Vijayan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939 ## **CRL.A.No. 1507 of 2013 (A)** AGAINST THE JUDGMENT IN SC.NO.16/2010 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA, DATED 25-07-2013 CP NO.22/2007 ON THE FILE OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, PERUMBAVOOR CRIME NO. 780/2009 OF PERUMBAVOOR POLICE STATION ## APPELLANT: ACCUSED: VIJAYAN, C.NO.8237, CENTRAL PRISON, TRIVANDRUM -12. BY ADV. MANU P.G. (STATE BRIEF) ## RESPONDENT: COMPLAINANT: STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.NICHOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON 16-11-2017 DELIVERED THE FOLLOWING: ## **A.M.Shaffique & P. Somarajan, JJ.** **---------------------------------------------------Crl.Appeal No.1507 of 2013** **---------------------------------------------------Dated this the 16[th] day of November, 2017** ## **JUDGMENT** ## **P. Somarajan, J.** Appeal against the judgment of conviction and order of sentence passed under Sections 302 and 294(b) IPC against the accused in S.C.No.16 of 2010 of the Additional District and Sessions Judge, Muvattupuzha. 2. The alleged incident took place in the evening of 26.3.2009 resulting in the death of one Bivin, the brother of PW1. The prosecution case is that the accused herein uttered obscene words against the participants and leaders of a booth convention held on the ill- fated day at the property of one Subramaniyan near Bethani junction, Vengolakkara. The accused started abusing the participants and the leaders of the booth convention of Left Democratic Front (LDF) by 5 p.m. onwards. The booth level convention was closed by 7.45 p.m., but the accused continued his verbal attack on the ## **Crl.Appeal No.1507 of 2013** :: 2 :: participants and leaders of the LDF booth convention. It was questioned by the victim and others. Thereon the accused stabbed on the chest of the victim with a knife and the victim fell down after receiving the injury. Though he was removed to the nearby hospital, he succumbed to the injuries. 3. The oral testimony of the four eye witnesses who were examined as PW1 to PW4 and the recovery of the weapon used for inflicting the injury, identified as MO1, stained by human blood, under Section 27 of the Evidence Act were relied on by the learned Sessions Judge to enter into the finding of guilt of the accused both under Sections 302 and 294(b) IPC. The main challenge raised by the appellant is that all the occurrence witnesses were not examined though they were material witnesses, the alleged recovery of MO1 weapon is vitiated as the place of disclosure made by the accused is different from the place from where MO1 material object was detected and that no motive was established. It was also contended by the appellant that no explanation was forwarded by the prosecution regarding the injuries alleged to have been sustained by the accused and his wife and that the conviction of the accused for ## **Crl.Appeal No.1507 of 2013** :: 3 :: the offence under Section 302 IPC as well as Section 294(b) IPC are not sustainable in view of the nature of offence alleged and the manner in which it has happened. 4. PW1 to PW4, who are the occurrence witnesses, are in agreement with respect to the identity of the accused who stabbed on the chest of the victim, Bivin. All of them identified MO1 knife used for inflicting the alleged injury to the victim by the accused. Their oral evidence was challenged mainly on the reason that PW1 to PW3 are LDF activists and their version is tainted by political motives. It was also submitted that there is some confusion with respect to the place of occurrence as spoken by PW1 to PW4. One of the occurrence witnesses examined by the prosecution, PW4, is not an LDF activist, but he is a follower of Congress (I). He had also given support to what is spoken by PW1 to PW3 regarding the identity of the assailant as well as the victim and also identified MO1 weapon used for inflicting the injury. So the contention that all the occurrence witnesses are politically motivated persons will not stand. ## **Crl.Appeal No.1507 of 2013** :: 4 :: 5. There are some inconsistencies with respect to the place of occurrence as well as the manner in which the alleged incident has happened, the verbal abuse by the accused to the victim just before the commission of the offence and the real cause and immediate provocation for the commission of the offence as spoken by PW1 to PW4. PW1 is none else than the younger brother of the deceased. The version given by PW1 is to the effect that the accused was standing on his property uttering verbal abuse against the party persons. On hearing it, the victim interfered and proceeded towards the accused. The property of the accused and the road were lying contiguously. When the victim came to the road in front of the courtyard of the accused, the accused uttered against the victim that, whether he would dare to step into his property, and inflicted a stab injury on his left chest. After sustaining the stab injury, the victim proceeded towards the ration shop and fell down. By that time, he yelled out in pain that the accused had stabbed him. The place of occurrence, according to the prosecution, is the road lying in front of the property of the accused. The same place is noted as item No.3 in Ext.P5 (site plan). What is alleged to have been uttered by the accused towards the victim while standing on his property as spoken ## **Crl.Appeal No.1507 of 2013** :: 5 :: by PW1 is true and the immediate provocation to inflict injury on the victim by the accused would be the alleged trespass made by the victim to the property of the accused or any attempt made by the victim to commit trespass into the property of the accused in response to the verbal abuse of the accused. But PW2, another witness, had given an entirely different version that the accused, without any provocation, all on a sudden, inflicted a stab injury on the victim while he