Stephen @ Saju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** **CRL.A.No.153 OF 2016(A)** **AGAINST THE JUDGMENT DATED 09/12/2015 IN SC 60/2013 OF ADDITIONAL DISTRICT & SESSIONS COURT - II,KALPETTA, WAYANAD.** **CRIME NO.10/2013 OF VYTHIRI POLICE STATION, WAYANAD.** ## **APPELLANT/ACCUSED :** **STEPHEN @ SAJU, S/O NICKOLAS, AGED 40 YEARS, CHITTINAPALLI HOUSE, VATTAVAYAL, VYTHIRI.** **BY ADV. SRI.P.K.VARGHESE.** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PP MR.S U NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.153 of 2016 2 A.HARIPRASAD & N.ANIL KUMAR, J J. -------------------------------------- Crl.Appeal No.153 of 2016 -------------------------------------- Dated this the 18th day of November, 2019 ## J U D G M E N T ## A.HARIPRASAD, J This appeal is preferred by the sole accused in Sessions Case No.60 of 2013 before the Additional Sessions Judge – II, Kapetta, aggrieved for being convicted of an offence punishable under Section 302 of the Indian Penal Code, 1860 (in short 'I.P.C') and sentenced to undergo imprisonment for life with fine of Rs.2,00,000/-. 2. Heard Sri.P.K.Varghese, the learned counsel for the appellant and Sri.S.U.Nazar, the learned Senior Public Prosecutor for the State. 3. Prosecution case in nutshell is thus : On 06-01-2013 at around 8.00 pm, the appellant due to Crl.Appeal No.153 of 2016 3 previous enmity towards the deceased, stabbed him with MO1 knife with an intention to commit murder at a place called Vattavayal. The deceased was declared dead when taken to a nearby hospital. 4. Ext.P1 is the First Information Statement (F.I.S) given by the brother-in-law of the deceased. In Ext.P1, it is mentioned that the deceased was an auto rickshaw driver. Appellant and deceased were residents of the same locality and known to each other long prior to the incident. The incident happened on 06-01-2013 at about 8 'O' Clock in the night. In Ext.P1, PW1 has narrated that the appellant had inflicted a cut injury on the head and face of the deceased and also a stab injury on his abdomen. PW1, when examined, deposed in tune with Ext.P1 statement. According to him, he heard about an occurrence prior to the murder, whereby the deceased questioned the unmindful action of the appellant knocking down his two year old daughter. There was a push and pull in respect of that Crl.Appeal No.153 of 2016 4 incident and the appellant was thrown to the road whereby he sustained minor injuries. It was from an open place in public gaze. The prosecution would contend that after the said incident, the appellant went to the house of deceased with a knife and met his mother and threatened her that he will finish him off. Same version is spoken to by PW4 also. Thereafter, the incident happened at 8 'O' clock in the presence of PW's 1 to 3 is the prosecution case. 5. PW1 was not directly aware of the intimidation by the appellant prior to the incident. However, he came to know of the fact from his mother. It is the definite version of PW1 that he along with PW3 while coming on a scooter found the appellant, deceased and appellant's wife along with some others engaged in an altercation. It is the version of PW1 that he identified both the persons in the light of the scooter. It is also pointed out that PW4's house was about 25-30 metres away from the place Crl.Appeal No.153 of 2016 5 of occurrence. All the witnesses would say that there was light on the front side of PW4's house. The incident could be clearly seen as there was enough light to identify the persons. This version of the prosecution witnesses, though attempted to be challenged in cross examination, did not yield any result. It is the definite case of PW1 that he saw the appellant stabbing the deceased with MO1 knife. He identified the knife as well as the dress materials worn by the deceased at the time of incident. 6. PW2 is the witness examined by the prosecution to prove the incident as well as the previous incident, which the prosecution says as the motive of murder. PW2 is the brother of PW3, who is the father-in-law of the deceased. According to his testimony, on 06-01-2013 after 4.00 pm, he had gone to Shiju's (deceased) house. Thereafter, he met the deceased in an auto rickshaw stand and they spent time on a casual talk. Then, the appellant came and he also talked to PW2. Deceased Shiju had two Crl.Appeal No.153 of 2016 6 children, a boy aged about 5 years and a girl aged about 2 years. Children were playing at that time. When the appellant alighted from the auto rickshaw, he stamped on the small girl child, as a result she fell down and started crying. Immediately, the deceased came and picked the child up. Deceased