Somarajan @ Soman, S/O Gopalan and Another Vs. State of Kerala Rep.by the Public Prosec - Court Judgment

SooperKanoon Citationsooperkanoon.com/1012697
CourtKerala High Court
Decided OnDec-19-2012
JudgeHONOURABLE MR.JUSTICE V.CHITAMBARESH
AppellantSomarajan @ Soman, S/O Gopalan and Another
RespondentState of Kerala Rep.by the Public Prosec
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice m.sasidharan nambiar & the honourable mr.justice c.t.ravikumar wednesday, the 19th day of december 2012 28th agrahayana 193 crl.a.no.2174 of 2008 (b) -------------------------- sc.130/2006 of addl. district & sessions judge, pathanamthitta appellant(s)/accused: -------------------- 1. somarajan @ soman, s/o gopalan 'kripalayam', malamekkara, peringanad.2. thankamani, w/o.somarajan, "kripalayam", malamekkara, peringanad. by advs.sri.siby mathew sri.philip j.vettickattu respondent(s)/complainant: -------------------------- state of kerala rep.by the public prosecutor high court of kerala ernakulam. by public prosecutor sri.gikku jacob this criminal appeal having been finally heard on 19-12-2012, the court on the same day delivered the following: m.sasidharan nambiar & c.t. ravikumar, jj.========================== crl.appeal. no.2174 of 200.========================== dated this the 19th day of december, 2012 judgment ravikumar, j.the first appellant somarajan and his wife thankamani, the second appellant were accused nos.1 and 2 respectively in s.c.no.130 of 2006 on the file of the additional sessions judge (ad hoc) fast track-iii, pathanamthitta. they were convicted for the offences punishable under sections 302 and 323 read with section 34 of indian penal code, for murdering one vijayamma and one thulasibhai. they were convicted and sentenced to undergo imprisonment for life and to pay a fine of rs.25,000/- each for the offence under section 302 ipc and to undergo simple imprisonment for three months for the offence under section 323 ipc. crl.a.2174/0”2. the prosecution case, in brief, is as follows: the deceased vijayamma and thulasibhai were sisters-in-law and pw1 remya is the daughter of the latter and pw3 sunilkumar is the son of the former. on 24.7.2001 pw1, then an eighth standard student, on her return from school, ate boiled rice and finished homework by 6.25 p.m. and then went in search of her mother thulasibhai as she had not returned home even then. when she reached near the doorstep of one bessiyamma's house situated by the side of e.v.road, she saw vijayamma coming southwards through that road after washing her hands at the water pipe. she also saw the first appellant riding a bicycle northwards through the said road accompanied by the second appellant. when they reached near vijayamma, first appellant alighted from the bicycle and he inflicted a stab injury on vijayamma, below her left chest and she fell down. seeing this, thulasibhai who was then picking grass from the nearby land tilled with tapioca, rushed to the spot saying "don't assault echeyi" (elder sister). whe she reached near the rubber plantation of crl.a.2174/08 3 one thomas, the second appellant went thither and stabbed on her chest with mo2 rubber tapping knife. the first appellant also reached there and beat at the head of thulasibhai with a wooden plank. second appellant had also beaten her with a torch on the chin and knee and thulasibhai fell down. on seeing this, pw1 rushed to the spot and then, she was kicked on her chest by the first appellant and consequently, she fell down. on hearing her cry, her aunty lalitha, sreedevi kunjamma and some others reached there. thereafter, pw3 and others took vijayamma to the hospital and pw5 ramachandrakurup and others took thulasibhai to the hospital in autorickshaws. pw1 was taken home by lalitha. from the hospital vijayamma and thulasibhai were declared dead. pw1 was, later, taken to the government hospital, adoor and after examining her, she was brought to the police station. pw15 recorded ext.p1 fi statement from her and on its basis, he registered ext.p1(a) first information report on 24.7.2001 at 9 p.m. the next day, pw15 reached the hospital and conducted inquest on the body of vijayamma and crl.a.2174/08 4 prepared ext.p4 inquest report. after conducting inquest on the body of thulasibhai, he prepared ext.p5 inquest report. he sent the necessary requisition for conducting postmortem on the bodies of vijayamma and thulasibhai. pw14 dr.girish conducted autopsy on the body of vijayamma and issued ext.p10 postmortem certificate opining that the death of vijayamma was due to the penetrating injury sustained on the chest. on the same day itself, pw14 conducted autopsy on the body of thulasibhai and issued ext.p11 postmortem certificate opining that her death was due to the penetrating injury sustained on the chest viz injury no.3. on 25.7.2011, pw15 went to the scene of occurrence and prepared ext.p2 scene mahzar. he seized mo5 series viz., broken pieces of wooden plank and also collected mo30 soil stained with blood and mo6. on 31.7.2001, pw15 arrested the appellants at 11.45 p.m from pathanapuram ksrtc bus stand. on the information furnished by first appellant, pw15 recovered mo1 rubber tapping knife from the house of the first appellant under ext.p6 mahazar in the presence of pw10. based on crl.a.2174/08 5 the information furnished by the second appellant, pw15 recovered mo2 rubber tapping knife from the house of the first appellant under ext.p9 recovery mahazar in the presence of pw13. on completing the investigation, he laid final report before the judicial first class magistrate, adoor. the learned magistrate committed the case to the court of sessions, pathanamthitta and thereafter, it was made over to the additional sessions judge (ad hoc) fast track-iii, pathanamthitta. after preliminary hearing, the learned additional sessions judge framed charge for the offences under sections 302 and 323 read with section 34 ipc against the appellants. it was read over and explained to them and they pleaded not guilty.3. to prove the charge against the appellants, prosecution examined 16 witnesses, got marked 17 exhibits and identified 18 material objects. while cross examining prosecution witnesses, certain portions of statements made by pw5 under section 161 cr.p.c were marked as d1 and d2 and a portion of section 161 statement of crl.a.2174/08 6 pw9 was marked as d3. on closing the prosecution evidence, the appellants were examined under section 313 of the code of criminal procedure. all the incriminating circumstances put to them were denied by them. additionally, first appellant stated that harichandran nair, the husband of the deceased thulasibhai is a drunkard and even on the previous day of the occurrence, he abused them and when that was questioned, he challenged them by asking what they would do if he continued to abuse them. when he was told that they would make complaints to the police, harichandran nair replied that in such eventuality he would deal with them. it is also stated that in the evening, he along with pw8 krishnakumar came to their residence and pelted stones at their house asking whether they would complain against them before the police. thereafter, a complaint was made to the police and the next day, police came there and directed them as also the other parties to come to the police station in the evening. it is further stated therein that on getting the wind of it harichandran nair and pw8 again came to their house at about 4 'o' clock in the evening crl.a.2174/08 7 and pelted stones at their house and abused them. on 24.7.2001, at about 6 'o' clock in the evening, when they reached near the 'kuriyala' on the eastern side of e.v.road in the bicycle, on their way to the police station, the deceased vijayamma, thulasibhai, harichandran nair, pw8 and pw1 fell on them with weapons. during the scuffle harichandran nair thrust at him with a rubber tapping knife and he evaded the attack. pw8 stabbed second appellant with a knife and as a result, she sustained injury on her left arm. somehow, they managed to escape from there and went to nellimukal and got dressed their wounds from thuvayoor hospital. they came to know about the death of vijayamma and thulasibhai in the next day morning and a member of panchayat who got acquaintance with them came there and on his advice, they came to pathanapuram. thereafter, police took them to the police station and were