George vs State

Padmanabhan, J.—Among the three brothers tried for murder with the aid of Section 34 of the Indian Penal Code, first accused alone was convicted and sentenced to imprisonment for life. Others were given the benefit of doubt and acquitted. First accused is challenging his conviction and sentence. The occurrence was at about 7 PM on 12-7-1984 in the road in front of the shop of PW 2 in Manhapra Village near Kalady. There were two criminal cases against deceased Devassykutty, one for having attacked accused 1 and 3 and the other for an offence against third accused alone. The resultant enmity is the motive alleged.

On the evening of the date of incident, the deceased and some others, including PWs 3, 4, 6, 7 and 8, were engaged in playing rummy in a compound at a short distance from the scene. During the course of the game, the deceased suspected foul play and counted the cards. Shortage of 13 cards was found. Play was stopped. Security deposits were returned. The deceased destroyed the cards and the players went westwards in the direction of the shop of PW 2. The three accused were there. Appellant pulled the deceased down and stabbed him in the abdomen with MO 1 causing his omentum to protrude. When he cried to save him, appellant inflicted two more stabs on his chest. The other two accused, who were at some distance, came and they also inflicted some stab injuries on the deceased with MOs 2 and 3 daggers. On the way to the hospital. Devassykutty died. PW 1 gave the first information. This is the prosecution version.

Defence is denial of involvement and false implication 26 prosecution witnesses and one defence witness were examined. Exts. P1 to P18 are the prosecution documents and the solitary defence document is Ext. D1, which is a case diary contradiction of PW 14. Material objects identified are MOs 1 to 10.

Acquittal of accused 2 and 3 is not challenged. Section 34 is therefore, out of question. The only point arising for consideration is whether the conviction of the appellant for murder is justified. The fact that Devassykutty sustained the injuries at the time and place alleged by the prosecution and met with death is not in dispute. The fact is clearly proved by the ocular and medical evidence as well as the police records. The question for consideration is who is responsible and if the prosecution evidence is accepted, what offence is made out.

The material items of evidence are: (1) the oral evidence regarding motive, which is not in serious dispute; (2) the ocular evidence of PWs 1 to 4 and 6 to 9; (3) the dying declaration of the deceased spoken to by PWs 1, 2 and 9; (4) the extra judicial confession attempted to be proved through PW 10 supported by the evidence of PW 23; (5) the evidence of PW 14 regarding the departure of the accused from the scene supported by other witnesses; (6) the evidence of PW. 12 to connect MO 1 and MO 1 (a) sheath with the appellant; (7) the evidence of Section 27 recovery afforded by the testimony of PWs 20 and 26; and (8) the medical evidence of PW 21 supported by Ext. P13 post-mortem certificate prepared by him.

PWs 6 to 8 turned hostile and denied having seen the incident. But they also supported PWs 3 and'' 4 in their version that the incident took place after the rummy play was stopped in the circumstances alleged by the prosecution and the players moved towards the shop of PW 2. PW 4 is the only person who saw how the occurrence started. He saw the appellant standing near the shop of PW 2 and coming to the road to pull down the deceased on the road when he reached in front of the shop of PW 2. PWs 1 to 4 saw MO 1 in the hands of the appellant. But none of them saw the first stab in the abdomen, which caused omentum to protrude. But all of them saw that injury as well as the presence of all the three accused with the weapons. They also heard the cry of the deceased that he should not be murdered. Regarding the subsequent stabs by the appellant, PW 4 gave diametrically opposite versions that he saw and did not see. The cry was heard by PW 9 also. PWs 1 and 3 saw the subsequent stabs by the appellant with MO 1. The wound was bandaged by PW 1 and this fact was supported by the other witnesses also. PWs 1, 2 and 9 gave evidence about the dying declaration made by the deceased to PW 1 that he was stabbed by the appellant and his two brothers. The fact that Devassykutty died on the way to the hospital was also spoken to by these witnesses and this fact is supported by medical evidence and inquest.

