Tito Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 27TH DAY OF MAY, 2020 / 6TH JYAISHTA, 1942** ## **CRL.A.No.575 OF 2016** **AGAINST THE JUDGMENT DATED 19.11.2014 IN SC NO. 2266/2008 OF I ADDITIONAL DISTRICT COURT, THIRUVANANYTHAPURAM** **CRIME NO.11/2001 OF VATTIYOORKAVU POLICE STATION , THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **TITO JOSEPH, S/O. JOSEPH KUNJU, AGED 51 YEARS, PRA 4(A), (T.C.6/1034) NUMBER VEEDU, PADAYANI, PTP WARD, VATTIYOORKAVU VILLAGE, FROM PUTHUMAN VEEDU, KADAPPADOOR, KADAPPADOOR VILLAGE, PALA TALUK.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682031** **SR PP MR S U NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2020, THE COURT ON 27.05.2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.575 of 2016 2 **A.HARIPRASAD & M.R.ANITHA, JJ. -------------------------------------Crl.Appeal No.575 of 2016 -------------------------------------Dated this the 27[th] day of May, 2020** ## **JUDGMENT** ## **Hariprasad, J.** Appellant is the sole accused in Sessions Case No.2266 of 2008 before the Additional Sessions Judge, Thiruvananthapuram, who was found guilty of murder. After entering a conviction on him under Section 302 of the Indian Penal Code, 1860 (in short, "IPC"), he has been sentenced to undergo rigorous imprisonment for life and to pay fine of `4,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years. 2. Prosecution case, in brief, is thus: PW4 (Kavitha) is the wife of the appellant. On 10.01.2001 at about 8.30 hours in the morning, information about the offence was furnished to Vattiyoorkavu Police Station, resulting in the registration of Crime No.11 of 2001 under Section 302 IPC. PW2 George is the informant. PW2's wife Anila's sister's name is Sunila. Her husband Kuriachan @ Cyriach Eapen is the deceased. Sunila and her sister Anila along with their family were residing in the two floors of an Crl.Appeal No.575 of 2016 3 apartment. There was some marital discord between the appellant and his wife PW4. On the fateful day, ie., 09.01.2001, PW4, on seeing her husband in a restless and disturbed mood, became scared and rushed to the nearby house of PW1. From there she rang up Sunila and her husband Kuriachan seeking help and requested them to come over to her place. She also requested Tony, the brother of accused too, over phone, to come soon. All her well-wishers reached at the place as per her request. At that time, PW4, who was carrying her child, was present in PW1's house. Immediately the appellant rushed into PW1's house and grabbed the child forcefully from PW4. When the child started crying, deceased Kuriachan intervened. He demanded the accused to handover the child to PW4. In order to ease the tension, Kuriachan asked his wife PW3 to take PW4 and her child from there. On a scooter, PW3 removed PW4 and her child away. Thereafter deceased Kuriachan took the appellant to the latter's home. It is alleged in Ext.P1 that from the courtyard of the appellant's house, the accused stabbed Kuriachan with MO10 knife. Alleged motive for the crime is that the deceased sent the appellant's wife and child along with PW3 without his consent. 3. The charge framed by the trial court reads thus: ## _“CHARGE_ _That on 9.1.2001 you behaved in a rude manner towards your wife and having got scared of you, your wife Kavitha (CW3) immediately phoned_ Crl.Appeal No.575 of 2016 4 _up the deceased, her relative, Mr.Cyriac Eappan and his wife for help and they both reached there and when the deceased attempted to settle the issue between you and your wife, you on account of_ - _your fury towards the deceased as he asked his wife to take your wife and child from your clutches and after their departure, with an intention to kill Mr.Cyriac Eappan, you stabbed him with a knife at the courtyard of your house bearing door No.T.C.VI/1034 (PRA-4) at Padayani and inflicted fatal wounds to which he succumbed instantaneously and you thereby committed the offence punishable u/s.302 I.P.C within the jurisdiction of this Court and within my cognizance._ _And I do hereby direct you be tried by this Court on the above said charge.”_ 4. In support of the prosecution case, 15 witnesses testified. There is no defence evidence. Material objects are MOs 1 to 15. After considering the evidence and hearing both sides, learned Sessions Judge found the appellant guilty for murder and after conviction, sentences, as above, were clamped. 