Unnikrishnan @ Unni 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** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** **CRL.A.No.579 of 2015** **AGAINST THE ORDER/JUDGMENT IN SC 710/2014 of DISTRICT COURT & SESSIONS COURT,TRIVANDRUM DATED 20-02-2015** **APPELLANT/ACCUSED:** **UNNIKRISHNAN @ UNNI AGED 1 YEARS S/O KRISHNAN KUTTY, KULAVINTHALA VEEDU, PLAVILAMUKKU KOTTAKKAKOM, KOTTAKKAKOM MURI, ARYANADU VILAGE.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA STATE OF KERALA, CIRCLE INSPECTOR OF POLICE, KATTAKKADA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SR.P.P.SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **11.06.2019, THE COURT ON 26.06.2019 DELIVERED THE FOLLOWING:** Crl.A.No.579 of 2015 :-2-: ## **JUDGMENT** ## N.Anil Kumar, J. In this appeal, the appellant (hereinafter referred to as 'the accused'), who was the accused in S.C.No.710/2014 on the file of the Sessions Judge, Thiruvananthapuram, challenges the conviction entered and the sentence passed against him under Sections 449,326,354B,308, and 302 of the Indian Penal Code. 2. The case of the prosecution can be summarised as follows:- The accused had developed an intimacy towards the daughter of PW1 Sivarajan and followed PW2 at various places offering to marry her. Later, the proposal was directly made to PW1, who flatly refused to give her in marriage with the accused. On 9.1.2014 at 11 a.m. while the girl and her brother Abhilash were at home, the accused criminally trespassed into the house of PW1, armed with MO17 chopper and MO16 iron pipe and persuaded the girl to accompany him. PW2 did not agree to the demand made by the accused. Her brother Abhilash also resisted the same. The accused became violent and hit on the head of Abhilash with MO16 iron pipe. When PW2 tried to prevent the accused from assaulting her brother Abhilash, the accused beat on her head using MO16 and MO17 chopper. Both Abhilash and PW2 started bleeding and Abhilash was lying in a pool of blood. Thereafter, the accused throttled the mouth of Abhilash and pressed his mouth with a pillow to smother him. When Crl.A.No.579 of 2015 :-3-: PW2 attempted to prevent the accused from assaulting her brother Abhilash, he forcibly carried her in the adjoining room, undressed her and tried to commit rape on her. The neighbours informed PW1, the father of PW2, who suddenly came to the house. On his arrival, the accused rushed out of the house and tried to escape from the scene of occurrence. PW1 followed him. While so, the accused hit PW1 with a stick and pelted stones towards him. All the injured persons were later taken to the Medical College Hospital, Thriuvananthapuram. Abhilash, who was admitted in the hospital soon after the occurrence, succumbed to the injuries on 12.1.2014 at 1.30 am. PW1, who had sustained grievous injuries, underwent treatment. PW1, who is the father of the deceased, lodged Ext.P1 First Information Statement on 9.1.2014 at 4p.m. at the Medical College Hospital, Thiruvananthapuam. It was recorded by PW31(CW57) the Sub Inspector of Police, Kattakkada Police Station for the offences publishable under Sections 450,326 and 307 of IPC. On 10.1.2014, the investigation was taken over by the Circle Inspector of Police, Katakkada. On that day, around 2.45 p.m., he prepared Ext.P10 scene mahazar in the presence of fingerprint experts, scientific experts and other witnesses. From the occurrence place, scientific experts collected blood stained sack, blood stain from the floor, blood stains collected from chappals and hairs collected from the floor and pillow as evidence. Further, MO10 bloodstained pillow, MO24 gunny bag, MO13 Crl.A.No.579 of 2015 :-4-: and 14 bloodstained chappals, MO8 Nokia mobile phone, MO9 and MO15 steel keys, MO11 and MO12 bloodstained bedsheets, MO20 cable wire, MO25 and 26 sealed packets, MO27 sealed covers which contained blood collected from chappal found on the floor, MO28 hairs collected from the floor, MO29 hairs collected from the pillow, MO19 glass, MO7 empty liquor bottle, MO16 iron pipe and MO17 bloodstained chopper from the scene of occurrence. Thereafter, PW32 proceeded to Medical College Hospital, Thiruvananthapuram and recorded the statement of PW2. On the very same day, around 6 pm, he recovered Mos.5 and 6 the dresses worn by PW2 at the time of occurrence as per Ext.P12 mahazar. Initial investigation revealed that an attempt was made to outrage the modesty of PW2. Hence, PW32 filed Ext.P36 report to the court incorporating Section 354 of IPC. On 11.1.2014 around 1.30 p.m., PW32 went to the Medical College Hospital and collected the blood sample of PW2 and her brother Abhilash as per Ext.P37 mahazar. PW32 received reliable information that the accused was available at Kuttichal. As directed by PW32, PW31 (CW57) brought the accused before him. On being questioned, it was disclosed that the accused committed the offence and hence his arrest was recorded at 4 p.m. as evidenced by Ext.P38 arrest memo. PW32 questioned PW2 and recorded her statement at 6 o' clock on the same day. The dresses worn by PW2 were recovered as MOs.5 and 6 respectively as per Ext.P12 mahazar. Crl.A.No.579 of 2015 :-5-: 3. On being questioned, the accused confessed that he had kept his bike at a place and he would show the same in case he was taken there. Based on the confession made by the accused, PW32 took the accused to the place as led by the accused and recovered motorcycle bearing Regn.No.KL 21E 9948 in accordance with Ext.P14 mahazar. On 12.1.2014, at 1.30 a.m. in the night, PW32 received an information that Abhilash passed away. Consequent to the information received, PW32 proceeded to the Medical College Hospital and prepared