Robin David vs State Of Kerala

K. Vinod Chandran, J.

A brawl on the road resulted in a person's life being snuffed out and the defence is total denial, with an alternative plea raised of there being no intention to take the life of a person.

PW1 to PW3 and the deceased were returning from a friend's house, met the accused at a petrol bunk; who later waylaid them on the road. The four persons, PWs 1 to 3 and the deceased were travelling in a scooter and a motor bike. The prosecution case is that at the petrol bunk, when the car with the two accused were exiting, the dickey was open. The four persons, from the roadside, hollered at the accused, asking them to close the dickey. The accused misinterpreted it as an abuse and waylaid the four persons travelling in the bike. A scuffle ensued and A2 stabbed the deceased repeatedly with active participation of A1, which resulted in his death. The accused stood trial and the prosecution examined 24 witnesses, marked P1 to P42 documents and produced material objects marked as MO1 to MO28. The defence also examined two witnesses and marked D1 to D7, of which D1 to D3 were contradictions. The Sessions Court found the accused guilty of offences under S.341, 323, 140, 302 & 324 read with 34 IPC. The accused were sentenced to undergo imprisonment for life under S.302 and imprisonment for various periods under the other provisions on which they were found guilty; with fine imposed on each of such offences followed with default sentence. The compensation realised was also directed to be given to the mother of the deceased.

Learned Counsel Sri.Balachandran R.B. appeared for R1 and at the outset stated that PW1 to PW3 and the deceased were total strangers to the accused. The version of the prosecution witnesses cannot be believed, because according to them the two accused were pitted against four persons and it is very unlikely that the two accused could have overpowered the four and also stabbed one of them. It cannot be believed that the deceased was dragged down from the bike and the other persons were passive onlookers. A1 did not have any weapon in his hands and there is nothing suggestive of a prior intention. The FIS of PW1 does not speak about an active role of A1, in the stabbing of the deceased. The version of PW2 & PW3 that A1 caught hold of the hands of the deceased to facilitate the stabbing is a clear embellishment, at the instance of the Investigating Officer [I.O]. The exhortation made by A1 to pierce the victim cannot be categorised as an exhortation to kill. In fact the injuries on the chest of the victim are superficial. The medical opinion is that the stab injury on the thigh caused the death, due to excessive bleeding. A1 has to be exonerated since there is no overt act alleged and if at all, A1 has to be punished only under S.304, Part-II. Learned Counsel placed reliance on Madhu v. State of Kerala((2012) 2 SCC 399) and Virender v. State of Haryana ((2020)2 SCC 700).

Learned Counsel Sri.John Britto appearing for A2 argues that the entire incident is fabricated. It is pointed out that the time when they left the house of PW15 is 12.45 and the entire incident is said to have occurred within 1.15, which is highly improbable. It is pointed out that the FIR was registered much later. There is no evidence regarding the incident at the petrol bunk and but for PW4, who turned hostile, none of the other persons from whom statements were taken by the Police were proffered before Court. There were also seizures made from the petrol bunk, which has not been produced before Court. PW8 is the father-in-law of PW15 and he was not asked as to whether the four persons had dinner at his house, on the crucial day. From the report of postmortem examination, it is pointed out that the accused had partially digested food in his stomach, which indicates the story of a late dinner to be false. There is absolutely no motive and it cannot be said that the offence was one committed with premeditation. The accused were arrested from the car, which was alleged to have been used by them on the crucial day. It is not normal human conduct that after committing the crime, they would remain in the same vicinity and also use the very same car. There is nothing to prove that the car was used by them, since it belonged to another. The eye-witness testimony has to be disbelieved and then there is no circumstance linking the accused to the crime.

Learned Public Prosecutor Sri.Sreejith V.S. points out that there is direct evidence by way of the ocular testimony and there is no reason to disbelieve them. It is also pointed out that the description of the dress, worn by the accused, was clearly stated by PW1, at the first instance, when the FIS was given. The dresses were recovered under S.27 of the Evidence Act and so was the weapon. The dress also contained O+ve blood. The conduct of the accused in waiting to waylay the bike riders and the frontal assault; with one of the accused carrying a lethal weapon, reveals the intention very clearly. There were series of injuries caused, which clearly indicate the intention to kill and some injuries were superficial only because there was a scuffle and the victim would have attempted to ward off the stabs. There is clear premeditation and intention to kill, asserts the Learned Public Prosecutor.

