Babu vs State of Kerala

Raja Vijayaraghavan V., J.—1. Fratricide is the heinous act alleged to have been committed by the appellant. Under the impression that his younger brother was having an illicit affair with his wife, the appellant is alleged to have butchered the deceased in the presence of their sister. This, in short, is the case against the appellant who challenges the finding of guilt, conviction and consequent sentence to undergo Imprisonment for life and to pay a fine of Rs. 10,000/- with a default clause to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 302 of the IPC.

The prosecution case, as is revealed from the evidence and materials are as follows:--

"(a) The deceased Chandran is the younger brother of the accused. PW - 4 Bindu is one of their sisters. PW 1 - Santhosh is the brother-in- law of the accused and he had initially married Omana, the sister of PW 4. PW 4 claims that PW 1 is her husband as well. PW 9 -Sunil Kumar is the son of PW 1.

(b) The incident occurred on 23.11.2010 inside the kitchen of the house of PW4-Bindu. On the said day, PW 1 had taken his children to the doctor and at about 7.00 p.m he received a call from one Babu that a fight was going on in the house of PW4 between the accused and the deceased. He rushed to the house of PW4 -Bindu and when he entered the kitchen, he found the deceased lying on the floor in a pool of blood with injuries on his body. The accused was standing there with a chopper in his hand. On seeing PW 1, the accused informed him that he had inflicted injuries on the deceased. The neighbors were intimated and an ambulance was summoned. The deceased was removed to the Medical College Hospital, Calicut where the doctor after examining him declared him dead.

(c) Stating these facts, Ext. P1 statement was furnished by PW1 based on which Exhibit P 13 FIR was registered by PW18, the Sub Inspector of Police, Mukkom police station.

(d) PW20, the Circle Inspector of police, Koduvally police station, took over the reins of investigation on 24.11.2010. He went to the Medical College hospital at Calicut where the body of the deceased was retained and prepared Ext. P2 inquest over his dead body. The dhoti and shirt worn by the deceased were seized. The same has been produced and identified as MO 3 and MO 4. Thereafter the body of the deceased was sent for autopsy and PW17, the Senior Lecturer and Assistant Police Surgeon of the Medical College Hospital, Kozhikode, conducted postmortem and prepared Ext. P12 postmortem report. Thereafter, he went to the scene of crime and prepared Ext. P4 scene mahazar. The blood stained brick found at the scene of crime was seized and the same was marked as MO1. He procured the presence of Scientific Assistant who seized certain items from the scene of crime. Exhibit P 17 mahazar was prepared evidencing the same. The accused who was under surveillance was arrested on 25.11.2010 at 12.00 p.m. Ext. P7 is the arrest memo prepared. Thereafter, based on Ext. P5(a) confession statement given by the accused, MO2 chopper was seized as per Ext. P5 mahazar. MO5-dhoti and MO6-shirt worn by the deceased were seized as per Ext. P3 mahazar. The above items were forwarded for analysis as per Ext. P25 forwarding note.

(e) PW19, the successor in office of PW 20 took over investigation on 4.4.2011 and he questioned certain witnesses. A report was submitted before Court stating the time at which the incident had allegedly taken place. He also forwarded Ext. P16 report of chemical analysis to the court. After completion of investigation, the final report was laid before the jurisdictional Magistrate."

The court before which the final report was laid took cognizance of the offence and finding the offence to be exclusively triable by the Court of Sessions committed the case to the Court of Sessions, Kozhikkode under S.209 of the Cr.P.C., after complying with the legal and procedural formalities. The said court made over the case for trial and disposal to the Court of the Special Additional Judge (Marad Cases) for trial and disposal The latter court, on receipt of the records and on appearance of the accused before the said court framed charge for the offence punishable under Section 302 of the IPC.

