Lenin, K.K. vs State of Kerala

K. Narayana Kurup, J.—The accused, who was an A.P.P. by profession and who stands convicted and sentenced to undergo imprisonment for life u/s 302 I.P.C. fof the murder of a budding lawyer and rigorous imprisonment for seven years u/s 307 I.P.C. is the Appellant.

The prosecution case in brief is as follows: The accused and P.W. 1 by name Vidya Prakash are neighbours whose residences almost facing each other are separated by common compound wall. They are situate on the western pie of Karakkamuri Cross road in Kochi. P.W. 1 who is also the first informant in the case is employed in Australia and on the date of the incident, viz., on 16th February 1995 he was with his parents in the above family house, Between the accused and the family of P.W. 1 there was a boundary dispute and under the settlement of the dispute the accused was keeping deep-seated enmity towards P.W. 1 and his family members. At about 7.30 p. m. on the fateful day, viz., 1st February 1995 P.W. 1 and his close friend Advocate Krishnakumar went for shopping on a bike driven by the deceased Krishnakumar and after making some purchase went to Hotel where they had dinner and from where they returned to the place of occurrence which is the front portion of the house of P.W. 1 near the house of the accused at about 10.30 p.m. While the deceased and P.W. 1 were having a parting conversation (the deceased still seated on the bike) the accused came there by his scooter, stopped the scooter and moved towards P.W. 1 declaring that he had scores to settle with him; drew out a knife and inflicted a stab injury on the chest of P.W. 1 just below the nipple. Aghast, by this dastardly act of the accused the deceased Krishnakumar exclaimed: "what is this! what is this!" Thereupon, the accused turned towards the deceased and inflicted two stabs on him. Immediately after the incident as aforesaid the deceased drew away iron the place of incident in the very same bike and reaching near tbft junction of Karikkamuri-Chittur road nearby, he fell on the road side near the gutter from where he was taken to the Medical Trust Hospital by P.W. 8, an autorickshaw driver, where he succumbed to his injuries. In the meantime, P.W. 1 immediately after the incident in order to save himself from further attack ran towards north and entered the house compound of one Moovie Basheer; (the said Moovie Basheer died afterwards and hence not examined as witness) there P.W. 2 one Jayan who was seen outside awakened Moovie Basheer and Moovie Basheer came out and asked P.W.2 Jayan whether he can take P.W. 1 to the hospital as P.W. 1 wanted to reach the hospital at the earliest. P.W. 2 hesitated and so he was sent to the house of P.W. 1 from where P.W. 2 called the mother and brother of P.W. 1. viz. P.Ws. 3 and 4 respectively, who came to the house of Basheer rushing and immediately P.W. 4, the brother of P.W. 1 got an autorickshaw stopped and rushed P.W. 1 to the Medical Trust Hospital accompanied by P.W. 3, the mother and P.W. 5, another neighbour. P.W. 1 was treated in the Medical Trust Hospital and discharged after 10 days. Immediately after the incident the accused proceeded to the General Hospital Ernakulam, where he got himself admitted and on the Avay he threw M. Order 1 knife in to the Kerala History Assotiation compound. In the General Hospital the accused gave Ext. P-15, the first information statement on the basis of which a crime was registered as Grime No. 57/95 of the Central Police Station, Ernakulam, under Sections 307 and 302 I.P.C, which was investigated and found to be fake and refer-charged against which the accused filed a protest complaint before the Judicial First Glass Magistrate-H, Ernakulam, but that complaint was dismissed without even sending a notice. Against the dismissal order a criminal revision was filed before this Court which was also dismissed. Ext. P-L is the first information statement furnished by P.W. 1 based, on which Ext. P-1(a) find information report was registered. The investigation was conducted by P.W. 25, the Circle Inspector of Policej Central Police Station, Ernakulam, who charge-sheeted the accused under Sections 302, and 307 I.P,C. The case was committed to the Court of Sessions, Ernakulam, as the case falls under the jurisdiction of that court. However, pending trial before the Addl. Sessions Judge, Ernakulam, the accused moved the Hon''ble Supreme Court for transfer and thereupon the apex Court transferred the case to the Sessions Court, Alappuzha. Before the Sessions Court, the Appellant/accused set up a plea of total denial. According to him, when he came to the place of incident from the club he was waylaid and attacked by the deceased and P.W. 1 in front of the latter''s house. The specific case is that the deceased Krishnakumar struck him with a sharp weapon and there followed a life and death struggle and the three persons were rolling on the ground and somehow the accused escaped from the deadly grip of the assailants andean away from the place of occurrence sustaining some injuries.