told that if they would do as being told they would be left scot-free. they were also told that they would be taken to their house and they should take and hand over knives from the place indicated by police and on being told that they had not crl.a.2174/08 8 stashed knives it was told that they need only to act according to the instructions. it is further stated that thereafter, they were taken to the house of the first appellant and on instructions from the police, they took mo1 and mo2. the second appellant stated that she got nothing more to add to the statement by the first appellant and still additionally stated that the rubber tapping knife and torch were not with her. finding that it is not a fit case for acquittal under section 232 cr.p.c, the appellants were asked to enter on their defence. on the side of the defence, dw1 was examined. on evaluation of the evidence on record, the trial court found the appellants guilty for the offences punishable under sections 302 and 323 read with 34 ipc and sentenced them as aforesaid. this appeal is filed against the said conviction and sentence.4. we have heard the learned counsel appearing for the appellants and the learned public prosecutor. crl.a.2174/0”5. learned counsel appearing for the appellants argued that evidences of pw1 and pw3 were not at all reliable. it is contended that the motive alleged against the appellants were not proved by the prosecution and that there was shifting of the scene of occurrence. it is also argued that the deceased vijayamma and thulasibhai had sustained injuries in the scuffle occurred during their attack on the appellants, along with harichandran nair, pw8 and pw1 when the appellants were proceeding to the police station in bicycle. it is further contended that even if they are found guilty they are not liable to be convicted under section 302 ipc and in such eventuality, they could be convicted only under section 304 ipc. per contra, the learned public prosecutor contended that despite the lengthy cross examination, the defence could not elicit anything to shake the evidence of pw1 as also pw3. since ocular evidence clearly establish the role of the appellants in the commission of the crime, the motive had lost its significance, it is further submitted. according to the learned public prosecutor, the explanation furnished by the crl.a.2174/08 10 appellants while being examined under section 313 cr.p.c that they were attacked on their way to the police station is false and the evidence would clearly establish that the appellants had, in fact, inflicted injuries on vijayamma and thulasibhai with the intention to cause their death and ultimately caused their death. in such circumstances, no appellate interference is called for either with the conviction or with the sentence imposed on the appellants, it is submitted.6. we will, firstly, consider the question whether vijayamma and thulasibahi had homicidal death. in fact, there is no case for the defence that death of either vijayamma or thulasibhai is not homicide. pw14 dr.girish conducted the autopsy on the body of vijayamma and issued ext.p10 postmortem certificate noting the following antemortem injuries:1. incised penetrating wound shaped, on left side of front of chest, the horizontal limb measured 2.7 cm. and vertical limbs measured 1cm each. the upper end of inner vertical limb was 3 cm outer to midline and crl.a.2174/0”11. cm below collar bone. left chest cavity was penetrated after cutting 5th , 6th and 7th costal cartilages and incised to pericardium and front wall of right ventricle of heart and entered into its cavity. left chest cavity contained 750 ml of blood. the wound was directed backwards and to the right for a depth of 7cm.2. incised wound, 1.8x0.5x0.5cm on the right side of front of chest, 15cm outer to midline and 17 cm below top of shoulder.3. incised wound, 1x0.2x0.2 cm on the right side of front of chest, 3cm away from the nipple in the 10 'o' clock position.4. incised wound, 1.5x 0.5x1cm on the left side of front of chest, 10cm below axilla.7. he opined that the death of vijayamma was due to the penetrating injury sustained to the chest. pw14 had also conducted autopsy on the body of thulasibhai on the same day and issued ext.p11 postmortem certificate noting the following antemortem injuries:1. abrasion 2.5x1.5cm on the left side of forehead, 2cm outer to midline and 3cm above eyebrow.2. abrasion 1x 0.2cm over the jaw, 5cm to the right of crl.a.2174/08 12 midline.3. incised penetrating wound [ shaped, on the left side of front of chest, the vertical limb measured 2.7cm and horizontal limbs measured 1cm each. the upper end of vertical limb was 4cm outer to midline and 5cm above costal margin. left chest cavity was penetrated by cutting 5th and 6th costal cartilages and 6th intercostal muscles and incised the pericardium and front wall of right ventricle involving its whole thickness and terminated by cutting the upper surface of left lobe of liver after piercing the diaphragm. the left chest cavity contained 900 ml of blood and abdominal cavity, 600 ml of blood. the wound was directed downwards and backwards for a depth of 7.5 cm.4. incised wound, 1x0.2x0.cm on the left side of front of chest, 1.5cm outer to injury no.3.5. incised wound, 1.5x0.5x0.5cm on the right side of front of chest, 2cm outer to midline and 5cm above costal margin.6. incised wound 1x0.5x0.2cm on the left side of front of abdomen 9cm outer to midline and 1cm below costal margin.7. incised wound 1.5x0.5x0.2cm on the left side of front of abdomen 18cm outer to midline and 11cm above iliac crest.8. incised wound, 1x0.5x0.2cm on the outer aspect of left hip. crl.a.2174/0”9. abrasion 2x0.2cm on the front of right forearm. 7cm below elbow. 10.multiple small abrasions over an area 7x3cm on the front of right leg, 8cm below knee. 11.abrasion 2.5x1cm on the front of right leg, 5cm below injury no.10. 12.abrasion 1x0.5cm on the front of left leg, 5cm above ankle. 13.abrasion, 4.5x0.2cm oblique on the right side of back of trunk, upper inner end, 4cm outer to midline and 15cm below tip of shoulder blade.8. he opined that death thulasibhai was due to the penetrating injury (injury no.3) sustained to the chest. pw14 deposed that penetrating injuries sustained on the chest by vijayamma and thulasibhai were sufficient in the ordinary course of nature to cause their death. the evidence of pw14 in that regard was not seriously challenged. the evidence of pw14 with exts.p10 and p11 postmortem certificates and the nature of the penetrating injuries sustained by vijayamma and thulasibhai would show that they were sufficient in the ordinary course of nature to cause death and in fact, crl.a.2174/08 14 those injuries caused their death. in such circumstances, it can only be said that the death of vijayamma as also thulasibhai was homicide.9. the next question to be considered is whether the appellants are responsible for the homicidal death of vijayamma and thulasibhai. to prove the charge against the appellants, prosecution relied on the evidence of pw1 and pw3. pw1, daughter of thulasibhai, was then studying in the eighth standard. she deposed that on 24.7.2001, after the school hours, she returned home and after eating boiled rice and finishing her homework by about 6.25 p.m., she went in search of her mother as she had not returned home by then. she would further depose that when she reached the doorstep of bessiyamma's house situated on the eastern side of e.v.road, she saw vijayamma coming southwards through the said road and the first appellant riding a bicycle northwards through the same road accompanied by the second appellant. she had also deposed that crl.a.2174/08 15 when they reached near vijayamma, the first appellant alighted from the bicycle and then stabbed vijayamma with mo1 rubber tapping knife below her left chest. she would further depose that on seeing the said incident, her mother who was then picking up grass from the nearby land tilled with tapioca, rushed to the spot and when her mother reached the rubber plantation of one thomas, the second appellant went to that place and stabbed on her left chest with mo2 rubber tapping knife and the first appellant who reached there beat thulasibhai on the head with a wooden plank. she would also depose that the second appellant further beat thulasibhai with a torch on her chin and knee and sustaining the injuries