Kallikatt Kunhu v. State of Kerala

Judgment

KALLIKATT Kl~HU STATE OF KERALA FEBRUARY 24, 20CD [S. RAJENDRA BABU AND SYED SHAH vlOHAvlMED OLADRI. JJ.I Criminal Law : Penal Code, Ul60 : Section !02. EvidellC<'" AppreLiation of Murde1~ {'umm1.11io11 of-Bv .>tabbing with a dagger-Dagger enclo.1ed i11 a >heath "'ith 110 bloodstain.> 011 ii-Die place of incident was afro not probabh· H dd : If the dagger was used tu inflict the injuries it «huuld have been jiiimd u11.1hwthed and ought to have had some bloodstai11.1~Hence, these nvo important factors demufi.,he.1 the prosecution case-<..'onviction of accw·ed under S.3112 w:t aside. The appellant-accused was convicted by the trial court for an offence under Section 302 of the Penal Code, 1860 and sentenced to undergo im· prisonment for life. The High Court confirmed the conviction and sentence. Hence this appeal. According to the prosecution, the appellant went to the house of one A and called him out.

A came out of the hou'e and set on a bench in the chappa (shed) and the appellant stood near him. A demanded repayment of money owed by the appellant. Annoyed by that demand the appellant tool• out a dagger and stabbed A who toppled down along with the bl!nch. The appellant was in a state of drunkenness and was picked up by hb wife leaving the dhoti and bottle belonging to the appellant 011 the pathway. On behalf of the accused person it was contended that the dai.,'ger with which the accused stabbed the deceased was found enclosed in a sheath and, therefore, such a dai!:ger could not have been used by the accused to inflict the injuries on the deceased; that since the dhoti and bottle belonging to the accused were found on the pathway the incident could not have taken place in the shed and that these two circumstances were enough to demolish the prosecution case. KA.L:JKO..'IT KC"-HC v. SlATE RAJE'.\'DR.\ BABL. J.j Allowing the appeal, this Court HELD:

1.1. lfthe dagger was used to inflict injuries upon the deceased the same could not have been found enclosed in a sheath near the basement of the clwppa (shed). It should have been found unsheathed and ought tu have had some bloodstains. [1167-E] 2. If the appellant wa~ in a state of drunkenness and found tu have been picked up by hh wife leaving his dhuti and bottle 011 the pathway where it was fond, it is more probable that the incident could not have taken place, as alleged, in the shed. If, as alleged, the incident had taken place in the shed it is not probable that the dhuti and bottle could have been found in the pathway. Thus these two important factors have been lost sight ufby both the C courts below. (1167-G-H; 1168-A] CRIMJ~AL APPELLATE JURISDICTION: Criminal Appeal No. 607 of 1994. From th<.: Judgment and Order dated n9.92 of the Kerala High D Court in Crl.A. ;-.Ju. 3l9 of 1989. S.L. Am:ja, (AC), Sunil Kr. Jain fpr the Appellant. G. Praka'h and \fokcsh ( iiri for the Respondent.

The Judgment of the Court was ddivered by RA.JENDRA BABt:, J. The appellant bdun: us having be~.n cunvict1.:d und1.:r Section 302 !PC and senten1.:<.:d to undergo imprisonment for life, "Jn,uccessfully appealed to the High Court. Hence this appeai. Tht: prosecution alleged that on 25.9.83 at about 2.30 p.m. the appdlant went to tht: h.uuse of Abdulla and called him out when tht: sai.d Abdulla was 'lated to be sleeping insidt: th<: house. At that time, Hameed, PW1, son, \.!anha, PW2, first wife of Abdulla and Bet:vi, daughter of AbduUa wen: sitting inside the kitchen. Abdulla came out of the house and G both, the: appellant and Abdulla went tu the shed situate in the courtyard of the house:. Abdulla _,at on a bt.:nch and the appellant stood near him. In the course ol their conversation, Abdulla appear-s to have demanded repayment of the money owed by the appdlant.

Annoyt.:d by that d1;mand, tht: appellant is 1tated to have taken out a dagger proclaiming that it had hcen given to him by Pariyaram Abbas to kill him, stabbed Abdulla H !2000J 1 S.C.R. inflicting injury on his chest. Abdulla was topplt:d down along with the bench. Harneed, PWl, Manha, PW2 and Beevi rushed to the scene. Achibi, PW3, the second wife of Abdulla, who had come to draw water from the well near the house, also rushed to the scene. Again the appellant is stated to have stabbed Abdulla and inflicted another injury on his left shouldcr. The appellant then turned against PWl and othcrs who had reached near him. PWl caught hold of tht: appdlant from bchind and PW2 took out a wooden stick and bt:al the appellant. PW3 took out a choppt:r and inflicted some injuries on the appdlant. On account of the commotion, some of the neighbours are said to haw reached the scene of occurrence. Wife of tht: appellant also came to the scene and took him away from the scene of occurrence.