When the charge was read over and explained to the accused, they pleaded not guilty and claimed that he be tried. The prosecution therefore examined as many as 20 witnesses as PWs 1 to 20 and had Exts. P1 to P25 marked. MOs 1 to 6 were also got identified and marked.

After the close of prosecution evidence, the accused were questioned under S.313 of the Cr.P.C with regard to the incriminating materials brought out in evidence against him. He denied the same and maintained that he was innocent. In addition he stated that the weapon produced before Court did not belong to him and that he was not engaged in the plucking of coconuts.

Finding that the accused could not be acquitted under S.232 of the Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.

The learned Sessions Judge, placing implicit reliance on the evidence of PW4 as corroborated by the evidence of PW1 and PW9, came to the conclusion that the prosecution had successfully established that the appellant had committed the murder of his brother Chandran and he was convicted as aforesaid. The above conviction and sentence are assailed in this appeal.

The appeal was preferred by the appellant while he was in Jail and this Court had directed the registry to appoint a legal aid counsel to prosecute the appeal on his behalf. Adv.Resmi K.V was appointed as legal aid counsel.

Resmi K.V., the learned counsel appearing for the appellant in her well prepared and immaculately presented arguments submitted before us that the conviction and sentence entered into by the learned Sessions Judge on the strength of the solitary evidence of PW4, was unsustainable under law. Taking us through the evidence of PW4, the learned counsel would submit that the witness had no consistent case before Court. It was pointed out that the witness had resiled from her earlier version when she was recalled by the prosecution and this revealed that she was not trustworthy.

It was further submitted by the learned counsel that, the law was set in motion by PW1 by lodging Ext. P1 F.I. Statement. In his evidence before Court, PW1 had deviated from his earlier statement in a substantial manner which made him an unreliable witness. Referring to the evidence of PW 9, who is the son of PW 1, and one who had accompanied PW 1 to the place of occurrence, it was argued that their evidence was at variance with each other. It is further submitted by the learned counsel that neither PW1 nor PW9 had a case that they had an occasion to see the incident.

The learned counsel relying on a judgment of the Karnataka High Court in Sheshrao and others v. State (, 2001 KHC 2627), pointed out that the instant is a case where the investigating Officer had made an despicable effort to stage manage a recovery allegedly at the instance of the accused. Taking us through the evidence of PW1, the learned counsel would submit that the witness had unequivocally admitted in cross examination that the accused was present at the scene when the police had arrived. The prosecution case is that he was arrested by the police with weapon in his hand and was kept under surveillance till 25.11.2010 on which day his arrest was recorded. That being the case, the case of the prosecution that MO 2 chopper was recovered at the instance of the accused based on Exhibit P 5 (a) disclosure statement on 25.11.2010 and that too from the house of PW 4, clearly brings out the falsity of the prosecution version. It is further submitted by the learned counsel that this Court, while appreciating the evidence in a case of this nature, should hesitate to rely upon such concocted materials and the benefit of doubt should be extended to the accused.

Referring to the medical evidence, it was argued that when PW 1 speaks about infliction of only one injury, Exhibit P 12 autopsy report speaks about six injuries on the body of the deceased. This according to the learned counsel, also would cast serious doubts in the manner in which the incident had taken place.

It was finally contended by the learned counsel that the fatal injury as spoken to by PW17 is injury No. 6 which is one inflicted on the left leg of the deceased. According to the learned counsel, the said injury being inflicted on a non vital part of the body, nothing more was needed to conclude that the accused had no intention to cause death. If that be so, according to the learned counsel, there was no justification on the part of the learned Sessions Judge to convict the accused for the offence under Section 302 of the IPC.