the Ext.P7 inquest report from the mortuary of the Medical College Hospital. The inquest commenced at 10.40 a.m. and ended at 12.10 p.m. In Ext.P7 inquest report, PW10 was a witness. It is recorded in the inquest report that the cause of death was due to the injury sustained on the head. The inquest report further reveals that the injuries on the head were sutured and have a length of 6 cm. He also made arrangement to conduct postmortem on the body of the deceased. Pursuant to the death of Abhilash, PW32 filed a report before the court incorporating Section 302 of IPC. On the very same day, around 1.40 pm., PW22 Dr.S.Jawahar. the Casualty Medical Officer attached to the District Hospital, Neyyattinkara collected nail clippings, blood and hairs of the accused and seized the same as per Ext.P34 mahazar. Potency test of the accused was done as per Ext.P22. Thereafter, the accused was produced before the jurisdictional Magistrate on the very same day at 3.30 pm. PW32 filed Crl.A.No.579 of 2015 :-6-: an application before the court to enlarge the accused in Police custody. Police custody application was allowed for further interrogation and accordingly, the accused was handed over to PW32. On 15.1.2014, PW32 received an information from the Medical College Hospital that the condition of PW2 was critical. Hence, on the request of Police as authorized by the learned Chief Judicial Magistrate, PW2's dying declaration was recorded by DW1, one of the learned Judicial Magistrates. PW32 took steps to obtain the call data records, tower location etc. of the mobile numbers owned by the deceased Abhilash and accused. While the accused was in Police custody, PW32 recorded the confession statement of the accused. Thereafter, the accused led the Police party to a place where MO32 hacksaw blade, MO18 pipe, Ext.P43 diary and the remaining portion of the iron pipe were kept and those items were recovered in accordance with Ext.P3 mahazar. Further, the accused led to the house of PW1 from where a paper roll, a cover and a bag allegedly used to carry the chopper and iron pipe were recovered. Additional statement of PW2 was recorded subsequent to the death of Abhilash. From the statement, it was disclosed that the accused attempted to commit rape on PW2 whereupon Ext.P46 report was submitted before court incorporating Section 511 of Section 376 of IPC. Upon perusal of the final report, the learned Magistrate numbered the case as CP No.36/2014 for the offences punishable under Sections Crl.A.No.579 of 2015 :-7-: 449,326,307,511 of 376 and 302 IPC. After complying with the usual formalities, the learned Magistrate committed the case to the Court of Sessions, Thiruvananthapuram. 4. On the basis of the materials on record, after hearing both sides, the trial court framed charge against the accused under Sections 449,326,307,511 of 376 and 302 IPC to which the accused pleaded not guilty and claimed to be tried. In essence, the accused pleaded innocence and false implication whereupon the prosecution was permitted to adduce evidence in support of his case. 5. The prosecution altogether examined PWs.1 to 32 and got marked Exts.P1 to P48 and 32 material objects as MO1 to MO32. DW1 was examined and Ext.D1 was marked on the side of the accused. 6. 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 appearing against him in the evidence for the prosecution. The accused stated before court that he does not either remember or know any of the facts or circumstances put to him. To some of the questions asked, he gave evasive answers. 7. The trial court did not consider this as a fit case for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce any evidence which he might have in support thereof. The accused examined DW1 on his Crl.A.No.579 of 2015 :-8-: side. 8. After conclusion of the trial, the learned Sessions Judge found the accused guilty under Sections 302, 308,326,449 and 354B of IPC and convicted thereunder. The accused was acquitted of the offence under Section 511 of Section 376 IPC. The court further directed to register miscellaneous case against PW4 under Section 344 Cr.P.C. and issued show cause notice. 9. We heard Sri.Grashious Kuriakose, the learned Senior counsel for the appellant and Sri.S.U.Nazar, the learned Public Prosecutor, who defended the State. 10. Challenging the appreciation of evidence and findings recorded by the learned trial Judge, the learned Senior Counsel Sri.Grashious Kuriakose appearing on behalf the appellant highlighted various aspects, which were wrongly relied on by the trial court for basing its order of conviction and sentence. The learned Senior Counsel contended that there is no legal evidence in this case to prove that the deceased sustained injuries in the manner as alleged by the prosecution. According to the learned Senior Counsel, the first information in this case was suppressed by the prosecution, though the Police had information about the incident before recording the statement of PW1. In support of his contention, the learned counsel further submits that there is material discrepancy between the medical evidence and the ocular testimonies in this case. It is further submitted Crl.A.No.579 of 2015 :-9-: that recovery of material objects and arrest of the accused were not effected as claimed by the prosecution. In short, it is argued that the version of the prosecution witnesses was the result of deliberation and no reliance can be placed. 