The prosecution evidence consists of P.Ws. 1 to 26, Exts. P-1 to P-32 and material objects, M.Os. 1 to 9, There is no witness examined for the defence. However, Exts. D-L to D-7 were marked. After the trial, the Appellant/accused was convicted and sentenced to undergo imprisonment for life u/s 302 I.P.C. and rigorous imprisonment for 7 years u/s 307 I.P.C. and the sentence of imprisonment u/s 307 I.P.C. is ordered to run concurrently with the life imprisonment. The appeal is directed against the aforesaid conviction and sentence.

Having heard learned Counsel on both sides at length we are not satisfied that the conviction and sentence calls for any interference by this Court. The case of the prosecution is supported by the ocular testimony of P.W. 1 and byres-gestae evidence of P.Ws. 3 and 4 and P.W. 2 who though turned hostile corroborates the testimony of P.W. 1 in many material particulars. P.W. 1 is a key witness who is an eye-witness to the incident. He gives a graphic description of the gruesome tragedy that struck him and his close friend die deceased Knshnakumar, on the night of 16th February 1995 resulting in grievous hurt to himself and the death of Krishnakumar. According to him, he is employed in Australia and on the date of incident, viz. on 16th February 1995 he was with his parents in the family house. He has deposed about the existence, of a Jboundary dispute between his family and the accused which in spite of it being settled the accused was still harbouring ill-will towards them. In fact, according to P.W. 1, the accused was harassing his family oh this account on several occasions. P.W. 1 has stated that when he and the deceased Krishnakumar reachcd the place of occurrence at 10.30 p.m. on 16th February 1995 after shopping and dinner and while they were having a parting conversation, the accused reached there in his scooter, stopped the soooter nearby and approaching P.W. 1 declared that he has to settle an account with him and thereupon the accused drew out a knife and inflicted a stab injury on the chest of P.W. 1. Stunned at the brutal way the accused unleashed an unprovoked attack on P.W. 1 who was unarmed, deceased Krishnakumar who was sitting on his bike with engine on exclaimed: "what is this! what is this!" and thereupon the accused turned towards deceased Krishnakumar and inflicted two stabs on his chest to which he latter succumbed in the Hospital. Immediately after the incident P.W. 1 ran towards the house of Moovie Basheer where P.W. 2 Jayan was present who awakened Moovie Basbeer who came out and asked P.W. 2 whether he can take P.W. 1 to the hospital as P.W. 1 wanted to reach the hospital at the earliest. P.W. 2 though hesitated went to the house of P.W. 1 from where P.W. 2 called the . mother and brother of P.W. 1, viz. P.Ws. 3 and 4 who came to the house of Moovie Basheer rushing and got P. W. L removed to thehospitial. In the autorickshaw P.W. 3 Molly, the mother of P.W. 1 and P.W. 4 the brother of P.W. 1 and another neighbour P.W. 5 also entered. The evidence of P.W. 1 has proved the fact that it was the accused who inflicted a near fatal blow on him and two blows on , deceased Krishnakumar with M.O. 1 weapon and immediately after the incident he has rushed to the house of Moovie Basheer where P.W. 2 was present who in tun) had gone to the house of P.W. 1 and called P.Ws. 3 and 4 and P.W. 5, a neighbour in order to admit P.W. 1 in the hospitial. The evidence of P.W. 1 has also proved that P.Ws. 3 to 5 took him to the hospital. Though P.W. 2 has been declared hostile he has corroborated the testimony of P.W. 1 in many material particulars. P.W. 3, the mother of P.W. 1 has deposed about the old enmity of the accused on account of a boundary dispute which existed between them. She . also says that she was informed about the incident by P.W. 2 who came to her house and knocked at the door at about 10.45 P.M. on the date of occurrence. According to her, on being informed of the incident by P.W. 2, P.W. 2 and her son P.W- 4 rushed in advance to the house of Moovie Basheer. When she reached the house of Basheer a little later she saw P.W. 2 and her son, P.W. 4 taking P.W. 1 inside an autorickshaw. According to her, she and P.W. 5 who is her neighbour residing on rent in an out house belonging to P.W. 3 also got into the autorickshaw and proceeded to the hospital. During the journey to the hospital there were altogether four persons in the autorickshaw, viz. P.Ws. 1, 3, 4 and 5. According to her, during the journey to the hospital she asked her son P.W. 1 as to what happened to which P.W. 1 replied that the accused inflicted stab injuries on him as also on deceased Krishnakumar in the circumstances already mentioned. This conversation between P.W. 1 and P.W. 3 has been witnessed by P.W. 4 the brother of P.W. 1. In his evidence P.W. 4 has deposed about this fact. Likewise, P.W. 5 swears that in the night in question P.W. 2 came and called P.W. 3 and P.Ws. 3 and 4 got out of their house and P.W. 4 ran in front and being a lady P.W. 3 wanted some escort and P.W. 3 called P.W. 5 and with P.W. 5, P.W. 3 rushed to P.W. 1. This, witness also speaks about the conversation between P.W. 1 and P.W. 3 in which P.W. 1 has given a blow by blow account of the entire incident implicating the accused. On a close scrutiny of the evidence of these witnesses we do not find anything there to,disbelieve their testimony.'' Here is a statement made by P.W. 1 to his mother P.W. 3 and brother P.W. 4 Immediately after the incident and being a conduct immediately after the- incident is liable to be accepted as res-gestae evidence relevant u/s 6 of the Evidence Act. Though there was a slight interval, we are of opinion that, that by itself is not sufficient enough to hold that there was time For fabrication since the statements were made immediately after the incident and contemporaneous with the acts which constitute the offence.

