Sebastian @ Babichan vs State Of Kerala

Vinod Chandran, J.

The always potent mixture of playing cards and liquor, led to the murder of a person by his own brother. On 16.09.2013 after the revelry in

connection with Onam; laced with intoxication of liquor, five friends sat together for a game of cards at the house of one of them (the deceased

victim). The brother of the victim, who resides nearby, also under the influence of liquor, demanded to be participated in the game. Presumably due to

his demand having been declined, there ensued a brawl and some pushing and pulling. The intruder was then led to his own neighbouring house and

the wife of the victim requested that the friends disperse, since the brother was sure to return and again pick up a quarrel. The friends hence decided

to rejoin at the house of another among them. While they were leaving the premises in three bikes, with two riding pillion, the intruder waylaid his

brother's bike and stabbed him. The injured was taken by his friends first on a bike and then in a Scorpio car initially to a hospital at Chettikuzha where

he was given first aid and then to the Medical College Hospital, Kottayam. The victim succumbed to his injuries at 10.30 p.m on the same day. The

FIR was registered on the basis of the First Information Statement of PW1 and the accused arrested at 1.00 p.m on the next day.

Before the Trial Court the prosecution examined PW1 to PW19 and produced MO1 to MO6. Exts.P1 to P20 documents were marked. PW1 to

PW4, who in the company of the deceased was engaged in the game of cards were occurrence witnesses. MO1 knife said to be the weapon used for

stabbing was alleged to have been seized from the body of the accused at the time of arrest. The Trial Court found the accused guilty of the offense

of murder punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment and fine of Rs.25,000/- with a default

sentence of one year.

We heard learned State Brief Preethy R Nair for the accused/appellant and Sri. S.U Nazar learned Prosecutor for the State. Learned Counsel for

the appellant argued that the seizure of MO1 knife was stage managed. The inspection report at the time of arrest did not show such seizure having

been made from the body of the accused. Further it is very unlikely that the accused would have carried the knife after the alleged incident of

stabbing. It is also pointed out that though the arrest was made on 17.09.2013, the material object alleged to have been seized from the body of the

accused, a crucial piece of evidence being the offending weapon, was produced before Court only on 26.09.2013. There was no explanation offered

by the prosecution as to why the delay was occasioned in producing the knife which is the most crucial piece of evidence. The learned Counsel also

argues that there is no scientific evidence to show that the offense of stabbing was carried out with the material object produced before Court. It is

pointed out that PW1 to PW4 though occurrence witnesses admit that they were driving away from the scene and saw the incident while looking back

from the moving vehicles, which is very improbable. There are major embellishments and discrepancies in the evidence of PW1 to PW4 which

definitely enables the accused to the benefit of doubt. The discrepancies in the evidence of the ocular witnesses raise serious doubts about the incident

having occurred as set up by the prosecution. According to the accused his brother got injured when the bike he was riding slipped and the rider fell on

to the fence. The sharp pickets on the fence caused the various incised wounds. One of the witnesses had also spoken of a drizzle at the time of the

incident which probablize the version of the accused that the bike ridden by the deceased slipped causing the rider to fall down. The postmortem

report also indicates that the deceased was intoxicated at the time he was riding the bike. Alternatively it is also pleaded that the accused is entitled to

Exceptions 1 and 4 under Section 300 of the IPC. It is the contention of the learned Counsel that if at all the accused is found guilty of stabbing his

brother it was one which occurred on the heat of the moment when there was a wordy altercation between the brothers. The incident occurred only

by reason of the sudden quarrel that ensued between the brothers and there was no premeditation asserts Smt. Preethy R. Nair.