11. On the other hand, Sri.S.U.Nazar, the leaned Public Prosecutor appearing on behalf of the State submitted that the allegations of house trespass, voluntarily causing grievous hurt, attempt to commit culpable homicide, outraging the modesty of PW2 and murder are proved by the prosecution beyond reasonable shadow of doubt based on cogent and convincing evidence. PWs.2 and 3 are eye witnesses to the occurrence. PW4, who came to the occurrence place testified before the court explaining the circumstances under which the occurrence took place. Nothing is brought out in crossexamination to discredit the evidence tendered by PWs.1 to 3. The learned Public Prosecutor denied the submission of the learned counsel for the appellant that the offence is not a case of murder. In order to support the contention, the learned Public Prosecutor mainly relied on the conduct of the accused on the date of occurrence and prior to the date of occurrence. According to the learned Public Prosecutor, the accused on several occasions followed PW2 and troubled her. The learned Public Prosecutor emphasised the conduct of the accused in trespassing into the residence of PW1 and threatening PW2 and her brother Abhilash. Heavy reliance is also Crl.A.No.579 of 2015 :-10-: placed on the medical certificates and the postmortem certificate issued. 12. As indicated earlier, PW1 the father of the deceased gave Ext.P1 First Information statement before the Police at the Medical College Hospital, Thiruvananthapuram. He testified that he had seen his son with head injuries. PW2, who is none other than the daughter of PW1, supported the version of PW1. PWs.1 and 2 stated before the trial court that the accused trespassed into PW1's house and committed the offences. PW2's brother had sustained head injuries due to the attack with an iron pipe. PW23 examined Abhilash on 9.1.2014 at 1.40 p.m. and issued Ext.P24 wound certificate noting lacerated wound on the scalp 5x2 cm which was stapled . The history of the incident is referred to as assault by an unknown person. It is further recorded that Abhilash died on 12.1.2014 at 1.30 a.m. PW23 was the Senior Resident of the Medical College Hospital, Thiruvananthapuram, who had examined PW2 and deceased Abhilash and had issued Exts.P24 and P25 wound certificates. Ext.P24 discloses Abhilash sustained lacerated wound on the scalp 5x2 cm stapled. Ext.P25 would show that PW2 sustained following injuries:- - “(1) Stellate lacerated wound over left temporal region. - (2) lacerated wound 4cm. x .5cm over forehead. - (3) lacerated wound 4cm. x .5cm over right temporal region. - (4) abrasion over left mid-finger.” 13. PW24, who was the Assistant Professor in Orthopaedics in Crl.A.No.579 of 2015 :-11-: Medical College Hospital, Thiruvananthapuram, had examined PW1 and issued P26 wound certificate noting - (1) Swelling (L) hand - (2) Abrasion (L) 4[th] digit - (3) Contusion over scalp. - (4) base of 5th MC- volar slab 14. PW25 Dr.Sasikala, who was the Professor of Forensic Science and Police Surgeon, Medical College Hospital, Thiruvananthapuram conducted autopsy on the body of the deceased and prepared Ext.P27 postmortem certificate. According to PW25, she noted 27 antemortem injuries on the body of the deceased, details of which have been mentioned by her in Ext.P27. For the present case, it is not necessary to note the details of all the injuries sustained by the accused in this judgment. The trial court has reproduced the necessary details in para 12 of its judgment. The evidence of PW25, so far as injury Nos.1 to 5 are concerned, being vital, and it would require specific mention, which are stated as below:- ## **“ - INJURIES (ANTE MORTEM):** - _I. Sutured wound 6.3cm long, bone deep, oblique on the back of head across the midline the lower end 2cm above and 1.5cm outer to occiput._ _2. Sutured wound 1.3cm long, bone deep, oblique with abrasion (0.4cm broad) on the upper margin, on right side of head the right front end 10cm outer to midline and 15.5cm behind the eyebrow._ _3. Contusion 8x4.5x0.6cm, on the right side of head and adjoining neck, the upper end at the upper margin of lobe of ear, including the upper half of ear lobe._ Crl.A.No.579 of 2015 :-12-: - _4 Contusion of scalp 9x4.5x0.3cm on the right side of head the front end just in front of the top of ear. Temporalis muscle contused. Right side orbital plate and adjoining part of middle cranial fossa showed fracture. Irregular fissured fracture separating the whole of right fronto temporo parietal suture for a length of 9cm and continued backwards with fracture fragmentation over an area of 2.5x1.8cm at the back end and continued as fissured fracture for a length of 29cm, separating the parietal bone from the lambdoid suture and extending to left temporal bone upto a point 1.5cm behind the outer end of eyebrow._ _Brain showed bilateral subdural and subarachnoid bleeding. Contusion with laceration 10x5.5x1cm, involving the outer aspect of right temporal and adjoining frontal and parietal lobes. Laceration (a) 6x4x1cm involving the under aspect of adjoining part of both frontal lobes (b) 5x2.5x0.5cm on the outer aspect of left temporal lobe, just behind the tip. Sulci of brain narrowed and gyri flattened. Brain soft. Contusion of thalamus on the right side 2.5x2x0.5cm. Pons and brain stem haemorrhagic. Softening of white matter on the back aspect of thalamus._ _5. Multiple abrasions over an area of 5.5x5.5cm on the back of head across the midline and 1.5cm below occiput.”_ 15. PW25 opined that injuries 1 to 5 were on the head and the injuries 1 to 4 along with the injury on the skull had caused the death of the deceased. She further opined that each of the injury independently or in combination with the corresponding injury on the skull and also on the brain was sufficient in the ordinary course to cause death. She would say that she could not identify as to which of the individual injury has caused the skull injury and the brain damage. However, he maintained that the cumulative effect of the injuries caused the death of the deceased. Crl.A.No.579 of 2015 :-13-: 16. Based on injury Nos.1 to 5, PW25 opined that the deceased died of head injury. The fact that Abhilash died on 12.1.2014, due to the injuries sustained on his head on 9.1.2014, is undisputed. His death was homicidal. 