Subhash and Shibu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 11TH DAY OF OCTOBER, 2019/19TH ASWINA, 1941** **CRL.A.No.868 OF 2016** **[AGAINST THE JUDGMENT IN SC 267/2013 DATED 17-05-2016 OF I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM** **AGAINST THE ORDER IN CP 27/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THIRUVANANTHAPURAM** **CRIME NO.1027/2012 OF Thumba Police Station , Thiruvananthapuram]** ## **APPELLANTS/ACCUSED 1 AND 2:** **1 SUBHASH, AGED 31, S/O. SATHYAN, T.C. 81/1356, PUTHUVAL MANCAUD, CHITHIRA NAGAR, MEDANADA, POUNDKADAVU WARD, ATTIPRA VILLAGE. 2 SHIBU AGED 38, S/O. SATHYAN, T.C. 81/1356, PUTHUVAL MANCAUD, CHITHIRA NAGAR, MEDANADA, POUNDKADAVU WARD, ATTIPRA VILLAGE.** **BY ADVS. SRI.R.T.PRADEEP SMT.P.S.ANJU SRI.P.K.JANARDHANAN SMT.M.BINDUDAS** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.** ## **BY SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **19-09-2019, THE COURT ON 11-10-2019 DELIVERED THE FOLLOWING:** CRL.A.NO.868 OF 2016 :-2-: ## **JUDGMENT** (Dated this the 11[th] day of October, 2019) ## **N.ANIL KUMAR,J:** The appellants, accused Nos.1 and 2, who faced trial for the offences punishable under Section 364,302 and 307 r/w Section 34 of Indian Penal Code,1860 (for short 'the IPC') and Sections 3,4 and 5 of the Explosive Substances Act, 1908 (for short 'the Act') stand convicted by the First Additional Sessions Court, Thiruvananthapuram in S.C.No.267/2013 by judgment dated 17[th] May,2016. A1 was sentenced to undergo rigorous imprisonment for life and to pay fine of Rupees Two lakh and in default to undergo the rigorous imprisonment for five years under Section 302 r/w Section 34 of IPC. He was further sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.50,000/-, in default to undergo rigorous imprisonment for five years for the offence punishable under Section 3 of the Act. Accused No.2 was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2 lakh, in default to undergo rigorous imprisonment for five years for the offence punishable under Section 302 r/w 34 of IPC. Accused No.3 was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/- in default to undergo rigorous imprisonment for one year for the offence punishable under CRL.A.NO.868 OF 2016 :-3-: Section 307 r/w 34 of IPC. He was further sentenced to undergo rigorous imprisonment for 3 years and a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for 6 months for the offence punishable under Section 4 of the Act. The substantive sentence of imprisonment imposed on all the accused was ordered to run concurrently. Out of the fine amount, if realised or remitted, a sum of Rs.3 lakh would be released to PW1, the father of the deceased. 2. The prosecution case in brief is hereinbelow:- The accused 1 and 2, who are brothers and their close friend, accused No.3 are drug peddlers. They were under the bona fide belief that deceased Anand and PW2 were informers of Police. Out of the said enmity, in furtherance of their common intention to kidnap deceased Anand along with PW2 and do away by exploding country bomb, A2 and A3 pretended close intimacy towards them on seeing them at Beemapalli at Thiruvananthapuram on 8.12.2012 at 1.50 p.m. The deceased Anand and PW2 came to Beemapalli, which is a well known place for purchasing smuggled goods and mobile phones, for shopping. Accused 2 and 3 enticed and persuaded the deceased and PW2 to accompany them. Believing their words, the deceased and PW2 followed in a motor cycle as led by A2 and A3 CRL.A.NO.868 OF 2016 :-4-: in an autorickshaw. After some time, the alleged abductees came to the residential compound of accused 1 and 2. Thereafter, A2 obtained two country bombs from A1, who is none other than his younger brother. A2 shouted towards the deceased and PW2 uttering that they had betrayed them to the Police. They rubbed the crude bombs on their heads to instill fear factor on them. A3 at once took out two choppers, stuck on a cashew tree and handed over one chopper to A1 and abused both the deceased and PW2. At this point of time, PW2 had a phone call and his talk on mobile phone was mistakenly construed by A2 that he was making attempt to call the Police to give information. Out of anger, A2 handed over the crude bombs to A1 and A3 and exhorted to kill the deceased and PW2. Soon, the bomb hurled by A1 targeting the head of Anand hit on the left side of his head and exploded by scattering his head. He died on the spot. The bomb hurled by A2 targeting PW2 was swayed away and bomb slipped off and he somehow escaped from the spot. 3. Ext.P1 First Information Statement was given by PW1, the father of the deceased to PW29 R.Rajesh, who was working as the Sub Inspector of Police, Thumba Police Station. On 8.12.2012 at around 3.45 p.m., PW29 was conducting patrol duty CRL.A.NO.868 OF 2016 :-5-: within the jurisdiction of Thumba Police Station. While so, he received reliable information that one person sustained injuries on account of bomb explosion at Kulathoor, Chithira Nagar. On the basis of the above information, PW29 proceeded to the spot along with sufficient police force in two police jeeps to Chithira Nagar. When the Police party reached at Chithira Nagar, PW29 saw a person aged 20 years old, lying on the road after