Sri.S.U Nazar would argue that there are no embellishments in the deposition of the ocular witnesses, and if at all, they are not very material. The

FIS which is the most contemporaneous document names every person who was present at the time of the incident and just prior to it, all of whom

having been examined by the prosecution. The motive which is the denial of the deceased to allow the accused to join the game of cards, is also

spoken of in the FIS. On the material particulars and the circumstances leading to the incident and also the incident proper, there is clear identity in the

deposition of PW1 to PW4. The fact that the FIS did not reveal the drizzle at the time of incident is not at all material and there is nothing to show that

the deceased had fallen from the bike or had died by reason of the injuries caused thereby. The fatal injury as spoken of by PW11 the Doctor who

conducted autopsy was one which entered the left side of the front of chest just below the collar bone and pierced even the abdominal cavity. The

stab wound was so forceful and deliberate, which could not have been caused by a person falling on a fence from a bike. It is urged that there is no

reason to find the accused entitled to any benefit of doubt especially when the evidence clearly indicates a premeditated act of the accused after he

was taken away from the spot, where a wordy altercation had ensued. The deceased who was leaving the premises was waylaid and deliberately

stabbed with a knife. There is no cause for bringing the act under any of the Exceptions. The learned Prosecutor would seek to sustain the conviction

and sentence.

PW11 is the Doctor who conducted the autopsy and Ext.P6 is the postmortem certificate. The incised injuries noted therein are 1,2,3 and 8. Injury

Nos. 4 to 7 are linear aberrations. The opinion as to the cause of death is that the deceased died of the injury sustained to the chest and abdomen, ie,

injury No.1, the description of which is extracted below from Ext.P6.

Incised penetrating wound 2.3cm long, oblique on left side of front of chest, the upper outer sharply cut end was 8cm to left of midline and 17cm

below collar bone, the other end was blunt. Cutting down along soft tissues of the chest wall and directed downward, backwards and inwards the

wound entered the abdominal cavity by penetrating the anterior abdominal wall and peritoneum and had terminated by incising front wall of the body

of stomach. The wound track had a total minimum depth of 10.5cm. The abdominal cavity contained 800ml of fluid blood mixed with blood clots and

spilled stomach contents.

PW11 spoke of the ante-mortem injuries as seen from Ext.P6. The Doctor's opinion as seen from the deposition is specifically that the injury could

be caused by MO1 knife and it is sufficient in the ordinary course of nature to cause death. There was a specific question put in cross-examination as

to whether the injury could have been caused by reason of the rider of a bike falling on a fence. It was categorically opined by the Doctor that injury

No.1 cannot be caused by falling on to a sharp fence. The other injuries according to him, except injury Nos.7 and 8 also could be caused by a

weapon like MO1. The fatal injury as we see from the above extract from Ext.P6, entered the body on the left side of the chest, below the collar bone

and traveled down cutting the soft tissues of the chest wall to enter the abdominal cavity by penetrating the anterial abdominal wall and peritoneum

and terminated by incising the front wall of the stomach. The wound track had a total minimum depth of 10.5cm. The fatal injury as revealed from the

postmortem report and deposition of the Doctor clearly indicates a forceful stab made on the chest downwards and the weapon piercing the innards of

the body to a depth of 10.5cm; which is highly improbable if the rider of a bike fell on a fence. For producing such an injury from falling on a picket of

the fence, the body has to fall down from a height almost at a 90 degree angle to the ground. We are convinced that the injury was caused by a

piercing weapon like a knife and that there was deliberate human force applied to the weapon. The injured lost his life due to the fatal injury caused by

a weapon like a knife which was used on him by another stands well established. That the injured was murdered is quite evident from the medical

evidence.

There was considerable argument made regarding the seizure of the knife from the body of the accused. We are not convinced that it is totally

improbable for the perpetrator of a crime to carry the weapon on his body after the alleged incident. However, we have our own apprehensions about

the seizure proper as was pointed out by the learned Counsel for the appellant. The Inspection Memo (Ext.P12) prepared at the time of arrest did not

contain any narration about such seizure having been made or the presence of the knife on the body of the accused. Further, the seizure was made on