17. PW3 is an autorickshaw driver known to the accused for a very long time. On 9.1.2014 at about 10.30 a.m., while he was driving his autorickshaw, he had occasion to see the uncle of the accused, mother and grandmother of the accused on the way. They informed that the accused has gone to the residence of PW2 with whom he was in love. According to PW3, they were crying at that time. Suspecting some untoward incident, he took all the three persons in his autorickshaw and proceeded to the residence of PW2. On the way, one Ashokan also entered in the autorickshaw. The mother and grandmother got alighted at a place away from the house of PW2 and thereafter, PW3 and Ashokan went to PW2's house. On the way, they also met two friends of the accused and all the four persons proceeded towards PW2's house and knocked on the door. There was no response from the house. When they were about to return they heard a scream from inside. They again knocked on the door. At that time, PW2 opened the door with blood oozing from her head. He found one person lying inside the hall. PW2 was provided with a chair and thereafter, PW3 went inside and found a person lying on the floor. On being asked, PW2 showed sign that the accused was inside the room. Crl.A.No.579 of 2015 :-14-: He knocked on the door and the accused came out. When PW3 enquired as to why the accused did it, the accused informed that PW2 was not willing to come with him and her brother did not permit her to go with the accused. He stated that he immediately rushed to the road where he saw that the accused being chased by few persons and the accused throwing stones at them. 18. PW1 is the father of the deceased. He is the owner in possession of the building where the occurrence took place. As usual, on 9.1.2014. he and his wife went for job and his son also went for his job. While proceeding to the work place, PW2-his daughter was entrusted with PW5, who is none other than the sister of PW1. At about 11.30 a.m. on 9.1.2014, PW5 called PW1 and asked him to come back urgently. He rushed to the house within five minutes and found that a few persons were standing in the courtyard. He entered the house and saw that his son was lying in a pool of blood in the hall. He also saw his daughter profusely bleeding. Suddenly, the accused rushed out of the room, pushed PW1 aside and ran outwards. PW1 chased the accused. The accused then took a stick and hit on the head of PW1. He tried to prevent with his left arm, which caused injuries on the arm and head. Accused also pelted stones at those, who were following him. Immediately, thereafter PW1 returned the home and enquired the daughter as to what had exactly happened. She stated that in the morning around 10.45 am, Abhilash collected the Crl.A.No.579 of 2015 :-15-: key of the house from PW5 and came to the house along with PW2 on the way to attend a function of her relative. When they reached the home around 11 a.m. the accused criminally trespassed into the house armed with MO16 iron pipe and MO17 chopper. Thereafter the accused demanded the deceased to give his sister in marriage to him. He further threatened that if she was not given in marriage as desired by him, he would murder them. 19. PW1 had three children namely Abhilash, Rakhi and PW2. Rakhi was given in marriage and was staying with her husband. His son was working as a driver in a nearby school. PW2 was employed in a Maveli Store in Aryanadu from 2011-2013. According to him, PW2 was constrained to stop her work since the accused followed and harassed her with a request to marry. Since PW2 was not prepared to marry him, the accused approached directly to PW1 with a request to give her in marriage with him. PW1 informed that both belonged to different community and there was no chance of marriage as desired by him. 20. Irked over his love proposal being rejected by PW2, the accused allegedly went to the residence of PW1 and assaulted PW2 and her brother Abhilash. He also made an attempt to outrage her modesty. During evidence, PW2 testified that she was not interested in him. PW2 had completed plus two and passed ITI. She was earlier employed on daily wages at the Maveli Store at Aryanadu from April Crl.A.No.579 of 2015 :-16-: 2011 onwards. PW2 stated that during the above period, the accused expressed his desire to marry her. She replied that she had no independent decision and the decision of her family would prevail so far as her marriage is concerned. Despite the answer, the accused had conveyed his desire to the Manager of the Maveli store who was distantly related to her. She stated that since the Manager was staying near her house, both of them used to travel to the store in the scooter of the Manager, while they were returning. Accused frequently used to chase them in his motorbike in a rash and negligent manner and annoyed them. Accused also attempted to contact her through his mobile phone. Having suffered continuous nuisance, the father and brother used to accompany her from the Maveli Store. When the nuisance increased, she ultimately decided to stop going for work nearly six months prior to the incident. According to PW2, thereafter the accused threatened that if she did not marry, he would even kill the family members. By way of abundant caution, her parents used to leave her at