pushed the appellant on which he fell on the road and sustained a scratch on his left knee. Appellant stood up and then started abusing the deceased. PW1 separated the altercating persons. Thereafter, the appellant went home. Later, PW2 received an information from the wife of PW3 that the appellant had gone to her house with a knife and threatened to finish Shiju. Subsequently, at about 7.30 hours in the evening while PW2 and Shiju (deceased) were proceeding through the road, where the incident had happened, he saw the appellant and his wife standing near PW4's house. PW2 deposed that on seeing the deceased, the appellant was enraged and started abusing him. He was wearing a bermuda shorts and a Crl.Appeal No.153 of 2016 7 black shirt. He was holding a paper cover at that time. PW2 tried to pacify him. But he did not heed to his counselling. PW2 also spoke about the presence of light in front of PW4's house. PW's 1 and 2 also deposed that they had torches in their mobile phones. While they were proceeding towards north, the wordy duel was going on. According to PW4, suddenly the appellant took out MO1 knife and forcefully hit on the face and forehead of deceased and thereafter he stabbed the deceased on abdomen. Appellant's wife was trying to deter him. When she pulled the appellant back, she sustained injuries on her palm. PW1 and PW2 deposed that after the incident, the appellant ran away from the place of occurrence. 7. This witness was subjected to lengthy cross examination. But on going through the cross examination, we find no worthwhile material elicited to find that his version is unbelievable. Testimony of PW's 1 and 2 support one another. Crl.Appeal No.153 of 2016 8 8. PW3 is the father-in-law of the deceased and father of PW1. He also testified in tune with the testimony of PW's 1 and 2. He came with PW1 on his scooter and after a heated discussion found the appellant cutting and stabbing the deceased with MO1 knife. All these witnesses identified the material objects produced in this case. Cross examination did not yield any result to discard the prosecution case. 9. PW4 is the paternal aunt of the deceased. The incident happened almost in front of her house, slightly away towards north. She knew the appellant for nearly 40 years. She deposed that the appellant, infuriated by the act of deceased pushing him down for allegedly causing hurt to his daughter, came to PW4's house with a knife on 01-06-2013 evening and threatened to finish off the deceased. Thereafter, she saw the appellant, deceased and PW2 talking on the road. They gradually moved towards north side and suddenly the appellant inflicted a cut injury on the Crl.Appeal No.153 of 2016 9 head of the deceased and stabbed him. This, PW4, could see clearly as there was enough light available at the place of occurrence. She also identified MO1 knife. 10. Even though these aspects were deposed to by PW4, there is no effective cross examination on this witness to find that she was uttering falsehood. 11. Learned counsel for the appellant pointed out that all the prosecution witnesses are relatives of the deceased and therefore, interested witnesses. According to him, their testimony cannot be accepted without an independent corroboration. It is also pointed out that the prosecution thoroughly failed in not examining any independent witnesses though the material prosecution witnesses deposed about the presence of independent witnesses at the place of occurrence. It is to be remembered that there is no rule that testimony of a close relative should be discarded always because Crl.Appeal No.153 of 2016 10 he is the most natural witness to speak about the real aggressor and such a witness will be not interested in seeing an innocent to be implicated for the death of his relative. In the factual situation established in this case, the prosecution cannot be blamed for depending on the relative witnesses to prove the incident because the incident took place in an area where the appellant and the deceased along with his relatives were residing. Moreover, the incident was at about 8 'O' clock in the night and these witnesses are the probable ones at that time. 12. Learned counsel for the appellant placed some decisions to argue that the interested testimony of the near relatives should be discarded. We have no quarrel to that proposition. It is a settled proposition of law that testimony of such witnesses should be scrutinized with care and caution. In this case, except PW's 1 and 3, all others are not family members of the deceased, although they are distantly related to him. Crl.Appeal No.153 of 2016 11 Moreover, the versions spoken to by PW's 1 to 4 are consistent except for minor variations which are bound to occur when four persons see an incident from four different perspectives. 