thulasibhai fell down. according to her, she rushed to the spot seeing the attack on her mother and then the first appellant kicked on her chest and consequently, she fell down. the presence of pw1 at the scene of occurrence is amply proved and it is not disputed. in fact, while being examined under section 313 cr.p.c, the appellants also admitted the presence of pw1 at the scene of occurrence at the relevant point of crl.a.2174/08 16 time and according to them, she was one among the group that attacked them. the contention of the learned counsel appearing for the appellants is that the evidence of pw1 is not trustworthy and reliable for reasons more than one. it is argued that in ext.p1 fi statement, she has not spoken of the fact that she went in search of her mother thulasibhai after eating boiled rice and finishing her homework by 6.25 p.m. it is further contended that in ext.p1, she has not spoken about the presence of pw3 sunilkumar as also the use of torch. according to the learned counsel, the evidence of pw1 thus suffers from material contradictions and therefore, the oral testimony of pw1 is totally untrustworthy and unreliable. as noticed hereinbefore, at the relevant point of time, pw1 was studying in the eighth standard and she was then aged only 13 years. it cannot be disputed that pw1 had given ext.p1 f.i statement on the very date of occurrence itself and that too, after the death of her mother and vijayamma on sustaining stab injuries witnessed by her. the mind set of a little girl aged 13 years seeing stabbing on her own mother and crl.a.2174/08 17 aunt and then giving ext.p1 f.i. statement on the same day that too, after hearing the news of their death, has, necessarily, to be borne in mind wile appreciating the said contention. in ramesh maruti patil v. state of maharashtra reported in air 199.sc 28.the hon'ble supreme court held that fir cannot be considered as an encyclopedia. being the daughter of the deceased thulasibhai, it cannot be believed that she would give a statement in such manner to enable the actual culprits to escape from cluches of law by falsely implicating some others who got no involvement at all in the commission of the crime. when the very presence of pw1 is admitted by the appellant themselves, the non-mentioning of the fact that she reached the scene of occurrence after taking food and finishing her homework got absolutely no relevance at all and therefore, it cannot be treated as an omission amounting to material contradiction. mo6 torch and mo6(a) to (c) batteries were seized from near the scene of occurrence. true that in ext.p1, though pw1 mentioned about the possession of a torch with the second appellant she had not mentioned crl.a.2174/08 18 about its use during the attack on thulasibhai. there can be no doubt that unless material the mere absence of details of assault in the fir is not fatal to the prosecution. the non-mention of the use of torch cannot be material and fatal to the prosecution. in this case, even according to the evidence of pw1 the torch was used only for beating on the shin and knee of thulasibhai. in other words, no fatal injuries that led to the death of thulasibhai was inflicted using the torch. that apart, it is a fact that pw1 was aged only 13 years at the time of making ext.p1 and at that time she was disoriented in mind and in distress on account of the homicidal death of her mother and aunt and the fact that no serious injuries were caused with the torch, the omission to mention the use of the torch cannot be said to be material or fatal if the prosecution case is otherwise acceptable. now, with respect to the contention raised based on the non-mentioning of the name of pw3 in ext.p1 by pw1 while considering its impact it is relevant to bear in mind the decision of the hon'ble supreme court in bhagawan singh v. state of m.p reported in air 200.sc 162.crl.a.2174/08 19 holding that there is no requirement of law for mentioning the names of all witnesses in the fir, the object of which is only to set the criminal law in motion. in the decision in state of bihar v. ram padarath singh reported in air 199.sc 260.their lordships held that the mere omission of the names of eye-witnesses in fir may not falsify their evidence. the said decision will have relevance in the context of this case even though pw3 is not an eye-witness he rushed to the spot where his mother vijayamma was lying scathed and according to the prosecution, she made dying declaration to pw3. merely because his name was not mentioned in ext.p1, his presence in the scene of occurrence immediately after the stabbing incident cannot be doubted especially when the defence could not elicit anything to make the evidence of pw1 unreliable or untrustworthy. from the box pw1 deposed that pw1 had also come to the scene of occurrence.10. now, the question is whether the evidence of pw3 is crl.a.2174/08 20 reliable. in om prakash v. state of uttaranchal reported in [(2003) 1 scc 468.the hon'ble supreme court held that fir is not a catalogue nor does one expect a just informant, disoriented in mind and in distress to give graphic details. to establish that the evidence of pw3 is not reliable, the learned counsel appearing for the appellants argued that in ext.p1, his presence was not mentioned by pw1. that apart, it is contended that even if he was found present there, his version could not be believed as according to pw1, vijayamma and thulasibhai became unconscious on sustaining injuries. pw1 while being examined before court had deposed that pw3 came to the scene of occurrence after the stabbing incident. we have already found that the mere reason that pw1 had not mentioned about the presence of pw3 at the scene of occurrence immediately after the sustenance of stabbing by vijayamma and thulasibhai his presence at the scene of occurrence cannot be doubted. during the cross examination, pw3 deposed that when he reached the scene of occurrence, he found his mother crying and she was raising her hands. crl.a.2174/08 21 though pw3 was subjected to lengthy cross-examination nothing to discredit his version was brought out. it is to be noted that pw3 had not deposed that he had seen the stabbing incident. his consistent version is that when he reached there he saw pw1 crying from the grassy area between the road and the rubber plantation and his mother was screaming. the evidence of pw1 would reveal that seeing the stabbing on her mother thulasibhai she rushed to the spot and then she was kicked down by the first appellant. the said scene of occurrence is in the rubber plantation and vijayamma, the mother of pw3 lying on the road. a careful scrutiny of the evidence of pw3 would reveal that he gave only a true version of what he had seen on his arrival. he never ventured to establish that he had seen the stabbing on his mother or on thulasibhai. pw1 deposed that she went to the scene of occurrence when her mother sustained the stabbing injury and then she received the kicking from the first appellant and fell down there. pw1 was not near vijayamma when pw3 reached the scene. there is no inconsistency or contradiction with respect to crl.a.2174/08 22 the said fact in the evidence of pw1 and pw3. the evidence of pw3 would show that though he was not an eye witness to the entire incident, when he reached there, his mother vijayamma was conscious and on his query, she told him that it was the first appellant who stabbed her. the defence could not bring out anything to doubt the presence of pw3 at the scene of occurrence. on the evidence, there is nothing on record to disbelieve that version of pw3. evidently, the case set up by the defence is that while the appellants were proceeding to the police station in the evening of 24.7.2001 at about 6 p.m., when they reached the scene of occurrence, they were intercepted by deceased vijayamma, thulasibhai, harichandran nair, pw8 and pw1 and they were armed with rubber tapping knives and attacked them. it is their case that harichandran nair stabbed the first appellant with a knife and he evaded the said attack and the second appellant was stabbed by pw8 and she sustained an injury on her left forearm. there is no dispute that thulasibhai sustained injuries from the rubber plantation and she fell down in the rubber plantation and it crl.a.2174/08 23 was from there that she was taken to the hospital. the said scene of occurrence