PW1, the friend of the deceased, gave the FIS and spoke in tandem with that, before Court. PW1 to PW3, along with the deceased and two others, were together on the evening of 12.04.2015. Together they went to the Church at Pottamelkadavu and reached there at about 9 p.m. They listened to the band being played there for sometime and since it was not played by the team they expected, they called a friend, one Jaison [PW15]. PW15 invited them for dinner at his house. Two persons left their company and went back to Kollam, while the group of four comprising of PW1 to PW3 and the deceased went to Jaison's house. They left PW15's house at around 12.45 p.m. in two bikes; PW1 and the deceased in a bullet motor cycle and PW2 & PW3 in an activa scooter. On their way, they stopped at a petrol bunk for PW2 & PW3 to fill petrol in their scooter. PW1 and the deceased, on their bike, waited at the side of the road. A car approached and asked them where they were going, to which they replied that they were proceeding to Charummood. There were two persons in the car, one driving and the other a passenger. They went inside the bunk, when PW2 & PW3 joined PW1 and the deceased on the roadside. When the car was exiting from the petrol bunk, its dickey was open and the four persons, who were on the road side, together shouted at the car to close the dickey. The car speeded away and the four followed, on their way to Charummood.

A little further, they saw the car parked on the middle of the road so as to waylay them. The persons inside the car, one short and the other tall, came out with the former asking who abused them. The short person [A1] beat PW2 on the cheek. The tall person [A2] had a knife in his hands with which he struck PW3 on the left shoulder by its handle. PW1 identified the short one as A2 and the tall one as A1, both standing in the dock. A2 then came towards the motorbike and the deceased, who was in the drivers seat, was forcefully pulled down from the bike. The bike fell down and PW1 jumped away, when A1 beat PW1 on the head. PW1 fell down and saw A2 and the deceased involved in a scuffle and they moved towards the western side. A1 then exhorted A2 to stab the victim, upon which A2 stabbed the deceased three or four times.

The stabbed victim sat down and his three friends ran to him. The deceased told them that he was stabbed. When PW1 tried to lift the deceased to his feet, the blood soaked T-shirt worn by the deceased came off. At this point, they saw a lorry coming and the two accused closed the dickey and sped away in the car. The T-shirt was abandoned and the three persons together boarded the deceased on the scooter. PW3 telephoned PW15, who asked them to retrace their path; in which direction the hospital was situated. PW15 met the four persons travelling in the scooter, with a car, a little further and the injured victim was boarded in the car of PW15. The four together took the injured to VSM Hospital, but he was declared dead by the Doctor at the hospital.

PW1 identified MO1 knife, MO2 car in which the two accused were travelling, MO3 scooter in which PW3 and PW4 were traveling, MO4 motor bike in which PW1 and the deceased were traveling and MO5 helmet, left on the bike at the scene of occurrence. He also identified the dress, slippers and phone of the accused, MO8 to MO11. T-shirt and bermuda worn by A1 are MO10 to MO13 and the same worn by A2 are MO14 & MO15, all identified by PW1. PW2 & PW3 spoke about the incident in tune with the testimony of PW1. PW2 also identified all the material objects identified by PW1. The embellishment spoken of by A1 was with respect to A1 holding the hands of the deceased, to facilitate stabbing by A2. But for this, the entire testimony of PW1 is corroborated by PW2 & PW3.

PW4 is the petrol bunk employee, who turned hostile. PW5, the attestor to scene Mahazar [Ext.P4], PW6, attestor to the seizure mahazar of honda scooter [Ext.P5] and PW7, the attestor to seizure mahazar [Ext.P6] recovery of knife based on the confession statement Ext.P6(a) under S.27. PW23 is the attestor to Ext.P23 mahazar, by which the dress of the accused was recovered. PW8 attested the mahazar dated 20.04.2015, Ext.P7, by which the ambassador car, in which the victim was taken to the hospital, was seized. PW15 is the person in whose wife's house the four had dinner. His testimony corroborated that of PW1 to PW3; with reference to what happened just prior to the crime and subsequent to it.