17.09.2013, but it was produced only on 26.09.2013 before Court, which stands admitted by PW19, the Investigating Officer. The explanation for the

delay as spoken of by the Investigating Officer during cross-examination was that the same was kept with him so as to confront the Doctor with the

weapon when his statement was recorded on 26.09.2013. The Doctor on the other hand though spoke of having seen the weapon, was not asked

anything about the date on which he had seen the same. The Investigating Officer also categorically stated that there was no attempt made or

permission taken from the Court to keep the knife in safe custody, until the Doctor was confronted with the same. It is also pertinent that though on

chemical examination of the knife, there was blood detected on it, the same was insufficient for the purpose of identifying the group. In the totality of

the circumstances we are of the opinion that there can be no reliance placed on the seizure of the knife from the person of the accused at the time of

arrest. The said circumstance as pointed out by the prosecution does not impress us to bring home the guilt of the accused. However, we have to

notice that the prosecution case is not based merely on the circumstances but has its foundation on the clear ocular evidence of four witnesses.

PW1 to PW4 supports the prosecution case to the hilt. PW1 is the person who gave the FIS, Ext.P1 leading to registration of P11 FIR. As rightly

pointed out by the learned Prosecutor, it is the most contemporaneous document; having been recorded at 3.00 a.m after the death of the injured at

10.30 p.m. on the previous day. The FIS speaks of the incident fairly in detail regarding the circumstances which led to the incident of stabbing one

George Thomas @ Sibichan. PW1 to PW3 and the deceased were engaged in a game of cards at about 6.00 p.m on the front portion of the house of

the deceased; PW4 being a mere onlooker. The accused approached them demanding to join the game, which was declined by those who were

playing. The accused then created a row when the wife of the deceased asked her husband and his friends to disperse since the accused was

definitely going to return. The deceased is also said to have scolded the accused, his brother for having been forced to stop the game. The friends then

decided to continue with their game at the house of PW1 and proceeded in three bikes; two riding pillion. PW3 is said to have gone pillion in the bike

ridden by the deceased. When the deceased & PW3 reached in front of the house of the accused they were waylaid by the accused. The accused is

said to have then forcefully stabbed the deceased on the left chest.

The deceased having been subjected to a forceful stab fell down from the bike. PW1 to PW4 immediately came to the rescue of the injured and

took him to the nearby hospital for first aid and then to the MCH, Kottayam. There the injured succumbed at 10.30a.m. PW 1 spoke in tandem with

the FIS. The essential circumstances involving the intrusion made by the accused into the game peacefully carried on by the deceased and PWs 1 to

3, the wordy altercation that ensued on the intrusion of the accused, the friends gathered in the house of the deceased having proceeded to disperse

and the incident of stabbing has been graphically described by PWs1 to 3 in tandem. There are obviously embellishments which however, are not

material and do not raise any doubt in our mind as to the incident having occurred in any other manner.

Sunil Kumar Shambu Dayal Gupta v. State of Maharashtra [2010 (13) SCC 657 ]restated the rules relating to appreciation of evidence. It was

held that the nature of the contradictions, exaggerations or embellishments have to be judged by their magnitude as to whether it materially affects the

trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case

cannot be a ground to reject the evidence entirely. Marginal variations need not necessarily be improvements in the real sense. Such variations could

be in elaboration of the statements made earlier. It was held to be the duty of the Court to consider the evidence in its entirety to form an opinion

about the credibility of the witnesses. The embellishments, if they can be so styled, are only minor additions made on the details of the incident, which

none would narrate when an FIS is being recorded. Those are only details regarding an incident which comes to the mind of a witness on deliberate

introspection; which may not occur to him at the time of giving an FIS immediately after the incident, when the crime proper and the consequences of

that alone would be impacting the mind of the person who witnessed it.