The eye-witness evidence of P.W. 1 supported by res-gestae evidence of P.W. 3 and P.W. 4 is fhrther strengthened and corroborated by the evidence of P.Ws. 8, 10, 19 and 20. The prosecution case that immediately after the incident deceased Krishnakumar drove the bike in a particular direction and on reaching the junction of Karikkimuri-Ghittur road he collapsed from the bike and fell near the gutter is spoken to by a passerby witness, P.W. 10 who witnessed the fall of deceased Krishnakumar from the bike. P.W. 10 one George swears that by about 11 p.m. he saw Krishnakumar riding a bike and coming from east and then slowing down and collapsing on the side of the road. Immediately P.W. 10, his friends and others rushed to the scene and asked the deceased Krishnakumar as to what happened to which Krishnakumar replied that he was stabbed by one Lenin. They then stopped an autorickshaw coming on that way and put the deceased into the autorickshaw and instructed the autorickshaw driver P.W. 8 to take deceased Krishnakumar to Medical Trust Hospital. Thereupon P.W. 8 queried Krishnakumar to which the latter replied stating tnat his name is Krishnakumar and it was A.P.P. Lenin who stabbed him. Without loosing any further time P.W. 8. took the deceased to the Medical Trust Hpspital and told the doctor that this is one Krishnakumar who was stabbed by one Lenin. On reaching the hospital the deceased was attended to by P.W. 20 who swears that at the. time of admission the deceased was alive, conscious and oriented. He further swears that- on asking the deceased whether it was true that he was also stabbed by Lenin he first nodded affirmatively. P.W. 20 was already told by P.W. 1 that it was the accused Lenin who had inflicted stab injuries on him and on the deceased. According to this witness, if a man is moving his face side to side, the sign is negative. In the case of the deceased he was moving his head upwards and downwards which is affirmative and suggestive of the fact that it was the accused who inflicted the fatal injury on him. According to P.W. 19, the Casualty Medical Officer of Medical Trust Hospital who examined P.W. 1 on the night of 16th February 1995 the injuries found on P.W. 1 is of serious nature, the depth of injury being 4.5 to 5 cm. The injury was penetrating to pleural cavity causing contusion of the lung and P.W. 1 survived because there was no injury to the lung or heart. Though these witnesses were subjected to thorough cross-examination nothing has been brought out to discredit their testimony.

The evidence of P.Ws. 1, 3, 4, 8, 10, 19 and 20 is supported by the autopsy evidence of P.W. 21 who conducted the post-mortem on the body of deceased Krishnakumar and issued Ext. P-21, the post-mortem certificate. According to P.W. 21, an 11.5 cm. deep injury was caused to the chest of the deceased which resulted in his death, the cause of death being injury to the pulmonary artery which can be inflicted by a weapon like M.O. 1. Injury No. 1 which is the cause of death is a stab wound which has gone deeply inside the chest cavity causing injury to the pulmonary artery. To a specific question whether injury No. 1 can be caused in a scuffle as pleaded by the accused-P.W. 21 has categorically stateid that having regard to the nature of the injury, viz. a deep wound having a depth of 11.5 cm. it cannot happen by accident. According to P.W. 21, it is an aimed deliberate thrust. To another question whether the victim suffering an injury similar to injury No. 1 can ride for some distance P.W. 21 has stated: "Yes he can ride:" The witness adds: After suffering injury No. 1 the victim can survive approximately for 10 to 15 minutes and during the later stages he may not be able to talk, bat during earlier stages he can speak. Thus the medical evidence as disclosed by Ext. P-21 post-mortem certificate proved by P.W. 21 also supports the prosecution case to bring home the guilt of the accused to the hilt.