Ext. P1 First information statement was given by Pw 1 at 10 PM immediately after the deceased was taken to the hospital and reported dead. That agrees with all the broad aspects spoken to by PWs 1 to 4 Ext P1 appears to contain a true version of the incident. Regarding the injuries and the possible manner in which they were inflicted there is no conflict between the ocular and medical evidence. The injuries proved to have been inflicted by the appellant are Item Nos. 4 to 6 in Ext. P13. Among them, the fatal injuries are 4 and 6. Injury No. 4 is on the chest 4.50 cms deep passing through the anterior chest wall, medial lobe of liver and anterior wall of chest. Injury No. 6 was just above the umbilicus cutting the anterior abdominal wall. Small intestine was cut and it protruded. PW 21 said that these injuries are sufficient in the ordinary course of nature to cause death and death was the result.

PWs 2 and 3 saw the incident from the shop of PW 2 and PWs 1 and 4 witnessed from two nearby places on the road. There are certain minor variations in their evidence. They are quits natural. Different locations of sight as well as difference in perception and memorisation will explain such minor difference. On broad facts they have no conflict. On closer analysis, we are in full agreement with the Sessions Judge that their versions could be accepted. We are aware of the fact that PWs. 1 and 2 are close relations of the deceased and as such interested in the prosecution and inimical towards the appellant. But we are not satisfied of the argument that their evidence could be equated to those dealt with in Badri Vs. State of Rajasthan, and Narayanan and others v. State ( 1984 Crl. L.J. 528). We are not of view that they were modulating their evidence to suit the prosecution version. Being related and interested witnesses, possibility of exonerating the real culprits, in order to implicate innocent persons, is too remote. Interested and partisan nature by itself is no ground to reject their evidence, it otherwise acceptable. Only thing is that the evidence will have to be viewed with caution. We find their evidence capable of standing such scrutiny.

Injuries 4 and 6 alleged to have been inflicted by the appellant with MO 1, as the medical evidence shows, are having edges sharp and cutting. MO 1 is a single edged weapon. The argument was that such injuries could be caused only by a double edged weapon. But PW 21 gave clear evidence that these injuries are possible with MO 1. That evidence was not at all challenged in cross examination and no such contention was taken before the trial court. That may be no reason to reject the argument if it is otherwise found acceptable. A Division Bench of this court in Crl. Appeal No. 231 of 1988 considered an identical contention and held that a single edged weapon can also cause such injuries depending on the manner in which the stab was inflicted and the reaction of the victim and his movements. That opinion is in consonance with the expert views on medical jurisprudence. It is true that the ends of the stab wound may give a clue as to whether the knife is single or double edged. But such a distinction is not always easy. When there is marked difference between each end of the wound, one being rounded and blunt and the other sharply cut, it is reasonable to suggest that a single edged weapon should be sought. But the converse need not always be correct. Even when a single edged knife is stabbed into the body, both ends of the wound may appear to be sharply cut due to tearing of the skin at the blunt edge (H. W. V. Cox Medical Jurisprudence and Toxicology by Dr. Bernard Knight, 5th edition, 1987). MO 1 is a knife having a sharp pointed nip. The injuries are in plumpy and fleshy areas. When a slit is created by the sharp pointed edge, on further plunging, what is required is one side alone need be widened. That can explain the edges apparently sharp on either side. In view of the unchallenged evidence of PW 21 and the unblemished evidence of the occurrence witnesses, we do not find any merit in the argument.

We do not agree with the counsel that PWs 3 and 4 are partisan witnesses. They are not related or interested. The mere fact that they were witnesses in the previous case, who did not support the prosecution, is no reason to brand them as partisan witnesses. Even if they are considered as interested, there is no reason to reject their evidence on the merits. If they were giving evidence with an elastic conscience, they could have better identified with the prosecution by swearing to further details. We find their versions acceptable.

There is no case that anybody else was responsible for the crime. So also, there is no case for the prosecution or the defence that the deceased was the aggressor or he was armed or aided by anybody. No such possibility is also there from the evidence. It is evidently a case of calculated attack on the unarmed victim when he was in a helpless lying position.