13. We have no reason to disbelieve the testimony of PW's 1 to 4 regarding the incident. Even though, the prosecution has a case that the motive for the murder was an incident at about 6.30 hours in the same evening, in a case where there is direct evidence through eye witnesses, the motive becomes irrelevant. Yet, the motive plays a role in this case because PW4 directly and PW's 1 and 3 indirectly spoke about the declaration by the appellant that he would finish off Shiju (deceased) on account of the insult meted out to him in public on that evening. 14. We will have to consider the medical evidence to find the nature of injuries inflicted by the appellant. Ext.P6 is the post mortem certificate. It is proved through PW12, Dr.Sujith Sreenivas. He conducted Crl.Appeal No.153 of 2016 12 the autopsy on the body of the deceased on 07-01-2013. The antemortem injuries noted are as follows : ## “ B. INJURIES (Antemortem): 1. Incised wound 8 cm long (1.5 cm gaping) vertically placed on the left side of forehead, 5 cm to the left of midline. The injury extended downwards cutting outer aspect of left upper eyelid leaving a segment of superficially cut skin in between the injury on the forehead and that on the upper eyelid. The injury extended downwards cutting the lower eyelid for a length of 0.3 cm vertically (0.2 cm deep). The eyeball was also found incised vertically between the injury on the upper and lower eyelid. The underlying frontal bone was cut vertically for a length 5.5 cm with the cut fracture extending to the base of skull along the left side of anterior cranial fossa for a length of 4 cm. Thin patchy areas of subarachnoid haemorrhage seen on the left frontal lobe. An abrasion 2 x 1 cm seen on Crl.Appeal No.153 of 2016 13 the left side of forehead 1.5 cm inner to the upper end of the injury. 2. Incised wound 0.3 x 0.2 x 0.2 cm on the lower margin of left lower eyelid vertically placed 0.4 cm below the incised wound on the lower eyelid. 3. Incised wound over an area 3 x 2 cm with avulsion on the inner aspect of left cheek 1.5 cm outside the nostril. The base of the avulsed flap was medially. The injury was subcutaneous fat deep. 4. Incised wound 2.5 cm long, gaping, vertically placed on the left side of upper lip involving the entire thickness. The injury was 2.5 cm outer to midline and transected the moustache. 5. Incised wound 3.4 cm long on the left side of front of lower jaw 0.3 cm deep (gaping). The upper end of the obliquely placed injury was 1 cm outer to midline and the lower end was 0.5 cm outer to midline. 6. Incised wound 8.5 cm long (gaping) on the right side - of face extending from the right alae of nose to the Crl.Appeal No.153 of 2016 14 right side of lower jaw margin upto a point 7.5 cm in front of the ear lobule. The injury was deep (2 cm) over the upper part and became progressively shallower towards the lower end cutting the underlying muscles and fat. The right side of moustache was transected 2 cm to the right of midline and the injury was seen along the same line extending upwards as an incised wound on the right side of nose 3 cm long avulsing the alae and right side of nose as a flap with base directed upwards. There was an area of intact skin 0.5 cm broad, in between the injuries on the right side of nose and the upper lip. 7. Incised wound 4.5 cm long, transversely placed on the left side of top of head towards the front. The inner end of the injury was 2 cm outer to midline and 12 cm above eyebrow. The injury was gaping and skull deep causing a superficial cut on the underlying skull (3 cm long). 8. Incised punctured penetrating wound 5 cm long, Crl.Appeal No.153 of 2016 15 gaping, vertically placed with slight obliqueness (right lower end 2 cm outer to midline, left upper end 4 cm outer to midline) on the left side of upper abdomen. The upper end was 18 cm below the inner end of left clavicle. Injury was placed 115 cm above the heel. The margins were sharply cut. Minimal marginal skin contusion seen on either side of lower third of injury. The lower end was pointed and the upper end was blunt. The wound showed beveling of the left margin and was gaping for 1.5 cm. A curved patterned semicircular skin contusion 3 x 0.3 - 0.4 cm seen on the right side of upper part of the incised wound with the convexity towards the right. (HILT contusion). Peritoneal omental fat seen protruding out of the injury. The injury pierced the anterior abdominal wall and incised the front of left lobe of liver vertically over a length 6.3 cm (2.5 cm