Jayaraj @ Manikuttan vs State Of Kerala

Vinod Chandran, J.

Friendships are created and differences effaced over a drink; but when passions soar, friends and foe alike end up in a brawl, often with disastrous consequences. In the case before us, we are not sure whether they were celebrating friendship or ironing out differences, but it sure ended in a brawl, in which both the assailant and the victim were armed, resulting in the murder of one.

The case of the prosecution is that the accused, two in number, with premeditation, called the deceased over the telephone and since he refused to speak to them, came to his house to confront him. The deceased, with both the accused, went out of the house and sat down in the nearby premises of a spinning mill, a place visible from the house. PW2, an associate of the deceased, joined and all four together consumed liquor. The tete-a-tete broke up with a brawl, in which A1 and the deceased fought and both took out knives. The knife-play resulted in wounds on both persons, one of which inflicted on the deceased, proved fatal. The prosecution arrayed 34 witnesses, marked 55 documents and produced 17 material objects, which according to them establish the guilt of both the accused in the murder; carried out with premeditation. The defence examined five witnesses and marked three documents. Both the accused were found guilty under Sec.302 and Sec.324 read with Sec.34 of the Indian Penal Code. They were sentenced to undergo respectively imprisonment for life and rigorous imprisonment of three years and to pay a fine of Rupees one lakh each for the offence under Sec.302 read with Sec.34, with default sentence.

Sri. Renjith B.Marar, appearing for the 1st accused, argued that the motive alleged has not been proved by the prosecution and is an inherently weak story. It is pointed out that the party between the four continued for hours together, even according to the prosecution, and this rubbishes the allegation of premeditated murder. The presence of the accused is admitted and the accused contended that there arose a brawl between the deceased and PW2, who were business associates. A1 interfered when the associates came to blows and brandished knives. A1 also suffered injuries and realising that the deceased suffered a fatal injury, they bolted; not for the reason of their guilt, but more due to fear of being falsely implicated, which fear has now been proved correct. There is inconsistency insofar as the PW1's testimony regarding the time at which the incident occurred. There is also suspicion regarding the time of registration of the FIR. The scientific evidence is in favour of A1, since the blood of the deceased was not detected in MO1 weapon, which is alleged to have caused death. It is argued that, if at all this Court finds an intention, then necessarily, it can only fall under the fourth Exception under Sec.300 and the sentence can only be under Sec.304, part one. The learned Counsel would rely on Virsa Singh v. State of Punjab, AIR 1958 SC 465 to bring the offence under culpable homicide not amounting to murder as covered by Exception 4 to Sec.300. Surain Singh v. State of Punjab, (2017) 5 SCC 796 was relied on to contend that, the number of injuries need not necessarily take the offence out of Exception 4 to Sec.300. Sri. Sreekumar, learned Counsel for the 2nd accused, asserted that there is absolutely no evidence against A2 and his presence alone was proved. Even if he is said to have facilitated the flight of A1, there is no question of roping him in, for the offence under Sec.302. There is nothing to indicate a common intention and reliance was placed on Virender v. State of Haryana, 2019 KHC 7260. Per contra, Sri.Sreejith, learned Public Prosecutor for the State, vehemently argued that the investigating officer has painstakingly conducted the inquiry and adduced evidence before the court. The testimony of the witnesses arrayed establish the offence and also the premeditation. The wife of the deceased has spoken of the enmity between the accused and the deceased. The bike, in which the accused arrived, is established to be stolen and it was because of the threat levelled by the deceased, to report the same to the police, that the murder was committed. The accused were armed and came intending to silence the deceased forever. The State prays for upholding the conviction and sentence.