5. Heard Sri.S.Rajeev, learned counsel for the appellant and Sri.S.U.Nazar, learned Senior Public Prosecutor. Crl.Appeal No.575 of 2016 5 6. Sri.S.Rajeev contended that the court below failed to note the inherent improbabilities in the prosecution case. According to him, testimony of the witnesses taken together will not reveal a consistent case. Serious infirmities in the evidence were overlooked by the trial Judge. Reliance placed on the testimony of PW12 is also unsustainable. 7. Per contra, Sri.S.U.Nazar contended that the circumstances borne out from the testimony of the prosecution witnesses will form a complete chain of events leading only to the guilt of the accused and no hypothesis of his innocence is possible, if we correctly appreciate the evidence. 8. Fact that Kuriachan's death was a homicide cannot be disputed. To affirmatively find so, we may rely on the testimony of PW11, Dr.K.Sreekumari, who conducted autopsy on the body of deceased Kuriachan @ Cyriach Eapen. Ext.P8 is the postmortem certificate proved through this witness. Antemortem injuries are as follows: ## _“INJURIES (ANTEMORTEM)_ _1. Incised penetrating wound 3.3 x 1 cm, oblique, on the left side of chest, its upper front sharply cut and being 19 cm to the left of midline and 10 cm below the front fold of armpit. Its back lower end was rounded. The left chest cavity was seen penetrated through the 4[th] intercostal space (3 x 0.7 cm) 9 cm to the left of midline. Transfixing the upper lobe of left lung at its_ Crl.Appeal No.575 of 2016 6 _front aspect (wound of entrance and exit – 2.5 x 0.5 cm each, depth 0.5 cm),the pericardian cavity was seen penetrated (2..4 x 0.5 cm). The wound terminated in the cavity of the left ventricle of heart through its front wall (1x0.5 cm). The pericardial cavity contained 200 ml of blood with clots. The left chest cavity contained 1800 ml of blood with clots. Left lung was collapsed. The wound was directed downwards backwards and to the right for a total minimum depth of 9.2 cm._ _2. Superficial incised wound 1 x 0.5 cm vertical on the back of trunk 15 cm tot he left of midline and 12 cm below shoulder with a tailing 1.5cm long directed upwards._ _3. Lacerated wound 1 x 0.5 x 0.2 cm on the forehead, 1cm to the left of midline and 0.5 cm above the eyebrow._ _4. Abrasion 1 x 0.5 cm on the middle of right upper eyelid at the orbital margin._ _5. Multiple small abrasions over an area 14 x 6 cm_ _on the back of right forearm 4 cm below elbow._ _6. Abrasion 0.5 x 0.5 cm on the back of right elbow._ _7. Abrasion 4.5 x 2 cm on the inner aspect of back of right hand._ Crl.Appeal No.575 of 2016 7 _8. Abrasion 4 x 2 cm on the front of right leg 2cm_ _below knee._ _9. Abrasion 2 x 1.5 cm on the front of right leg 20cm below knee._ _10. Abrasion 1.5 x 0.2 cm on the front of left leg 3 cm below knee._ _11. Abrasion 2 x 1 cm on the back of left elbow._ 12. _Abrasion 0.5 x 0.5 cm on the left side of chest 24 cm below armpit.”_ PW11 testified that injury No.1, which caused the death, could be inflicted by a weapon like MO10. Injury No.1 is also an incised wound which could have been caused by a sharp weapon. Other injuries are lacerations and abrasions which could be caused when a human body came into contact with a rough substance or object. Despite cross-examination, PW11's version that injury No.1 in Ext.P8 proved to be fatal remains credible. No material could be brought out by the defence counsel to suggest that death of Kuriachan was not a homicide. Hence we find that the learned trial Judge was correct in entering a finding that it is a case of man slaughter. 9. Before venturing to appreciate the rival contentions, we shall scan through the evidence adduced in this case. 10. PW1 is a neighbour of the appellant. It is his version that on 09.01.2001 at about 8.00 p.m., while he and his family members were watching television, accused's wife PW4 came to his house carrying a small Crl.Appeal No.575 of 2016 8 child. She sought permission to make a call from PW1's phone. PW1 noticed that PW4 was in a petrified state. Within 5 to 10 minutes, PW4's relatives came. Thereafter the deceased and his wife also came. While they were talking, the appellant came there and grabbed his child from PW4. At that time, the deceased took the child from the appellant and handed over to PW4. After that, everyone went out. Deceased and his wife came on a scooter. When PW3, the wife of deceased, tried to take PW4 and her child away on the scooter, the appellant again forcefully lifted the child. Child started crying. At that time, deceased again took the child from the appellant's hands and passed it on to PW4. Thereafter, PWs 3 and 4, with the child, went away on the scooter. Later, the appellant, one of his relatives and the