the house of PW5 in the morning when they go for work. PW5 also stated that PW2 had left her house while they were proceeding for work on 9.1.2014. According to PW2, about one month prior to the incident, accused came to her house and demanded PW1 to give her in marriage. However, PW1 informed that the marriage proposal of PW2 had already fixed and that alone would take place. PWs.1 and 2 stated that the accused then threatened that it Crl.A.No.579 of 2015 :-17-: would not happen as they desired and he would marry PW2 even after committing murder. The sequence of events as narrated by PW2 on the date of occurrence is as follows:- As usual, PW2 was left to the care of PW5 on the date of occurrence, when the parents had gone for work. The brother had gone for his duty and the parents asked PW2 and brother to attend the function of the relative. Hence, the brother came straight away to the house of PW5 and took PW2 to their own house. When she was about to change her dress for the function, she heard a sound of her brother talking to somebody. Immediately, she peeped through the door where she could see the accused and her brother inside the hall. She saw her brother being pushed inside by the accused, after locking the door. Sensing danger, she immediately rushed to the room and found the accused armed with MO16 iron pipe. Thereafter, the accused asked PW2 and her brother to sit on the chair as he desired to speak to them. The brother replied that they were in a hurry to proceed for a function and had no time to speak. PW2 requested the accused to leave home and come on another day. However, the accused persistently insisted that either PW2 should accompany him or murder will take place in the house. On hearing this, PW2 politely replied that the accused cannot capture love through goondaism. She also wanted to get a clarification from the accused as to whether she promised him to go along with him at any point of time. The accused then replied that he was not Crl.A.No.579 of 2015 :-18-: concerned about such things. According to PW2, he immediately took a liquor bottle from his waist and consumed liquor. After consuming liquor, the accused asked PW2's brother as to whether he knew the smell of liquor. Immediately, he took out a chopper from his waist and placed MO17 chopper on the table. In the meanwhile, his mobile started ringing. He started shouting at those persons, who were making unwanted calls. In the meanwhile, phone call of one Sachu came and the accused spoke to him and the mobile was handed over to PW2 and her brother. They spoke to Sachu and informed him that the accused had criminally trespassed into their house, armed with MO16 and 17 and sought for his help. Thereafter, the accused kept the above mobile also in the almirah. The brother fervently pleaded to the accused to return home and to come on another day when his parents are at home. The accused then demanded the assurance of PW2's brother that if he comes again, PW2 would be given to him in marriage. He asked them to sit in front of the lamp and to swear accordingly. While so, he found one horoscope kept in front of the lamp. It was the horoscope of PW2 kept with details of her marriage to be held on 26[th] January. The accused opened it, asked the brother as to whether her marriage was fixed. The brother replied that her marriage was fixed with one Manikuttan. When the accused opened the horoscope, he found that the name mentioned in the same was 'Rajesh' instead of 'Manikuttan'. The accused became violent and Crl.A.No.579 of 2015 :-19-: asked her brother as to why he was telling falsehood before him. The brother replied that the bridegroom's name was Manikuttan@ Rajesh. Knowing that the marriage of PW2 was fixed, the accused had torn off the horoscope and hit on the head of the brother using MO16 pipe. PW2 stated that when the witness turned to that side, he hit on her head also using MO16. Thereafter, he repeatedly hit on her head and her brother Abhilash. Her brother fell backwards. Blood started oozing from the head of PW2 and the arm of PW2 got wet due to the blood oozed from the head of her brother. When the brother fell down, the accused pressed his face to strangulate and throttle him. Further, the accused went to nearby room, brought a pillow and pressed his face, when the brother started making noise. When the accused turned to take out the chopper from the table, PW2 tried to take away the pillow from the face of Abhilash. On seeing this, the accused became angry and hit on her head using MO17 chopper. He again attempted to hit and when she tried to ward it off with her left hand, she sustained fracture on her third finger. PW2's brother became unconscious. Thereafter, the accused forcibly carried her to her brother's bed room and attempted to commit rape on her. She would say that she was unable to resist the act of the accused, though she made every attempt to push him off with all her available strength. While so, she heard a knocking on the door and the accused went to the nearby bedroom. She with her available strength stood up and Crl.A.No.579 of 2015 :-20-: with difficulty moved towards the front door and opened it. She noticed the presence of certain people including her father's sister outside the house. One person came inside and helped her to sit on a chair. The accused came out and threatened him away and thereafter he went inside and hid himself inside the room. Soon thereafter, PW1 came and on seeing him, the accused came out of the hall, pushed PW1 to one side and ran away. PW1 followed him. After sometime, PW1 came back and enquired as to what had happened. 