PW2 further adds that after suffering the stab injury the injured also spoke of “Babichan (the accused) having stabbed himâ€. This was spoken

of by PW4 and PW5, the wife of the deceased who came to the scene of occurrence immediately after her husband was stabbed. PW3 is the person

who was riding pillion in the bike of the injured. There is an argument raised that there is nothing to show that PW3 is Sojan as spoken of by the other

witnesses. The name of PW3 is shown as Joseph.M and he was not specifically identified by the prosecution as having been known by the alias of

Sojan. None of the other witnesses also were asked about the alias or nickname of PW3. However, from the totality of the circumstances as narrated

by PWs 1, 2 & 4 it is fairly clear that it was Sojan who was riding pillion with the deceased and PW3 admitted to be that person riding pillion on the

bike ridden by the deceased. PW3 also speaks of the circumstances leading to and the incident itself in tune with the FIS and the ocular evidence of

PWs1,2 and 4. In cross-examination he specifically speaks of himself and three others having played cards, of which one is the deceased and the two

others PWs 1 and 2. PW4 did not participate in the game as spoken of by him and also by PWs 2 and 3. We do not find any reason to discard the

evidence of PW3 who saw the incident at first hand, being the person riding pillion, when the accused who was driving the bike was stabbed on the

chest.

The motive and the subsequent events were also spoken of by PWs 1 to 4 in tandem. The mere fact of PW4 having spoken of a drizzle at the time

of the incident would not aid the accused in the appeal for acquittal. We have already found that there is absolutely no chance of the deceased having

suffered the fatal injury by falling on the fence. The contradictions as marked through PW4 are relied on by the learned Counsel for the appellant. The

incident proper as spoken of by PW4 to the Police when confronted to the witness have been denied. Exts.P2 and P2(a) are the contradictions

marked on the side of the prosecution. However, on the first part of the chief-examination of PW4 he spoke of the specific circumstance which

occurred during the game of cards proceeded with in the house of the deceased. He also spoke of not having participated in the game of cards, which

is in tune with the evidence of PWs 2 and 3. The wordy altercation and the dispersal of the five friends are also spoken of by PW4. The only deviation

is that he does not speak of having witnessed the incident proper. He speaks of having heard a sound when the friends were leaving the premises.

When he turned around, according to him, he heard the deceased saying that “Babichan (accused) stabbed himâ€. It was on PW4's bike that the

injured was taken from the scene of occurrence, up to the main road from where he was taken to the hospital in a Scorpio van. There was

considerable deviation from the statement given to the police insofar as PW4 does not admit to have seen the incident. All the same, he admits to have

witnessed the earlier incidents and also heard the injured identifying the accused as the person who stabbed him. Further even if PW4 is found to have

not witnessed the crime there is the evidence of PWs 1 to 3 to bring home the guilt of the accused definitely; without any doubt arising.

That the deceased lost his life by reason of a homicide has already been found by us. We do not place any reliance on the seizure of the offending

weapon. However, the eye witness testimony of PWs 1 to 3 definitely brings home the guilt of the accused; of he having stabbed his brother forcefully

and deliberately by reason of grouse harbored against his brother for having not participated him in a game of cards. The deposition of PW4 and PW5

also supports the case of the prosecution. The injury by its very description speaks of the same having been caused by a forceful deliberate act of

stabbing made to the body of the deceased which itself reveals the intention to cause death of the victim. We do not find any grave and sudden

provocation having been made by the deceased or any of his companions. We also cannot find the incident having occurred without premeditation at

the heat of the moment by reason of a sudden quarrel. The evidence reveals that after the quarrel the accused was forced to retreat to his own

nearby house. The five persons who had gathered in the house of the deceased decided to leave the premises for reason of the intrusion and

altercation caused by the accused. It was while they were leaving, that the accused waylaid the deceased and stabbed him to death. Though MO1 has

not been proved to be the weapon used to commit the crime, the description of the wound and the deposition of the Doctor who conducted the

postmortem, indicates clearly that the fatal injury was caused by a weapon like a knife. The accused obviously had procured a knife after the earlier

incident, which again reveals premeditation on his part and a deliberate intention to stab his brother in retaliation for the earlier incident. We do not

think that the accused is entitled to any benefit of the Exceptions under Section 300 of the IPC. The guilt of the accused stands established without

any reasonable doubt. We find no reason to interfere with the conviction and sentence passed by the lower Court.

The Criminal Appeal stands dismissed.