Per contra, the learned Public Prosecutor would submit that the evidence of PW4 is very clinching and no reasons are made out to disbelieve the same. It was pointed out that the deceased is none other than the brother of PW4 and she would be the last person to shield the actual culprit. It is pointed out by the learned Public Prosecutor that at the relevant point of time, only PW4, the deceased and the accused were inside the home of PW4. The evidence of PW 1 and PW 9 would add credence to the prosecution version and this coupled with Ext. P16 report of chemical analysis, which speaks about the presence of blood of the same group as the deceased in the clothes of the accused and also MO2 weapon would seal the fate of the appellant. The discrepancies pointed out by the defense in the evidence of the above witnesses were trivial and did corrode the credibility of the above witnesses. It was finally submitted by the learned public prosecutor that if the evidence of the witnesses are appreciated in its entirety, the only rational conclusion that could be reached is that the deceased was done away with by the appellant with MO2 chopper. The learned Public Prosecutor would finally submit that six injuries were inflicted by the accused on the body of the deceased and injury No. 5 was on the neck and injury No. 6 was on the upper aspect of the left leg. The nature and manner of the infliction of injuries would reveal that the intention of the accused was to cause the death of the deceased.

Prosecution attempts to establish that Chandran had met with a homicidal death with the aid of the oral evidence of PW 1, PW 4 and PW 9, the close relatives of the deceased who graphically described their version of the incident and also the nature and mode in which the deceased was done away with by the accused. PW20, the Circle Inspector of police, had prepared Ext. P2 inquest over the dead body. Exhibit P 2 details the injuries sustained by the deceased. PW17 the Senior Lecturer and the Assistant Police Surgeon had prepared the autopsy and had issued Ext. P12 postmortem certificate which reveals the following injuries:--

"Injuries (Ante mortem)

(i). Incised wound 3cm transverse on front of chin, edges showed beveling downwards and backwards. Margins showed contusion. Reached subcutaneous tissues and was 0.7 cm deep. There was an abraded contusion 1.5 x 0.5 cm on upper margin at its left half.

(ii). Contused abrasion 2 x 0.5 cm vertical on left half of jaw margin, 3.5 cm outer to middle of chin and 2.5 cm away from previous injury.

(iii). Superficial incised wound 4 x 0.2 cm oblique on sternal notch. Upper right end 3cm above inner end of right clavicle, the other end 1.5 cm above inner end of left clavicle.

(iv). Abrasion 2 x 0.8 cm tip of left shoulder

(v). Incised wound 7 x 1.5 cm x 3.5 cm on back of left half of neck. Inner right end at midline and 2cm above root of neck, outer left and 2 cm above top of left shoulder. This wound was transverse with marginal contusion. Edges showed beveling directed to front, upwards and to right.

(vi). Incised cut injury 1.9 x 6 cm on back of upper aspect of left leg, 3.5 cm below knee fold, edges showed beveling towards front, upwards and to right. The margin showed contusion. In depth both bones showed cut fracture. Major blood vessels were seen cut fully. The leg was attached by skin and tag of subcutaneous tissue.

(vii). Healed superficial incised wound 4.5 cm on back of left side chest, vertical having a tail of 1.5 cm at its upper end which was 5 cm below axilla."

PW 17 in her evidence testified that Chandran had died due to hemorrhagic shock following the cut injury to the left leg. She would further state that injury numbered as item Nos. 1, 3, 5 and 6 could be caused by MO2 chopper. She deposed that injury No. 6 is sufficient to cause death in the ordinary course of nature,. The evidence let in by the prosecution would leave no manner of doubt that Chandran had met with a homicidal death as a result of the inflicted injuries.

After having determined conclusively that Chandran had met with a homicidal death, the next question is to consider whether the prosecution has successfully established the complicity of the accused in the incident. To connect the appellant with the crime, the prosecution relies on the oral evidence of PW 1, 4 and 9. We shall advert to the evidence of PW 4 first as it is in her presence that the deceased was attacked by the accused with MO 2 chopper.

