T P Sivanandan @ Prakashan vs State Of Kerala

G. Girish, J

The appeal is directed against the conviction and sentence of the appellant for the commission of offence under section 302 I.P.C. As per the judgment dated 14.06.2019 in S.C.No.464/2017, the Additional Sessions Judge-II, Thalassery found the appellant guilty of murder and sentenced him to life imprisonment and fine Rs.50,000/- with a default clause of rigorous imprisonment for one year.

The prosecution case is summarised as follows:

One Nazar, aged 36 years, the victim of the crime involved in this case, had been conducting a meat stall at the place called Chunkakkunnu. The above said Nazar and the accused had the occasion to reside in the rooms of a lodge at Memana, belonging to PW18, on rental arrangement during December, 2005. At that time, the accused had quarreled with the deceased alleging that the deceased had an amorous approach to the wife of the accused. The accused was of such a character of nurturing doubts that the men in and around were inclined to have illicit relationship with his wife. The accused had a quarrel with PW12 also for the same reason. In connection with the above issue, the accused was having bitter enmity with the deceased Nazar. Finding that the quarrelsome nature of the accused has been causing difficulties for the smooth conduct of the lodge, PW18 asked the accused to vacate the lodge, and accordingly, he left the lodge after two weeks. On 08.01.2006 at about 2:30 p.m, while the above said Nazar was coming in a motorbike through Kelakam-Kottiyoor public road, the accused waylaid Nazar in front of the main entrance of Kottiyoor temple and stabbed him with a double edged knife at the right shoulder towards the right chest inflicting deep penetrating injury. The victim moved a few steps after leaving the motorbike and collapsed in the road with profuse bleeding. PW1 and PW2, two elderly ladies who happened to see the incident, raised a hue and cry and appealed to the persons who came across that place at that time to hospitalize the victim. PW5 and his friends who happened to pass by that place in their motorbike, saw the victim struggling for life, and at their intervention, the victim was taken in a jeep to a nearby hospital at Kelakam but he could not be admitted there. The victim was thus taken to Reshmi Hospital, Peravoor where the doctor who attended him declared that he was no more.

Upon getting information about the unfortunate incident, PW12, an employee of the deceased, rushed to the hospital and found the deceased lying dead there. The Doctor present in that hospital (PW22) handed over a bundle of currency notes amounting to Rs.50,000/- found in the pocket of the deceased to PW12 and asked to remove the dead body to Pariyaram Medical College for inquest and other proceedings. PW12 reported the incident to the Kelakam Police which registered Ext.P11 F.I.R at 5:00 p.m on 08.01.2006. PW26, the Circle Inspector of Police, Peravoor took over the investigation and arrested the accused at 4:45 p.m on 09.01.2006. The Investigating Officer proceeded with the usual formalities of preparation of inquest report, mahazar etc and making arrangements for autopsy. The weapon used for the commission of the crime, which was a double edged knife of peculiar nature, along with its sheath, was recovered from a nearby canal on 10.01.2006 on the basis of the information received from the accused. After the completion of the investigation, PW26 laid the final report before the Magistrate concerned.

The committal proceedings in this case appeared to have prolonged for a long time since the accused happened to be under treatment for some mental derangement. Even after the commitment of the case, the Sessions Court concerned had to wait for a long time to get the report from the hospital where the accused was undergoing treatment for mental illness, that he is fit for standing trial.

On getting an affirmative report from the Medical Officer concerned about the fitness of the accused for standing trial, the learned Additional Sessions Judge, after considering the prosecution records and relevant materials, heard the State Brief representing the accused and the learned Public Prosecutor, and framed charge under section 302 I.P.C against the accused. The charge was read over and explained to the accused to which he pleaded not guilty. The prosecution examined 26 witnesses as PW1 to PW26 and marked 27 documents as Exts.P1 to P27. 14 material objects were identified as MO1 to MO14. After the close of the prosecution evidence, the statement of the accused was recorded under section 313(1)(b) of the Code of Criminal Procedure. Finding that there are no grounds for acquittal under section 232 Cr.P.C, the case was posted for defence evidence, but the accused did not opt to adduce any evidence. After hearing both sides, and evaluating the evidence on record, the learned Additional Sessions Judge arrived at the finding that the accused committed the offence of murder punishable under section 302 I.P.C. He was accordingly awarded the sentence of life imprisonment and fine Rs.50,000/-. Aggrieved by the above conviction and sentence, the present appeal has been filed before this Court.