deceased went to the appellant's house. PW1 came back to his house. When he locked the gate at about 9.00 p.m., he found a gathering on the road. He knew that somebody had received a stab injury. Later, at about 9 o' clock in the next morning, he understood that the incident had happened. From the deposition, it is seen that PW1 did not fully support the prosecution case. The Prosecutor, therefore, sought permission from the court to cross-examine this witness treating him hostile to the prosecution. After granting permission, Prosecutor cross-examined PW1, elicited answers that he did not see anyone taking the deceased Kuriachan to a hospital. He also deposed that he had no acquaintance with Tony, brother of the accused. He disowned any knowledge about MO10 knife. Testimony of PW1 will not prove the incident as alleged by the prosecution. Crl.Appeal No.575 of 2016 9 11. PW2 was the Deputy Commandant in Kerala Police at the time of incident. He lodged Ext.P1 first information statement. Deceased Kuriachan was the husband of his wife's sister. They were living in two floors of a building at that time. He has no direct information about the incident. He deposed that at about 9 o' clock in the night on 09.01.2001, his wife's sister PW3 called his wife and informed that PW4 and her son had been taken to Luzy Aunty's house and this information should not be passed on to the appellant. Thereafter, the appellant barged into PW1's house and searched out his wife and child. He was in an aggressive mood at that time. Later, when he knew about the incident, he went to the Medical College Hospital, Thiruvananthapuram and received information that Kuriachan died in the incident. This witness also did not speak out any matter relating to the actual stabbing incident. 12. PW3 is the deceased’s wife. As stated above, she was residing in the upstairs of an apartment and in the ground floor, her sister Anila resided with her family. Appellant is the husband of Kavitha (PW4) who is the sister of Georgekutty’s wife Neetha. Georgekutty is the elder brother of deceased Kuriachan. On 09.01.2001 at about 8.00 p.m., PW4 called Kuriachan over phone and informed him that she was calling from PW1’s house. She wanted Kuriachan and PW3 to come home as quickly as possible. Immediately, PW3 and Kuriachan had gone. They found PW4 in a frightened condition. She told PW3 and Kuriachan that she could no longer stay in her house and she wanted to go with them. At that time, the Crl.Appeal No.575 of 2016 10 appellant came and grabbed his child from Kavitha’s hand. Kuriachan asked the appellant to give the child back to PW4 as the child was screaming. When PW3 tried to take PW4 and child away, the appellant again took the child by force from PW4. That also was prevented by the deceased. They straight away went to the house of an aunt residing in Christ Nagar. PW3 instructed her sister’s husband to inform the deceased that she and PW4 could be seen in her aunt’s house. Since there was no information from Kuriachan reaching back home, PW3 telephoned her relatives. At about 2 o' clock in the night, PW3’s uncle took her back home. Later she understood that the appellant had stabbed Kuriachan and he was taken to hospital. She proved material objects like dress worn by Kuriachan. No cross-examination was done by the accused on this witness. It is to be noticed that she has not testified anything directly relating to the incident. 13. PW4 is the wife of appellant. She also narrated the same story. On 09.01.2001, she found it difficult to stay along with the appellant in their house. According to her chief-examination, she was afraid to stay in her home because of the strange behaviour on the part of the appellant. She deposed that she contacted deceased Kuriachan and PW3 seeking help. It is also deposed by this witness that her sisters were supposed to come on the next day from Kanjirappally and Calicut. This witness also spoke about the version that the accused had forcefully taken their child from her. It is also deposed that after the incident, marital relationship between the Crl.Appeal No.575 of 2016 11 appellant and PW4 was severed through court. It has also come out in evidence that there were litigations between the parties relating to custody of the child and visitorial rights. On an evaluation of the evidence of PW4, it will be clear that even before her examination in the trial court she was not keeping a cordial relationship with the appellant. 14. PW4 also did not witness the incident as she along with PW3 had left the place and the incident happened in the appellant's house. 