PW4 would state that she was residing at Mariyamkuzhi colony along with her two children. The deceased and the accused are her brothers. The incident according to her, had occurred on 23.11.2010 at about 6.30 p.m inside her house. On the date of incident, Chandran, the deceased had come to her house, followed a bit later by the accused. They had a hot exchange of words for about ten minutes. She intervened and reprimanded her brothers for quarreling inside her house. The accused left the place only to return back after 10 minutes. No sooner had he returned, he again entered into an altercation with the deceased. The deceased was sitting inside the kitchen. Without warning the accused took out a chopper and dealt a blow on his neck. Thereafter the accused dealt another blow on the left leg as well. She immediately rushed outside and sought for assistance from her neighbors. No one came forward to extend any help. Finally she went to the house of Anto (Kochettan). As Kochettan was not there, she informed the incident to his sister who in turn called Kochettan. She returned to her house and found the deceased lying on the floor in a pool of blood and the accused was standing nearby with MO 2. She would say that though she attempted to prevent the accused from inflicting any injury, it was in vain as the accused threatened her with injuries as well.

The version of PW4 is corroborated by PW1 as well. PW1 would say that on 21.11.2010 he along with his wife and two children had gone to the hospital. When he came back, he received a phone call from his neighbour Ramachandran that a fight was going on in the house of Bindu between the accused and the deceased. When he went to the house of Bindu, the accused was standing there with a knife and the deceased was lying on the floor of the kitchen in a pool of blood. He further stated that Babu was crying loudly and lamenting that he had to murder his own brother. He gave the deceased water to drink when he asked for the same. He also stated that Chandran had told him that his elder brother had inflicted injuries on him. He immediately intimated the Mukkom police station and they came to the scene. With the assistance of the police, the deceased was removed to the Medical college Hospital, Kozhikode. According to the witness, the accused had inflicted the injuries under the impression that the deceased was having a relationship with his wife.

The next witness relied on by the prosecution is PW9, the son of PW 1. He stated that he came with PW 1 and when he reached the house had seen the deceased lying on the floor in a pool of blood. The accused was standing outside in a space between the two houses.

The learned counsel attacked the evidence of PW 4 with great ardour. It was pointed out that it would be hazardous to rely on her evidence particularly when she had resiled substantially from her earlier version when she was recalled for identifying MO2 weapon. The witness had deposed that she was not in a position to identify the chopper used by the accused or the dresses worn by the accused as well as the deceased. Recollecting the evidence of PW 4, she had stated in unequivocal terms as to how the accused and the deceased had exchanged words and how she had asked them to quell the fight. She would also state that the accused came back later, picked up quarrel and inflicted the injuries on the body of the deceased. Question is whether the utterances of the witness when she was recalled was sufficient enough reason to label the witness as untrustworthy. The answer is an emphatic "No". The defense has not been able to bring about any omission or material contradiction in the evidence of PW 4. Her evidence stands as such.

After evaluating the evidence of PW 4 as a whole, we are of the view that her evidence read as a whole appears to have a ring of truth. As submitted by the learned prosecutor, time may have healed the grievances of PW 4, and as the accused was none other than her own brother, she may have been persuaded to dilute her earlier version when she was recalled. The incident had occurred within the four walls of her Kitchen, and even the accused has no case that any other person was inside. We have carefully scrutinized the evidence keeping in view of the deficiencies pointed out by the learned counsel and it does not appear to us that the minor variation in the evidence of the witness when she was recalled has the effect of shaking her otherwise trustworthy evidence so as to render it unworthy of belief.

Every small discrepancy or minor contradiction which may erupt in the statement of a witness because of lapse of time, keeping in view the educational and other background of the witness cannot be treated as fatal to the case of the prosecution. The evidence of the witness has to be examined in its entirety and in the correct perspective, that too in the light of the attendant circumstances brought on record. After having undertaken a very detailed evaluation of the evidence of PW 4 and after testing it with the general tenor of the prosecution case, we are of the view that there is no reason to doubt her version.