PW1 is the wife of the deceased, who gave the FIS, Ext.P1. PW1 was staying with her husband, a 1½-year-old child and her mother-in-law in a rented house, the front portion of which is the scene of occurrence. PW1's husband was carrying on business in fruits. He had not gone for work on the crucial day and her mother-in-law had gone to her sister-in-law's house. She spoke of having heard her husband answering a call and refusing to talk to the caller at around 7 a.m. The phone again rang when her husband was in the bathroom. When she attended the call, she asked the caller why he is repeatedly calling her husband and the man on the other side said that he is a friend of her husband. She immediately responded that she is the wife and the friend could speak to her. The caller responded that he had seen her husband yesterday and he wanted to talk about that. She responded with a plea that they be allowed to live peacefully; when the caller retorted that, they too were living with their families. Again, after some time, the phone rang, when her husband gave directions to reach their house. A little later, two persons came on a bike and her husband went out to talk with them. She recognized one of them to be Sreekumar, A1, who earlier talked over the telephone. She told her husband not to go out, alleging that his friends did not have any good intentions. However, he told her that he is a man and would deal with them and come back. The husband went along with the two and she saw her husband and A1 talking on the roadside. Subsequently, her husband called her over phone and told her that he will be back soon and asked her to go inside the house. She then saw A1 holding her husband close and walking further north. She went inside and her husband was not seen for a long time. She went out to inspect and from the foundation in front of the rented house, saw both of them talking. Later, she saw her husband along with A1 and A2 approaching the house quarelling with each other. She immediately went to the neighbouring house on the western side to entrust the child. When she came back, she saw A1 with blood on his body running onto the road and climbing on the bike, which was driven away by A2. A1 had something in his hand and when she turned around, she saw her husband lying on his face, drenched in blood. She cried aloud and PW2 came running and when she turned her husband on his back, he was comatose. PW2 told her that there was a quarrel between A1 and the deceased and he also was injured when he intervened. When she shouted at him, he said that A1 had stabbed her husband. Both her husband and PW2 were taken to the hospital.

Before Court, she, more or less, testified in tune with her FIS with more details, which does not result in any contradiction or embellishment as such. It is trite that the FIS is not an encyclopedia of the events. Naturally, in the box at the time of trial, a witness would recollect and come out with more details of the crime, he or she witnessed. In this case, the FIS was by the wife, who immediately after seeing her husband brutally murdered, made the statement. The additions are insofar as she having enquired with her husband as to why A1 called him when he replied that it was concerning a bike. She also said that her husband called up his associate, PW2 and asked him to bring a bottle of liquor. She had later called PW2 and asked him not to buy liquor, to which PW2 did not respond. She also said that sometime after her husband along with the two accused moved further, they were joined by PW2 and she saw a neighbour proceeding to them with a bottle of water. As far as the scuffle between the two, she claimed to have seen it happening at the place, the four were taking liquor. She saw a stick in the hands of her husband and she ran inside to inform her sister-in-law over the phone. When she came back, she saw A1 catching hold of her husband and forcefully bringing him to the foundation in front of their house. They were seen wrestling with each other and both had knives in their hands. She could not intervene, since she had the child in her hands and she ran to the neighbouring house when she heard a cry. She came back with the child and saw her husband lying on his face drenched in blood and A1 running away from the fallen man with a bloody knife. There is an inconsistency insofar as, in the FIS, she said that she had entrusted the child to the neighbour, while before Court, she stated that she came back with the child; not very significant. There is also some embellishment insofar as she having seen A1 running away from the fallen deceased with the bloody knife. Even if we attach no credence to that, she has seen the scuffle between the two and the stabbing occurred when she went away for a moment, from the scene of occurrence. The FIS is explicit insofar as she had seen A1 running away with something in his hands and fleeing on a bike driven by A2. Her husband was lying on the ground drenched in blood. This fairly establishes the prosecution story, which stands corroborated by PW2.

PW2 is the associate of PW1. PW2 spoke in tandem with what PW1 said. According to him, he brought a pint bottle and joined the liquor party. The deceased's neighbour, Sasi, brought them water in a bottle. He stated that, when he enquired about the bike, parked on the roadside, the deceased asked him to keep his mouth shut since it was a stolen bike. He deposed that the four finished the pint bottle together and again the deceased asked him to buy another pint. When he came back with the second bottle, the deceased was not there. He enquired with A1, who said the deceased had gone home. PW2 remained in the premises of the mill along with the accused and after some time, the deceased came back. According to the version of PW2, then A1 asked the deceased to help him to dispose of the bike, which he refused to do, upon which a scuffle ensued between the two. He categorically stated that A1 and the deceased moved in front, wrestling with each other, followed by himself and A2. Both A1 and the deceased had knives in their hands. He attested to the fact that PW1 was standing with the child when they reached the foundation in front of their house. He saw PW1 going to the backside of the house. When he attempted to intervene in the scuffle, A1 stabbed him on his left shoulder. He ran in fear and then hearing a scream, came back. He saw A1 and A2 fleeing on the bike, with the knife in the hands of A1. They had blood on their dress and so was it seen on the knife. He saw PW1 crying, with the child in her hands and the neighbours called an ambulance. Both PW1 and PW2 described the knife and identified it as MO1. PW1 identified MO2 to MO6, the dress and the personal effects of her husband. MO8 knife, seen in the hands of her husband, was also identified, which was seized from the scene of occurrence itself, evidenced by Ext.P31 mahazar.