15. PW5 is a witness to recovery of MO10 knife at the instance of accused. Ext.P4 is the mahazar prepared by the police to show the recovery of MO10 knife by invoking Section 27 of the Evidence Act, 1872(in short, “the Act”). Although he was cross-examined, no serious infirmity could be brought out in his evidence. 16. PW6 is a witness for recovery of MOs 1 and 3 at the time of inquest. PW7 is a witness to Ext.P5 scene mahazar. He did not see any recovery from the place of occurrence. He refused to support the prosecution case regarding recovery of the material objects. PW8 was the Village Officer who prepared Ext.P6 plan. 17. PW9 was the Assistant Director, Forensic Science Laboratory, Thiruvananthapuram. He examined the articles forwarded for analysis. He proved Ext.P7 report. Item No.8 in the property list is MO10 knife. Along with the dress materials of the deceased, MO10 was also sent up for analysis. MO10 knife tested positive for human blood. But blood group was not confirmed. PW10 recorded Ext.P2 FIS and Ext.P2(a) FIR. Crl.Appeal No.575 of 2016 12 18. PW12 is the brother of the appellant. In fact, prosecution cited him to prove the events that had transpired after the stabbing incident. Nevertheless, at the time of examination, he deposed as to how the appellant happened to stab the deceased. Learned counsel for the appellant pointed out that this witness has exceeded the limit by deposing facts which are not mentioned in his previous statement. In fact, the prosecution also has such a case, as is evident from his deposition, and therefore the prosecutor had put questions in the nature of crossexamination with the court's permission. Strangely, there was no crossexamination by the defence counsel, despite he had spoken about the incident. 19. PW12 stated that he was staying about 5 kms away from the appellant’s house. On 09.01.2001, he took deceased Kuriachan to a hospital in his vehicle. Appellant also had accompanied him to the hospital. PW12 deposed that his brother Tony, who was no more at the time of examination, telephoned asking him to come urgently. It was also informed that the appellant picked up a quarrel at that time. Immediately PW12 took his car and rushed to the place. He received the call from Tony at about 8.30-8.45 p.m. Within ten minutes he reached at the appellant’s house. When he reached, he found Tony and deceased Kuriachan engaged in altercation. On seeing PW12, deceased Kuriachan went inside. Thereafter, PW12 heard a sound from inside the house. PW12 went inside and found deceased Kuriachan catching hold of the neck of the appellant. They were Crl.Appeal No.575 of 2016 13 engaged in a wordy duel. On seeing PW12, the appellant took out a knife from the kitchen slab and stabbed Kuriachan. On receiving the stab, Kuriachan ran out. PW12 tried to catch hold of the deceased. At that time, the appellant questioned PW12 and Tony why they did not meddle with the matter when Kuriachan was throttling him. Tony informed PW12 that Kuriachan suffered a stab injury. Tony took the knife out of Kuriachan’s body. Thereafter they shifted Kuriachan to a local hospital at Sasthamangalam and then to Medical College Hospital, Thiruvananthapuram. They knew that Kuriachan died before they could reach Medical College Hospital. 20. According to the prosecution as well as the defence, all these depositions by PW12 are against his versions in his previous statement recorded by police under Section 161 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C."). Moreover, the place of occurrence, as per the charge, is in the courtyard of the appellant's house, whereas PW12 says it was within the kitchen. That is why the prosecution also put forward a case that he had materially deviated from their case. It is pointed out by the learned counsel for the appellant that this witness was not relied on by the trial court. 21. Question to be considered in this context is whether a witness, who deposes before a court in excess of his previous statement, can be disbelieved under all circumstances. We find no legal reason to hold that a witness shall not be allowed to depose anything beyond his previous Crl.Appeal No.575 of 2016 14 statement recorded under Section 161 Cr.P.C. mainly because there is no rule that in all cases, mandatorily a statement of a witness should be recorded under the above provision before examining him in a criminal case. Moreover, a witness cannot be said to be bound by his previous statement under all circumstances. Certainly credibility of a witness travelling much beyond his previsous statement should be assessed in the background of the facts in each case. It is nothing but a commonsensical question, why such a witness did not state the entire facts, as now deposed before the court, at the time of recording his statement by police? It is therefore very clear that the court shall be extremely circumspect while appreciating the evidence of such a witness. 