Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 CRL.A.No. 1101 of 2014 AGAINST THE JUDGMENT IN SC 179/2010 of Vth ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 07-08-2014 AGAINST THE ORDER/JUDGMENT IN CP 10/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI CRIME NO. 701/2009 OF Narakkal Police Station , Ernakulam
APPELLANT/ACCUSED A3: SHINTO AGED 27 YEARS S/O.XAVIER,VALIYAPARAMBU HOUSE,WESTERN SIDE OF X'AN CHURCH,MUTTINAKAM KARA,VARAPPUZHA VILLAGE,NOW RESIDING AT KOONAMMAVU,CHERUPPADOM BHAGOM,NEAR THIRUMUPPAM BUS STOP,PURAMBOKKU ERNAKULAM DISTRICT BY ADV. SMT.J.SHEEBA MARIAM RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM SR.PP. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH CRL.A.1134/2014, THE COURT ON 29.3.2019 THE FOLLOWING: -:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY ,THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941 CRL.A.No. 1134 of 2014 AGAINST THE JUDGMENT IN SC 179/2010 of VTH ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 07-08-2014
APPELLANT/ACCUSED A2: MIBURAJ @ PUNNARA, AGED 25 YERS, S/O. BABU, KAROLIL VEEDU, KOOTTUNGACHIRA BHAGAM, EDAVANAKKAD KARA, EDAVANAKKAD VILLAGE, ERNAKULAM DISTRICT. BY ADV. SMT.J.SHEEBA MARIAM RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SR.PP SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH CRL.A.1101/2014, THE COURT ON -:3:-
JUDGMENT
Shaffique, J.
These appeals are filed by accused 3 and 2 respectively in S.C.No.179/2010 of Vth Additional Sessions Judge, Ernakulam.
2. The appellants were convicted by the trial Court for offence under Sections 392, 394, 397, 398 and 302 r/w section 34
of the I.P.C. They are sentenced to undergo rigorous imprisonment for 10 years and to pay fine of `10,000/- each under Section 394 of the I.P.C., in default of payment of fine to undergo simple imprisonment for six months each. They are also sentenced to undergo imprisonment for life and to pay a fine of `50,000/- each under Section 302 read with Section 34 I.P.C., in default of payment of fine to undergo simple imprisonment for
two years each. Separate sentence is not awarded for the offence under Sections 392, 397 and 398 read with Section 34 of the I.P.C.
3. The prosecution alleged that accused 2 and 3 along with the juvenile (A1) caused the death of Midhun on 23.4.2009 at 11.15 pm. The allegation is that A1 to A3 came in a motor bike -:4:- through the Vypin-Munambam State highway. A1 was armed with
a steel knife and A3 was armed with a steel pipe. Midhun was walking through the Vypin-Munambam State highway and when he reached Kochambalam Sree Subrahmania Swami Temple, A2 and A3 approached him and attempted to rob his mobile. Midhun attempted to escape from the clutches of A1 to A3. It is alleged that A2 and A3 forcibly caught hold of Midhun and restrained him and A1 stabbed on different parts of Midhun's body with a steel knife. Midhun fell down and A3 robbed Midhun of MO8 mobile
phone worth `5800/-. Midhun succumbed to the injuries. The mobile phone was entrusted to 2 nd accused who sold it, and the accused squandered the sale proceeds.
4. PW11 while coming through the said road in a motor
bike saw a person lying by the road on his knees. He found that the victim was stabbed. He informed the matter to the Njarakkal Police Station. The Additional Sub Inspector of Police PW36 along with a few constables rushed to the spot and found the body of Midhun lying on the road. His land phone number was obtained from the notebook available in his bag. They contacted mother of the deceased. PW1 a neighbour came and the body was
-:5:- identified as that of Midhun. Police removed the body of Midhun to Njarakkal Government Hospital and the duty Doctor after examination, confirmed the death of Midhun. PW1 lodged FI statement before the Njarakkal Police Station on the basis of which crime was registered alleging offence punishable under Sections 279 and 304A of the IPC on the assumption that the death was due to motor accident.
5. PW34 conducted inquest on the body of the deceased and prepared Ext.P10 inquest report. PW43 Circle Inspector of
Police took over the investigation and prepared Ext.P3 scene mahazar and collected the material objects from the scene of occurrence with the assistance of the Scientific Assistant.