The main ground raised in this appeal against the conviction and sentence of the appellant is that the Trial Court went wrong in relying on the evidence of PW1 and PW2 who are said to have witnessed the incident. It is stated that the first time identification of the accused on virtual appearance through video conference, by those elderly ladies, is totally unbelievable in view of the long time gap of about 16 years from the date of incident. Thus, it is stated that the Trial Court reposed on inadmissible evidence and irrelevant facts to convict the accused.

Heard Adv.Smt.Nidhi Balachandran, the learned counsel for the appellant and Adv.Sri.Neema.T.V, the learned Senior Public Prosecutor representing the State of Kerala.

As already stated above, PW1 and PW2 are the eyewitnesses to the offence, who stated before the Trial Court in unequivocal terms that they saw the accused way laying the victim while he was coming in a motorbike, and thereafter, inflicting the fatal stab injury upon his right chest. Both the above witnesses also stated before the Trial Court about the circumstances under which they happened to be at the scene of crime. The accused has been identified by the above witnesses though his appearance was through video conferencing. PW3 is a person having residence near to the place of occurrence. He has stated before the Trial Court that he had the occasion to see the accused at the sitout of his house shortly after the commission of the crime, and that the accused by displaying the sheathed knife held by him, told that he had put to task the person who destroyed his family. PW4 is a relative of the deceased, who had worked along with the deceased during the year 2006. PW4 stated before the Trial Court about the cause of enmity of the accused in connection with his alleged suspicion that the victim looked at the wife of the accused inappropriately. PW5 is a person who was actively involved in the hospitalization of the victim. PW6 is a business associate of the victim. PW7 is an attestor to Ext.P2 inquest report. PW8 is an attestor to Ext.P3 scene mahazar. PW9 is the brother of the deceased. PW10 was the Civil Police Officer, who signed as attestor to Ext.P4 seizure mahazar prepared by the Investigating Officer, when the dress worn by the accused at the time of commission of the crime were taken into custody. PW11 was a Police personnel associated with Kannur SBCID, who is said to have received information about the crime involved in this case at about 3:00 p.m. on 08.01.2006. PW12 was the employee of the deceased, who gave Ext.P5 First Information Statement to the Kelakam Police. PW13 and PW15 are attestors to Ext.P6 recovery mahazar prepared by the Investigating Officer. PW14 is a person conducting a chicken stall at Kelakam, where the accused is said to have kept a sack containing some items a few days before the commission of the crime. PW16 is a Photographer who took the photographs of the scene of crime as instructed by the Investigating Officer. PW17 is a toddy tapper who had the occasion to see the accused shortly before and after the commission of the crime in front of the gate of Kottiyoor temple. PW18 is the owner of the lodge, where the accused and the deceased had resided in their rented rooms in the month of December, 2005. PW19 is an attestor to Ext.P8 mahazar prepared by the Police when the rental agreement of the house where the accused resided at the time of commission of the crime, was taken into custody. PW20 was the Village Assistant of Kottiyoor Village Office, who prepared the site plan of the scene of crime. PW21 is the Professor of Forensic Medicine, Pariyaram Medical College, who conducted the autopsy of the deceased and issued Ext.P10 postmortem certificate. PW22 is the Doctor of Resmi Hospital, Peravoor, where the deceased was brought dead. PW23 was the HeadConstable of Kelakam Police Station, who recorded Ext.P5 First Information Statement and registered Ext.P11 F.I.R. PW24 was the Property Section Clerk of the Judicial First Class Magistrate Court, Koothuparamba, who received the material objects forwarded by the Investigating Agency and made arrangements for the despatch of the same for scientific analysis at Regional Chemical Examination Laboratory. PW25 was a Civil Police Officer of Peravoor C.I. Office, who signed as attestor to Ext.P14 mahazar, when the photographs taken by a person by name Pradeepan of Vijaya Studio, Kelakam, were taken into custody. PW26 was the Circle Inspector of Police, Peravoor, who conducted the investigation in this case and laid the final report before the Magistrate.