22. Learned counsel for the appellant, relying on **Gabbu B.Lodhi and others v. State of M.P. (2004 KHC 2474)** , pointed out that a division bench of Madhya Pradesh High Court has considered the evidenciary value of a witness whose statement was not recorded by police during the investigation. In a murder case, the court found that PW7, who was the widow of the deceased, was not examined by the investigating officer at any time and in view of the positive admission by this witness about nondisclosure of the incident to police or any other person and keeping silence over the matter for a long period, the court found that her deposition cannot be taken to be a reliable one. In that case, the court appreciated evidence of the said witness and found it unreliable. But we notice no legal principle laid down, except the exercise of jurisdiction in appreciating the evidence. Crl.Appeal No.575 of 2016 15 23. On a reading of the entire deposition of PW12, it will be evident that when he entered the appellant's house, he saw the deceased and the appellant engaged in heated argument and at that time the deceased had caught the appellant by neck. It is his deposition that thereafter the appellant inflicted one stab injury on the deceased with a kitchen knife and on receiving the same, the deceased ran out. It is also the version of PW12 that the appellant rebuked PW12 and deceased Tony saying what were they doing when Kuriachan attacked him. On this ground, it is argued by the learned counsel relying on **Gottipulla Venkata Siva Subbrayanam and others v. State of A.P. and another (1970 KHC 396)** that if at all PW12 is to be believed, it should be found that deceased was the aggressor and the appellant was entitled to exercise an act of private defence. Prosecution at no stage projected such a case. We find it unsafe to convict the appellant relying on the testimony of PW12 who, according to both sides, stated matters touching the incident for the first time in the witness box. Therefore the court below rightly rejected this witness's evidence. 24. PW13 was a police constable engaged in the duty to guard the scene. He is a witness to Ext.P5 mahazar. 25. PW14 was the Circle Inspector of Police, Peroorkada and he conducted investigation in the case. He proved Ext.P4 mahazar and Ext.P4(a) confession statement of the appellant which allegedly led to the discovery of the MO10 knife used to assault the deceased. This aspect has Crl.Appeal No.575 of 2016 16 been convincingly spoken to by this witness. Still, we cannot base a conviction of an accused relying on an uncorroborated recovery of MO10. Even though we find no serious flaw in the investigation, totality of the evidence gathered in this case and adduced before the court do not establish the guilt of the accused beyond a reasonable doubt. 26. PW15 has only laid the final report and he has not done any investigation in the matter. 27. On a reappraisal of the entire evidence, we find no direct evidence to the incident and the testimony of PW12, who projected himself as an eye witness only at the time of trial, is totally unreliable. The evidence adduced by other material witnesses do not form a complete chain leading to the hypothesis that the accused himself must have committed the crime and no one else. It is trite that except the guilt of the accused, no other hypothesis should be possible to find him guilty in a case solely resting on circumstantial evidence. Considering the entire evidence, we find no justification in the conviction of the appellant for an offence of murder. Evidence adduced by the prosecution does not form a complete chain of circumstances and the prosecution could not explain the missing links. Certainly the benefit of doubt should enure to the benefit of the appellant. In the result, the appeal is allowed. Conviction of the appellant in Sessions Case No.2266 of 2008 before the Additional Sessions Court-I, Thiruvananthapuram is hereby set aside. He shall be set free forthwith if not wanted in any other case. Crl.Appeal No.575 of 2016 17 Registry shall immediately communicate this direction to the Superintendent of Jail concerned for compliance. **A.HARIPRASAD, JUDGE.** **M.R.ANITHA, JUDGE.** ## **cks**