is about 10 metres away from the spot where vijayamma sustained injuries. no explanation is forthcoming from the appellants as to how thulasibhai sustained injuries from the rubber plantation and how she fell down there on sustaining injuries. according to the appellants, in the said scuffle, second appellant sustained injuries and some how they managed to escape from the attack and then reached nellimukal and thereafter, reached in a hospital at thuvayoor and got their wounds dressed. if such an incident had actually occurred, in the normal circumstances, they would have gone straight to the police station and informed about the same to the police. if serious injuries sustained in the alleged scuffle were the reason that prevented from going straight to the police station and constrained them to go to nellimukal and then to thuvayoor and got their wounds dressed, they could have produced some medical evidence showing the sustenance of wounds on them and that they had treatment from an hospital. there is absolute absence of any evidence whatsoever to establish that crl.a.2174/08 24 they lodged a complaint before the police on the previous day and thereupon, the police instructed them to go to the police station on the evening of 24.7.2001 and there occurred a scuffle when they were proceeding to the police station pursuant to such instruction from the police and they sustained injuries in the alleged scuffle and got their wounds dressed. there is yet another aspect that cast doubt on the explanation of the appellants. according to the appellants, they were proceeding to the police station. if that be so, it cannot be expected that they would carry mo1 and mo2 rubber tapping knives with them when they got no case that they proceeded to the police station from their work place. the evidence of pw5 ramachandrakurup would reveal that he had seen the appellants on a bicycle passing in front of his house which is nearer to their house and they were carrying mo1 and mo2 rubber tapping knives with them. pw1 deposed that the first appellant inflicted a stab injury on vijayamma with mo1 rubber tapping knife and the second appellant inflicted a stab injury on thulasibhai with mo2 rubber tapping knife. the medical evidence crl.a.2174/08 25 also support the case of sustenance of stab injuries. the fact that pw1 had not described all the injuries sustained by vijayamma and thulasibhai is no reason to discredit her version in the said circumstances. the learned counsel appearing for the appellants contended that the prosecution had failed to prove the motive for the commission of the crime against vijyamma and thulasibhai. in the context of the said contention, it is relevant to refer to the decision of the hon'ble supreme court in yunis alias kariya v. state of madhya pradesh (air 200.sc 539). it was held by their lordships that where the occular evidence is very clear and convincing and evidence and role of the accused person in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case. on the evidence, as discussed above, the defence set up by the appellants could not be believed and we find no reason to discard the evidence of pw1 and pw3.11. pw15 based on the information furnished by the first crl.a.2174/08 26 appellant recovered mo1 knife under ext.p6 in the presence of pw10 from his house. so also, on the information furnished by the second appellant, pw15 recovered mo2 rubber tapping knife from the house of the appellants under ext.p9 recovery mahazar in the presence of pw13. the knives were recovered from above the wall adjoining the wooden beam supporting the rafters. though the appellants challenged the said recovery, we find no reason to disbelieve the evidence of pw15 and the recovery of mo1 knife under ext.p6 mahazar and mo2 knife under ext.p9 mahazar. the defence has not brought out anything to invalidate the recovery of mo1 and mo2. ext.p17 is the forensic science laboratory report and it would show that mo1 and mo2 rubber tapping knives were stained with human blood. thus, on a close scrutiny of all circumstances established by the prosecution we have no hesitation to hold that the prosecution had succeeded in establishing that it was the first appellant who inflicted injury on the chest of vijayamma that caused her death and it was the second appellant who inflicted injury on the chest of thulasibhai that crl.a.2174/08 27 caused her death. on the evidence, we find no reason to disbelieve that it was the first appellant who voluntarily caused hurt on pw1 by kicking her on her chest. absolutely no reason has been brought out by the appellants to make us interfere with the finding of guilt by the trial court.12. the next question to be considered is what is the offence proved against the appellants. we have already found that penetrating injuries sustained on vijayamma and thulasibhai were sufficient in the ordinary course of nature to cause their death. from the nature of the injuries sustained by vijayamma, it can only be found that those particular injuries that caused her death were intentionally inflicted by the first appellant and the fatal injuries that caused the death of thulasibhai were inflicted by the second appellant and those injuries were not inflicted accidentally. in such circumstances, clause thirdly of section 300 ipc would apply. then the question is whether any of the exceptions to section 300 is crl.a.2174/08 28 applicable in this case. the learned counsel appearing for the appellants contended that exception 4 to section 300 ipc is applicable in the facts and circumstances. to invoke exception 4 to section 300, four requirements have to be satisfied namely, (i) it must be in a sudden fight (ii).there was no premeditation (iii). the act was done in a heat of passion and (iv). the assailant had not taken any undue advantage or acted in a cruel manner.13. the prosecution has established that vijayamma had sustained the injury that led to her death from e.v road and thulasibhai had sustained injury that caused her death from the rubber plantation. though the appellants attempted to set forth a defence that there occurred a scuffle and vijayamma and thulasibhai sustained injuries during the scuffle the appellants have miserably failed to establish that case put forth by them during the examination under section 313 cr.p.c. we have already assigned the reasons that makes the defence thus put by the appellants unacceptable. the evidence on crl.a.2174/08 29 record would reveal that thulasibhai had sustained injuries that led to her death and she found lying in the rubber plantation that was about 10 metres away from the place where vijayamma sustained injuries. there is no evidence that the appellants went to the second scene of occurrence viz., the spot where thulasibhai sustained injuries and thulasibhai followed them to the said scene of occurrence and then a scuffle occurred between them. in such circumstances, it cannot be believed that a scuffle occurred all of a sudden or the aforesaid injures were inflicted on vijayamma and thulasibhai in such a sudden fight. we have already found from the evidence of pw5 and pw1 that the first appellant was carrying mo1 and second appellant was carrying mo2 and in such circumstances, it cannot be said that there was no premeditation. in such circumstances, the contention that exception 4 to section 300 is applicable in the facts and circumstances is liable to fail. the offence committed by the appellants would fall only under section 300 ipc punishable under section 302 ipc. the trial court imposed only the lesser sentence of imprisonment for life on the crl.a.2174/08 30 appellants for the conviction under section 302 ipc. we find no reason to interfere with the said conviction. in the result, appeal is dismissed. the conviction and sentence imposed on the appellants by additional sessions judge (ad hoc) fast track-iii, pathanamthitta in s.c.no.130 of 2006 are confirmed. m.sasidharan nambiar (judge) c.t. ravikumar (judge) spc/ crl.a.2174/08 31 c.t. ravikumar, j.judgment september, 2010 crl.a.2174/08 32
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 19TH DAY OF DECEMBER 2012 28TH AGRAHAYANA 193 CRL.A.No.2174 of 2008 (B) -------------------------- SC.130/2006 of ADDL. DISTRICT & SESSIONS JUDGE, PATHANAMTHITTA APPELLANT(S)/ACCUSED: -------------------- 1. SOMARAJAN @ SOMAN, S/O GOPALAN 'KRIPALAYAM', MALAMEKKARA, PERINGANAD.