PW4 and Kariappu were abo thcre in thc courtyard at the time of the incident. PWl wcnt to thc policc station and lodged a FIR. On registering a case, PW17, the Circ!t: Inspector of Police investigated and laid a charge-shcet before the Juri;dictional Magistrate, who committed the matter to the Sessions Cl'urt at Tdlicherry. The !tamed Sessions Judge framed charges against the appellant under Section 302 IPC and the appellant pleaded not guilty and claimed to be tried. Thi;reafter the matter stood transferred to Kasaragod Sessions Division un formation of a court there. PWs 1 to 7 were examined and st:vcral Exhibits and material objccts were marked. Statement of the appellant was n:curded under Section 313 Cr.PC. The appellant did not adduce any evidence in his defence. On behalf of the appellant, the defence st:t up is that the incidcnt did not take place as alkged by the prosecution.

On the other hand, when the appellant was returning home from ( 'hurch along tht: pathway in front of Abdulla's house in the afternoon of 2~.9.83, Abdulla, Hameed, PWl. Manha, PW2 and Kariappu attacked him and inflicted injuries upon him and the appellant secured possession of a knife which Kariappu was having and when he fell unconscious he was taken to tht: house by his wife and from there he wa~ taken to the hospital. Abdulla asked him and his wife to give evidence in a case against one Sumappa Gowda and they did not agree for the same and as a result of the enmity Abdulla and others attacked him. By an order made on 27. !0.88, the Sessions Court acquitted G the appdlant. However, th<: High Court in stto motu revision set aside the order of acquittal and remanded the case for procct:ding afresh in accordance with law. After remand the trial court proceeded to formulate the following H two questions: KALLJKATI KL"<Ht.: v. STATE ;RAJE"'DRA BABt.:, J.j 1.

Whether the appellant committed murder of Abdulla and is he A guilty of the offence punishable under Section 302 IPC? 2. And if so, what should be the sentence? The trial court is of the view that PWs 1 to 4 are the eye witnesses to the incident who have given sufficient details as to how the ijicident took place and the appellant inflicted fatal mjuries on Abdulla and caused his death. In the evidence tendt.:red by them it emerged that the appellant owed some amount to the deceased and the matter was settled at the intervention of PW10, V.K. Gopal, whi~h amount was to be paid by 28.9.83. PW 1, son of the deceased, PW2, first wife of the deceased, PW3, second wife of the deceased, and PW4, labourer working with the deceased, were characteriscd as inten:sted witncsses. Even after careful scrutiny, the vt.:rsion of the incident as stated by PW s I to 4 could be accepted as there is no basic infirmity in the same and tht:y arc natural witnesses.

The defence pointed out that thae were certain injuries on the appellant also which were not properly explained. The trial court noticed that the evidence of D PWs 1 tu 3 who have stated that a wooden stick and a knife were used by them tu contain the attack on the deceased by the appellant. Though they did not say in so many words that they caused injuries tu the appellant, the trial court held that it was clear from their testimony that the injuries were caused to the appellant by them. M.0.8 is the weapon, which is stated to have been used by PW·3 for inflicting injuries on the appellant. At the time of inqm:st, '.Vl.0.8 was nut seized and it was produced before the Circle In,p1xtur of Pulice by PW3 un 27.8.83, which was the third day after the incident as pt.:r the version of PW3. There were no bloodstains on the said weapon.

The defcnci: claimed that M.0.1 was the weapon used for stabbing tht: deceased by the appellant and the said weapon was found sheathed and as such the said dagger could nut have been used to inflict injuries on the dect.:ased and so the evidence tendt:red by the eye witnesses is artificial. This aspect of the case is dealt with by the learned Sessions Judge in the G following terms: "It is possible that there may have been other knives lying around the scene of occurrence. It is a matter of common knowledge that in the area in question per;ons belonging tu the community of the deceased usually carry knives in sheaths on their waist belts. lt is SUPREME nll RT ;-ff.PORTS [2000j l S.C.R. possiblt: that the knife found sheathed belonged to the deceased. It is also equally possible as i' somi::timcs the case that some persons may carry more than a knift: with them. So just because that the M.0.1 was found unshcathi.:d, that by itself is no ground to discredit the entirt: prosecution case.'