was in the road. He did not have a case that the accused had uttered any verbal threat on the victim as spoken by PW2. But, at the same time, admitted that he along with the victim interfered in the verbal abuse made by the accused. But the accused, all on a sudden, inflicted a stab injury on the victim who was standing on the road at that time. He did not have a case that the accused uttered any words towards the victim and no such case was deposed by him, but advanced an entirely different version that the accused inflicted a stab injury on the victim by unleashing a challenge against those who are belonging to Barber community. But, PW1 did not have any such case. So, there is material difference in the deposition of PW1 and PW2 as to what has activated and as to the immediate cause and provocation for the ## **Crl.Appeal No.1507 of 2013** :: 6 :: alleged assault and what is spoken by the accused at the time of inflicting injury on the victim. 6. PW3 had given an entirely different version stating that they were standing on the road at the time when the accused unleashed a threat against the victim and PW3 and others by calling them as stray dogs. Hearing it, the victim, Praveen and PW3 interfered. It is at that time the accused unleashed another threat against those who assembled there calling them as Barbers and asking them to come forward if they have done something to the mother. On hearing it, the deceased proceeded further towards the house of the accused and reached the way leading to the house. It is at that place, the accused, all on a sudden, inflicted a stab injury on the victim. After receiving the injury, he proceeded towards the ration shop and fell down in front of the ration shop. In Ext.P4 scene mahazar as well as in Ext.P5 site plan, no such way leading to the house of the accused was either located or mentioned. The version given by PW3 with respect to the place of occurrence and what had transpired between the accused and others including the victim are different which are material in its nature. ## **Crl.Appeal No.1507 of 2013** :: 7 :: 7. The version given by another occurrence witness, PW4, is entirely different from that of PW1 and PW2, but tallies with the oral evidence of PW3 to a certain extent. According to PW4, the accused inflicted a stab injury on the victim while he was at the way leading to the house of the accused. In short, the version given by PW1 to PW4 would show the inconsistencies writ large on its face with respect to the place in which the alleged incident has happened and the immediate provocation for the alleged incident as spoken by PW1, which are material inconsistencies and it casts a reasonable doubt as to the manner in which the alleged incident has happened, though the oral evidence tendered by PW1 to PW4 give sufficient corroboration each other with respect to the identity of the accused as well as the victim and identity of the weapon used for the commission of the offence, MO1. 8. The maxim “ _falsus in uno falsus in omnibus”_ has no application in India and the witness or witnesses cannot be branded as liars. It will not have any application in criminal law in India. A witness may be partly truthful and partly false in giving the evidence. The doctrine merely involves the question of admissibility of ## **Crl.Appeal No.1507 of 2013** :: 8 :: evidence which a court may apply in a given set of circumstances. But, it is not what may be called 'a mandatory rule of evidence' [ _**Rizan v. State of Chhatisgarh, AIR 2003 SC 976 : 2003 SCC (Cri.) 664**_ ]. The court must be so cautious in accepting a part of evidence of a witness and rejecting the other part and it has to be scrutinized in the light of other attending circumstances. 9. The recovery of MO1 material object, based on the disclosure statement alleged to have been given by the accused while in police custody, is also under challenge on the reason that the disclosure statement reveals a different place rather than the place from where the recovery was actually effected. In the disclosure statement, the accused has given the place wherein MO1 weapon was concealed as his dwelling place, but it was recovered from a country made hen-coop and it was kept beneath the roof tiles of the hen-coop. But in the alleged disclosure statement nothing was mentioned with respect to the said place. Instead of what is confessed is to the effect that he had concealed MO1 knife in his dwelling place (veettil). The expression “veettil” in Malayalam stands for not only the building structure but also the dwelling place. ## **Crl.Appeal No.1507 of 2013** :: 9 :: The hen-coop is situated within the property of the accused wherein his house is situated and MO1 knife was recovered from the hencoop. Further, it is not at all necessary that the confession statement should disclose the actual place of concealment with its precision and no such requirement is warranted in order to bring a recovery under the sweep of S.27 of the Evidence Act. What is important and what is required is the detection of an incriminating object in furtherance of a confession made by the accused while in police custody. Exact place of concealment with its precision is not necessary if the incriminating object was recovered from the place pointed out by the accused in furtherance of his disclosure statement. 