sustaining injuries on his head. Immediately, PW29 contacted the Police Control Room over wireless and requested the service of a Police ambulance. However, PW29 did not get the service of an ambulance as desired. To save the precious time, PW29 took the injured to the Medical College Hospital, Thiruvananthapuram with the assistance of Sri.Chandra Kumar, the then Additional Sub Inspector of Police, Thumba Police Station, who accompanied him to Chithira Nagar in a separate jeep. The Doctor examined the injured at the Medical College Hospital, Thiruvananthapuram and declared as brought dead. Thereafter, PW29 recorded the statement of PW1, which is marked as Ext.P1 First Information Statement and registered Ext.P1(a) FIR as Crime No.1027/2012 of Thumba Police Station for the offences punishable under Section 302 r/w 34 of IPC and Sections 3,4,5 and 6 of the Act. CRL.A.NO.868 OF 2016 :-6-: 4. PW30, who was the Circle Inspector of Police, Medical College Police Station commenced the investigation on 8.12.2012 itself. On 9.12.2012, he prepared Ext.P40 inquest report in the presence of witnesses. In Ext.P40 Inquest report, in column Nos.7 and 8(a), PW30 noted the fatal injury on the head of the deceased. Colum No.11 in Ext.P40 is pertaining to the apparent cause of death. PW30 noted that the deceased died as a result of the injury sustained on his head. At the time of conducting inquest, Ext.P73 series photographs of the deceased were taken. 5. By verifying MO2, MO3 and MO18 clothes and MO4 metal rings removed from the deadbody of the deceased, PW30 prepared seizure mahazar. PW30 made a request to PW15 to conduct postmortem examination on the body of the deceased. After having conducted postmortem examination, PW15 issued Ext.P25 Postmortem Certificate. On 9.12.2012 at 12 noon, PW30 proceeded to the occurrence place with the assistance of the Scientific Expert, Fingerprint Expert and Dog Squad. PW2, one of the occurrence witnesses, had identified the place of occurrence. PW30 prepared Ext.P22 scene mahazar in the presence of witnesses. PW30 located a country bomb on the western side of the place of occurrence. He deactivated the CRL.A.NO.868 OF 2016 :-7-: bomb and seized the same. Just one metre away from the place of occurrence on the western side, PW30 located MO5 broken spectacles. PW30 seized MO5 from the occurrence place. 6. On 9.12.2012 while PW24 was working as Scientific Assistant, Biology Division, Forensic Science Laboratory, Thiruvananthapuram, she had examined the scene of occurrence as requested by Ext.P30 and handed over to PW30 as per Ext.P42 report. On examination of the scene, country made bombs were found on the scene of crime. MO24 packet containing pieces of newspaper with gray coloured substance, MO29 packet marked dark brown stain found on the scene of crime, MO30 packet marked dark brown stained soil and dried leaves found in the scene of crime and MO31 packet marked control soil collected from the scene of crime were collected from the spot and handed over to PW30. 7. PW15, Dr.Renju Raveendran, collected nail clippings, samples of scalp hair, skin tissue socks and foreign bodies from the site and handed over to PW30 in a sealed packet. PW30 forwarded the same to the court by Ext.P48 property list. After conducting chemical analysis, PW30 received remnants of MO25 hairs, MO26 right left nail clippings, MO28 skin tissue wound and MO32 two pieces of wood with some cotton with CRL.A.NO.868 OF 2016 :-8-: brown colored stains attached at the tip. PW30 produced all the materials seized from the scene of occurrence at the time of preparation of scene mahazar by Ext.P49 property list. On the request of PW30, the Village Officer prepared Ext.P18 scene plan in the presence of PW30 and other witnesses. While so, PW30 received reliable information that cannabis was kept at the residence of A1 and A2 and based on the information, PW30 prepared search memorandum and forwarded to the court and then proceeded to the residence of the accused. In the search, PW30 recovered two packets of cannabis in the presence of witnesses and prepared Ext.P50 search list. On the basis of the materials recovered, PW30 registered Ext.P51 FIR for the offence punishable under Section 20B of the Narcotic Drugs and Psychotropic Substances Act,1985 (for short 'the NDPS Act') against A1 and A2. PW30 identified the accused 1 to 3 involved in the case and sent Ext.P52 report to the court. He also filed a report before court to incorporate Sections 364 and 307 IPC in the FIR additionally as against the accused 2 and 3 by Ext.P53. 8. On 10.12.2012 at 6.30 a.m., PW30 arrested A1 to A3 from Korani Bus Stand in accordance with Exts.P54 to P60. While conducting body search of the first accused, PW30 seized MO34 Reliance ZTE mobile phone No.9388093263. PW30 also CRL.A.NO.868 OF 2016 :-9-: seized MO35 KENXINDA mobile phone and MO36 mobile phone from the custody of A1 and A2. A1 to A3 were examined by the Medical Officer and later they were produced before the jurisdictional Magistrate. 