PW3 and PW4, the neighbours of PW1, turned hostile and nothing comes out of their evidence. PW15, another neighbour, who was a mahazar witness, also turned hostile. PW29 was yet another neighbour, who was examined by the prosecution. She too turned hostile, but only concerning her previous statement of having witnessed the very incident of the murder. However, she affirmed having heard the quarrel and seen the scuffle between the deceased and one another person. She also attempted to interfere by pleading with them not to pick a fight. Since the scuffle continued, she deposes that she went inside the house and she could not identify any other persons, who were available at the scene, except the deceased.

The accused, when fleeing from the location, met with an accident, when their bike collided with a car driven by PW5. PW5 identified both A1 and A2, who fell down from the bike. When the bike hit the car and the passengers were thrown onto the road, he also saw a mobile phone and a knife being thrown onto the road. He immediately took A2 to the Taluk Headquarters Hospital. A1 was taken in another vehicle to the hospital. He identified both A2 and A1 and vouched the fact that A2 was driving the bike and A1 was pillion. He deposed that the bike, which fell on the road, had blood on it and so did the knife, which was identified as MO1. He also identified MO12 bike and remembered its number, which was stated to be KL-4Y-1437. The version of PW5 is quite trustworthy.

The car driven by him belongs to his friend, PW11. PW11 surrendered the documents concerning the car, which was seized by the police as per Ext.P6 mahazar, which was handed back to him by Ext.P7 Kychit. PW23 is the Motor Vehicle Inspector, who inspected the car bearing No.KL-31-6161 and submitted Ext.P19 report with respect to that car. He inspected the car and the bike on the premises of the Circle Inspector's office. He also examined the bike having registration KL-4Y-1437 and submitted Ext.P20 inspection report of the bike and Ext.P21 report of damages found on the bike. He deposed the engine number and chassis number of the bike as seen from it. He verified the engine number and chassis number with the help of a computer and found it to be a vehicle having registration KL-23-7280. PW22 is the Joint RTO, Alappuzha, who proved Ext.P18 RC particulars of KL-4Y-1437, the number seen on the seized bike. The said RC particulars were of a TVS Scooty Pep, which belonged to one Sujamol. It has been fairly well established that the number seen on the bike was fake and the bike in fact had the registration number KL-23-7280. The correct registration number of the bike was proved through Ext.P22 by PW24, the Joint RTO, Karungappally and the bike belonged to PW10 from whom it was stolen. PW10 attested that he had reported the theft and Crime No.779/13 was registered at the Sasthamcotta Police Station, as deposed by PW26, the SHO of that Police Station. He identified MO12 motorcycle as the one owned by him and stolen from his possession.

PW16 is the Doctor, who conducted the post-mortem examination of the deceased. His evidence shows that there were 24 wounds on the deceased, most of which were abrasions and contusions, except wound Nos.3, 12, 13, 16, 18 to 22; which were incised wounds. According to the Doctor, injury No.22 resulted in the death of the person, which is sufficient in the ordinary course to cause death. He also deposed that a person, who suffers the said injury, can walk only a few steps before he collapses and becomes unconscious. MO1 knife was shown to him and his opinion is that this weapon could cause the fatal injury, ie: injury No.22 and also injury Nos.3, 12, 13, 16 to 21. In his opinion, the pattern of injuries is suggestive of a scuffle and some of which were suggestive of defence injuries; while the others were inflicted ones. There are also injuries suggestive of a fall forward. He categorically stated that the injuries noted are suggestive of multiple attempts to inflict the injuries with injury No.22, inflicted ultimately to the chest, resulting in death. The medical evidence hence corroborates the version of PW1 and PW2, which is of a scuffle with both having knives in their hands. The death of the deceased undoubtedly is a homicide.

There is medical evidence regarding both A1 and A2 as adduced by the prosecution. PW21 is the Causality Medical Officer of the Taluk Headquarters Hospital at Karunagappally, who first examined A1 and A2. PW21 noticed eight injuries on the body of A1, when A1 was admitted with a history of road traffic accident. There was a smell of alcohol noticed at the time of admission and Ext.P16 is the wound certificate issued to A1. While injuries Nos.1 to 3 and 5 to 7 were lacerated injuries, injury Nos.4 and 8 were incised injuries on the sternum aspect of the chest wall and the right palm respectively. PW21 also examined A2, who too was found to have a smell of alcohol in his breath. There were four injuries on his body. He identified both A1 and A2. PW18 is the Doctor who examined A2 at the time of his admission to the Medical College Hospital, Alappuzha. He proved the OP Ticket issued at Ext.P13, which indicated the history as 'an accident caused while going in a bike at Vavvakavu when it collided with a car'(sic). In addition, within brackets, it was written: 'when the accused in a stabbing case was attempting to flee'(sic). He said that there was a smell of alcohol when A2 was examined. He also identified A2 in the dock.