According to the prosecution, the accused had taken the car owned by PW10 to drop PW9 at his house after a bachelor's party. PW9 had come to the bachelor's party in a bike and due to his inebriation, he was unable to go back home in the bike. According to PW9, he left his bike where the bachelors' party was held, since he had lost consciousness. Somebody dropped him off at his home and on the next day morning when he enquired, his bike was not at the house, where he left it. He made a complaint before the Police and it was revealed that the bike was seized by the Police from another person's house. However, he denied that it was the accused who dropped him home. He confirmed that in the application given before the Magistrate to get possession of the bike he had mentioned that the bike was seized from the house of PW10.

PW10's mother PW11 was the owner of the swift dzire KL29 B 8181, which was the car driven by the accused, on the night in which the crime was committed. PW10 admitted that he had acquaintance with the accused, but he denied that the car was given to the accused and also stated that the car was seized from his house as told to him by his mother. PW11 is the owner of the car, the mother of PW10. She spoke in tune with what PW11 said and denied having given the car to the accused and asserted that the seizure of the car was from her residence.

PW12 is the witness to the seizure of the swift dzire car by Ext.P11. PW12 admitted his signature in the mahazar and also spoke of having seen a lady taking out blood samples from the car. The witness also identified the car [MO2], which was kept in the premises of the Court. PW12 in cross-examination said that he saw the car abandoned at 7 a.m. when he was going to work; as a tipper lorry driver, and the mahazar was prepared when he returned at around 11 a.m. The registration number of the car used by the accused at the time of commission of the crime was stated in the FIS itself, which led to the same being traced out to PW11, the owner from whose house the motorbike, MO21, of PW9 was seized, as confirmed by PW9. PW9 though hostile, it is trite that the evidence of a hostile witness need not be eschewed in its entirety. The accused was arrested on 15.04.2015, at 5 p.m itself as per Exts. P29 & P30 Arrest Memos. The car in which the accused were travelling was examined with the help of the Scientific Assistant on 16.04.2015 at 11 p.m as evidenced from Ext. P11 Mahazar. PW14 is the Scientific Officer who collected the blood samples by Ext.P15.

PW13 examined PW1 to PW3 and marked their Wound Certificate as Exts.P12 to P14. PW16 attested the inquest report, Ext.P16. PW17 issued Ext.P17 wound certificate of the deceased and Ext.P18 postmortem certificate was issued by PW18. PW19 is the Village Officer, who issued Ext.P19 site plan and PW20 issued the certificate regarding source of light at the scene of occurrence by Ext.P20. PW21 carried out scene guard duty and PW22 recorded the FIS and instituted FIR. PW24 is the Investigating Officer.

The postmortem examination is evident from Ext.P18, which was marked through PW18. According to PW18, death was due to the incised penetrating wound sustained to the left thigh, which is shown as injury No.4, in the Postmortem certificate. It was also deposed that except injury No.6, all the other injuries could be caused by the weapon shown to him, MO1. PW17 issued the Wound Certificate from the VSM Hospital, where the injured was taken first. She had noticed nine injuries. The alleged history was physical assault and the subject was brought dead. Injuries nos.7 and 9 in Ext.P17, on the toes in the left foot was opined to be possible, if that part of the body was dragged over a rough surface. It is the case of the prosecution that the said wound occurred when PW1 to PW3 took the stab victim on the scooter, when the left foot was dragged on the tarred road.

As far as the injuries noted in the postmortem report, they are as follows:-

"1. Incised punctured wound 4.3x1.6cm, bone deep obliquely placed on left side of upper part of front of chest with its upper inner end just below inner end of left collar bone and 1cm outer to midline. The upper inner end was sharply cut. Sternum was seen sharply cut in its partial thickness.

Incised punctured wound 6.9x2.8cm, bone deep obliquely placed on left side of front of chest with its upper inner blunt end(less sharply cut) 9cm outer to midline and 9cm below collar bone. Underneath the subcutaneous tissue and anterior thorasic muscle were seen cleanly cut. The lower outer shart end (at the nipple) of the wound showed an extension, 2.4cm long, directed downwards and outwards.