9. PW30 filed an application before the court to get police custody of A1 to A3. The application was allowed and A1 to A3 were handed over to police custody. On being questioned, A2 confessed that the pant and shirt worn by him was kept in a plastic cover at his residence and he would show the same if he was taken there. Based on Ext.P21 (a) confession statement, PW30 proceeded to the place as led by the second accused and recovered MO 17 plastic cover, MO10 shirt as per Ext.P21 mahazar. 10. On being questioned, A3 confessed that the chopper which was in his possession, and the chopper which was entrusted to him by Subhash were kept inside a plastic cover and later threw away on the eastern side of the property of Subhash and he would show the same if he was taken there. Based on Ext.P23(a) confession statement made by A3, PW30 proceeded to the place and recovered MO33 plastic carry bag, MO8 small chopper and MO7 big chopper by Ext.P23 mahazar. 11. PW30 questioned the first accused as well. On being CRL.A.NO.868 OF 2016 :-10-: questioned, he confessed that he would show the shop from where he had purchased the country made bomb if he was taken there. Based on the information, PW30 proceeded to the place as led by the accused and located the shop under the name and style 'Sivasakthi Fancy Store' at Kulathoor. The shopowner PW13 Radha identified A1 at the spot. PW30 prepared Ext.P30 mahazar, verifying the temporary explosive licence produced by PW13- Radha by the statutory authorities. 12. PW30 questioned the witnesses, collected call data records from the service providers touching the details regarding the calls made by the accused during the date of occurrence, completed the investigation and filed chargesheet before the Judicial First Class Magistrate Court-II, Thiruvananthapuram alleging commission of offences punishable nuder Sections 364,307 and 302 r/w 34 of IPC and Sections 3,4 and 5 of the Act where the case was taken on file as C.P.No.27/2013. The learned Magistrate committed the case to the Sessions Court, Thiruvananthapuram after complying with the usual formalities. The learned Sessions Judge took cognizance of the offences punishable under Sections 364,307 and 302 r/w 34 of IPC and Section 3,4 and 5 of the Act and registered the case as SC No.267/2013 and made over the case CRL.A.NO.868 OF 2016 :-11-: to the First Additional Sessions Court, Thiruvananthapuram for trial and disposal. 13. The accused were arrested on 10.12.2012. They were not granted bail during trial. A3 entered appearance before the Sessions Court through a counsel of his own choice. Legal assistance was provided from the District Legal Services Authority, Thiruvananthapuram. and appointed Sri.Kiran Gopinath as defence counsel on State Brief for A1 and Smt.Preetha Rani.M.S. for A2. 14. On production of accused 1 to 3 from judicial custody and on hearing both sides, charge was framed against accused Nos.1 to 3 for the offences punishable under Sections 364,307 and 302 r/w 34 of IPC and Section 3,4 and 5 of the Act. The accused 1 to 3 pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. 15. When CWs.1 to 3 appeared before court in answer to the summons issued by this Court, an application was filed by the learned counsel for the first accused stating that A1 was mentally not normal. Though the court below was fully convinced that he was perfectly normal and was able to give coherent and rational answers to the questions put by the court, CRL.A.NO.868 OF 2016 :-12-: the court below allowed the application to safeguard the interest of justice. On 23.12.2013, report was received from the Mental Health Centre, Thiruvananthapuram stating that A1 was fit to stand trial. Accordingly, the Doctor, who forwarded the report, was examined and report was marked as Ext.C1. As the first accused was fit to stand trial, the court below scheduled the case for commencement of evidence. 16. Prosecution altogether examined PW1 to PW30 and got marked Exts.P1 to P83 and 37 material objects as MOs.1 to 37. 17. After the closure of the prosecution evidence, the accused was questioned under Section 313 (1)(b) of Cr.P.C. with regard to the incriminating circumstances against them in the evidence for the prosecution. A1 to A3 pleaded innocence and contended false implication. A2 stated that on the date of occurrence, A1 fell ill and he came there for taking him to the hospital as requested by his mother. On that day, he came to know that a youngster, who is stranger to him, died in the nearby railway line and there was a massive gathering. According to him, while he was at his home, Police barged into the house, captured himself, his brother A1 and A3 for verification. Later they were taken to the Police Station and produced before the court. CRL.A.NO.868 OF 2016 :-13-: 18. On the other hand, A3 stated that A1 became arrogant and created a scene with one Sudheesh and Santhosh while he had been there for buying ganja and while so the deceased and PW2 came over there for buying ganja for one of the friends of the deceased at Bangalore. According to him, they together went for a treat, consumed liquor and came back to Kulathoor. A1 at once reached there and became violent towards him. He immediately left the place. After some time, he heard the sound of explosion and in his inquisitiveness, he went back to ascertain the real state of affairs. On the way, he met PW3- Jayakrishnan. He told that Anand was ambushed with bomb. Based on the information, he had gone to the place where the bomb exploded and on his way, he met the Sub Inspector of Police, Thumba to whom he had shown the place where the deceased was found collapsed. PW30 immediately reached there and took all of them to the Police Station. He maintained that he was implicated in this case for the reason that he was closely associated with A1 and A2. 19. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused 1 to 3 were therefore called upon to enter on their defence and to adduce evidence which CRL.A.NO.868 OF 2016 :-14-: they might have in support thereof. From the side of the accused, DWs.1 to 12 were examined and marked Exts.D1 to D14. 20. One of the main contentions raised by the first accused is that he is a drug addict and has been under treatment for a considerable long period of time. DW4 is the Managing Trustee of the Simani Charitable Trust Hospital, Kaniyapuram, Thiruvananthapuram. He was summoned by the defence to prove that the first accused underwent treatment as an inpatient in the hospital from 4.12.2012 to 5.12.2012. He produced Ext.D8 case sheet of the patient. Ext.D8 would disclose that Subhash, Chithira Nagar, Puthuval, Manakkad, Kulathoor(P.O), Thiruvananthapurm was admitted as an inpatient to treat for 'substance abuse-canabis dependence' by Dr.Najeeb of the said hospital. DW4 further stated that the patient was discharged on 5.12.2012 against medical advice. He clarified that the patient had absconded from the hospital. 21. Yet another witness was adduced as DW5 to prove that the first accused has been suffering from mental illness. On 3.12.2012, DW5 the Junior Consultant in Psychiatry of the Mental Health Centre, Thiruvananthapuram admitted the first accused as an inpatient in the hospital. As per Ext.D7 history CRL.A.NO.868 OF 2016 :-15-: sheets, the first accused had the history of use of more than three substances such as cannabis, nitrovet and IV drug abuse. On cross-examination of DW5, he had stated that cannabis dependence syndrome is a mental disorder. However, he had stated that no mental disorder has been diagnosed consequent to the examination held by him. According to him, neurological examination was seen conducted on the patient by DW6 from 5.12.2013 to 25.12.2013 as revealed from the case sheet. 22. DW6 was working as Consultant in Psychiatry and Unit Chief of HS IV Unit in the Mental Heath Centre, Thiruvananthapuram. He had examined the first accused from 5.12.2013 to 25.12.2013. On the basis of examination conducted at the time of preparing Ext.D7, the accused was fit to stand trial. 23. After conclusion of the trial, the learned Additional Sessions Judge as per judgment dated 17.5.2016 found the accused 1 and 2 guilty under Section 364,302, 307 read with 34 of IPC and Section 3,4 and 5 of the Act and sentenced them as indicated in para 1 of the judgment. Feeling aggrieved by the conviction and sentence passed by the trial court, A1 and A2 are before this Court. 24. We heard Sri.R.T.Pradeep, the learned counsel for the CRL.A.NO.868 OF 2016 :-16-: appellant and Sri.Alex.M.Thombra, learned Senior Public Prosecutor who appears for the State. 25. The fact that Anand died as a result of head injury on 8.12.2012 at about 1.50 p.m. is not in dispute. PWs.2 and 3, who were eye witnesses to the occurrence, deposed before court that A1 hurled the bomb towards Anand and the bomb exploded on the left side of his head and scattered his head. 26. PW15 Dr.Renju Raveendran Associate Professor of Forensic Medicine at Medical College, Thiruvananthapuram conducted autopsy on the body of the deceased on 9.12.2012 and issued Ext.P25 postmortem certificate. ## 27. The antemortem injuries and other findings recorded in Ext.P25 are the following:- - “1. Irregular lacerated wound 14x8.5x5.5 cm obliquely placed on the left side of back of neck and adjoining back of head, with its upper back extent (on the head) 2cm outer to midline and 1cm below level of occiput and lower front extent (on left side of neck) 3cm below angle of jaw, the deepest part of the wound being 5.5cm was in the middle of the wound. The edges of the wound was blackened due to burns; hairs in the immediate vicinity as well as those on left side of back of head were singed and seen soiled with fine sand like particles. Soft tissues including muscles and blood vessels in the edges as well as depths of the wound was irregularly torn, crushed, contused and burnt. A piece of stone 2x1.5 cm and another unidentifiable fibre like black material 2.5x1cm could be retrieved from the wound depths. 2. Multiple lacerated wounds varying in size from 0.3x0.2x0.2 cm to 2.6x1.2x0.4cm(the smaller ones being punctuate) commingled with multiple small abrasions and abraded contusions, placed horizontally CRL.A.NO.868 OF 2016 :-17-: over an area of 28x4 to 7 cm across the middle of back of trunk at root of neck and adjacent back aspects of shoulders, its upper margin being contiguous with lower margin of previous injury. 