Several police officers were examined since there were multiple incidents to prove; the theft of the bike, the crime proper of murder and the accident which occurred later to the crime, when the accused were fleeing. PW13 was the SHO of Kareelakulangara Police Station, who on receiving information rushed to the spot. He saw a crowd at the scene of occurrence and on enquiry, was informed that A1 and A2 had stabbed the deceased and PW2, and both the victims were taken to the hospital. He informed the superior officers that the accused fled in a bike, ensured Scene Guard, through a CPO, and conducted enquiries in the nearby hospitals. When he reached the Govt. Hospital, Karunagappally, the Sub Inspector of Kayamkulam and personnel from Oachira Police Station were present. PW13 was informed that both the accused were brought to the hospital pursuant to a bike accident. He was also informed that A1, who had suffered grievous injuries, was taken to the Medical College Hospital, Thiruvananthapuram. On being informed, he directed the S.I. of Kayamkulam, PW17 to carry out surveillance of A2. Later, he went to the Medical College, on the directions of the Circle Inspector of Police and took up surveillance of A1. He identified both A1 and A2 in the dock. PW17 is the S.I. of Kayamkulam, who was entrusted with the surveillance of A2, admitted to the Govt. Hospital. He spoke of having made inquiries as per the instructions received from the C.I. of Kayamkulam and traced A1 and A2 to the Taluk Headquarters Hospital. He identified A2 standing in the dock. The other officers included those who were instrumental in the seizure of the material objects, recording of the FIS, registration of FIR and so on; on which, there is no serious dispute raised by the defence.

The scientific evidence is insofar as the blood found on the various objects. The blood group of the deceased as is evident from Ext.P12 post-mortem examination report is O-positive. The blood sample of A1 and A2 were taken by PW33 and PW32 respectively. The DNA profiling result at Ext.P53 indicates the presence of A1 in the scene of occurrence, since MO8, the knife recovered from the scene of occurrence revealed his blood; which fact is admitted by the accused. Ext.P54 FSL report is also not helpful in connecting the accused to the crime.

In addition to the circumstances proved above, we cannot, but observe that there is a deliberate falsehood in the response under Sec.313 of Cr.P.C. The accused claimed that they reached the house of the deceased at 2.00 p.m. on 23.05.2013 by bus and found an M80 scooter near the house. A2 remained outside the house near the scooter and A1 found PW2 and the deceased engaged in a scuffle. A1 intervened and there were bleeding injuries inflicted on his palm and fingers and a stab injury to his chest. Frightened, A1 ran out and asked A2 to take him to a hospital. While they were proceeding to the hospital in the M80 scooter, the accident occurred at Vavvakavu and A1 again suffered a fracture on his leg. It has been proved by the prosecution that the accident occurred while a bike collided with the car and the accused were travelling in the bike; which was a stolen bike. The driver of the car (PW5) had identified both the accused and spoken of the bike having collided with the car. PW6, the Sub Inspector attached to Oachira Police Station seized the knife, a mobile phone and the bike by Ext.P2 mahazar from the place of the accident. PW23, the Motor Vehicle Inspector, Kayamkulam, who examined both the car and the bike, spoke of the broken parts (MO's 15 & 16) from the bike as seized by Ext.P8 Mahazar, witnessed by PW12, to be parts of the bike, which had the fake registration number KL-4Y-1437. It is also pertinent that as per the evidence of PW1 and PW2, the accused reached the house of PW1 in the morning and together with PW1's husband and PW2, had drinks in the premises of a mill, near to the house of PW1. The deliberate falsehood is one another circumstance, which establish the crime to be as spoken of by the prosecution witnesses.