It is argued by the learned counsel for the appellant that the conviction of the appellant on the basis of the first time dock identification of the accused through video conferencing by PW1 and PW2 after the elapse of 16 years from the date of incident, would render the aforesaid evidence of those witnesses totally unacceptable. According to the learned defence counsel, PW1, who was aged 78 years and PW2, aged 70 years at the time of examination before the Trial Court, had admittedly seen the accused for the first time at the time of commission of the crime. Thereafter, the above witnesses had the occasion to see the accused through the video conferencing monitor only after the elapse of 16 years. Thus, it is stated that the identification of the accused by the above witnesses through video conferencing, cannot be believed for a moment. The learned counsel for the appellant would further contend that if the evidence of PW1 and PW2 are eschewed as unacceptable, there is absolutely no material to connect the appellant with the commission of the crime.

There is absolutely no legal embargo in accepting the first time dock identification of the accused by a witness who had seen the incident, but the rule of prudence insists to look for corroboration of such evidence, especially when there is long time gap between the date of crime and the date of examination of the witness. Yet, if the Court is fully convinced, in the peculiar facts and circumstances of a case, that the evidence relating to identification of the accused in court for the first time by a witness is impeccable and unblemished, there is no bar in relying on that evidence to base a conviction. In Sidhartha Vashisht v. State (NCT of Delhi), [(2010) 6 SCC 1], the Apex Court held as follows in paragraph 256 of that judgment:

“It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698] , Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340 : 1960 Cri LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri) 343] and Rameshwar Singh v. State of J&K [(1971) 2 SCC 715 : 1971 Cri LJ 638]).”

In the case on hand, a close scrutiny of the evidence tendered by PW1 and PW2 would leave no room for doubting the credibility of those witnesses. Both the above witnesses stated before the trial court in unequivocal terms that the extremely cruel nature of the crime was the reason why they were able to recollect the accused. That apart, unlike in cases where there are so many accused, the chances of remembrance would be high when it is a gruesome crime committed by a single person, creating an indelible imprint of the image of the offender in the minds of the witnesses who were horror stricken by the incident. It is pertinent to note that both PW1 and PW2 have referred to the physical appearance of the accused, especially, his facial look and hair style, for confirming that the person whom they saw in the video conferencing screen was the accused whom they found stabbing the victim years ago. There is absolutely no reason to brush aside the above evidence of PW1 and PW2 as unbelievable. The above age old ladies cannot be expected to have nurtured any enmity with the accused or particular favour or affection to the victim and his relatives, for giving false statements before the trial court. A reading of the testimonies of PW1 and PW2 would reveal that they have narrated the incident in a natural way without any exaggerations or embellishments. Still, if one has to look for corroboration of evidence pertaining to the commission of the crime by the accused, it is very much there by ocular as well as scientific evidence which we may discuss in the paragraphs hereunder.

The other witnesses who had the occasion to see the accused in and around the time of commission of the offence, are PW17 and PW3. PW17 had stated before the trial court that on 08.01.2006 at about 2.30 p.m., he had seen the accused standing near the banyan tree in front of the gate of Kottiyoor Temple. He further stated that while he was on his way to the temple at that time, he heard a noise and came back to the road in front of the temple where he found a person collapsing with profuse bleeding. PW17 would further state that he saw the accused running by the side of the road at that time, with some persons chasing him. There is absolutely no reason to disbelieve the evidence tendered by PW17 in the above regard. Thus, the statement of PW17 pointing to the presence of the accused at the scene of crime immediately before the incident, and the subsequent act of the accused running away at the time when the victim was found collapsing with bleed injury, has to be taken as a piece of evidence linking the accused with the crime.

PW3 is the person whose residence is near to the scene of crime. According to PW3, he found the accused hiding in the sitout of his house, between 3.30 and 3.45 p.m. on 08.01.2006 when he returned to his house after attending a marriage. The accused is said to have told PW3 at that time by showing a sheathed knife that the person who destroyed his family had been put to task (“എ കടംബം തക തവന് ഞാ ഒര പണി കകാടത”). PW3 also stated that the accused requested an amount of Rs.100/-, but he did not pay the same, and instead, asked the accused to leave the place. Thereupon, the accused is said to have gone to the bushes on the western side of the house of PW3. PW3 informed the above development to his brothers, who advised him to report the matter to the Police. Thus, the above evidence of PW3, pointing to the conduct of the accused immediately after the commission of the crime, also throws light on his involvement in the crime.