3. Lacerated wound 4x2x1cm, oblique in the region of left ear (which was missing) 7cm outer to outer angle of left eye and 1.5 cm in front of upper margin of injury number (1). Fracture fragmentation over an area of 17x8cm involving left side of posterior cranial fossa adjacent middle cranial and pituitary fossae and extending into right side of anterior cranial fossa. The brain showed diffuse bilateral subarachnoic hemorrhage. Multiple contusions over an area of 9x5x1cm involving outer and under aspects of left fronto temporal lobes. The interior of left cerebral hemisphere had a soft pulpy feel. There was flattening of gyri and narrowing of sulci. 4. Multiple small abrasions over an area of 4x3cm on top of right shoulder. 5. Abrasion 0.5x0.3 cm on inner border of right wrist. 6. Abrasion 0.5x0.2 cm covered with brown adherent scab on front of right leg 7cm above ankle. 7. Linear abrasion 1.5cm long, obliquely placed on inner aspect of right ankle. 8. Abrasion 2x1cm on front of left leg 9cm above ankle. 9. Abrasion 1x1 cm on outer aspect of left ankle. - 10.Abrasion 1.5x1cm on top of left foot 1cm. in front of ankle. Air passages congested and contained fluid blood. Lungs were congested, edematous and with multiple foci of aspirated blood; right lung seen in a partially collapsed state. Stomach contained a few ml of yellowish mucoid fluid having no unusual smell, its mucosa was normal. Urinary bladder contained 100ml of clear pale yellow urine. All other internal organs congested, otherwise appeared normal.” ## 28. PW15 stated before the trial court that the injury Nos.1 to 3 were blast injuries and could be caused in a single CRL.A.NO.868 OF 2016 :-18-: explosion. PW15 opined that injury Nos.1 to 3 are fatal injuries and can cause death in the ordinary course of nature. According to PW15, these injuries could be caused by bursting of country bombs. PW15 further stated that he did not note any symptoms of drug addiction during postmortem examination. On going through the evidence of PW15, it is clear that Anand died as a result of sustaining blast injuries 1 to 3 to his head and neck as referred to in Ext.P25 on 8.12.2012 at around 1.50 p.m. 29. PW1 is the father of the deceased Anand. He had retired as Additional Director, Agricultural Department, Government of Kerala in August,2008. His wife had been working in the State Bank of Travancore. The deceased Anand was an alumnus of the Central School, Pattom. During schooling, unfortunately, PW1's son happened to be in the hands of drug racketeers and the parents had occasion to find narcotic drugs in his school bag. Still, they persuaded their son to pursue his education in the Polytechnic College at Nedumangad. However he continued his life not in line to the shock and dismay of the parents. After a continued course of treatment for de-addiction in the Freedom Foundation and De-Addiction Centre at Bangalore under PW4, their son continued his education. PW4 admitted that the deceased Anand was admitted in the 'Freedom CRL.A.NO.868 OF 2016 :-19-: Foundation and Deadditction Centre' on 5.3.2011 and was discharged on 14.6.2011. PW4 testified before this Court that Anand had completed the treatment successfully and had been discharged on 14.6.2011 as evidenced by Ext.P13 certificate. PW5, who was working as Chief Counselor in the Freedom Foundation and De-addiction Centre at Bangalore, stated that Anand was brought by his parents for treatment for alcohol and drug addiction in the month of March 2011. Accordingly, PW5 counseled Anand for behavioural changes and he was discharged after completion of treatment for four months. 30. PW2-Dennis was also an alumnus of the Central School, Pattom. He had completed his schooling along with the deceased Anand. PW2 is now pursuing MBA in the Marian International Institution of Management, at Kuttikkanam in Idukki District. He stated that on the date of occurrence, deceased Anand was with him around 11 a.m.. According to him, Anand and Mithun came to his residence to get his company and they had decided to proceed to the house of Mithun, who was continuing his education at Bangalore. While so, Anand requested the company of PW2 for purchasing a mobile phone from the duty free outlets at Bimapalli in Thiruvananthapuram. Bimapalli is a known place for selling smuggled goods items through various self CRL.A.NO.868 OF 2016 :-20-: styled duty free outlets adjacent to the Mosque. As Mithun was in a hurry to go to Bangalore in connection with his education, PW2 and Anand proceeded to Bimapalli in a motor cycle driven by Anand. Although they made an attempt to purchase a mobile phone from the shop they were rather suspicious of the ownership of the mobile phone. Hence, the mobile phone was not purchased as planned. At that time, one autorickshaw came there and two persons alighted from the autorickshaw and came towards Anand. PW2 was not familiar with them. On being enquired, Anand told him that the physically handicapped person is blacky Shibu and the person along with him is Binu. Anand further told him that both of them along with Blacky Shibu's brother viz., Subhash have been conducting 'cannabi sale' at Kulathoor. As instructed by Blacky Shibu, PW2 and Anand accompanied them in the very same autorickshaw used by them and proceeded towards Chithirapuram. PW2 stated that on reaching the spot, they were made to stand near a cashew tree by A1. A2 handed over a plastic cover to A1. A2 thereafter with the aid of A3 looked at them in anger and told A1 to bring two bombs. A1 immediately brought a plastic