The investigating officer was examined as PW34 and he spoke of the investigation carried out by him; according to us flawless. The evidence of PW1 and PW2 establish beyond all reasonable doubt that there was a scuffle between A1 and the deceased; when both had knives in their hands. Seeing the scuffle, PW1 had gone from the scene of occurrence to entrust the child she had in her hands to a neighbour. At which point, PW2 suffered an injury at the hands of A1, which resulted in PW2 running away from the scene of occurrence. Both PW1 and PW2 returned to the scene of occurrence on hearing a scream and found the deceased on the floor, drenched in blood and A1, with blood on himself, fleeing with a knife in his hands, on a bike driven by A2. The evidence of PW29 also corroborates the scuffle between the two, as spoken of by PW1 and PW2. Though there is no direct eye witness to the actual stabbing of the deceased by A1, it is fairly clear from the testimony of both the witnesses that it was A1 who stabbed the deceased; who was also armed with a knife and grappling with the accused just before the stabbing. After the incident, while the accused were fleeing, they met with an accident, which obviously resulted in their immediate apprehension. The inquiries made by the police on hearing about the crime committed, resulted in tracing the accused; one to the Government Hospital and the other to the Medical College Hospital at Thiruvananthapuram. Both of them were put under surveillance and later arrested. The murder is established to have been committed by A1, who was, a split second before, grappling with the accused. However, we do not find any evidence against A2, except for the fact that he accompanied A1 to the house of the deceased and facilitated A1's flight in the bike, after the incident. There is no overt act alleged against him by any of the witnesses. PW2 had suffered injury only when he intervened and tried to separate the deceased and A1, who were grappling with each other.

As far as premeditation, we find none. PW1, the wife of the deceased, had spoken of some dispute between A1 and her husband. Nothing concrete comes out in evidence and the motive alleged of the husband of PW1 refusing to facilitate the sale of the stolen bike, according to us, is far fetched and remains unsubstantiated. What has been proved only was that the bike was stolen; which has no bearing on the crime proper. The events spoken of by PW1 and PW2, just prior to the crime proper, also does not support the allegation of the prosecution that it was a premeditated crime, with joint liability cast on both the accused. The accused had come to the house of the deceased and the three of them had, obviously in friendly terms, sat together, a little further inside the premises of a mill. According to PW1, the first phone call she spoke of was at around 7'O clock in the morning and there were a few calls, later to which the accused came to their house. It can be safely inferred that the accused and the deceased were together from the morning till afternoon since the crime occurred between two and three in the afternoon. PW1 attests to the fact that, on her frequent inspection, the three persons were found sitting together along with PW2, who joined them a little later. PW2 also spoke of the four having had drinks together. The husband of PW1 in between, came back to their house and again went out to his friends. It was later that the scuffle ensued and both were seen grappling with each other; with knives brandished, which eventually led to the murder of the husband of PW1 and stab injuries suffered by A1 & PW2 also. We see neither premeditation nor a calculated murder punishable under Sec.302 of the IPC.

We are persuaded to find that while the drinking party was going on, an issue arose between A1 and the deceased, which led to the murder. Both the assailant and the victim had knives in their hands and they had inflicted injuries on each other. But ultimately, one of the wounds inflicted by A1 resulted in the death of the husband of PW1. We believe that A1 though can be convicted, the offence can come only under Exception 4 of Sec.300. We have found that there is no premeditation and the two, who were sitting together, for quite some time, were eventually found fighting each other. Obviously, the fight was sudden, maybe for the reason of a sudden quarrel. The explanation to Exception 4 does not command this Court to look at who offered the provocation and committed the first assault. We cannot find any undue advantage on either, since both had knives with them and both were wounded. Injury No.22 inflicted on the deceased, which resulted in death, has been opined by the Doctor to be possible in the natural course of events to cause death. We have found the offence to be one under Exception 4 to Sec.300, which is culpable homicide not amounting to murder, for which the punishment would have to be under Sec.304. The act of stabbing by A1 was intending to cause such bodily injury as is likely to cause death and hence the punishment has to be under part one of Section 304. While modifying the conviction of A1 to one under Exception 4 of Sec.300, he is sentenced to undergo rigorous imprisonment for a term extending to 10 years for reason of causing a bodily injury, which was likely to cause death. As far as A2 is concerned, we acquit him of all the charges finding no evidence against him. Crl.No.919/2019 is partly allowed with the conviction and sentence modified. Crl.A.No.1171/2016 is allowed.

We have been criticizing faulty investigation and inept prosecution in criminal cases, while deciding the appeals before us. But here is a case, where the investigation was flawless and the prosecution too put the evidence before court in a commendable manner. Though A2 is acquitted, he was arraigned for reason of one of the witnesses having told the police that, A2 restrained the deceased while A1 stabbed him. The witness, however, did not support that statement in Court. Every circumstance was carefully gone through and established before Court and it is commendable that when the offence was committed on 23.05.2013, the final report was filed within four months, after collecting evidence regarding the various circumstances. We place on record our appreciation for the I.O (PW34) and the learned Public Prosecutor, who conducted the case.