Viswanathan @ Viswan S/O Kunju Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** ## **CRL.A.No. 1113 of 2013** **AGAINST THE JUDGMENT IN SC 1166/2010 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM DATED 27-04-2013** ## **APPELLANT/ACCUSED:** **VISWANATHAN @ VISWAN S/O.KUNJUPILLAI, ARUN BHAVAN, EDAYIKKIDOM MURI KAREEPRA VILLAGE, KOTTARAKKARA TALUK.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SR.P.P.SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8.04.2019, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1113/13 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the verdict of the Additional District and Sessions Court (AdhocII), Kollam dated 27/04/2013 in S.C. No.1166 of 2010 arising out of Crime No.325 of 2005 of Ezhukone Police Station by which he was found guilty for committing murder of one Thulaseedharan and one Surendran and was sentenced to undergo imprisonment for life and to pay a fine of `1,00,000/- (Rupees One Lakh only) each with a default stipulation of rigorous imprisonment for two years. The two life sentences were directed to run consecutively. Fine amount, if realized, an amount of `90,000/- (Rupees Ninety Thousand only) each was directed to be paid to Chandramathi, widow of Surendran and Remadevi, widow of Thulaseedharan as compensation under Section 357(1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). 2. Prosecution case is that on 24/09/2005 at 12.00 P.M., out of the enmity entertained by the appellant herein against Crl.Appeal No.1113/13 -:3:- Thulaseedharan and Surendran on their engaging in propagating false stories against him, the appellant stabbed Thulaseedharan on his left chest thrice and also stabbed Surendran on his right chest, left hand muscle and on the right side of stomach with a knife with the intention to do away with them. The incident occurred at a ridge from Plakkodu towards Kadakkodu in front of the shop of CW3 situated at Munnoor in Karipra Village. The appellant was charged separately under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') for murdering above-said two persons. 3. Prosecution examined PW1 to PW16 as witnesses, marked documents Exts.P1 to P19 and identified material objects MO1 to MO7. On closure of prosecution evidence, the appellant was questioned under Section 313 of Cr.P.C. to enable him to explain personally about incriminating circumstances appearing against him. He denied the allegations and stated that the deceased came to his courtyard and created problems. No evidence was adduced from the side of defence. 4. Learned counsel for the appellant argued that prosecution put up a false case by planting witnesses. PW2 to Crl.Appeal No.1113/13 -:4:- PW5 cannot be believed. Their versions are not trustworthy and they have falsely implicated the appellant herein. There are contradictions as well, in their respective version. The alleged recovery of weapon is a stage drama and the appellant has nothing to do with the said weapon. Both the deceased were wellbuilt persons and it is not believable that as many as three and ten injuries respectively were inflicted on them by the appellant alone using the same weapon as alleged. Court below erred in convicting the appellant. The case is a false one and he pleaded for an acquittal of the appellant by extending benefit of doubt. 5. On the other hand, learned Senior Public Prosecutor argued that prosecution proved the case against the appellant beyond the shadow of reasonable doubt. PW2 to PW5 categorically deposed the overt acts committed by the appellant against the unarmed victims. Their evidence corroborate each other. MO1 knife is recovered at the instance of the appellant based on his confessional statement. It is found to be bloodstained. His dress is also stained with human blood belonging to group 'O'. Medical evidence clearly corroborates the substantive version of eyewitnesses. Trial Court is fully justified in arriving at Crl.Appeal No.1113/13 -:5:- the present conclusion. He sought to dismiss the appeal as it lacks merit. 6. The evidence adduced by the prosecution, in short, are as follows: PW1 to PW5 are cited as occurrence witnesses out of which all except PW1 supported the prosecution. PW1 turned completely hostile to the prosecution. PW5 gave Ext.P1 F.I. Statement to PW14 based on which Ext.P12 FIR was registered. PW6 is an attestor to Ext.P2 inquest report of Surendran. PW7 is an attestor to Ext.P3 scene mahazar. PW8 is an attestor to Ext.P4 inquest report of Thulaseedharan. PW9 is an attestor to Ext.P5 recovery mahazar of MO1 knife allegedly used by the appellant for the commission of the offence. PW10 is the Village Officer who prepared Ext.P6 site plan. PW11 conducted the autopsy of Thulaseedharan and issued Ext.P7 post-mortem certificate. PW12 conducted the post-mortem examination of Surendran and issued Ext.P9 certificate. PW13 is an attestor to Ext.P11 seizure mahazar of MO2 and MO3 which are the dress of the appellant. PW14 is