6. According to the prosecution, during preliminary
investigation itself it was revealed that the death was on account of the stab injury suffered by the deceased and was not due to motor accident. PW43 filed Exts.P54 and P55 reports to change the section of offence to 302 IPC and also to add Section 394 IPC. Final report was filed before Judicial Magistrate of First Class, Kochi and the matter was committed to the Sessions Court, Ernakulam and made over to the Additional Sessions Court. To
-:6:- prove the crime, the prosecution examined PW1 to PW44. Exts.P1 to P63 were the documents relied on. A witness was examined from the side of the defence as DW1. MO1 to MO25(a) were the material objects produced in the case. The fact that Midhun died on account of the injuries suffered by him on the fateful day is supported by the oral testimony of PW38, the Doctor who conducted the postmortem. She deposed that the deceased suffered 19 ante-mortem injuries which are as under: “1. Abrasion 2 x 1 cm on the under aspect of chin.
2. Multiple small abrasions over an area 2.5 x 2 cm on the under aspect of jaw margin, 2 cm to the left of midline.
3. Abrasion 1 x 1 cm on the back of left arm, 3 cm above elbow.
4. Abrasion 2x2 cm on the back of left elbow.
5. Shaped abrasions over an area 4 x 4 cm on the outer aspect of right arm, 10 cm below shoulder.
6. Incised wound 0.5x0.2x0.4 cm on the right side of
abdomen 13 cm outer to midline and 3 cm below top of hip bone. 7.Incised wound 2.2x1x0.5 cm, oblique, on the left side of abdomen. Its inner lower end 7 cm outer to midline and 6 cm above top of hip bone.
8. Incised wound 1.8x0.8x0.5 cm, vertical on the right side of abdomen 5 cm outer to midline and 12 cm above top of hip bone.
9. Incised punctured wound 1.8x1x6 cm vertical with -:7:- sharply cut end on the right side of back of trunk. 4 cm below top of shoulder and 3 cm outer to the midline.
10. Incised punctured wound 1.9x0.9x5 cm oblique with sharply cut ends on the back of trunk, its lower inner end 2 cm to the left of the midline and 12 cm below top of shoulder.
11. Incised punctured wound 2x0.9x5 cm oblique, with sharply cut ends on back of left side of trunk its lower inner end being 18 cm below top of shoulder and 9 cm outer to midline.
12. Incised punctured wound 2x0.8x5 cm oblique on the left side of back of trunk, its lower inner end 8 cm outer to midline and 28 cm below top of shoulder.
13. Incised punctured wound 2x1.3x6 cm with sharply cut ends horizontal on the outer aspect of left arm, 10 cm below top of shoulder.
14. Incised punctured wound 1.5x0.5x6 cm with sharply cut ends, oblique on the outer aspect of left arm, 7 cm below top of shoulder.
15. Incised perforating wound 3x0.8x9.5 cm oblique with both ends sharps on the outer aspect of left arm, 1 cm below injury No.13 transfixing the arm through the muscles.
16. Incised punctured wound 2x0.3x5 cm oblique, with
both ends sharply cut, on the left axilla, 7 cm below the armpit, directed inwards and downwards through the muscle plane. Injury No.15 and 16 were in the same oblique line.
17. Incised wound 1.5x0.2x1.3 cm oblique on the left axilla 2 cm above injury No.16.
18. Incised penetrating wound 1.5x0.8x6 cm with
sharply cut ends oblique on the right side of abdomen -:8:- its inner lower and 11 cm outer to midline and 10 cm above top of hip bone, entering the abdominal cavity.
19. Incised penetrating wound 1.8x0.5 cm, vertical with
sharply cut ends on the left side of abdomen 22 cm outer to the midline and 10 cm above top of hipbone, entering the abdominal cavity and terminated by making a clean cut on the front of internal iliac vein. The track was directed backward, upward and to the right for a total minimum depth of 6 cm”.
7. PW38 deposed that the injuries on the victim could be caused by MO9 steel knife. She deposed that the death was due to the penetrating injuries sustained on the abdomen and the said injuries were 18 and 19. That could be caused by MO9 weapon. Therefore, as rightly observed by the Court below, Midhun died on account of a homicide.