The oral evidence of the witnesses supported by dying declaration of the deceased to P.W. 8, P.W. 10 ana P.W. 20 and medical evidence finds further support from the recovery of M.O. L weapon of offence effected pursuant to information furnished by the accused while in police custody. The recovery of M.O. 1 has been assailed by the defence contending that it is a recovery from an open place and in that view it is not liable to be acted open place upon. Having bestowed our anxious consideration�to the afbresaid contention we are not prepared to accept the same since in our considered. opinion it is not the opcnne of the place or neax�ness to an open place that matters but whether the concealment was known only to the accused. For example if a weapon is kept concealed in a bush by the side of a road it cannot be said to be an open place even if it. Is accessible to all the sundry, so long as the con�eal ment was known only to the accus�d. The fact situation is exactly similar in the present case. The recovery is made frtm the History Association compound which is situated on the southern side of the General Hospital, Ernakulam, the place of recovery is over-grown with bushes which is not a place frequcnted by the public. From a pit over-grown with bushes there, M.O. It was taken out by the accused and such recovery and has been spoken by P.W. 24, the investigating cffcer and P.W. 1 who is an attestor to the recovery mahazar. As regards the recovery which is sought to be made relevant u/s 27 of the Evidence Act, the testimony of the investigating officer itself is sufficient in the ordinary course. Here, in addition to the evidence of P.W. 24 there is the evidence of P.W. 11 the witness to the recovery mahazar who swears that he witnessed the recovery and he withstood the ordeal of cross-examination well. In the aforesaid view we reject the contention as devoid of any merit and hold that the recovery is valid.

In a case where there is eye-witness to an incident motive is of little or no relevance. Even so, the prosecution has established sufficient motive on the part of the accused to commit the brutal crime. In this connection we may refer to the evidence of P.Ws. 1, 3, and 4 who deposed that even after the settlement of the boundary dispute the accused was harassing them in every manner and just before the departure of P.W. 1 to Australia in 1992 he was threatened by the accused that he will teach him a lesson. P.W. 3 says that while she was cutting vegetables in the kitchen the accused even tried to stab her through a hole in the wall (both are residing across a common wall) and she withdrew all on a sudden and escaped. That apart, it has to be remembered that when the accused is perpetrating a criminal act which is proved by eye-witness motive gets relegated to the background. So much so, even if motive is not proved that is not going to affect the substractum of the prosecution case and a conviction can be sustained. Even assuming for argument sake that the prosecution has failed to prove motive the failure of the prosecution to establish the motive for the crime committed by the accused does not mean that the entire prosecution case has to be thrown over-board; it only casts a duty on the court to scrutinise the other evidence particularly of the eye-witness, with greater care. In Buch a case the rule of careful scrutiny applies. Viewed in the above perspective, on consideration of the evidence brought on record we are of the opinion that the mere absence (even assuming it to be so) of a strong motive for committing a brutal crime cannot be of any assistance to the accused if the offence could be proved by evidence. In the case on hand there is cogent evidence in support of the prosecution case that it was the accused who committed the gruesome murder. Thus, on the whole we are satisfied that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt and the conviction and �sentence entered by the Sessions Court does not call for any interference in this appeal.

No doubt, the defence has raised various contentions in the appeal. One such contention is that the deceased was an advocate having adequate infiunce in the society, his uncle was the former minister of the State, an Exe. P. and a prominentleader of C.P.I. (M). His close relation by name Balachandran was formerly the Mayor of Kochi Corporation and at present the Chairman of Greater Cochin Development authority (G.C.D.A.). These persons and almost all the advocates at Kochi are colleagues of the deceased; and other rich and influential relations of the deceased have wielded great influence on the police officials and also over the doctors of Medical Trust Hcspital, a private Hospital at Ernakulam, for strengthening the prosecution case against the accused and rejecting the case of the accused as false and without even conducting an investigation as envisaged by the statute. We do not think that we will be justified in considering this contention, for, according to us on its very face value it does not even merit consideration as it is devoid of bonafides. Regarding the political clout of the deceased there is no material to show that it has in any way interfered with the course of justice. It is only natural that the relatives of the deceased rushed to the hospital immediately on coming to know of the incident, that by itself is not a sufficient ground to conclude that they have prevailed upon the hospital authorities and the police to give a dfferent twist to the entire prosecution case. In our considered opinion it is a figment of imagination of the defence in their attempt to distent the entire prosecution story to which this Court cannot give its stamp of approval. Therefore, we reject the aforesaid contention as without merit.