21. PW6, who is a rubber tapper in the nearby locality, heard a cry from PW1's house on 9.1.2014 at about 11 a.m. while he was tapping rubber trees in the nearby locality. He rushed to the spot and found a few persons there. He saw the accused pushing PW1 to one side and rushing outside. He also noticed PW1 following him. He went inside and saw Abhilash lying in a pool of blood and PW2 was sitting on a chair with blood oozing from her head. He immediately rushed outside and followed the accused and PW1. He saw accused hitting PW1 with a stick and as a result of which PW1 fell down. 22. PW4 is a friend of the accused. He testified that on 9.1.2014, he was informed by the brother of the accused that the accused was missing. He immediately contacted the accused on the mobile, who informed that the accused was on his way to PW2's house. While so, the accused informed that he could not live without PW2. Crl.A.No.579 of 2015 :-21-: 23. PW5 supported the version of PWs.1 and 2 that on the date of occurrence, at about 11 o' clock Abhilash came to PW5's house and took PW2 to their house. After sometime, according to PW5, a group of persons came to her house and informed that there were somebody inside PW1's house. On hearing this, PW5 proceeded to PW1's house and knocked on the door. She would say that at that time, PW2 opened the door and her face was covered with blood. She also noticed Abhilash lying in a pool of blood. She handed over her mobile phone to one of the people assembled there and requested to connect to PW1. PW1 rushed to the spot. Then PW5 noticed one person rushed out pushing aside PW1 and ran away. 24. On going through the evidence of PWs.1 to 5, 23 and 24 and Exts.P24 to P27, it is clear that PWs.1 and 2 and Abhilash sustained injuries in the occurrence. Abhilash succumbed to the injuries later. It is also clear from the evidence of PWs.1 and 2 that the accused made overtures to PW2 which she had spurned. PW2 stated before court that the accused was after her and proposed to marry her. Having felt humiliated at the rejection, the accused went to her residence and repeated the proposal in the presence of her brother. He had noticed that the marriage of PW2 had already been fixed. PW2's brother did not agree with the proposal of the accused, which made the accused to inflict injuries on PW2 and her brother Abhilash. Abhilash sustained brain injury in the occurrence and succumbed to Crl.A.No.579 of 2015 :-22-: the injury later. 25. MOs.16 and 17 are the weapons used by the accused for the commission of offence and recovered from the scene of occurrence. MO16 is the iron pipe and MO18 is another iron pipe which is longer in length. The prosecution case is that MO16 forms part of MO18 and it was separated by the accused using MO32 hacksaw blade. According to the prosecution, MO16 was wrapped in MO23 paper roll found kept in MO22 bag along with MO17 chopper and carried to the scene of occurrence by the accused. MO16 was recovered from the place of incident by Ext.P10 mahazar on 10.1.2014 in which PW2 is a signatory. PW12 identified MO7 liquor bottle, MO16 pipe, MO17 chopper, MO19 glass, MO20 cable wire recovered from the spot. MO18 was recovered from PW2's house along with MO32 hacksaw blade. MOs.22 and 23 were recovered from the rear side of PW1's house on 17.1.2014 at 12 noon by Ext.P13 seizure mahazar in which PW14 is a signatory. The recovery was effected based on Ext.P48 confession statement made by the accused. On the basis of the information furnished by the accused and as led by him, PW32 recovered MOs.22 and 23 from the rear side of PW2's house, which is not admittedly an open space. To connect MO16 with MO18, the prosecution relied on Ext.P31 the report of the Physics division of the Forensic Science Laboratory which would show that the edge of MO16 perfectly tallies with the edge of MO18. Hence the logical Crl.A.No.579 of 2015 :-23-: inference is that MO16 was cut off from MO18 using MO32 hacksaw blade. 26. In this case, PW32 effected three recoveries of material objects. The first one was the recovery of bike on 11.1.2014 by Ext.P14 mahazar. PW15 is a witness to the recovery of a bike. He stated that he had witnessed the recovery of a Bajaj Pulsar bike from the backside of R.K.Auditorium. In accordance with the confession statement and as led by the accused, PW32 brought the accused to the spot and recovered the bike as per Ext.P14 recovery mahazar. The accused was the owner of the vehicle which is proved by Ext.P17 ownership certificate. The bike was parked at a distance. MO15 key of the bike was recovered from the scene of occurrence. There was no explanation on the part of the accused as to how MO15 found at the scene of occurrence. In addition to the above, PW32 recovered MO18 long iron pipe, MO43 diary, MO32 hacksaw blade and a calendar from the house of the accused on 16.1.2014 at 12.15 hours by Ext.P3 mahazar. The third recovery relates to MO22 old newpaper, MO23 plastic bag which were allegedly recovered from the backside of the house on 17.1.2014 at 12.10 hours by Ext.P13 mahazar in which PW14 is a signatory. All the above recoveries were made pursuant to confession statement given by the accused while in police custody. 