12 Dying declaration made to any person, if unblemished and acceptable, is a strong piece of evidence on which conviction could be supported even though it may be considered to have a better probative value when it is made to a magistrate. That is only on account of the regularity and truthfulness on account of the official discharge of the function. The deceased knew the appellant well and he had the chance of observing and identifying him at close range as the culprit. Appellant was well known to him also. There was no chance of false identification. The dying declaration spoken to by PWs 1, 2 and 9 is unblemished and the possibility of extraneous influence or false implication is also ruled out. That is also a supporting piece of evidence though it is possible in this case to fix the guilt even without it.

Motive spoken to by the witnesses is not in serious dispute, even though an attempt was made to argue on the basis of the evidence of PW 17 supported by Ext. P10 that the differences were settled. Even in spite of settlement, it is possible that the vengeance was continued by the appellant, who suffered assault at the hands of the deceased. Further, in a case like this, when there is clinching direct evidence, motive is only secondary importance. It is not part of the crime, but only an aid in assessing criminality. It's importance is mainly in cases where direct evidence is not there.

Prosecution did not fully succeed in proving the extra judicial confession through PW 10, who naturally turned hostile on account of her interest, being the sister of third accused's wife. But the prosecution version that accused went to her after the incident is to a certain extent probabilised by the evidence of PW 23 to whom PW 10 was taken due to mental shock. That evidence is, in fact, unnecessary.

PW 12 admitted that MO 1(a) was made by him. But his evidence is not capable of connecting it with the appellant. That is also an unnecessary item of evidence in the light of the direct evidence. We are also having the direct evidence of PWs 1 to 4 and 14 regarding the departure of the accused with the weapons from the scene of occurrence.

The argument that the occurrence witnesses could not have identified the appellant and weapon is also without any merit. Appellant was closely known to them long before the incident. They are persons of the same locality. The unanimous evidence is that there was light burning in the shop of PW 2 and there was also moonlight The incident was at about 7 PM on the day previous to full moon day when clear moonlight was there. Witnesses saw the appellant at close rang:. Identification is, therefore, beyond doubt and false implication is ruled out.

There is also the evidence of PW 26 regarding the information conveyed by the appellant, which led to the discovery of MO 1 from the place of its hiding exclusively known to him. In view of the direct evidence, that aspect is also not of much importance. There is no point in saying that Section 100 (4) of the Code of Criminal Procedure was not complied with, even if that provision is held applicable. Here, what is involved is only discovery on the basis of the information and not seizure by search. Evidence of PW 26 is that recovery was in the presence of respectable witnesses. MO 1 was identified and proved as the weapon wielded by the appellant. The fact that the attestor, examined as PW 20, refused to support the prosecution fully is no reason to disbelieve PW 26. PW 20 only denied his presence when recovery was made and said that he came after recovery was over and attested the mahazar. There is nothing preventing acceptability of the uncorroborated version of PW 26, which is otherwise found acceptable.

We were also not convinced of the argument that the prosecutor and the Sessions Judge disregarded Section 162 of the Code of Criminal Procedure. Violation of Section 162 was argued in the sense that leading questions were put to some of the hostile prosecution witnesses by confronting them with their prior statements u/s 161 without getting permission of court and those statements likely to prejudice the mind of the court were, recorded in the depositions. When such questions are allowed and recorded, permission could be presumed. Portions of the prior statements were put to those witnesses only when they went against what they told the police. The statements recorded were those admitted to have been given by the witnesses. Therefore, there is no question of any prejudice. When the statements were admitted to have been given, even though with an added statement that they are wrong and how those statements happened to be made, there was no question of proving those statements through the investigating officer. There is no violation of Section 162. Commission of offence by the appellant is thus proved beyond doubt. An unarmed victim, against whom he had previous enmity, was calculatedly knocked down by him. In that helpless plight, he stabbed in his abdomen and caused the intestine to protrude. When he tried to save him, he again inflicted two lethal blows on the chest with MO 1 with force. Doing acts by which death is caused with the intention of causing death or atleast with the intention of causing the particular bodily injuries sufficient in the ordinary course of nature to cause death is patent. If not the first part of Section 300, at least the third part is applicable and the offence committed is nothing short of murder. The sentence also does not require interference.

Criminal appeal is dismissed confirming the conviction and sentences since the lesser alternative punishment alone was given.