Hence tht: lcarm:d Sessions Judge accepted the prosecution evidence and rejected the case of the appdlant. The appdlant had abo plt:adcd sdf-dt:fence. The trial court rejected this aspect of thi' case by stating that it is not ri.:;asonable to assume that a 65 year old man would haw attackt:d the appellant and caused injuries to him. The occum:nce of incidt:nt is stated to have taken piace in the residenct: of the deceased. The appellant was apparently in a drunken state and PW12 is a doctor who examined the appellant found him under the influence of alcoilol and his wifo appear' tu haw takt:n him to their house having found him wht:n he had fallen on tht: ground a' a n:sult of druni(:t:nness. The trial court also noticed that there wer..: also s1;;v-.:ral discn:pancii:s in the mattt:r and di,cardt.d tht:m as bt:ing only of minor nature. On appeal by the appellant, the High Court affirmed the view taken by the trial i.:ourt rm all aspects.

On the 4uestinn of the injurie' having h;,;cn caused by M.O. ', a sheathed dagger, the High Court ohsLrved as follows: "PWs I tu 4 during examination in court uniformly identif:.t:d \-LO.I as the wt:apon used by the appellant for stahbing the decea,cd. That bemg ~;o, the fact that \,1,( I. l was found enclosed in a 'hl:ath would mit b.: ,ufhcient to arriv.. al a condu,ion that it was not the weapon used by the appdl<int for causing tht: dt:ath of the dect:a;c. d.'' The High Court took into cun,idcration the in4u<:sl report had disdosed that tht: bloodstained pla>tii: shoes worn by the d.:c.:as..:d wt:re found near the dt:ad body; that the b..:nch whne the dcct:aM:d sat had toppled down on th1: ground of chappu (shed) : tho.t a dagger (MO l) wa' found in a shea[h near the basement of the chappa and that bloodstained soil (MO 11) was tound in the clwppa. However. M04 mundu (dhoti), M05 bottlt: containing arrack w..:n: found on the suut:lt:rn ,ide of the KAUJKATIK.l'IJHCv. STAH'

IRAJlc'.'llJRA HABL.J.j ll67 pathway starting eastwards from the house of the deceased which was A approximatdy two and a half metn:s away from the chappa. M04 and M05 are stat<:d to bdong to the appdlant The High Court opined that the appdlant was under the influence of alcohol and while rushing towards his houst: could have lost his 111u11du and the bottle on the way and the incidt:nt could have taken place only at the n:sidence of thi; deceased. The High Court agreeing with the trial court's vit:w dismissed the appeal. The learned counsel for the appellant did not dispute the fact of deceased having met with homicidal death considt:ring the nature of injuries on him as d1sclost:d in tht: post-mortem report. He, however, put forth two aspects of the case in tht: forefront:

(i) inquest report clearly C indicated that the dag.gt:r (MOl) was found in a sht:ath and (ii) it is also in evidence that ~104 (dhoti) and M05 (bottle) were found on the southt:rn side of the pathway starting eastwards of the house of the deceased, and submitted that th.est: two circumstances arc enough to demolish the prnsi:rntion case. The karm:d counsel for the State n::lit:d on D the reasoning of the trial court and the High Court as set out in their judgmcnb. If, as statt:d hy the .:ye witm:sscs, PWs I to 4, that MOl (dagger) was usi:d to lntli.ct injur'.cs upon the d..:c.:ascd the same could not have been found cndos.:d in a sheath near the has~ment of the chappa. It should have E b.:.:n found unskathed and ought to haw had sumt: bloodstains. This factor strongly pwhahliscs the version put forth hy the appellant that the incident has nut takw place in the manner narrat.:d by the prosecution witnesses.

If \'1()1 (dagger) is not ust:d to inf:ict the injuries upon the deceast:d thcr.: is no other w..:apnn of •Jffoncc produced before the trial F wurt. It is also in cvid1.0ncc that the ;,aid MO I. did not belong to the appdhmt but on th.: other hand hdonged to Pariyaram Abbas who had also been examint:d. r urther it is nut pruhable that when the appellant was trying to r:.m away towards his house he dropped his mundu and liquor butt:..: which art: found on the southern side of the pathway starting eastwards of the house of th..: deceased. If the appdlant was in a state of G druni{e'lnt:ss and found to have been picked up by his wife leaving the dhoti and bottle on tht: pathway where it was found, it is more probabk that thi; inciden1 could not have takt:n place, as alleged, in the shed. lf as alleged the incident had taken place !n tb.e shed it is not prubable that these two MOs could have been found in the pathway. Thus these two important H SUPREME COURT RF.PORTS [2GOOJ l S.C.R. A factors have been lost sight of by both the courts below.

The version given by the eye witnesses get tilted by the weapon of offence not having been found but what was produced being sheathed could not have been used for inflicting injuries. Viewed from that angle, we have no hesitation to accept the version put forth by the defence and set aside the order made by the B High Court affirming the judgment of the trial court sentencing the appellant to imprisonment for life. In the result, we are satisfied that there is no case made out against the appellant. We set aside the conviction and sentence of the appellant and set him at liberty forthwith unless he is required in any other case. The appeal is allowed accordingly. v.s.s. Appeal allowed.