In so far as the evidence of PW 1 is concerned, it is the case of the prosecution that PW 1 and his son PW 9 had arrived together at the house of PW 4. But their versions are materially at variance. This according to the learned counsel would point to the irresistible conclusion that both the witnesses are lying on material points. It was also pointed out that when Exhibit P 12 postmortem certificate, speaks about six injuries on the body of the deceased, PW 1 speaks of infliction of only a single injury. These aspects are projected by the learned counsel to point out that the evidence of PW4 cannot be said to be trustworthy. We have anxiously considered the argument of the learned counsel and have carefully considered the evidence let in. Ext. P1 was lodged by PW1 at 11.30 p.m. on 23.11.2010 and it has reached the Court at 2.40 p.m. on 24.11.2010. He has given a graphical version of the incident in Exhibit P 1 as well. The discrepancy pointed out by the learned counsel in the evidence of PW 1 are so trivial and the same is only to be ignored. The discrepancy as to the name of the person who had called him over phone and as to whether the injured was shifted to the hospital in an ambulance or by the police are immaterial. As regards his evidence in chief examination that he had seen infliction of injuries by the accused on the deceased there is no challenge. The Court below have evaluated the evidence of PW 1 meticulously and have held that his evidence is trustworthy and credible. We have no reason to differ from the said view.

Merely because of the fact that PW 9 did not speak about the incident in the same manner as PW 1 is no reason to disbelieve PW 1, more so because of the fact that he was the person who had set the law in motion.

The next item of evidence relied on by the court below is the scientific evidence. As per Ext. P25 forwarding note, MO2 chopper was sent for chemical analysis. Exhibit P 16 is the report which reveals that the blood stains found therein was of the human origin and of the A group. PW 20 also had seized the Mo 5 dhoti and MO 6 shirt worn by the accused as per Ext. P 3 mahazer. At the time of inquest, MO 3 lunki and MO4 shirt worn by the deceased was also seized. Exhibit P 16 report reveals that the blood stains contained MO 4 to MO 6 contained human blood and of the A group. This is a clinching circumstance in favor of the prosecution. PW 17 the doctor who conducted the autopsy has stated that the injuries found on the body of the deceased could have been inflicted with MO 2 weapon.

The learned counsel thereafter submitted that the evidence of recovery of MO2 knife was stage managed by the police and the court below has rejected the recovery evidence. According to the learned counsel, this would lower the credibility of the prosecution case in no small measure.

We find that the learned Sessions Judge after evaluating the evidence of PW 1, PW 20 and that of the recovery witnesses who were examined as PW 7 and PW 8 came to the conclusion that there are circumstances to indicate that the recovery of MO2 was stage managed. PW 1 in his evidence had stated that the accused was present at the scene of crime with the weapon when the police had arrived the scene. PW 20 has stated in his evidence in a casual manner that the accused was kept under observation and his arrest was recorded only on 25.10.2011. The learned Sessions Judge found it hard to digest that the accused would have found time to hide the weapon in the very same house where the offense was committed after the police had arrived at the scene. We find that the rejection of evidence of recovery of MO2 weapon was rightly done by the learned Sessions Judge. But that will not in any way affect the case of the prosecution as it rests on direct ocular evidence. Even if the evidence of recovery is eschewed from consideration, we are of the view that the evidence of PW4, coupled with the evidence of PW1 and 9 and also that Ext. P16 report of chemical analysis would fix the complicity of the accused.

The learned counsel would further submit that the prosecution had come forward with a definite motive and the same was not proved. We have gone through the evidence of PW1 and 4. PW4, in her evidence, has clearly stated that the accused had suspected that the deceased was having illicit affair with his wife. This aspect is not even challenged by the accused in cross examination. Even otherwise when there is direct evidence to prove the commission of the crime motive generally become irrelevant.