10. MO1 knife recovered from the hen-coop, as it was concealed behind the roofing tiles of the hen-coop, is found to be stained by human blood on chemical analysis (Ext.P13) and no explanation was forwarded by the accused during his examination under S.313 Cr.P.C.. Hence it corroborates the oral version given by PW1 to PW4 regarding the user of MO1 weapon for the alleged commission of offence. ## **Crl.Appeal No.1507 of 2013** :: 10 :: 11. Ext.D1 is the accident register cum wound certificate of the wife of the accused, which shows that she has sustained injuries of (1) 5x5 cm contusion posterior aspect of left elbow and (2) 8x4 cm contusion lower half of right thigh. Regarding history and cause of injury, it is stated that the injury happened at 6.30 p.m. on 26.3.2009 and she went to the hospital at 10.30 p.m. on the same day. Ext.D2 is the discharge card of the wife of the accused Smt.Leela. DW1 to DW3 were examined by the appellant, of them, DW1 is the wife of the accused. She had given an entirely different version with respect to the alleged incident. According to her, a group of persons unauthorisedly trespassed into their property and attacked her husband. When she interfered, they had also unleashed attack on her and she had undergone treatment. Ext.D1 is the wound certificate and Ext.D3 is the discharge card. DW2 is the Doctor who attended the wife of the accused while she was undergoing inpatient treatment in the hospital from 26.3.2009 to 3.4.2009 and Ext.D1 was proved through her. The Doctor who issued Ext.D1 wound certificate was also examined as DW3. No explanation was forwarded by the prosecution regarding the injury sustained by the wife of the accused herein though she had undergone treatment for ## **Crl.Appeal No.1507 of 2013** :: 11 :: a few days in the hospital as an inpatient. Ext.D1 and the evidence tendered through DW1 to DW3 would show that the wife of the accused had sustained some injuries in connection with the alleged incident. It may be before the incident or after the incident. According to her, it has happened before the incident. According to her, by 6.30 p.m., a group of persons made an attack on her husband by trespassing into their property and she had received injuries during the course of her attempt to prevent the assailants and save her husband. The fact that she had sustained some injuries and had undergone treatment for a few days in a hospital, still remain unattended by the prosecution though it has happened on the very same day. She was admitted in the hospital by 10.30 p.m. on that day itself. The alleged incident involved in the present case has happened in and around 8.00 p.m. The version given by DW1, the wife of accused, is that it has happened prior to the incident involved in the present case. The fact that she had sustained injuries on the same day and she was attended by the Doctors in the hospital by 10.30 p.m. on the same day would show that she had received injuries on the same day and at the same place. It was not explained by the prosecution how and under what ## **Crl.Appeal No.1507 of 2013** :: 12 :: circumstances she sustained the injuries. This has to be read along with the inconsistency brought out from the oral testimony of PW1 to PW4 regarding the place of occurrence and the immediate provocation for the alleged incident. The oral evidence tendered by PW1 to PW4 and the medical evidence adduced by the Doctor, who conducted the postmortem examination on the body of the deceased and issued Ext.P15 report, would clearly show that there is only a single blow with MO1 knife. The absence of proper explanation from the prosecution as to how and in what manner the wife of the accused sustained injuries, would cast a reasonable doubt on the immediate cause for the alleged incident especially, when the prosecution did not have any specific case of motive behind the crime, except the allegation that the accused unleashed verbal abuse against the participants and leaders of LDF booth convention. In so far as the victim Bivin is concerned, it is not clear what is the motive for attacking the victim by the accused and it must be the immediate provocation came either from the victim or somebody else who was found in the company of the victim at that time. If that be so, the immediate provocation for the alleged incident would assume importance. This would show that there was no intention on ## **Crl.Appeal No.1507 of 2013** :: 13 :: the part of the accused to commit any such crime against the victim and it has happened in a spur of moment developed on an immediate provocation/cause. The prosecution did not have any case that the accused and the victim were living in enmity or there were instances of hatredness or ill-will between them. Even, there is no case advanced by the prosecution showing any personal grudge of accused against the victim. 12. In a case based on circumstantial evidence, the motive plays an important role but when there is eye witness to the incident, failure to prove the motive behind the crime is not fatal to the prosecution. But at the same time, when there is inconsistency as to the provocation of the accused for the commission of the offence, especially when it has developed in a spur of moment, the prosecution has to establish the intention on the part of the accused to kill a particular person. The oral testimony of PW1 to PW4 do not satisfy the abovesaid requirement as there is no specific reason for stabbing the victim alone in spite of the fact that the victim along with three other persons, PW1 to PW3, tried to interfere with the verbal abuse of the accused. Neither PW1 nor PW2 or PW3 did have any ## **Crl.Appeal No.1507 of 2013** :: 14 :: case that at the time of inflicting injury on the victim Bivin, they were standing together on the road. Only a single blow, a stab injury, was inflicted. Hence, the offence would come under part II of Section 304 IPC and being a minor offence, no separate sentence is necessary under Section 302 IPC. Hence the finding of guilt of accused under Section 302 IPC and the conviction and sentence awarded thereunder are liable to be set aside. In the result, the Criminal Appeal is allowed in part and the conviction and sentence awarded under Section 302 IPC is hereby set aside. The accused is found guilty of the offence punishable under Section 304 Part II IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of seven years. The accused is entitled to set off the period of sentence already undergone. ## **A.M. Shaffique Judge** ## **P. Somarajan Judge** ahz/