Incised wound, irregular in shape, in a zigzag manner with each limbs measuring 4.5cm, 4cm, 4.8cm and 5cm raising a flap downwards and inwards (flap measuring about 6x3.5x1cm) on left side of front of chest with its upper inner extent 3.5cm to right of midline and 18cm below right collar bone.

Incised penetrating wound 8x4.5cm obliquely placed on the outer aspect and partially over the front of upper part of left thigh with its upper inner blunt end (less sharply cut), 11cm below and 4cm outer to the prominence of hip bone (anterior superior iliac spine). The wound was seen directed inwards and slightly upwards and towards right. The wound was reaching up to left lateral pelvic wall and terminating at upper margin of public symphysis partially cutting it. The muscles, fascia and femoral vessels in the course of wound were seen clearly cut. The wound was 16cm deep. The lateral pelvic wall and tissue along the course of the wound showed extensive infiltration of blood. [The inferior vena cava was seen distended with air(seen during the dissection of abdominal organs). Hence, special dissection technique was followed for dissection of heart which revealed presence of air embolism].

Incised wound 7x5cm raising a flap(5x2.5x0.8cm) which was seen directed upwards on lower part of back of left arm, 3cm above elbow.

Graze  lacerations  involving  the  top of outer four toes of right foot(big toe-6x3cm, 2nd toe - 4.5x1.8cm, middle toe 4x1.3cm, 4th toe - 2x0.6cm; all bone deep). The tendons and phalanges were in an exposed state and partially lost. The grazed surfaces of the bones were in a smoothened out state(showed minimal ante-mortem nature)."

There is absolutely no doubt as to the cause of the death being stab injury sustained to the thigh, injury number 4, and the death having occurred due to homicide. There is no anomaly discernible from the injuries noted in the Wound Certificate being nine and that in Ext. P18 postmortem examination being six. The injuries to the chest are near to each other and hence the reference to flaps and in the postmortem examination the injuries caused by the same stab, on closer examination has been noted as one.

PWs 1 to 3 have narrated the incident including the prior and subsequent events identically, corroborating each other. PWs 1 to 3 are ocular witnesses, who saw the crime being committed and there is nothing to disbelieve their testimony. What has been stated by the ocular witnesses is in tandem with the FIS recorded from PW1 at the first instance. We do not think the time of half an hour between 12.45 and 1.15 has to be given much significance since the time stated by the witness may not always be, by the clock, especially when an incident occurred in which their friend was murdered. We also do not think that the FIR was delayed because after the stabbing, the victim was taken to the Hospital, where he was declared dead. The witnesses who had accompanied the victim to the Hospital also were subjected to assault. The incident is said to have happened at around 1.15 and the F.I.R was given at 4.30 a.m. In the given circumstances; of the witnesses having taken the victim first in a scooter and then in a car to the hospital where the victim was declared dead, we do not think there is untimely delay.

Later to the F.I.R, PWs 1 to 3 were examined by PW13, at the Taluk Hospital. Though no external injuries were found, on the witnesses, as per Ext.P12, PW1 had difficulty in opening the mouth and PW2 had a burning sensation inside the mouth. PW3 complained of pain on the left shoulder and neck region. What is recorded in the wound certificate tallies with what has been stated by the witnesses on the attack by the assailants. A2 had beaten PW1 and PW3 on the head and on the face respectively and A1 hit PW2 with the knife handle on his left shoulder. More importantly in the FIR, PW1 had stated the registration number of the Car, in which the accused had travelled and also the description of the dress worn by the assailants.

There is serious controversy regarding the recovery of knife and the dress worn by the assailants. The knife was recovered as per Ext.P6 mahazar and the dress by Ext.P23. Ext.P6 mahazar is dated 18.04.2015, but the confession statement marked as Ext.P6(a) is dated 15.04.2015. In the context of the delay which stood unexplained, we cannot find the recovery of the knife to be one under Section 27 of the Evidence Act. PW23 again suffers from the very same infirmity. However, the fact remains that the seized garments are those mentioned in the FIS and we cannot find any premeditation at the time, the FIS was given, immediately after the death of the friend of PWs 1 to 3. Madhu applies squarely and we do not place any reliance on the recoveries under Section

But the ocular testimony prevails.