27. PW29, who is the Scientific Assistant of DCRB, Thiruvananthapuram, collected the blood samples and hairs as per Crl.A.No.579 of 2015 :-24-: Ext.P33 from the scene of occurrence. MOs.5 and 6 are churidar top and pants worn by PW2 at the time of incident. MOs.1 and 2 are the shirt and jeans pants worn by the deceased Abhilash and MOs.3 and 4 are the shirt and dhothi worn by the accused at the time of incident. Exts.P29 to P32 are the Chemical Analysis and Forensic Science Laboratory reports in relation to the above material objects. Ext.P29 indicate that one sealed bottle containing the blood sample of deceased Abhilash, was examined by PW27 and came to a conclusion that no poison including ethyl alcohol was detected in the blood sample. Ext.P30 would indicate that PW28 examined one pillow with its cover having yellow, reddish brown and saffron coloured designs and found dark brown stains on it. Ext.P30 chemical analysis report would indicate that human blood of 'O' group was found in the pillow, the black footwear, blood collected from the chappal, hairs from floor, hairs collected from the pillow, churidar, black half sleeve shirt, jeans and dhoti. The report further would indicate that blood groups of PW2, deceased Abhilash and accused were identified. Abhilash had blood group 'O', PW2 had 'A' and Unnikrishnan had 'AB' respectively. This would show that the blood group corresponding to that of the deceased was found on the dhoti worn by the accused and the material objects relating to which the deceased had come into contact in the course of commission of crime were also found human blood corresponding to the blood group of the deceased. Likewise, the blood Crl.A.No.579 of 2015 :-25-: group' A' corresponding to PW2 was found in MO24 jute sack, Mos.11 and 12 bedsheets, MO5 churidar top, MO6 churidar bottom, MO16 iron pipe, MO17 chopper and MO3 sandalwood colored shirt. That apart, the material objects with which PW2 had occasion to contact in the course of commission of crime had blood stains corresponding to that of PW2. 28. The trial court had come to the conclusion that the direct evidence brought on record contained credible evidence and factual truth linking the accused with the commission of murder. The trial court convicted the accused upon the following evidence.:- 1. Relied upon by the statement of PWs.1 to 5 that the appellant was present at the occurrence place. 2. The appellant had trespassed into the house of PW1 on the date of occurrence. 3. The appellant had been maintaining his criminality consistently. 4. Dissatisfied with his love proposal being rejected by PW2, the accused went to the residence of PW1 and offered to marry PW2. 5. The deceased did not agree with the proposal made bythe accused to his sister-PW2. 6. Having felt humiliated at the rejection, the accused inflicted injuries on PW2 and the deceased with MOs.16 and 17. 7. The conduct of the appellant on the fateful day indicates that he Crl.A.No.579 of 2015 :-26-: trespassed into the house of PW1, threatened the deceased and PW2. 8. The injuries found on the deceased were ante mortem, which were sufficient to cause death. 9. On seeing PW1 and others, the appellant ran away from the place immediately after the occurrence. 10. Though PW1 and others followed him, the accused inflicted injuries on PW1 as well. - 11.The nature of injuries found on the deceased could not have been caused by accident or negligence. 12. Ext.P27 Postmortem Certificate indicates that the deceased sustained injuries on the head and it had directly led to his death though the death was three days after sustaining the injuries. 13. The appellant did not take PW2 or the deceased to the hospital and he ran away from the place immediately after the occurrence. 14. The recovery of bike on 11.1.2014 by Ext.P14 mahazar, recovery of long MO18 iron pipe, MO43 diary, MO32 hacksaw blade and a calendar, recovery of MO22 old newspaper, and MO23 plastic bag by Ext.P13 mahazar are in accordance with Section 27 of the Evidence Act. 15. Scientific examination of blood samples would indicate that the accused was present at the residence of PW1 on the date of Crl.A.No.579 of 2015 :-27-: occurrence. 29. As discussed hereinabove, the deceased suffered a homicidal death in his house at a time when the accused was present. We are satisfied that the evidence tendered by PWs. 1 to 5 clearly indicate that the appellant was present at the scene of occurrence on the date and time of occurrence. Once it is proved by the prosecution that the appellant was present at the time of occurrence and PW2 and the deceased sustained injuries and the deceased later succumbed to the injuries, the burden was heavy on the part of the appellant to show that how PWs.1 and 2 sustained injuries when he was present at the house. PW2 adduced evidence to show that the accused inflicted injuries on them. Under the circumstances, it was for the accused to explain as to how so many injuries were found on the body of the deceased and PW2. The injuries inflicted all over the body of the deceased and PW2 as held by the trial court were caused while assaulting the deceased and PW2 having felt humiliated by the conduct of PW2. The prosecution has further proved that the accused committed the crime for a particular motive. It is also brought out that the accused had the habit of following PW2 earlier offering to marry her. The motive, which is driven the accused to commit the offences alleged is proved by the prosecution. The evidence on record suggest adequately the existence of necessary motive required to commit the crime. The motive heightens the probability that the offences Crl.A.No.579 of 2015 :-28-: committed by the accused, certainly fits in with the motive alleged by the prosecution. 