The learned counsel would then feebly contend that the accused had inflicted the injuries in exercise of self defence. Referring to the evidence let in by the prosecution it was contended that the deceased was a drunkard and he was accused in a case in which his father was murdered. The aforesaid contention was dealt with in detail by the Court below and the same was rejected. The court below had taken note of the fact that the deceased was unarmed and no injuries were found on the body of the accused. It was the accused who had returned to the house of PW4 after he was asked to leave. He had come armed with a chopper and had brutally attacked the deceased with a chopper. Injuries were inflicted on the neck and the left leg. It is obvious that the appellant was the aggressor and his act cannot be said to be in exercise of self defence.

Finally, the learned Counsel pointed out that the offence committed by the accused can never fall under Section 302 of the IPC. According to the learned counsel, it was injury No. 6 which proved fatal and the same was inflicted on the back of upper aspect of left leg. The argument is that it cannot be said that the injury was inflicted on the vital part of the body and at best the accused can only be found guilty for a lesser offence.

Section 300 of the IPC makes the presumption that a person intends the natural and probable consequence of his act irrebuttable to the extent that if it is proved that the particular injury intended to be inflicted by the accused turned out objectively to be sufficient in the ordinary course of nature to cause death, the accused cannot be heard to contend that he did not have the intention of causing a bodily injury sufficient in the ordinary course of nature to cause death. The accused who inflicts fatal injury on the neck of a person and cuts the bones of the leg and also the major blood vessels must be taken to know that he is doing an act imminently dangerous to the life of the person at whom he strike and that the probable result of his act will be to cause that person''s death. In the aforesaid circumstances, it has to be necessarily held that the act of the accused was committed with the intention of causing death, or at any rate it has to be held that the accused had cut the deceased with a chopper knowing that in all probability it should cause death or cause bodily injury as is likely to cause death and he had committed the said act without any lawful excuse.

In State of Madhya Pradesh v. Goloo Raikwar and another (, AIR 2016 SC 1182), the Apex Court had occasion to consider an identical contention. In that case, one of the injuries inflicted was an incised wound on the right knee joint. The joint was disarticulated and the patella was hanging with the help of the tendon. The vessels, nerves and the other soft tissues were severed as in the instant case. The High Court had set aside the finding of conviction under Section 302 of the IPC and convicted the accused for the lesser offence of Part I of Section 304 of the IPC. Setting aside the finding of the High Court in an appeal by the state, it was held as follows:--

"[9]. In State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. : , (1976) 4 SCC 382), this Court had to deal with a similar situation. In that case, the accused 5 in number beat the victim with sticks on the legs and arms of the deceased and when hospitalized the deceased succumbed to his injuries. The medical officer who conducted the autopsy opined that the cause of death was shock and haemorrhage resulting from multiple injuries and said injuries were cumulatively sufficient to cause death in the ordinary course of nature. Question arose whether in such a case when no significant injury had been inflicted on a vital part of the body, and the weapons used were sticks and the accused could not be said to have the intention of causing death, the offence would be ''murder'' or merely ''culpable homicide not amounting to murder''. This Court answered the question in these terms:

[39].... All these acts of the accused were preplanned and intentional, which, considered objectively in the light of the medical evidence, were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression "bodily injury" in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused, in the instant case was ''murder''."

Hence, there can be no doubt that the act committed by the accused constitutes the offence of murder punishable under Section 302 of the I.P.C.

After having gone through the judgment rendered by the learned Sessions Judge and after having evaluated the evidence on record, we are of the view that the prosecution had successfully established beyond reasonable doubt that the accused had committed the murder of his own brother Chandran and had thus committed the offence punishable under S.302 of the IPC.

We find no reason to interfere with the findings of the learned Sessions Judge. The appeal is without merits. Accordingly, the same is dismissed.

The conviction and sentence are confirmed. The appellant shall be entitled to set off as provided u/s. 428 of the Code of Criminal Procedure for the period he has been in custody in this case, subject to the orders passed by the authority under Section 432/433 of the Code of Criminal Procedure.