8. Apparently this is a case in which there is no direct
evidence and the case of prosecution rests on circumstantial evidence. Learned Senior Counsel for accused 2 and 3/appellants submits that there is absolutely no evidence to implicate accused
2 and 3 to the crime. Even according to the prosecution, 1 st accused alone stabbed the deceased and the death was on account of injuries sustained and inflicted by him. There is no evidence to prove the presence of A2 and A3 in the scene of -:9:- crime. They are wrongfully made accused in the case. The only material relied upon by the prosecution is the seizure of mobile
phone, MO8 which allegedly belongs to the deceased. The prosecution alleged that the 2nd accused had sold the same in a shop at Penta-Menaka. But the shop owner who is alleged to have purchased the mobile phone has not been examined before Court. The evidence of witnesses who were alleged to have seen 2nd accused effecting sale of the mobile phone cannot be believed. The recovery of MO9 knife cannot be an incriminating circumstance as far as A2 and A3 are concerned. The jeans of A2 had been recovered as MO15 which is clearly illegal. The recovery of the knife was based on the confession statement of A1 and one of the recovery witnesses PW29 turned hostile to the prosecution. It is therefore argued that in the absence of any material to connect the accused 2 and 3 to the crime, the court below committed serious error in convicting them.
9. On the other hand, learned Public Prosecutor
Sri.S.U.Nazar submitted that the seizure of mobile phone which was owned by the deceased by itself will prove that the accused were involved in the crime. It is submitted that accused 2 and 3 -:10:- had taken a motor bike on lease on 23.4.2009 which was arranged by PW22 and PW23 and it was returned on the next day. Crime was committed during the night of 23.4.2009. The jeans which A2 was wearing at the relevant time was recovered and
produced as MO15. Forensic evidence would show that it was stained with human blood. The sale of mobile phone is proved and the witnesses had identified the accused having sold the said mobile phone to a shop. Absence of examining CW22, the owner of the mobile shop was only on account of the fact that he was in Gulf and his presence could not be procured immediately. Further, the testimony of PW11 and PW2 will throw further light
on the fact that 3 persons were involved in the crime. It is therefore submitted that, the court below had appreciated the entire evidence and had arrived at a finding of guilt, there is no reason why a different view should be taken.
10. In order to consider the contentions urged by the appellants, it is useful to give a brief narration of the nature of evidence the prosecution had placed reliance on.
11. PW1 is a neighbour of the deceased who had given Ext.P1 First Information Statement. He has identified the dead -:11:-
body and was also present at the time of preparing the inquest. PW2 has deposed that while coming in a motorbike, he found the deceased lying on the road and he saw three persons standing around him. He identified accused 2 and 3 before Court. However, he was declared hostile by the prosecution as he did not support the prosecution to the extent intended.
12. PW3 has been cited to identify the dead body and he
was also present while conducting inquest. PW4 is an attestor to the scene mahazar. He also identified scene mahazar Ext.P3. PW6 is an attestor to Ext.P5 mahazar when a search was conducted in the premises of PW42. PW7 is the brother of A3 who turned hostile to the prosecution. PW10 is the mother of A1. PW11 is also a person who found the deceased lying on the road at 11.30 p.m. on 23/4/2009. He saw him bleeding with injuries and he is the person who had informed the matter to the police. He also deposed that the injured attempted to stand on his knee and when he enquired, he was told that somebody had stabbed him. PW2, PW12 and PW13 are the neighbours of the deceased. They had gone to the hospital on getting information. They have subscribed their signature to Ext.P10 inquest report. They also
-:12:-
identified MO1, the ID card of the deceased, the bag of deceased which is identified as MO2 and the shirt and pants of the deceased MO3 and MO4. PW14 is another victim who suffered injuries on the very same night in which the aforesaid three accused persons were involved. He deposed that on 23/4/2009 after 11.00 p.m, while he was proceeding to his house in a scooter, three persons came in a bike and restrained him. He stopped his scooter and ran away. The assailants chased him and he was beaten with iron pipe and he sustained injury on his forehead and he fell down. He was robbed of his mobile phone and an amount of `2,300/-. However, he could not properly identify the accused at that time. Subsequently, he identified the assailants and the iron pipe used by them at the police station. Case was later settled. He also identified MO6 mobile phone which was robbed from him.
13. PW15 is the witness to the arrest of A3 and PW16 is a
witness to recovery of mobile phone and dress materials of A3. He is an attestor to the seizure mahazar. Ext.P12 is the seizure mahazar for seizing MO6 mobile phone and MO7 series dress which the accused was wearing at the time of occurrence. PW17 -:13:-
to PW19 and PW26 were examined to prove sale of MO8 mobile phone by the 2nd accused. At the instance of the police, MO8 mobile phone was recovered as per Ext.P13 seizure mahazar. The witnesses deposed that 2nd accused had sold the mobile phone MO8 in the said shop. PW20 is a friend of 2 nd accused who had given his election identity card to the 2nd accused for purchasing a duplicate sim card. PW21 is a witness to recovery of MO9 steel knife and iron pipe from the residence of A2.