2. THANKAMANI, W/O.SOMARAJAN, "KRIPALAYAM", MALAMEKKARA, PERINGANAD. BY ADVS.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR & C.T. RAVIKUMAR, JJ.

========================== CRL.APPEAL. No.2174 OF 200.========================== Dated this the 19th day of December, 2012 JUDGMENT Ravikumar, J.

The first appellant Somarajan and his wife Thankamani, the second appellant were accused Nos.1 and 2 respectively in S.C.No.130 of 2006 on the file of the Additional Sessions Judge (Ad hoc) Fast Track-III, Pathanamthitta. They were convicted for the offences punishable under sections 302 and 323 read with section 34 of Indian Penal Code, for murdering one Vijayamma and one Thulasibhai. They were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- each for the offence under section 302 IPC and to undergo simple imprisonment for three months for the offence under section 323 IPC. Crl.A.2174/0”

2. The prosecution case, in brief, is as follows: The deceased Vijayamma and Thulasibhai were sisters-in-law and PW1 Remya is the daughter of the latter and PW3 Sunilkumar is the son of the former. On 24.7.2001 PW1, then an eighth standard student, on her return from school, ate boiled rice and finished homework by 6.25 p.m. and then went in search of her mother Thulasibhai as she had not returned home even then. When she reached near the doorstep of one Bessiyamma's house situated by the side of E.V.Road, she saw Vijayamma coming southwards through that road after washing her hands at the water pipe. She also saw the first appellant riding a bicycle northwards through the said road accompanied by the second appellant. When they reached near Vijayamma, first appellant alighted from the bicycle and he inflicted a stab injury on Vijayamma, below her left chest and she fell down. Seeing this, Thulasibhai who was then picking grass from the nearby land tilled with tapioca, rushed to the spot saying "don't assault Echeyi" (elder sister). Whe she reached near the rubber plantation of Crl.A.2174/08 3 one Thomas, the second appellant went thither and stabbed on her chest with MO2 rubber tapping knife. The first appellant also reached there and beat at the head of Thulasibhai with a wooden plank. Second appellant had also beaten her with a torch on the chin and knee and Thulasibhai fell down. On seeing this, PW1 rushed to the spot and then, she was kicked on her chest by the first appellant and consequently, she fell down. On hearing her cry, her aunty Lalitha, Sreedevi Kunjamma and some others reached there. Thereafter, PW3 and others took Vijayamma to the hospital and PW5 Ramachandrakurup and others took Thulasibhai to the hospital in autorickshaws. PW1 was taken home by Lalitha. From the hospital Vijayamma and Thulasibhai were declared dead. PW1 was, later, taken to the Government Hospital, Adoor and after examining her, she was brought to the police station. PW15 recorded Ext.P1 FI statement from her and on its basis, he registered Ext.P1(a) First Information Report on 24.7.2001 at 9 p.m. The next day, PW15 reached the hospital and conducted inquest on the body of Vijayamma and Crl.A.2174/08 4 prepared Ext.P4 inquest report. After conducting inquest on the body of Thulasibhai, he prepared Ext.P5 inquest report. He sent the necessary requisition for conducting postmortem on the bodies of Vijayamma and Thulasibhai. PW14 Dr.Girish conducted autopsy on the body of Vijayamma and issued Ext.P10 postmortem certificate opining that the death of Vijayamma was due to the penetrating injury sustained on the chest. On the same day itself, PW14 conducted autopsy on the body of Thulasibhai and issued Ext.P11 postmortem certificate opining that her death was due to the penetrating injury sustained on the chest viz injury No.3. On 25.7.2011, PW15 went to the scene of occurrence and prepared Ext.P2 scene mahzar. He seized MO5 series viz., broken pieces of wooden plank and also collected MO30 soil stained with blood and MO6. On 31.7.2001, PW15 arrested the appellants at 11.45 p.m from Pathanapuram KSRTC Bus Stand. On the information furnished by first appellant, PW15 recovered MO1 rubber tapping knife from the house of the first appellant under Ext.P6 mahazar in the presence of PW10. Based on Crl.A.2174/08 5 the information furnished by the second appellant, PW15 recovered MO2 rubber tapping knife from the house of the first appellant under Ext.P9 recovery mahazar in the presence of PW13. On completing the investigation, he laid final report before the Judicial First Class Magistrate, Adoor. The learned Magistrate committed the case to the Court of Sessions, Pathanamthitta and thereafter, it was made over to the Additional Sessions Judge (Ad hoc) Fast Track-III, Pathanamthitta. After preliminary hearing, the learned Additional Sessions Judge framed charge for the offences under sections 302 and 323 read with section 34 IPC against the appellants. It was read over and explained to them and they pleaded not guilty.

3. To prove the charge against the appellants, prosecution examined 16 witnesses, got marked 17 exhibits and identified 18 material objects. While cross examining prosecution witnesses, certain portions of statements made by PW5 under section 161 Cr.P.C were marked as D1 and D2 and a portion of section 161 statement of Crl.A.2174/08 6 PW9 was marked as D3. On closing the prosecution evidence, the appellants were examined under section 313 of the Code of Criminal Procedure. All the incriminating circumstances put to them were denied by them. Additionally, first appellant stated that Harichandran Nair, the husband of the deceased Thulasibhai is a drunkard and even on the previous day of the occurrence, he abused them and when that was questioned, he challenged them by asking what they would do if he continued to abuse them. When he was told that they would make complaints to the police, Harichandran Nair replied that in such eventuality he would deal with them. It is also stated that in the evening, he along with PW8 Krishnakumar came to their residence and pelted stones at their house asking whether they would complain against them before the police. Thereafter, a complaint was made to the police and the next day, police came there and directed them as also the other parties to come to the police station in the evening. It is further stated therein that on getting the wind of it Harichandran Nair and PW8 again came to their house at about 4 'O' clock in the evening Crl.A.2174/08 7 and pelted stones at their house and abused them. On 24.7.2001, at about 6 'O' clock in the evening, when they reached near the 'Kuriyala' on the eastern side of E.V.Road in the bicycle, on their way to the police station, the deceased Vijayamma, Thulasibhai, Harichandran Nair, PW8 and PW1 fell on them with weapons. During the scuffle Harichandran Nair thrust at him with a rubber tapping knife and he evaded the attack. PW8 stabbed second appellant with a knife and as a result, she sustained injury on her left arm. Somehow, they managed to escape from there and went to Nellimukal and got dressed their wounds from Thuvayoor Hospital. They came to know about the death of Vijayamma and Thulasibhai in the next day morning and a member of panchayat who got acquaintance with them came there and on his advice, they came to Pathanapuram. Thereafter, police took them to the police station and were told that if they would do as being told they would be left scot-free. They were also told that they would be taken to their house and they should take and hand over knives from the place indicated by police and on being told that they had not Crl.A.2174/08 8 stashed knives it was told that they need only to act according to the instructions. It is further stated that thereafter, they were taken to the house of the first appellant and on instructions from the police, they took MO1 and MO2. The second appellant stated that she got nothing more to add to the statement by the first appellant and still additionally stated that the rubber tapping knife and torch were not with her. Finding that it is not a fit case for acquittal under section 232 Cr.P.C, the appellants were asked to enter on their defence. On the side of the defence, DW1 was examined. On evaluation of the evidence on record, the trial court found the appellants guilty for the offences punishable under sections 302 and 323 read with 34 IPC and sentenced them as aforesaid. This appeal is filed against the said conviction and sentence.