kit and entrusted to A2. The latter took out two ball like materials and rubbed on their heads keeping them very close. While so, A2 alleged that CRL.A.NO.868 OF 2016 :-21-: they were instrumental in betraying to the Police. Immediately, A3 took out MOs.7 and 8 choppers stuck on the cashew tree and MO7 was given to A1 and MO8 being the small one, he had kept himself. PW2 stated that A1 and A3 wielded the chopper towards them and by that time, PW2 had a phone call from one of his friends. He had also a call from his mother and he assured that he would be coming back immediately. On the misapprehension that PW2 was calling the Police, A2 became violent, shouted aloud and exhorted to kill them. He had handed over one among the two bombs to A1 and other one to A3. A1 immediately hurled the deceased with the bomb which at once exploded on his head and he collapsed on the spot. A3 immediately followed the suit and hurled the bomb in his possession towards PW2. PW2 moved gently from an upright to a leaning position and had escaped from the occurrence place. 31. PW3 is yet another independent witness, who claimed to have been at the occurrence place for purchasing cannabis from A2 to one of his friends. According to him, he reached the residential premises at around 2.30 p.m. and while so, A1 alone was there and he expressed his desire to have cannabis to A1. He was told to wait for some time as A2 would come back shortly with cannabis. A1 took Rs.400/- from him and gave his number CRL.A.NO.868 OF 2016 :-22-: 9388093263 to call him after a short while. He again told him to wait for since the stuff was not reached. He proved that he was using Nokia E-71 mobile set during the relevant time with idea cellular connection bearing Mobile No.9562021202. It is the version of PW2 that while waiting for the cannabis, he had occasion to see A2 along with another one proceeding to his house in an autorickshaw immediately followed by deceased Anand and PW2 in a motorbike. He too followed to the house of A1 and when he reached at the place where the motor bike was parked, he had seen the deceased and PW2 having been confined under a cashew tree by A1 and A2 and another one. He also called A2 shouting them that they betrayed them to the Police and rubbed the bombs on their heads. 32. PW2 narrated that A3, who stood along with A1 and A2, took out two choppers each stuck on the cashew tree and gave one chopper to A1 and kept the other one in his hand. PW2 received a telephone call then. A2 uttered that PW2 was attempting to call the Police and handed over the crude bombs to A1 and A3 and exhorted to kill them. Immediately, A1 hurled the bomb towards the deceased and the bomb exploded on his head. The bomb handed over to A3 was thrown towards PW2 with an intention to kill him, but A2 swayed away and escaped CRL.A.NO.868 OF 2016 ## :-23-: from the scene of occurrence. The evidence tendered by PW2 is fully corroborated by the evidence let in by PW3 before court. 33. PW10 is a neighbour of first and second accused. According to him, on the date of occurrence, A1 was found holding two country bombs put in a kit and called him for a trip while he was washing his car near to his house at around 12.30 p.m. He refused to go for a trip as required by A1. When he refused, A1 threatened him that he would hurl bomb and at once, sat on the back seat of the car. He testified that out of fear, he drove the car and reached Poundkadavu Junction via Chakkai and All Saints College. When the car reached at Poundkadavu Junction, he was asked to stop the vehicle and A1 went to the nearby shop to purchase a mobile card. According to him, he some how escaped and ran away leaving the car then and there to his house and from there, to the Thumba Police Station. 34. PW13 was examined to prove that A1 purchased explosives from the shop of PW3 under the name and style 'Sivasakthi Fancy Shop'. PW13 stated that he was a licencee to sell fire works during the year 2012. According to him, Police came to the shoproom along with A1 and collected Ext.P30 licence issued by the competent authority for the sale of CRL.A.NO.868 OF 2016 ## :-24-: fireworks. 35. PW16-the Assistant Director (Explosives), FSL, Thiruvananthapuram examined the collections made from the place where the body of the deceased was found, and issued Ext.P27 certificate stating that Potassium Chloride, Aluminium Powder and Sulphur were detected in MOs. in item Nos.1,2,4(1) (2), 5,6,7,8,9,10,11,12(2) and 13 and Ext.P28 Certificate stating that Potassium Chloride, Aluminium Powder and Sulphur were detected in MOs. in Sl.Nos.6 and 7. 36. PW18, PW19,PW20 and PW21 are the Nodal Officers of Mobile phone companies examined to prove the print outs of the computerised call data records. All the witnesses deposed that the call data records are computerised sheets obtained from the computer which has been brought out in evidence that all mobile phone connections are interrelated and interlinked in accordance with the evidence let in by PWs.1 to 3. Tower locations of the mobile phone belonging to the accused and witnesses are interlinked. Detailed evidence was adduced by the prosecution to prove the call data records of the accused and witnesses. 