Ext.P17 is the recovery mahazar. PW22 is the owner of a motorbike No.KL-42 4828. He had given it on rent to the 2 nd accused on 13/4/2009 and 22/4/2009. He deposed that the vehicle was given to the 2nd accused at 7.30 am on 22/4/2009 and it was returned back by him on 24/4/2009. PW23 is the father of PW22. He also deposed that the motor bike KL-42 4828 belongs to his son. He is a witness to Ext.P18 seizure mahazar by which the motorbike was seized by the police.
14. PW24, uncle of A2 turned hostile to the prosecution.
PW25 is the mother of the deceased. She deposed regarding the information she received from Njarakkal Police Station at 12 o'clock midnight on 23/4/2009 and the fact that she had informed -:14:-
the matter to her neighbour. She also identified MO8 mobile phone of her son. The mobile phone was purchased by her as per Ext.P20 invoice through her son Midhun. She also purchased a sim card and it was given to her son for his use. The number of the sim card is 9995519552. She also identified the other material objects belonging to Midhun. PW27 was the Senior Manager (Legal) of Vodafone and also its Nodal Officer. He issued Ext.P21 series certificate showing the details of outgoing and
incoming calls in respect of mobile phone bearing No.9745236689. The sim card was issued as per records to one Aneesh. He further deposed that on 24/4/2009 and 25/4/2009, the sim card supplied to the subscriber was used in the mobile phone bearing IMEI No.359329025970760. PW29 is the friend of the accused. He was cited to prove that, on the previous day of the marriage of his sister, the accused had taken MO9 steel knife from his house. He turned hostile to the prosecution. PW30 is the Judicial Magistrate of First Class, North Paravoor who recorded the 164 statement of three witnesses which were marked as
Exts.P27, P28 and P29. PW31 is an acquaintance of the 2 nd accused. He also deposed that he had seen the 2 nd accused -:15:- using a mobile phone like MO8 after the death of the deceased. PW33 is a co-worker of the 2nd accused. He deposed that during 2007, he had given his identity card Ext.P22(a) to the 2 nd accused to obtain mobile phone connection and later it was returned to
him. He however denied having put his signature in Ext.P22 application. PW37 and PW40 are attestors to Ext.P36 seizure mahazar by which MO15 jeans of the 2 nd accused was recovered. He also deposed that after coming to know about the newspaper report that one Midhun was killed, A2 was not available at the work site. He had gone to attend the marriage of his sister. He came back after 23 days.
15. PW41 was the Court Clerk of Judicial First Class
Magistrate Court-I, Kochi. He is summoned to prove Ext.P39 the list of articles produced by the police on 3/5/2009, which is a steel pipe. He deposed that the same has been entered in the register at page 35. Ext.P40 is the register and Ext.P40(a) is the relevant entry. Direction was issued to confiscate the said material object on 13/9/2012 in Crime No.702/2009 of Njarackkal police station. He stated in Ext.P39 that Crime No.701/2009 is struck off and numbered as 702. But he does not know as to who -:16:- had done it. In Exts.P40 and P40(a), Crime No.702/2009 alone is recorded.
16. PW42 is the mother of PW8. She deposed that a few of
her son's friends had come and resided in their house. They slept on the terrace. According to her, among the persons who had come, A3 looks like one among them.
17. PW43 is the investigating officer and PW44 has submitted the final report.
18. From the aforesaid evidence, it is rather clear that
there is no eyewitness to the incident. When PW11 reached the scene where the victim was being stabbed, he was lying on the road with bleeding injuries. Therefore, as already stated, the case basically rests on circumstantial evidence. The main incriminating circumstance which could connect the accused to the crime is the recovery of the stolen article, MO8, the mobile phone which was being used by the victim during the relevant time. The evidence would show that MO8 was purchased in the name of victim's mother and an invoice had been produced as Ext.P20.