The accused were arrested on 15.4.2015 by Ext.P29 and Ext.P30 and the Swift Dezire Car was examined as per Ext.P11 and samples collected on 16.04.2015. We find no credence to the evidence of PW11, that the car was seized from her house by the Circle Inspector. As per the scientific evidence, looking at Ext.P42 FSL report, Item Numbers 17, 18 and 19 brown stains collected from the left inner side of door, left side floor of drivers cabin and that from the rear number plate of the car bearing registration number KL 29 B 8181; as mentioned in the FIS as the vehicle used by the accused, was tested as human blood. Item numbers 20, 21 and 22 brown stains recovered from the steering wheel, gear lever and right A/c vent of the same vehicle also contain blood, but insufficient to determine the source. In addition, the blood soaked T-shirt (Item No.1) and mobile (Item No.13) of the deceased abandoned at the scene of occurrence and later seized by the police contained blood of Group O, which is that of the deceased as per Ext. P18 postmortem examination report. More clinchingly item No. 25(a) nail clippings of A2 showed blood, though insufficient to determine the origin and group.

As observed by us, we do not find anything to disbelieve the evidence of PWs 1 to 3 the ocular witnesses. The T-shirt of the deceased and his mobile phone showed blood of his group, which was abandoned at the scene of occurrence. The seizure of the car, the blood stains recovered from the car being indicated as human blood, corroborates the testimony of the eye witnesses. We are not convinced any hypothesis, against the crime having occurred at the time and place spoken of, arises with the partially digested food in the stomach, as recorded in Ext.P18; since the deceased could have had food anytime after 9 p.m and before 12.45 a.m.

Much has been argued about the innocence of A2, at least with respect to the murder and the fatal injury. It has to be noticed that the accused had, after leaving the petrol bunk, hearing the riders in the two wheeler shouting at them, proceeded further and waited for them in a deserted place, away from the petrol bunk. The time was also past midnight and they parked the car in the middle of the road with clear intention of waylaying the four, following them in the bike. The four bike riders were waylaid and frontally attacked by A1 and A2 and the latter carried a lethal weapon, a knife. Seeing the scuffle between A1 and the deceased, A2 exhorted him to stab the victim which clearly shows his intention. It cannot be said that A1 had the intention only of causing a superficial injury.

A2 delivered repeated stabs on the deceased and those delivered to the chest were superficial; fortuitously and by reason of the resistance offered by the deceased. The stab aimed at the stomach, as spoken of by PW2 and PW3, was attempted to be warded off, when it landed on the left thigh of the deceased. It cannot be said that A1 and A2 did not have an intention to kill. Virender (Supra) was a case in which the specific appellant was in no way connected with the deceased or his family and had no specific motive. For invoking the vicarious liability under S.34 IPC, it was held that proof is necessary of the act having been committed in furtherance of the common intention of all. Here, we have already found joint liability on the basis of the manner in which the incident occurred; initiated by both the accused, one of whom was carrying a lethal weapon, which the other exhorted him to use.

Much has been argued about the embellishment made by PWs 2 and 3, of A1 having caught the hands of the deceased to facilitate easy stabbing by A1. We have to observe that even if we do not reckon that particular incident, the exhortation made by A2 and the series of stabs delivered on the deceased clearly indicate a premeditation by both the accused. We also have to observe that it does not follow from the specific act of A1, having not been recorded in the FIS, that it never occurred. FIS was by PW1 who was attacked by A1, when A2 was involved in a scuffle with the deceased. PW1 having just recovered from the assault, would have been more concerned about the beating he got to his head, when PWs 2 and 3 were onlookers, witnessing the scuffle between A2 and the deceased. There is no reason to disbelieve PWs 2 and 3 and as is trite the FIS is not an encyclopedia of all events. The exhortation made by A1, has been clearly spoken of by PW1 in the FIS itself, which is sufficient to punish A1 for the offence under Section 302 which is charged along with Section 34 IPC.

We find no reason to interfere with the judgment of the Trial Court. We dismiss the appeals, confirming the sentence imposed on both the accused.