the S.I. of Police who registered Ext.P12 FIR based on Ext.P1 information statement of PW5. He prepared Ext.P2 inquest report Crl.Appeal No.1113/13 -:6:- of Surendran. PW15 is the C.I. of police who completed the investigation and laid the charge-sheet prior to which PW16 who conducted major part of investigation arrested the accused, prepared scene mahazar, recovered weapon of offence based on Ext.P5(a) disclosure statement of the appellant and seized dress worn by the appellant at the time of commission of the offence. Ext.P9 is the FSL report in which it is shown that item nos. 1 to 10 are stained with human blood belonging to group 'O'. Item no. 10 is the shirt of the accused. Item no.12 is the knife (MO1) which is also stained with blood but origin could not be detected due to want of sufficient quantity. 7. The short question for determination is whether the Court below is justified in convicting the appellant for murdering two persons in the light of available evidence. First of all, let's see whether the death of Surendran and Thulaseedharan are proved to be homicide. Apart from the oral version of PW2 to PW5, Ext.P2 is the inquest report of Surendran and Ext.P9 is his post-mortem report prepared by PW12 the Doctor on 25/09/2005. PW12 noted altogether 10 ante-mortem injuries on the corpse of Surendran out of which injury nos.1 to 6 were incised wounds. She deposed Crl.Appeal No.1113/13 -:7:- ## in detail the injuries as under: _“1. Incised penetrating wound 2.1x1cm, obliquely placed, on the right side of front of chest, with its upper inner sharply cut end 6.5 cm outer to midline and 12 cm below the collar bone and its lower outer rounded end being 1 cm inner to the areolar margin. It was directed backwards, slightly upwards and to the left for a total minimum depth of 4.4 cm, puncturing through the 3[rd] intercostal space and terminating by making a wound 2x0.7x0.5 cm on the front surface of the middle lobe of right lung, right lung was seen collapsed. The right chest cavity contained 200 ml of fluid blood and clots._ _2. Incised penetrating wound 2.2x0.3 cm, slightly oblique, on the left side of chest, with its upper back sharply cut end, 10 cm below the back fold of armpit, the lower front end was rounded. The wound was directed downwards, forwards and to the right for a total minimum depth of 4.5 cm, puncturing the 6[th] intercostal space and terminating on the front aspect of lower lobe of left lung to produce a wound 2x0.3x0.5 cm. The left lung was seen collapsed, left chest cavity contained 150ml of fluid blood with clots._ _3. Incised penetrating wound 1.5x0.5 cm, horizontal, on the right side of front of abdomen, with its outer sharply cut end 9 cm to the right of midline at the level of the costal margin, its inner rounded end was 14cm below the right nipple. The wound was seen tracking backwards, upwards and to the left for a total minimum depth of 5 cm, piercing through the 9[th] intercostal space and terminating on the front surface of the right lobe of liver by making a wound 2.2x0.3x0.8 cm,. The liver was pale. Peritoneal cavity contained 150 ml of fluid blood._ _4. Incised punctured wound 1.8x0.3x5.5 cm, horizontal on_ Crl.Appeal No.1113/13 -:8:- _the middle of back of trunk 22 cm above natal cleft, its left end was rounded, while right end sharply cut. The wound was directed forwards._ _5. Incised punctured wound 1.5x0.5x4.5 cm, horizontal on the outer aspect of front of left arm, with its rounded front end being placed 22cm below the front of tip of shoulder, the other end was sharply cut. The wound was seen directed upwards, inwards and backwards piercing the muscles and terminating in the intermuscular plane._ _6. Incised punctured wound 1.7x0.6x0.8 cm, oblique, on the outer back aspect of left arm, lower inner sharply cut end 10 cm above the tip of the elbow, the upper outer end was rounded. The wound was directed upwards, backwards and inwards coursing through the intermuscular plane._ _7. Contusion 5x2.5x0.5 cm, on the back of left hand 4 cm below wrist._ _8. Abrasion 0.5x0.4 cm, on the back of right index finger 4 cm below its root._ _9. Abrasion 1.5x1.5 cm on the outer aspect of right knee._ _10. Abrasion 1x0.5 cm on the front of left knee.”_ According to her, cause of death of Surendran was penetrating injury sustained to the chest and abdomen (Injury nos.1, 2 and 3). The injuries could be caused using MO1 as weapon of offence. She deposed that the blood group of Surendran was 'O' positive. 