4. We have heard the learned counsel appearing for the appellants and the learned Public Prosecutor. Crl.A.2174/0”

5. Learned counsel appearing for the appellants argued that evidences of PW1 and PW3 were not at all reliable. It is contended that the motive alleged against the appellants were not proved by the prosecution and that there was shifting of the scene of occurrence. It is also argued that the deceased Vijayamma and Thulasibhai had sustained injuries in the scuffle occurred during their attack on the appellants, along with Harichandran Nair, PW8 and PW1 when the appellants were proceeding to the police station in bicycle. It is further contended that even if they are found guilty they are not liable to be convicted under section 302 IPC and in such eventuality, they could be convicted only under section 304 IPC. Per contra, the learned Public Prosecutor contended that despite the lengthy cross examination, the defence could not elicit anything to shake the evidence of PW1 as also PW3. Since ocular evidence clearly establish the role of the appellants in the commission of the crime, the motive had lost its significance, it is further submitted. According to the learned Public Prosecutor, the explanation furnished by the Crl.A.2174/08 10 appellants while being examined under section 313 Cr.P.C that they were attacked on their way to the police station is false and the evidence would clearly establish that the appellants had, in fact, inflicted injuries on Vijayamma and Thulasibhai with the intention to cause their death and ultimately caused their death. In such circumstances, no appellate interference is called for either with the conviction or with the sentence imposed on the appellants, it is submitted.

6. We will, firstly, consider the question whether Vijayamma and Thulasibahi had homicidal death. In fact, there is no case for the defence that death of either Vijayamma or Thulasibhai is not homicide. PW14 Dr.Girish conducted the autopsy on the body of Vijayamma and issued Ext.P10 postmortem certificate noting the following antemortem injuries:

1. Incised penetrating wound shaped, on left side of front of chest, the horizontal limb measured 2.7 cm. and vertical limbs measured 1cm each. The upper end of inner vertical limb was 3 cm outer to midline and Crl.A.2174/0”

11. cm below collar bone. Left chest cavity was penetrated after cutting 5th , 6th and 7th costal cartilages and incised to pericardium and front wall of right ventricle of heart and entered into its cavity. Left chest cavity contained 750 ml of blood. The wound was directed backwards and to the right for a depth of 7cm.

2. Incised wound, 1.8x0.5x0.5cm on the right side of front of chest, 15cm outer to midline and 17 cm below top of shoulder.

3. Incised wound, 1x0.2x0.2 cm on the right side of front of chest, 3cm away from the nipple in the 10 'O' clock position.

4. Incised wound, 1.5x 0.5x1cm on the left side of front of chest, 10cm below axilla.

7. He opined that the death of Vijayamma was due to the penetrating injury sustained to the chest. PW14 had also conducted autopsy on the body of Thulasibhai on the same day and issued Ext.P11 postmortem certificate noting the following antemortem injuries:

1. Abrasion 2.5x1.5cm on the left side of forehead, 2cm outer to midline and 3cm above eyebrow.

2. Abrasion 1x 0.2cm over the jaw, 5cm to the right of Crl.A.2174/08 12 midline.

3. Incised penetrating wound [ shaped, on the left side of front of chest, the vertical limb measured 2.7cm and horizontal limbs measured 1cm each. The upper end of vertical limb was 4cm outer to midline and 5cm above costal margin. Left chest cavity was penetrated by cutting 5th and 6th costal cartilages and 6th intercostal muscles and incised the pericardium and front wall of right ventricle involving its whole thickness and terminated by cutting the upper surface of left lobe of liver after piercing the diaphragm. The left chest cavity contained 900 ml of blood and abdominal cavity, 600 ml of blood. The wound was directed downwards and backwards for a depth of 7.5 cm.

4. Incised wound, 1x0.2x0.cm on the left side of front of chest, 1.5cm outer to injury No.3.

5. Incised wound, 1.5x0.5x0.5cm on the right side of front of chest, 2cm outer to midline and 5cm above costal margin.

6. Incised wound 1x0.5x0.2cm on the left side of front of abdomen 9cm outer to midline and 1cm below costal margin.

7. Incised wound 1.5x0.5x0.2cm on the left side of front of abdomen 18cm outer to midline and 11cm above iliac crest.

8. Incised wound, 1x0.5x0.2cm on the outer aspect of left hip. Crl.A.2174/0”

9. Abrasion 2x0.2cm on the front of right forearm. 7cm below elbow. 10.Multiple small abrasions over an area 7x3cm on the front of right leg, 8cm below knee. 11.Abrasion 2.5x1cm on the front of right leg, 5cm below injury No.10. 12.Abrasion 1x0.5cm on the front of left leg, 5cm above ankle. 13.Abrasion, 4.5x0.2cm oblique on the right side of back of trunk, upper inner end, 4cm outer to midline and 15cm below tip of shoulder blade.

8. He opined that death Thulasibhai was due to the penetrating injury (injury No.3) sustained to the chest. PW14 deposed that penetrating injuries sustained on the chest by Vijayamma and Thulasibhai were sufficient in the ordinary course of nature to cause their death. The evidence of PW14 in that regard was not seriously challenged. The evidence of PW14 with Exts.P10 and P11 postmortem certificates and the nature of the penetrating injuries sustained by Vijayamma and Thulasibhai would show that they were sufficient in the ordinary course of nature to cause death and in fact, Crl.A.2174/08 14 those injuries caused their death. In such circumstances, it can only be said that the death of Vijayamma as also Thulasibhai was homicide.