37. The Subscriber Identity Module Card is a small piece of plastic that is inside a mobile phone and contains information CRL.A.NO.868 OF 2016 :-25-: about the person, who uses the phone. The SIM card allows users to change the phone by simply removing SIM card from one mobile phone and inserting with another mobile phone. Mobile phone is not a fixed one. It is a movable item. User can change SIM at any time. SIM card need not be issued in the name of the user. It is very difficult to check and prohibit using the SIM of another person. Hence the evidence tendered by PW7 that he did not take a SIM card for A2 and hand over the same as alleged by the prosecution is of no consequence. Merely because PW7 stated that he did not take the SIM card for A2 cannot be taken as a gospel of truth to discard the prosecution case. PW2 testified that after having detained A1 and A2 beneath the cashew tree, A2 phoned A1 to bring two bombs. Ext.P39 call data records would reveal that A1 received a call from A2 and A1 made a call to A2 at 3.29 pm on the date of occurrence. The respective calls lasted for 3 minutes and 36 seconds respectively. The call data records would eloquently show that the sequence of events narrated by the prosecution is true to facts. On an analysis of the entire evidence, the court below has rightly entered into a finding that slight variance of minutes and seconds touching the time of occurrence is not a ground to disbelieve the prosecution case. The evidence CRL.A.NO.868 OF 2016 :-26-: adduced by the prosecution would show that the occurrence took place between 3.20 pm and 3.30 pm and as such, slight variance of minutes and seconds is liable to be ignored. The call data records produced in this case are duly certified under Section 65B of the Evidence Act and hence, the documents are admissible in evidence. The court below has meticulously examined the mobile phones used by the prosecution witnesses and the accused in detail and has rightly come to a finding that the prosecution evidence tallies with the call data records. 38. PW8, the Village Officer of the Attipra Village during the year 2012 prepared Ext.P18 site plan wherein the house of the accused 1 and 2 is located 30 metres away from the scene of occurrence. The identity of the scene of occurrence and the residential premises of A1 and A2 are brought out from Ext.P22 mahazar prepared by PW30 pursuant to his inspection of the scene of occurrence on 9.12.2012 around 12 pm as well. Ext.P22 clearly specifies the peculiar features visible at the spot revealing bomb explosion and presence of explosive components all around the scene of occurrence. PW30 also seized an unexploded bomb which was found one metre west from the scene of occurrence by Ext.P22. PW24 was present at the scene of occurrence as requested by PW30 on the date of inspection. CRL.A.NO.868 OF 2016 :-27-: PW24 collected the material objects from the scene of occurrence and handed over to PW30 as per Ext.P42 report. On examination of MOs.1 to 3, Mos.18,29, 30 and 31, PW24 located human blood in MOs.1 to 3,18,29 and 30 belonging to group 'A'. Ext.P25 Postmortem Report inter alia reveals the blood group of the deceased as 'A Rh positive'. 39. We have been taken through the entire documents oral and documentary evidence adduced by the prosecution and the accused at length. Challenging the appreciation of evidence and findings recorded by the learned trial Judge, the learned counsel appearing on behalf of the appellant highlighted various aspects, which were relied on by the trial court for basing its judgment of conviction and order on sentence. 40. On a careful consideration of the entire evidence on record, the learned trial Judge finally rejected the plea under Section 85 of the Indian Penal Code mainly on the ground that the defence under this section could be availed only on establishment that intoxication was without the knowledge and against the will of the wrongdoer. In the case on hand, A1 has no case that he was subjected to intoxication against his will or knowledge. Therefore, the first accused himself was subjected to intoxication by drugs and under the circumstances, as rightly CRL.A.NO.868 OF 2016 :-28-: held by the court below, the accused is not entitled to escape the guilt alleged on plea of insanity or incapable of knowing the nature of the act or that he was doing what is either wrong or contrary to law. Further, merely because A1 was addicted to liquor and ganja, it could not be termed that he was incapable of knowing the nature of the act as contended by the appellants. 41. The law presumes that every person committing an offence is legally sane and is liable for his natural and probable consequence of his own acts, though in specified circumstances it may be rebuttable. Under Section 105 of the Evidence Act, the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is set up as a defence, the burden of proving the case of the accused is on the accused. On a consideration of the above legal principle, it is clear that the burden to prove an exception cast upon the accused, but the court shall presume the absence of circumstances, which may bring his case within any of the general exceptions in the Indian Penal Code. The burden, which rests on the accused, to prove the exception is not on the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. In **State of U.P.