deep) and 4 cm (1.5 cm deep) one outside the other, and extended upwards piercing the diaphragm at midline (incised defect measured 5 x Crl.Appeal No.153 of 2016 16 1.5 cm), pericardial sac and terminated by piercing the heart. The incised wound on the heart was seen along the right border extending to the back of the heart opening the upper aspect of the right ventricle and the entire right atrium extending to the vena cave. The injury on the heart was 7 cm long entering into the right chambers of the heart. The wound was directed backwards and upwards. Blood clots seen within the peritoneal cavity adjacent to the wound track. Right chest cavity contained 2600 ml of blood and one handful of blood clot. The total minimum depth of the injury was 12 cm. 9. Incised wound 4 cm long, transversely oblique (gaping) on the outer aspect of left upperarm with a front lower end and back upper end. The back end was 13 cm below the top of shoulder and front end was 15 cm below top of shoulder. The margins were sharply cut with the front end blunt and back end pointed. The upper margin showed marginal abrasion (less Crl.Appeal No.153 of 2016 17 than 0.1 cm broad) over the middle portion. The underlying fat and muscles were found sharply cut for a length of 5.5 cm and the injury terminated by cutting a portion of front of left humerus avulsing a small bone piece (0.3 x 0.4 cm). 10. Contusion 3.5 x 2.5 cm involving skin and subcutaneous fat on the inner aspect of left upperarm, - 4 cm below the arm pit. Another soft tissue contusion seen over 2 x 2 cm on the inner aspect of left upperarm involving the subcutaneous fat 12 cm below armpit. 11. Abrasion 3.5 x 0.1 - 0.2 cm obliquely placed with a left upper end on the front of right leg 18 cm above ankle. ” 15. According to PW12, the deceased died due to incised, punctured and penetrating (stab) injury sustained to the abdomen extending to the chest cavity involving heart. He clearly mentioned that injury No.8 noted above was the injury which proved to be fatal. Crl.Appeal No.153 of 2016 18 16. PW22 deposed that MO1 knife was capable of causing all the injuries noted on Ext.P6. In chief examination, PW12 deposed that injury Nos.1 to 5 seen on the left side of the head and face of the deceased could be caused with a single cut injury with relatively heavy sharp instrument and with a tremendous force. It is also pointed out that the injury Nos.6 and 7 could be possible by independent simple action. Likewise injury No.8 suggested that it was caused by single edged weapon piercing into the liver and landing in the heart of the deceased. 17. PW20 is the doctor, who treated PW21 Suja, who is the wife of the appellant. It has come out in evidence through the eye witnesses that PW21 also sustained injuries in the incident while she was trying to dissuade her husband from stabbing. PW21, when examined, would say that deceased Shiju was wielding a weapon and he attacked the appellant and she sustained injury when attempted to ward off the attack. It is Crl.Appeal No.153 of 2016 19 pertinent to note that deposition by PW21 would not show as to what was the real incident in which the deceased sustained injury Nos. 1 to 5 and injury No.8, which proved to be the cause of his death. She has no definite case about those injuries. It is also interesting to note that the matters spoken to by PW21 were not put to PW's 1 to 4 during cross examination. What was suggested in cross examination is that PW's 1 to 3 and the deceased tried to attack the appellant, which they emphatically denied. It is therefore clear that the appellant did not develop a consistent case to establish that the prosecution parties were the aggressors and he was only trying to act in self defence. 18. PW20 the doctor, who treated PW21 in Fathima Matha Hospital, issued Ext.P16 certificate, which shows the following injuries : “1. Lacerated wound right wrist torsomedially 3 x 2 x 1 cms. Range of movements impaired. 2. Lacerated wound rt.hand 6 x 2 x 1 cm”. Crl.Appeal No.153 of 2016 20 19. It is pertinent to note that the injuries sustained by PW21 on her palm were lacerated injuries. Admittedly, MO1 was a sharp knife which could have normally caused an incised wound. This view is fortified from the recitals in Ext.P6 post mortem certificate. No reasonable explanation was elicited from PW20 as to how this lacerated wounds could have been caused by using MO1 knife. It is nobody's case that MO1 weapon was shown to PW20 to suggest the possibility of causing injuries noted on Ext.P16 by using MO1. 