30. Relying on the evidence of PW31, learned Senior Counsel Sri.Grashious Kuriakose contended that PW31 received first information long before the registration of Ext.P1 FIS. According to the learned counsel, PW32 made arrangements to scene-guard the occurrence place even before registration of Ext.P1 FIS. We cannot agree with the contention of the learned Senior Counsel. The information about the commission of a cognizable offence given in person at the Police Station and the information about a cognizable offence given otherwise have forever been treated on different pedestals, as held by the Apex Court in a decision reported in **Sidharatha Vashisht@Manu Sharma** v. **State (NCT of Delhi)** [AIR 2010 SC 2352]. The logic for the said differential treatment to the two situations is that the information given by any individual otherwise to the police is not for the purpose of lodging First Information Report, but rather to request the police to reach the place of occurrence urgently. On the other hand, the information about the commission of an offence given in person by a witness or anybody else to the Police is for the purpose of lodging a First Information Report.giOn going through Ext.P1 FIS in this case, there is no inordinate delay as well. Hence the contention that the original first information was suppressed is not legally tenable. Crl.A.No.579 of 2015 :-29-: 31. In the case at hand, the prosecution has succeeded in proving that the accused inflicted bodily injuries on the deceased and that there was an intention on the part of the accused to inflict injuries on the deceased. That apart, the injuries were not accidental or unintentional or the accused intended some other kind of injuries. The injuries inflicted by the accused on the deceased were sufficient to cause death in the ordinary course of nature. On a review of the entire evidence, we are of the view that the accused did the overt acts with the intention of causing death of the deceased. This categorical opinion of the Doctor was not assailed in the prosecution examination. Further, it is brought out that PWs.1 and 2 also sustained injuries in the occurrence. PW2 sustained injuries at the time of occurrence and PW1 sustained injuries when he chased the accused on the date of occurrence. The testimony of the injured witness is accorded a special status in criminal jurisprudence. The testimony of injured witness is considered to be very reliable as he is a witness that comes with a built-in-guarantee of his presence at the scene of occurrence and is unlikely to spare his actual assailant in order to falsely implicate some one. Convincing evidence is required to discredit an injured witness. Deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradiction and discrepancies. [ **State of U.P.** v. **Kishan Chand** (AIR 2004 SC 4671), **Brahm Swaroop** v. **State of U.P.** (AIR 2011 SC 280), Crl.A.No.579 of 2015 :-30-: **Abdul Sayeed** v. **State of Madhya Pradesh** [(2010) 10 SCC 259] and **Kailas** v. **State of Maharashtra** (AIR 2011 SC 598)]. Judged by the above standards, evidence tendered by PWs.1 and 2 can be acted upon. Ext.D1 statement recorded by DW1 as a dying declaration of PW2, has no relevance. In fact, PW32 recorded the statement of PW2 as a dying declaration. Dying declaration will become relevant only after the death of a person, who gives the statement. In this case, PW2 is alive. Her statement cannot be treated as dying declaration. It is only a previous statement which can be used for contradiction and corroboration. One of the contentions taken by the learned Senior Counsel is that Ext.D1 statement of PW2 does not contain anything about the injury sustained to the deceased. At the time of recording dying declaration, DW1 was not obliged to record all the facts touching the occurrence. The intention was to record dying declaration of the injured. 32. On a proper appreciation of the evidence on record, the court below had entered into a finding that the accused attempted to commit culpable homicide not amounting to murder on PW2 as well. Further, the accused also made an attempt to outrage the modesty after inflicting grievous injuries on the deceased. PW1's evidence would show that the accused attempted to outrage the modesty of PW2. PW2's evidence in this respect is trustworthy. 33. To put it shortly, we are satisfied by the forensic evidence Crl.A.No.579 of 2015 :-31-: that the deceased and PW2 are attacked by the appellant within their own house. It is unlikely that someone would attack the deceased just inside their house and we have no hesitation to reject such a possibility. Having regard to the statement of the Doctor, who conducted the postmortem, we are satisfied that the deceased succumbed to the injuries consequent upon the head injury sustained by him. Express and implied malice on the part of the accused is proved by the prosecution. Since the injuries were caused in such a brutal manner to the deceased and PW2, there is no scope for discussing the case from the point of view of having committed the offence due to lack of knowledge on the part of the appellant or its consequences. The deceased also died within three days due to the injuries suffered by him. For the above reasons, we are of the opinion that there are no valid grounds for altering the conviction of the appellant/accused from one under Section 302 to that under Section 304 Part II of IPC as contended by the learned counsel for the appellant. 34. In our opinion, the judgment and order of conviction and sentence imposed by the trial court for the offences punishable under Section 449, 326,354B,308 and 302 of IPC was based upon proper appreciation of evidence and the circumstances found established by the trial court in the instant case cannot be doubted. Crl.A.No.579 of 2015 :-32-: Resultantly, we uphold the judgment of conviction and order of sentence passed by the court below for the several reasons set out hereinabove. The appeal is dismissed. The appellant will suffer the remaining sentence imposed by the court below. Sd/- ## **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/