** v. **Ramswaroop and another** [AIR 1974 SC 1570], the Supreme Court has CRL.A.NO.868 OF 2016 ## :-29-: settled that it is enough for the accused to show as in a civil case, that the preponderance of probabilities is in favour of his plea. In this case, there is no evidence to hold that intoxicating drugs were administered to the accused without his knowledge and consent. Hence, the benefit claimed under Section 85 of the IPC is no longer available to the first accused. 42. Drug addiction is a complex neurobiological disease that requires integrated treatment to the mind, body and spirit. Individual struggling with drug addiction often feels as though they cannot function normally without a drug of their choice. This can lead to a wide range of issues that impact professional goals, personal relationship and overall health. 43. DW5 the Junior Consultant in Psychiatry in the Mental Health Centre, Thiruvananthapuram testified that she examined A1 and on her evaluation, she recommended him to be treated as an inpatient. She deposed with reference to Ext.D7 that A1 had the history of use of more than three substances such as cannabis, nitrovet and IV drug abuse. The diagnosis made by DW4 that A1 was suffering from substance abuse- cannabis dependence is not a ground to absolve his criminal liability. 44. The evidence adduced in this case would show that injury Nos.1 to 3 are blast injuries which could be caused in a single explosion. From Ext.P25 postmortem certificate, it is very clear that the death was due to blast injuries sustained to the head and neck of CRL.A.NO.868 OF 2016 :-30-: the deceased. PWs.2 and 3 adduced evidence to show that accused 1 to 3 masterminded the occurrence and implemented the same as alleged by the prosecution. The evidence would further show that the blast injuries found on the deceased were intentionally inflicted by the appellants and the evidence tendered by the prosecution witnesses would further show that the injuries were sufficient to cause death in the ordinary course of nature. To put it clearly, the prosecution has succeeded in proving that the bodily injuries were present, that the nature of the injuries was fatal, that the injuries were inflicted by the accused on the head, that the injuries were not accidental or unintentional or that the accused intended to inflict some other kind of injuries and the blast injuries of the type sustained by the deceased is sufficient to cause death in the ordinary course of nature. 45. In the decision reported in **Muthu** v. **State** [2007(4) KLT 982 (SC)], the Apex Court held that the observation made in the decision in **Pulicherla Nagaraju @ Nagaraja Reddy** v. **State of AP** [(2006)11 SCC 444] that “it is for the courts to ensure that the cases of murder punishable under Section 302 IPC are not converted into offences punishable under Section 304 Part I/II” cannot be understood to mean that the court should somehow try to find out some way of treating the offence to be under Section 302 of IPC. In our view , the facts are different in this case. This is a clear case of pre-meditated attack with intention to cause death. We are satisfied from the evidence, that the deceased was attacked by the appellant with an CRL.A.NO.868 OF 2016 :-31-: intention to murder the deceased. The act of complete destruction of most vital parts of the body in the manner indicated in the postmortem report could never be termed as intending to cause bodily injury alone and rather it was an act to cause bodily injuries with an intention to cause death. Since the injuries were caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the appellant or its consequences. This case does not fall under any of the exceptions mentioned in Section 300 IPC nor has any such exception being proved by the appellant during the trial. Judged by the above standards, we are of the view that the act of the accused would squarely fall within the first category of Section 300 of IPC as the act was done with the intention of causing death. In this connection, the fact that the victim succumbed to the injuries within a short time is a relevant fact. 46. In view of the conclusions and findings based on the prosecution evidence with regard to the appellants, there are no valid grounds to alter the conviction of the appellants from one under Section 302 to that under Section 304 Part II of the IPC. In our opinion, the judgment and order of conviction passed by the trial court contained positive proof, credible evidence, sequence of events and factual proof linking the accused with the commission of murder. The prosecution has succeeded in proving the offence under Section 302 read with 34 of IPC as CRL.A.NO.868 OF 2016 :-32-: against appellants/accused Nos.1 and 2 and Section 3 of the Explosive Substances Act as against first accused beyond reasonable shadow of doubt. Consequently, we uphold the judgment of conviction and order of sentence passed by the court below for the several reasons stated supra. This Criminal Appeal is dismissed. The appellants will suffer the remaining sentence imposed by the trial court. sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/