9. The next question to be considered is whether the appellants are responsible for the homicidal death of Vijayamma and Thulasibhai. To prove the charge against the appellants, prosecution relied on the evidence of PW1 and PW3. PW1, daughter of Thulasibhai, was then studying in the eighth standard. She deposed that on 24.7.2001, after the school hours, she returned home and after eating boiled rice and finishing her homework by about 6.25 p.m., she went in search of her mother as she had not returned home by then. She would further depose that when she reached the doorstep of Bessiyamma's house situated on the eastern side of E.V.Road, she saw Vijayamma coming southwards through the said road and the first appellant riding a bicycle northwards through the same road accompanied by the second appellant. She had also deposed that Crl.A.2174/08 15 when they reached near Vijayamma, the first appellant alighted from the bicycle and then stabbed Vijayamma with MO1 rubber tapping knife below her left chest. She would further depose that on seeing the said incident, her mother who was then picking up grass from the nearby land tilled with tapioca, rushed to the spot and when her mother reached the rubber plantation of one Thomas, the second appellant went to that place and stabbed on her left chest with MO2 rubber tapping knife and the first appellant who reached there beat Thulasibhai on the head with a wooden plank. She would also depose that the second appellant further beat Thulasibhai with a torch on her chin and knee and sustaining the injuries Thulasibhai fell down. According to her, she rushed to the spot seeing the attack on her mother and then the first appellant kicked on her chest and consequently, she fell down. The presence of PW1 at the scene of occurrence is amply proved and it is not disputed. In fact, while being examined under section 313 Cr.P.C, the appellants also admitted the presence of PW1 at the scene of occurrence at the relevant point of Crl.A.2174/08 16 time and according to them, she was one among the group that attacked them. The contention of the learned counsel appearing for the appellants is that the evidence of PW1 is not trustworthy and reliable for reasons more than one. It is argued that in Ext.P1 FI statement, she has not spoken of the fact that she went in search of her mother Thulasibhai after eating boiled rice and finishing her homework by 6.25 p.m. It is further contended that in Ext.P1, she has not spoken about the presence of PW3 Sunilkumar as also the use of torch. According to the learned counsel, the evidence of PW1 thus suffers from material contradictions and therefore, the oral testimony of PW1 is totally untrustworthy and unreliable. As noticed hereinbefore, at the relevant point of time, PW1 was studying in the eighth standard and she was then aged only 13 years. It cannot be disputed that PW1 had given Ext.P1 F.I statement on the very date of occurrence itself and that too, after the death of her mother and Vijayamma on sustaining stab injuries witnessed by her. The mind set of a little girl aged 13 years seeing stabbing on her own mother and Crl.A.2174/08 17 aunt and then giving Ext.P1 F.I. statement on the same day that too, after hearing the news of their death, has, necessarily, to be borne in mind wile appreciating the said contention. In Ramesh Maruti Patil v. State of Maharashtra reported in AIR 199.SC 28.the Hon'ble Supreme Court held that FIR cannot be considered as an encyclopedia. Being the daughter of the deceased Thulasibhai, it cannot be believed that she would give a statement in such manner to enable the actual culprits to escape from cluches of law by falsely implicating some others who got no involvement at all in the commission of the crime. When the very presence of PW1 is admitted by the appellant themselves, the non-mentioning of the fact that she reached the scene of occurrence after taking food and finishing her homework got absolutely no relevance at all and therefore, it cannot be treated as an omission amounting to material contradiction. MO6 torch and MO6(a) to (c) batteries were seized from near the scene of occurrence. True that in Ext.P1, though PW1 mentioned about the possession of a torch with the second appellant she had not mentioned Crl.A.2174/08 18 about its use during the attack on Thulasibhai. There can be no doubt that unless material the mere absence of details of assault in the FIR is not fatal to the prosecution. The non-mention of the use of torch cannot be material and fatal to the prosecution. In this case, even according to the evidence of PW1 the torch was used only for beating on the shin and knee of Thulasibhai. In other words, no fatal injuries that led to the death of Thulasibhai was inflicted using the torch. That apart, it is a fact that PW1 was aged only 13 years at the time of making Ext.P1 and at that time she was disoriented in mind and in distress on account of the homicidal death of her mother and aunt and the fact that no serious injuries were caused with the torch, the omission to mention the use of the torch cannot be said to be material or fatal if the prosecution case is otherwise acceptable. Now, with respect to the contention raised based on the non-mentioning of the name of PW3 in Ext.P1 by PW1 while considering its impact it is relevant to bear in mind the decision of the Hon'ble Supreme Court in Bhagawan Singh v. State of M.P reported in AIR 200.SC 162.Crl.A.2174/08 19 holding that there is no requirement of law for mentioning the names of all witnesses in the FIR, the object of which is only to set the criminal law in motion. In the decision in State of Bihar v. Ram Padarath Singh reported in AIR 199.SC 260.their Lordships held that the mere omission of the names of eye-witnesses in FIR may not falsify their evidence. The said decision will have relevance in the context of this case even though PW3 is not an eye-witness he rushed to the spot where his mother Vijayamma was lying scathed and according to the prosecution, she made dying declaration to PW3. Merely because his name was not mentioned in Ext.P1, his presence in the scene of occurrence immediately after the stabbing incident cannot be doubted especially when the defence could not elicit anything to make the evidence of PW1 unreliable or untrustworthy. From the box PW1 deposed that PW1 had also come to the scene of occurrence.