In addition to the aforesaid ocular evidence of PW1, PW2, PW3 and PW17 about the commission of the crime by the accused, the prosecution relied on scientific evidence, which established the presence of the blood of the same group as that of the victim in the clothes worn by the accused. Ext.P27 report of the Chemical Examiner contains the indication that the bloodstains found on MO9 shirt and MO10 dhothy, which the accused was wearing at the time of commission of the crime, was of ‘A’ Group as found in the bloodstains in the pants, shirt and overcoat (MO2 to MO4) worn by the accused at the time when he suffered the injury. In addition to the aforesaid evidence, the prosecution relies on the evidence relating to the recovery of MO1 knife and MO11 sheath on the basis of the information received from the accused.

It is true that the blood group of the deceased is not mentioned in Ext.P10 postmortem certificate. However, the forensic evidence pertaining to bloodstains of ‘A’ Group in the dress which the deceased was wearing at the time of incident could be relied on to conclude that he was having the same blood group. Thus, the absence of any indication in Ext.P10 postmortem certificate about the blood group of the deceased, is not of any adverse consequence in the reliability of the scientific evidence referred above. On an overall evaluation of the evidence on record, we are of the view that the trial court has rightly arrived at the conclusion that the appellant inflicted the fatal stab injury upon the deceased at about 2.30 p.m. on 08.01.2006 at the road in front of the main entrance of Kottiyoor Temple, leading to his death.

The next aspect to be looked into is whether the act of the appellant causing death of the victim in the above manner would come under the definition of ‘murder’ envisaged under Section 300 of the Indian Penal Code.

The facts and circumstances under which culpable homicide tantamounts to murder, and the principles governing the field, are dealt with exhaustively by the Apex Court in State of Uttarakhand v. Sachendra Singh Rawat [(2022) 4 SCC 227]. After discussing the case law in 13 decisions of the Apex Court, from Virsa Singh v. State of Punjab [AIR 1958 SC 465] to Stalin v. State represented by the Inspector of Police [(2020) 9 SCC 524], the Hon’ble Supreme Court enumerated the following factors to be looked into for deciding a case of culpable homicide not amounting to murder and the intention to cause death:

(i) Nature of the weapon used;

(ii) Whether the weapon was carried by the accused or was picked up from the spot;

(iii) Whether the blow is aimed at a vital part of the body;

(iv) The amount of force employed in causing injury;

(v) Whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight ;

(vi) Whether the incident occurs by chance or whether there was any pre-meditation;

(vii) Whether there was any prior enmity or whether the deceased was a stranger;

(viii) Whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) Whether it was in the heat of passion;

(x) Whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) Whether the accused dealt a single blow or several blows;

As far as the present case is concerned, the weapon used is MO1 knife, apparently lethal, and it was carried by the accused.  It has been brought out in evidence that the above said weapon was a double edged knife of peculiar shape and handle, and it is referred as ‘churika (ചരിക)’ among the traditional martial arts sector of Kerala. The use of the above weapon by the accused for inflicting injury upon the deceased is indicative of the intention of the accused to cause death of the deceased. The nature of the injury suffered by the deceased would reveal that he was stabbed with the above weapon on a vital part of his body with much force. The manner in which the crime was committed would disclose that the accused perpetrated the crime after precise preplanning. The commission of the crime was apparently not on grave and sudden provocation or under the heat of passion. On the other hand, it could be seen from the evidence on record that the appellant herein was the actual aggressor, who resorted to the crime without any provocation. So also, it is seen from the evidence that even though the accused had caused only a single injury, he acted in a cruel manner by inflicting deep penetrating injury upon the right shoulder in such a manner that the blade of the weapon pierced downwards extending to the lungs of the deceased.

The evidence tendered before the Trial Court through Ext.P10 postmortem certificate and the testimony of PW21 would reveal that the injury inflicted upon the deceased was so grave that it was sufficient in the ordinary course of nature to cause death. The nature of the crime as well as the manner in which it was done by the appellant are indicative of the accused committing the act with the intention of causing death of the victim, or with the intention of causing such bodily injury which is sufficient in the ordinary course of nature to cause death. Therefore, there is absolutely no scope for the argument that the criminal act committed by the appellant which deprived the life of the victim would come under the exceptions which would exclude it from the category of murder punishable under Section 302 I.P.C. The Trial Court rightly found that the accused committed murder punishable under Section 302 I.P.C. Needless to say that there is absolutely no ground for any interference with the impugned judgment of the Trial Court.

Resultantly, the appeal stands dismissed confirming the conviction and sentence of the appellant.