Another contention raised by the defence is that the injury found on the accused is not properly explained by the prosecution. Considering this contention we find that all that the accused sustained is 0.5 x 0.5 cm. abrasion on the hand which the doctor says can even be self-inflicted. The cut injury noticed above found on the hand of the accused is so small that unless the accused himself shows it out it cannot be found out by another. In this connection we are not oblivious of the principle that the prosecution has no legal duty to explain all the injuries found oh the accused; only those injuries which are relevant alone need be explained. Here a crime has been xegistered on the basis of the statement given by the accused and it was investigated and found to be false and referred. The existence of a counter case along with records of medical evidence of simple injuries itself will show that the investigating officer has investigated both the cases and came to his own conclusion that the case of the accused is false. There and no suppression of any material fact on the part of the prosecution in this regard. The Sessions Court adverting to this contention has held that minor injuries found on the person of the accused are immaterial and such injuries can be by self-infliction or can be caused afterwards. At any rate the non-explanation of this trivial injury has not resulted in any prejudice to. the accused. Therefore, we have no hesitation in repelling this contention. Likewise the defence has raised the contention that there is delay in lodging first information statement which will vitiate the entire prosecution case. Hearing hoth sides, we are of the opinion that such a contention has no legs to stand. We are of the considered view that there is no delay in recording the first information statement in the hospital and immediately after the first information statement is recorded the first information report has been received in court on the very next day. Therefore, we reject this contention.

Thus on a careful re-appreciation of the entire evidence we are satisfied that the deceased died of the injuries sustained by him on his chest and inflicted by the accused with M.O. 1 knife. The injuries are inflicted on a vital part of the body. The utterance made by the accused to P.W. 1 that ''I have scores to settle with you'' coupled with the fact that he was armed with M.O. 1� dagger show that the attack unleashed by him was pre-methtateit and not made under some sudden impulse. Thus it is clear that the intention of the accused we to cause the death of the deceased. Therefore the accused has committed culpable homicide amounting to murder as defined u/s 300 I.P.C. He has also committed offence punishable u/s 307 I.P.C. as against. P.W. 1. The Sessions Court has directed the sentences, shall run concurrently. On the facts and evidence adduced we are of the opinion that the learned Sessions judge was right in entering a conviction and sentencing the accused to imprisonment for life. We do not find any valid ground to interfere with the judgment of the learned Sessions judge.

We do not propose to stop here. Criminal law which is designed to punish and reform criminals fcardly pays any attention to the victims of crime. There is a steady and ever increasing concern for the criminal and a virtual blackout of attention to the victims of crime. Right from the very inception of the prosecution to its culmination the accused is treated as a privileged person fed with sliver spoon of constitutional rights and privileges including''a defence counsel at the cost of the exchequer. Even after conviction stress is on reformation and rehabilitation of criminals with no corresponding emphasis on the rights of victims of crimes which in our opinion are to be increasingly recognised, including the right to reparation and compensation. In the above perspective we are of the opinion that the present case is one in which appropriate orders are to be issued directing the accused to pay compensation to the legal representatives of the deceased. This is a case in which the life of a promising young lawyer has been snatched away by the wanton act of the accused for no fault of the victim except that he happened to be there within arms reach of the accused who is none other than an Assistant Public Prosecutor who is aged more than 50 on the date of the incident. A prominent member of the society who is also a Law Officer of the State committing murder of a member of the learned profession is a highly despicable act deseMng condemnation in the strongest possible terms and direction for payment of compensation. Section 357(3) Code of Criminal Procedure is an important provision empowering the courts to award compensation to victims of crime while passing judgment of conviction. In addition to conviction the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power is intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent a constructive approach to crimes. It is indeed a step forward in our criminal justice system. On.enquiry conducted by us it has been disclosed that the accused is a man of sufficient means. Accordingly, while dismissing this appeal we direct the appellant/acccused to pay to the legal representatives of the deceased, viz, his wife and children a sum of Rs. 1 lakh as compensation within six months from today.

The appeal is dismissed.