10. Now, the question is whether the evidence of PW3 is Crl.A.2174/08 20 reliable. In Om Prakash v. State of Uttaranchal reported in [(2003) 1 SCC 468.the Hon'ble Supreme Court held that FIR is not a catalogue nor does one expect a just informant, disoriented in mind and in distress to give graphic details. To establish that the evidence of PW3 is not reliable, the learned counsel appearing for the appellants argued that in Ext.P1, his presence was not mentioned by PW1. That apart, it is contended that even if he was found present there, his version could not be believed as according to PW1, Vijayamma and Thulasibhai became unconscious on sustaining injuries. PW1 while being examined before court had deposed that PW3 came to the scene of occurrence after the stabbing incident. We have already found that the mere reason that PW1 had not mentioned about the presence of PW3 at the scene of occurrence immediately after the sustenance of stabbing by Vijayamma and Thulasibhai his presence at the scene of occurrence cannot be doubted. During the cross examination, PW3 deposed that when he reached the scene of occurrence, he found his mother crying and she was raising her hands. Crl.A.2174/08 21 Though PW3 was subjected to lengthy cross-examination nothing to discredit his version was brought out. It is to be noted that PW3 had not deposed that he had seen the stabbing incident. His consistent version is that when he reached there he saw PW1 crying from the grassy area between the road and the rubber plantation and his mother was screaming. The evidence of PW1 would reveal that seeing the stabbing on her mother Thulasibhai she rushed to the spot and then she was kicked down by the first appellant. The said scene of occurrence is in the rubber plantation and Vijayamma, the mother of PW3 lying on the road. A careful scrutiny of the evidence of PW3 would reveal that he gave only a true version of what he had seen on his arrival. He never ventured to establish that he had seen the stabbing on his mother or on Thulasibhai. PW1 deposed that she went to the scene of occurrence when her mother sustained the stabbing injury and then she received the kicking from the first appellant and fell down there. PW1 was not near Vijayamma when PW3 reached the scene. There is no inconsistency or contradiction with respect to Crl.A.2174/08 22 the said fact in the evidence of PW1 and PW3. The evidence of PW3 would show that though he was not an eye witness to the entire incident, when he reached there, his mother Vijayamma was conscious and on his query, she told him that it was the first appellant who stabbed her. The defence could not bring out anything to doubt the presence of PW3 at the scene of occurrence. On the evidence, there is nothing on record to disbelieve that version of PW3. Evidently, the case set up by the defence is that while the appellants were proceeding to the police station in the evening of 24.7.2001 at about 6 p.m., when they reached the scene of occurrence, they were intercepted by deceased Vijayamma, Thulasibhai, Harichandran Nair, PW8 and PW1 and they were armed with rubber tapping knives and attacked them. It is their case that Harichandran Nair stabbed the first appellant with a knife and he evaded the said attack and the second appellant was stabbed by PW8 and she sustained an injury on her left forearm. There is no dispute that Thulasibhai sustained injuries from the rubber plantation and she fell down in the rubber plantation and it Crl.A.2174/08 23 was from there that she was taken to the hospital. The said scene of occurrence is about 10 metres away from the spot where Vijayamma sustained injuries. No explanation is forthcoming from the appellants as to how Thulasibhai sustained injuries from the rubber plantation and how she fell down there on sustaining injuries. According to the appellants, in the said scuffle, second appellant sustained injuries and some how they managed to escape from the attack and then reached Nellimukal and thereafter, reached in a hospital at Thuvayoor and got their wounds dressed. If such an incident had actually occurred, in the normal circumstances, they would have gone straight to the police station and informed about the same to the police. If serious injuries sustained in the alleged scuffle were the reason that prevented from going straight to the police station and constrained them to go to Nellimukal and then to Thuvayoor and got their wounds dressed, they could have produced some medical evidence showing the sustenance of wounds on them and that they had treatment from an hospital. There is absolute absence of any evidence whatsoever to establish that Crl.A.2174/08 24 they lodged a complaint before the police on the previous day and thereupon, the police instructed them to go to the police station on the evening of 24.7.2001 and there occurred a scuffle when they were proceeding to the police station pursuant to such instruction from the police and they sustained injuries in the alleged scuffle and got their wounds dressed. There is yet another aspect that cast doubt on the explanation of the appellants. According to the appellants, they were proceeding to the police station. If that be so, it cannot be expected that they would carry MO1 and MO2 rubber tapping knives with them when they got no case that they proceeded to the police station from their work place. The evidence of PW5 Ramachandrakurup would reveal that he had seen the appellants on a bicycle passing in front of his house which is nearer to their house and they were carrying MO1 and MO2 rubber tapping knives with them. PW1 deposed that the first appellant inflicted a stab injury on Vijayamma with MO1 rubber tapping knife and the second appellant inflicted a stab injury on Thulasibhai with MO2 rubber tapping knife. The medical evidence Crl.A.2174/08 25 also support the case of sustenance of stab injuries. The fact that PW1 had not described all the injuries sustained by Vijayamma and Thulasibhai is no reason to discredit her version in the said circumstances. The learned counsel appearing for the appellants contended that the prosecution had failed to prove the motive for the commission of the crime against Vijyamma and Thulasibhai. In the context of the said contention, it is relevant to refer to the decision of the Hon'ble Supreme Court in Yunis alias Kariya v. State of Madhya Pradesh (AIR 200.SC 539). It was held by their Lordships that where the occular evidence is very clear and convincing and evidence and role of the accused person in the crime stands clearly established, establishment of motive is not a sine qua non for proving the prosecution case. On the evidence, as discussed above, the defence set up by the appellants could not be believed and we find no reason to discard the evidence of PW1 and PW3.

11. PW15 based on the information furnished by the first Crl.A.2174/08 26 appellant recovered MO1 knife under Ext.P6 in the presence of PW10 from his house. So also, on the information furnished by the second appellant, PW15 recovered MO2 rubber tapping knife from the house of the appellants under Ext.P9 recovery mahazar in the presence of PW13. The knives were recovered from above the wall adjoining the wooden beam supporting the rafters. Though the appellants challenged the said recovery, we find no reason to disbelieve the evidence of PW15 and the recovery of MO1 knife under Ext.P6 mahazar and MO2 knife under Ext.P9 mahazar. The defence has not brought out anything to invalidate the recovery of MO1 and MO2. Ext.P17 is the Forensic Science Laboratory Report and it would show that MO1 and MO2 rubber tapping knives were stained with human blood. Thus, on a close scrutiny of all circumstances established by the prosecution we have no hesitation to hold that the prosecution had succeeded in establishing that it was the first appellant who inflicted injury on the chest of Vijayamma that caused her death and it was the second appellant who inflicted injury on the chest of Thulasibhai that Crl.A.2174/08 27 caused her death. On the evidence, we find no reason to disbelieve that it was the first appellant who voluntarily caused hurt on PW1 by kicking her on her chest. Absolutely no reason has been brought out by the appellants to make us interfere with the finding of guilt by the trial court.

12. The next question to be considered is what is the offence proved against the appellants. We have already found that penetrating injuries sustained on Vijayamma and Thulasibhai were sufficient in the ordinary course of nature to cause their death. From the nature of the injuries sustained by Vijayamma, it can only be found that those particular injuries that caused her death were intentionally inflicted by the first appellant and the fatal injuries that caused the death of Thulasibhai were inflicted by the second appellant and those injuries were not inflicted accidentally. In such circumstances, clause thirdly of section 300 IPC would apply. Then the question is whether any of the exceptions to section 300 is Crl.A.2174/08 28 applicable in this case. The learned counsel appearing for the appellants contended that exception 4 to section 300 IPC is applicable in the facts and circumstances. To invoke exception 4 to section 300, four requirements have to be satisfied namely, (i) It must be in a sudden fight (ii).There was no premeditation (iii). The act was done in a heat of passion and (iv). The assailant had not taken any undue advantage or acted in a cruel manner.

13. The prosecution has established that Vijayamma had sustained the injury that led to her death from E.V Road and Thulasibhai had sustained injury that caused her death from the rubber plantation. Though the appellants attempted to set forth a defence that there occurred a scuffle and Vijayamma and Thulasibhai sustained injuries during the scuffle the appellants have miserably failed to establish that case put forth by them during the examination under section 313 Cr.P.C. We have already assigned the reasons that makes the defence thus put by the appellants unacceptable. The evidence on Crl.A.2174/08 29 record would reveal that Thulasibhai had sustained injuries that led to her death and she found lying in the rubber plantation that was about 10 metres away from the place where Vijayamma sustained injuries. There is no evidence that the appellants went to the second scene of occurrence viz., the spot where Thulasibhai sustained injuries and Thulasibhai followed them to the said scene of occurrence and then a scuffle occurred between them. In such circumstances, it cannot be believed that a scuffle occurred all of a sudden or the aforesaid injures were inflicted on Vijayamma and Thulasibhai in such a sudden fight. We have already found from the evidence of PW5 and PW1 that the first appellant was carrying MO1 and second appellant was carrying MO2 and in such circumstances, it cannot be said that there was no premeditation. In such circumstances, the contention that exception 4 to section 300 is applicable in the facts and circumstances is liable to fail. The offence committed by the appellants would fall only under section 300 IPC punishable under section 302 IPC. The trial court imposed only the lesser sentence of imprisonment for life on the Crl.A.2174/08 30 appellants for the conviction under section 302 IPC. We find no reason to interfere with the said conviction. In the result, appeal is dismissed. The conviction and sentence imposed on the appellants by Additional Sessions Judge (Ad hoc) Fast Track-III, Pathanamthitta in S.C.No.130 of 2006 are confirmed. M.SASIDHARAN NAMBIAR (JUDGE) C.T. RAVIKUMAR (JUDGE) spc/ Crl.A.2174/08 31 C.T. RAVIKUMAR, J.

JUDGMENT September, 2010 Crl.A.2174/08 32