could easily be discerned that the accused were involved in the crime. 19. Though PW4 had spoken about the incident, he did not identify the accused. PW4 deposed that he left the place after seeing the incident. Contention is raised that he did not render any assistance. But the evidence of the prosecution is that police Crl.Appeal No.787/2015 ## -:15:- had come and took the injured to the hospital. Nobody dared to render any help at that point of time. Therefore to the extent spoken to by PW4 supporting the prosecution, proves the incident. The presence of the accused near the scene of occurrence is further proved by the evidence of PW5. 20. All the accused were arrested on 13/7/1996 in Crime No.157/1996. On the basis of the information given by the first accused, MO8 knife was recovered on 18/7/1996 as per Ext.P5 recovery mahazar. On the basis of information furnished by the 2[nd] accused, MO7 knife was recovered on 18/7/1996 as per Ext.P6 mahazar. MO5 and MO6 are the dresses which were recovered on 19/7/1996 as per Ext.P7 recovery mahazar. MO9 was recovered on 19/7/1996 as per Ext.P8 recovery mahazar,on the basis of information given by 3[rd] accused. MO10 along with articles involved in Crime No.157/1996, were recovered as per Ext.P11 recovery mahazar, on the information supplied by the 4[th] accused. 21. The recovery of the material objects had been proved by PW9, PW10, PW11, PW12 and PW14. Despite elaborate cross examination by the defence, nothing has been brought out to Crl.Appeal No.787/2015 -:16:- disprove the recovery made u/s 27 of the Indian Evidence Act, based on the confession statement of the accused. The recovery of MO5 to MO10 itself is an additional incriminating factor against the accused and they lend support to the version given by the eyewitnesses. 22. MO10 is the watch which the deceased was wearing at the time of death. It was recovered from the house of 4[th] accused on the basis of Ext.P11 mahazar. PW7 at the relevant time was working as a cashier in Paramount Studio. He deposed that deceased Binulal was a radiographer of the studio. He had seen Binulal on 10/7/1996 in the morning and evening in the studio. By about 4 p.m, Binulal had come to keep the video camera in their studio. He went away after keeping the camera. After some time, he came back and asked for `240/-, which he gave to Binulal. He also identified MO10 wrist watch which Binulal was wearing at the relevant time. 23. Learned counsel for the appellant placed reliance upon a few judgments:- ## (i) _**Sharafu @ Sharafudheen v. State of Kerala**_ (2007 (3) KLT 112). This was a case in which the accused were charge Crl.Appeal No.787/2015 ## -:17:- sheeted for offences punishable under Sections 341, 396 and 302 r/w 34 of IPC. This Court held that in the case of committing dacoity, if the murder is caused, all persons who have conjointly participated in the offence of dacoity are liable to be punished u/s 396 I.P.C. It is argued that the same principle may apply to committing robbery as well, which is punishable u/s 392 of I.P.C. It is argued that, at best, the charge ought to have been u/s 394, which is voluntarily causing hurt in committing robbery. S.394 reads as under:- _“_ _**394. Voluntarily causing hurt in committing robbery.** —If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine._ But it is relevant to note that in the case on hand, the robbery is committed after the murder. It is not that there was a scuffle between the assailants and the victim. On seeing the victim, they have attacked him with deadly weapons and after ensuring that he was inflicted with fatal injuries and he fell down, they have Crl.Appeal No.787/2015 -:18:- committed robbery. (ii) _**Ajithkumar v. State of Kerala**_ (2014 KHC 220). In this judgment, this Court was considering a murder case in which a young person was stabbed to death. First accused had committed the overt act and accused 2 and 3 had forcibly held the deceased by catching on both his hands enabling A1 to stab the deceased. The question considered was whether A2 and A3 could be found guilty for the acts committed by A1 invoking S.34 of I.P.C. It was held that applying the principle of law, in _**Afrahim Sheikh v. State of West Bengal**_ (AIR 1964 SC 1263), the case of A2 and A3 can be separated from that of A1 u/s 38 of I.P.C. and that they could be held guilty only u/s 304 Part II of I.P.C. There is no doubt about the aforesaid proposition. But each case depends upon its own facts. The contention urged is that though accused 1 to 3 had committed overt acts, the 4[th] accused had not committed any such act and therefore he cannot be punished for the offence of murder invoking S.34 of I.P.C. But it is relevant to note that the accused together had restrained the deceased and accused 1 to 3 were committing the overt acts of inflicting injuries on the deceased. If the intention of accused was committing murder, Crl.Appeal No.787/2015 -:19:- the 4[th] accused also had the same intention of committing the very same act, which cannot be separated as provided u/s 38 of I.P.C. (iii) _**State of Rajasthan v. Sampat Ram and others**_ [(2015 (13) SCC 115]. This judgment is cited to emphasise that the Apex Court had taken note of an instance when the behaviour of a person was found to be extremely unnatural. It is observed that PW4 had left the place of occurrence immediately after seeing the crime which conduct is extremely unnatural. He had not reported the matter to anyone and therefore his evidence by itself cannot be believed. As already stated, each case will depend upon its own facts. In this case, PW3 has seen the incident. He had gone to the Manager and other staff and informed them. All of them came out and immediately police came to the scene and took the injured to the hospital. This judgment has no application to the present facts of the case. As already mentioned, this is a case in which the eyewitnesses have spoken about the incident and the evidence of the eyewitnesses are corroborated by the recoveries effected by the investigating officer based on the confession statement of Crl.Appeal No.787/2015 ## -:20:- the accused. Death of the deceased was caused on account of the incident spoken to by PW3. All the facts and evidence clearly leads to the conclusion that the accused had committed the crime. There is no reason for us to interfere with the judgment. The conviction and sentence of the accused are confirmed. This appeal is dismissed. ## **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/P.SOMARAJAN JUDGE**