20. PW22 is the Investigating Officer. He deposed about the steps taken in the investigation including arrest of the appellant. According to him, MO1 knife was recovered at the instance of the appellant and on the basis of his confession while in custody. Ext.P19 is the confession statement of the appellant, which led to the recovery of MO1 knife. PW7 is the independent witness examined to prove recovery of MO1 knife at the Crl.Appeal No.153 of 2016 21 instance of the appellant through Ext.P4 mahazar. He supported the prosecution case by stating that police recovered MO1 knife from the coffee plantation as pointed out by the appellant. There is no effective challenge on the testimony of PW7 as well as on PW22 in this respect. We are aware to the legal proposition that discovery of an incriminating fact under Section 27 of the Evidence Act may not be a sole reason for convicting an accused. But it lends support to the prosecution case that the accused was aware of the place where MO1 knife was concealed after the incident. 21. PW22 submitted the material objects before the Magistrate Court concerned and sent them up for chemical analysis. Ext.P23 series are the forwarding notes and Ext.P25 is the chemical analysis report, which shows that the dress materials sent up for analysis and MO1 knife were having human blood. It was detected to be blood in 'A' group. It is pointed Crl.Appeal No.153 of 2016 22 out by the learned counsel for the appellant that blood group of PW21 was also 'A' and there is no material produced by the prosecution to show that the deceased was also having 'A' group blood. This will not adversely effect the prosecution case because the witnesses spoke to the effect that MO1 knife caused injury on the palm of PW21 while she attempted to prevent her husband from using it against the deceased. Chemical analysis will only fortify the fact that MO1 knife was used for inflicting injuries in connection with the incident. 22. On a consideration of the entire evidence on record, we are of the view that the ultimate conclusion arrived at by the learned Sessions Judge that the appellant is guilty of an offence of murder under Section 300 I.P.C and liable to be punished under Section 302 I.P.C cannot be faulted. 23 Learned counsel for the appellant relied on some decisions, viz; Crl.Appeal No.153 of 2016 23 Jagpati and Another v. State of M.P (A.I.R 1993 S.C 1360) , Shahajan Ali and Others v. State of Maharashtra (A.I.R 2017 S.C 2614 ), Surinder Kumar v. Union Territory, Chandigarh (A.I.R 1989 S.C 1094) and Abdul Majeed v. State of Kerala (2015 K.H.C 696). We are of the view that the decisions can be distinguished on facts. The contention raised on behalf of the appellant that the appellant is guilty of only culpable homicide not amounting to murder falling within Exception 4 of Section 300 I.P.C cannot be accepted for the following reasons : In order to claim the benefit of Exception 4, it must be established that the assailant without any premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner caused the culpable homicide. This principle has been well stated in Surinder Kumar 's case (supra) in the following manner : Crl.Appeal No.153 of 2016 24 “ To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. ….” 24. Since we find no reason to disbelieve PW's1 to 4, it can only be Crl.Appeal No.153 of 2016 25 seen that after the first incident, where the appellant sustained minor injuries when the deceased pushed him down and suffered more injury to his ego, he declared that he would take revenge for this. This aspect has been spoken to by PW4 directly and PW's 1 and 3 indirectly. Even though learned counsel for the appellant commented on the non examination of PW3's wife, we find no infirmity in the prosecution case on account of her non examination. It is also pointed out that PW's 1 to 3 were separating the combatants two or three times, still the appellant inflicted injuries indiscriminately on very vital parts of the human body viz; head, face and abdomen causing death of the appellant. More over, considering the nature of injury No.8, it can only be seen that it was inflicted with a great force. The nature of weapon and the area of the body selected for assault would indicate that the appellant had a clear intention to do harm to the deceased knowing the consequence. We find, no reason to consider this as culpable Crl.Appeal No.153 of 2016 26 homicide not amounting to murder falling within Section 304 Part I I.P.C. On reconsidering the entire facts and circumstances and the evidence borne out from records and after hearing the learned counsel on both sides, we find no merit in the appeal. Hence, it is dismissed. All pending interlocutory application will stand dismissed. A. HARIPRASAD, JUDGE. N.ANIL KUMAR, JUDGE amk