19. PW43 has recovered the mobile phone based on a confession statement of 2nd accused. The 2nd accused confessed -:17:-
that he sold the mobile phone at a shop functioning at GCDA complex and if he is taken, he would point out the said shop. As led by A2, PW43 had gone to GCDA complex. A2 identified one Jihas Jaffar @ Biju (CW22) as the person who purchased the mobile phone. CW22 also identified the 2 nd accused and admitted to PW43 to have purchased the said mobile phone from A2. He had by the time sold the same to Akhil PW17. They contacted PW17 and the mobile phone was recovered and entrusted to
PW43. CW22 had also produced the ID card which the 2 nd accused had handed over to him while selling the second-hand mobile phone. The ID card was recovered as per Ext.P13 recovery mahazar. The confession statement of A2 for recovering the ID card is marked as Ext.P13(a). Though CW22 could not be examined, from the oral testimony of PW17 to PW19 and PW26, it is rather clear that they purchased MO8 mobile phone from the said shop on 26/4/2009 by paying `4,500/-. PW17 and PW18 identified MO8 as the second hand mobile phone purchased by PW17 from the shop of CW22. Recovery of MO8 is further
corroborated by the oral evidence of PW19. Therefore, there is ample evidence to prove the fact that A2 had sold the mobile -:18:- phone of the victim to CW22. PW25 mother of Midhun had identified MO8 mobile phone. She had clearly stated that the mobile phone was purchased by Midhun.
20. Yet another strong circumstance is the recovery of
knife MO9 from the residence of 2nd accused. PW43 deposed that, on 3/5/2009, they arrested the first accused (the juvenile Munna) and prepared Ext.P50 series. It is on the basis of confession statement of A1 that the police party had gone to the house of A2 and on identifying the knife, it was recovered. The Doctor had opined that the said knife was used to inflict 14 stab injuries.
21. Yet another recovery was with reference to the steel pipe which was recovered in Crime No.702/2009 wherein the prosecution allege that the very same accused had assaulted
PW14. Though A1, the juvenile, had pleaded guilty and had undergone the sentence, it cannot be taken as a circumstance to probabilise the case of the prosecution in the light of Section 30 of the Evidence Act.
22. The main contention of the prosecution is that A2 and A3 were also present and they participated in the commission of -:19:-
crime along with A1. According to accused 2 and 3, they are not involved in the commission of crime and the police had falsely implicated them. A2 and A3 have a contention that the steel knife and the steel pipe were planted. They examined DW1 to substantiate the said contention. DW1 stated that four police men came without wearing any uniform at her residence and two of them entered into the house and planted some material objects over the beam of her house and beneath the cot. Police party came only after one hour along with accused 2 and 3 and the materials were recovered. This version does not appear to be a probable version. If a few persons had entered into her house before the police party had come, definitely she would have given a complaint and the matter ought to have been mentioned to the investigating officer at the relevant time itself. No such attempt had been made by DW1. Therefore, we are of the view that her evidence has to be discarded as she is the mother of the 2 nd accused and a partisan witness.
23. Yet another incriminating factor which had been relied upon by the prosecution is the recovery of the dress of the accused. The dress materials of accused 2 and 3 were recovered -:20:-
and it contained human blood of group B +ve. Ext.P45 chemical analysis report would indicate that the blood seen in the dress materials of the deceased was B+ve. The blood sample collected from deceased on chemical examination was also found to be B+ve. There is no explanation for accused 2 and 3 as to how their dress materials were stained with human blood and that too B+ve, which is the same blood group which has been seen in MO9 knife as well. MO7 series are the dress of the accused at the time of commission of the offence.
24. From the aforesaid discussion, the following factors are rather proved beyond reasonable doubt:-
(i) Recovery of MO8 mobile, MO9 knife and MO7 dress accused 2 and 3 were wearing at the time of incident.
(ii) MO9 knife and the dresses the accused were wearing
contained human blood B+ve which is the same as that of the deceased coupled with the fact that the mobile phone of the accused was stolen and it was in the possession of A2 adds to the fact that A2 and A3 were the persons who came along with A1 in a motor bike and committed the crime.
25. In the present case, the motive for commission of -:21:-
crime is theft and while doing so, when the deceased objected to the robbery, he was unscrupulously stabbed and the mobile phone was recovered. There is evidence to show that on the same day, PW14 was attacked by the same gang for which another crime came to be registered, but later it seems that the matter was settled. PW14 however did not identify the accused.
There are several incriminating circumstances which are proved beyond reasonable doubt. The chain of events is rather complete and we are of the view that sufficient material is available in the case to implicate accused 2 and 3 and the Court below had not committed any error in convicting them. We do not find any ground for interference. Crl.Appeals are dismissed. Sd/- A.M.SHAFFIQUE JUDGE Sd/- A.M.BABU Rp //True Copy// JUDGE PS to Judge