8. Ext.P4 is the inquest report of Thulaseedharan and Ext.P7 is the post-mortem certificate prepared by PW11 the Doctor on 25/09/2005 itself. PW11 noted altogether three incised Crl.Appeal No.1113/13 -:9:- ## injuries on the corpse of Thulaseedharan. She described the said injuries as under: _“1. Incised punctured wound 2x1x4 cm, oblique, on the outer aspect of left arm, its lower front sharply cut end, 23 cm above the tip of elbow. Its upper back end was rounded in shape. The wound was directed downwards and inwards in the muscle plane._ _2. Incised wound 2x0.8x0.7 cm, oblique, on the inner aspect of left arm, its lower front end 24 cm above elbow._ _3. Incised penetrating wound 2.5x1 cm, oblique, on the left side of trunk, with its upper front rounded end 16.5 cm outer to midline and 28 cm below collarbone. Loss of skin seen over an area 3.5x2.5 cm just above it. Its lower back end was sharply cut. The abdominal cavity was seen penetrated after cutting through the ninth intercostal space, ninth and tenth ribs, pierced lower border of diaphragm, cut the mesentery of descending colon at two sites (4x2 cm and 5x1.5 cm, 4 cm apart, 6 cm distal to the splenic flexuae) wound was directed downwards and to the right for a total minimum depth of 5 cm. Abdominal cavity contained 200 ml of fluid blood.”_ It is her opinion that the cause of death of Thulaseedharan was penetrating injury sustained to abdomen (injury no.3). The said injuries could be caused by MO1 knife. 9. The above evidence clearly establishes that the death of Surendran and Thulaseedharan were homicide. The remaining question is whether the appellant herein is the one who caused -:10:- Crl.Appeal No.1113/13 their death as alleged by the prosecution. 10. PW2 to PW5 are the occurrence witnesses. PW2 deposed that he knew the appellant as well as the victims. The incident happened on 24/09/2005 at 12.00 P.M., at Karipra Village-Idakkidam Muri at a ridge in front of the shop of Balakrishna Pillai. Election to Local Bodies were scheduled on that day. He was on his way to cast his vote. He was conversing with Sasi Pillai and Sunil. Thulaseedharan and Surendran were going towards Plakkodu from Munnoor. Appellant came from his house and an altercation took place. Appellant verbally abused both Thulaseedharan and Surendran. Bystanders including PW2 intervened and asked them to go away. Thulaseedharan came back and stated that he wanted to say something to Viswanathan. Viswanathan took out a knife from his dhothi and stabbed on the left side of the chest of Thulaseedharan and he fell down. Surendran came running near to the appellant and at that time the appellant stabbed Surendran also on the right and left side of the chest with the same knife. When Surendran sat down, the appellant stabbed on his buttock. Surendran also suffered injury on the left side of stomach. The appellant ran Crl.Appeal No.1113/13 -:11:- towards east with the knife. The injured were taken to hospital and later both of them succumbed to their injuries. He identified knife (MO1), kaily and shirt of the appellant (MO2 and MO3), shirt and kaily of Thulaseedharan (MO4 and MO5) and dhothi and shirt of Surendran (MO6 and MO7). Nothing material is brought out in the cross-examination of this witness. 11. PW3 deposed in tune with what is already spoken to by PW2. According to her, the incident happened on 24/09/2005 at 12.00 P.M. on the west of Iyeniveli pond in front of the shop of Balakrishna Pillai. She was conversing with Anil, PW1 Balakrishnan Nair and PW2 Muraleedharan Pillai. Thulaseedharan and Surendran came to the spot and the appellant also came there from his house. There was a quarrel between the two sides. The appellant asked them why they were making false allegations against him. As there was an altercation, the bystanders including PW3 asked all of them to go away. Thulaseedharan ran towards the appellant and talked something. Immediately, the appellant took out a knife from his dhothi and stabbed on the left chest of Thulasi. He fell down and sustained injury on the left hand. When Surendran asked the appellant as to what he had Crl.Appeal No.1113/13 -:12:- done, the appellant with the same knife stabbed on the left and right side of the chest of Surendran. He further stabbed on the left hand and also below the chest of Surendran. Surendran sat down. The appellant then stabbed on Surendran's back and then he ran towards east with the knife on his hands. The injured were taken to hospital. Later she came to know that both of them expired. She identified the appellant in Court. The victims alleged that the appellant was having illicit connection with a lady and according to PW3, that was the reason for the incident. She identified MO1 knife and she stated that she could identify the dress worn by the appellant at the time of incident. PW4 and PW5 also deposed almost in similar words of PW3 regarding the incident. Apart from some minor omissions, nothing is brought out in evidence during cross-examination to discredit their version regarding overt act committed by the appellant. 12. Coming to the appreciation of evidence, the definite case of the defence throughout the trial was that both the victims quarrelled each other and they stabbed each other and died. The said contention is proved to be baseless. Oral testimonies of PW2 to PW5 show that the appellant inflicted fatal blows using MO1 Crl.Appeal No.1113/13 -:13:- knife kept in his loin on two unarmed victims. Their evidence is cogent, categoric and fully reliable. A contention was raised by the learned counsel that there was no premeditation for the appellant to commit the crime as evident from the material on record. Motive for the commission of the offence is also not proved. But both these contentions are irrelevant in the light of evidence available in this case. Motive is immaterial as there is direct evidence in this case. It is true that evidence shows that Thulaseedharan went towards the appellant and told something and then only the appellant took out MO1 knife from his loin and stabbed him. But it is in evidence that Thulaseedharan was unarmed and nothing is brought out in evidence to show that any reasonable apprehension of imminent danger was faced by the appellant to exercise his right of private defence. This is a case in which the argument of right of private defence is totally unacceptable. A weapon was kept by the appellant on his loin. He took it out and inflicted injuries on Thulaseedharan. All three were incised wounds and were fatal. Seeing the said assault, Surendran intervened and asked the appellant what he had done. Suddenly, the appellant started stabbing Surendran Crl.Appeal No.1113/13 -:14:- indiscriminately. As many as 10 wounds were inflicted out of which 6 are incised wounds. The nature of injuries is clearly deposed to by PW11 and PW12 and they are found to be fatal in the ordinary course of nature. During 313 examination, the appellant raised a specific contention that the victims came to the house of his courtyard in drunken state and picked up quarrel. But no cross-examination is done on the said aspect on prosecution witnesses. 13. Also, Ext.P3 scene mahazar and Ext.P6 site plan when read along with the oral version of eyewitnesses clearly negate the defence contention regarding place of occurrence. Place of occurrence is proved to be the pathway and not the courtyard of the house of the appellant. 14. MO1 was recovered from the house of the appellant at his instance based on his confession statement Ext.P5(a). The dress of the appellant was also seized. As per Ext.P9 FSL report, both items were found to be stained with blood and dress of the appellant was found especially with human blood belonging to group 'O' which is the blood group of Surendran. 15. Under such circumstances, we have no hesitation to Crl.Appeal No.1113/13 -:15:- hold that the appellant herein committed the offence punishable under Section 302 of IPC against two victims. Court below is perfectly justified in arriving at the said conclusion. 16. Learned counsel for the appellant further argued that the trial Court punished the appellant with imprisonment for life for both murders and directed to suffer the sentences consecutively which is clearly against the law. He relied on the decisions of the Apex Court in _**O.M. Cheriyan alias Thankachan v. State of Kerala and Others**_ [(2015) 2 SCC 501 and _**Duryodhan Rout v. State of Orissa**_ [(2015) 2 SCC 783] to highlight the settled position of law. Paragraph 13 of the judgment in _**O.M. Cherian**_ (supra) is relevant, which reads as under:- _**“13.** Section 31(1) CrPC enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31(1) CrPC. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of_ Crl.Appeal No.1113/13 ## -:16:- _the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, the court has to direct those sentences to run concurrently”._ ## 17. Similar view was taken in _**Duryodhan Rout v. State**_ _**of Orissa**_ [(2015) 2 SCC 783]. Paragraph 29 is relevant, which reads as under:- _**“29.** Section 31 CrPC relates to sentence in cases of conviction of several offences at one trial. The proviso to sub-section (2) to Section 31 lays down the embargo whether the aggregate punishment of prisoner is for a period longer than 14 years. In view of the fact that life imprisonment means imprisonment for full and complete span of life, the question of consecutive sentences in case of conviction for several offences at one trial does not arise. Therefore, in case a person is sentenced for conviction of several offences, including one that of life imprisonment, the proviso to Section 31(2) shall come into play and no consecutive sentence can be imposed.”_ 18. Having regard to the aforesaid law laid down by the Apex Court, one cannot be directed to suffer two life sentences consecutively. Therefore, it has to be held that the imprisonment Crl.Appeal No.1113/13 -:17:- of life sentence imposed on the appellant/accused shall run concurrently. In the result, the conviction and sentence of the accused for offence u/s 302 of I.P.C. are confirmed and appeal is consequently dismissed, but, the direction of the Court below that the sentences shall run consecutively is set aside and it is made clear that the sentence of life imprisonment shall run concurrently. **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/ASHOK MENON JUDGE**