Dismissed

Suresh, S/O.Vasu, C.9510 v. State of Kerala

Kerala HC6 Aug 2020CRL.A/794/2017

Case brief

AI extract

What is this about?

This judgment dismisses a criminal appeal against conviction under Sections 302 and 307 IPC. The High Court upheld the trial court's finding of guilt based on the credible testimony of the survivor (PW3), who suffered severe injuries during the incident, despite the mother's hostile statement.

What did the court decide?

Criminal appeal dismissed, confirming the conviction and sentence imposed by the trial court.

Suresh, S/O.Vasu, C.9510 Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

¶3

¶4

THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942

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CRL.A.No.794 OF 2017

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AGAINST THE JUDGMENT IN SC 688/2010 DATED 27-04-2011 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD.

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CRIME NO.7/2006 OF KOTTAYI POLICE STATION , PALAKKAD.

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APPELLANT :

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SURESH, S/O.VASU, C.9510, CENTRAL PRISON & CORRECTIONAL HOME, KANNUR.

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BY ADV. SRI.M.R.JAYAPRASAD (STATE BRIEF)

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RESPONDENT :

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STATE OF KERALA, (C.I OF POLICE, ALATHUR, CR.NO.7 OF 2006 OF KOTTAYI POLICE STATION).

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BY SENIOR PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl. Appeal No.794 of 2017 2

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A.HARIPRASAD & M.R.ANITHA, J J.

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Crl. Appeal No.794 of 2017

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Dated this the 6th day of August, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Appellant is the accused in Sessions Case No.688 of 2010

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before the Additional Sessions Judge (Ad hoc III), Palakkad. He has

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preferred this appeal aggrieved by the conviction and sentence imposed on

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him under Sections 302 and 307 I.P.C. Prosecution case, as borne out from

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the charge framed at the time of trial, reads thus :

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“ Firstly :

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That on 13.1.06, at about 10 a.m., at the front room of

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house no.XIV/316 of Kuthannur Panchayath at the

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Crl. Appeal No.794 of 2017 3

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place Valparamba in Kuthannur – II Village in Alathur

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Taluk, due to enmity towards Sahadevan, who was the brother of CW1 Seethalakshmi, with the intention to cause death of Sahadevan, you cut on the head and the hands and the legs of Sahadevan with a chopper and that on account of the injuries caused by you on the head of Sahadevan he died on the same day and that you committed murder of Sahadevan and thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of this court and

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: Secondly

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That on the same day and at the same time and at the same place, due to enmity towards CW2 Sujatha, with the intention to cause the death of CW2 Sujatha, you cut on the head, jaw and hands of CW2 Sujatha with a chopper and caused grievous heart to her and made attempt to murder her and thereby you have committed an offence punishable under section 307 of

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Crl. Appeal No.794 of 2017 4

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the Indian Penal Code and within the cognizance of this court and

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Lastly :

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That on the same day and at the same time and at the same place due to enmity towards CW2 Sujatha, with the intention to cause grievous hurt to CW2 Sujatha,

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you cut on the head, jaw and the hands of CW2 Sujatha with a chopper which is a dangerous weapon and caused grievous hurt to her and thereby you have committed an offence punishable under section 326 of the Indian Penal Code and within the cognizance of this court

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And I hereby direct that you be tried by this court on the said charge.”

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In order to substantiate the prosecution case, 19 witnesses

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were examined and 17 documents marked. Seven material objects have

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been exhibited in the case. There was no defence evidence.

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We heard the learned counsel Sri.M.R.Jayaprasad for the

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Crl. Appeal No.794 of 2017 5

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appellant and the learned Senior Public Prosecutor Sri. Alex M.Thombra for

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the State.

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Ext.P1 is the First Information Statement given by PW1, who is

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none other than the mother of accused/appellant. As per Ext.P1, she along

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with her son (accused) was residing in one of the rooms in a house

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belonging to her brother(deceased). PW3 Sujatha was residing with the

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deceased as his second wife for the last seven years. Deceased had earlier

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married another lady and later the marital relationship was dissolved. It is

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the version in Ext.P1 that deceased Sahadevan used to ask PW1 and the

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appellant/accused to go out of his house. In inebriated mood, the deceased

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used to pick up quarrels with PW1 and her son. On 13-01-2006, at 9.30

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am, PW1 went to take bath in a nearby pond. At that time, deceased

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Sahadevan, PW3 Sujatha and the accused/appellant were present in the

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house. At about 10.00 am, she returned after bathing. When she reached

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Crl. Appeal No.794 of 2017 6

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about 50 metre distance from the house, she heard somebody loudly crying

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out. She found her son, the accused, standing with a chopper. She also

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found her brother Sahadevan sitting on a chair with extensive bleeding

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injuries. At that time, PW3 was squatting on the floor close to her husband.

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Both of them had sustained serious injuries and the accused/appellant went

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out of the house with a chopper. Thereafter, Sahadevan and Sujatha were

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removed to hospitals. When Sahadevan reached District Hospital, Palakkad,

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he was declared dead.

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PW1, when examined, completely deserted the averments in

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Ext.P1. She admitted that she gave a statement to police, but the averments in Ext.P1 were not furnished by her, according to her version. She also

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admitted that she gave a statement under Section 164 Cr.P.C before PW19

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Magistrate. She retracted her statements in Ext.P2 statement given to the

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Magistrate.

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Crl. Appeal No.794 of 2017 7

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PW2 is a neighbour of deceased Sahadevan. She knew both the

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accused and PW1. She refused to support the prosecution case. Prosecutor cross-examined her with the permission of court. Nothing worthwhile

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could be elicited from this witness despite searching cross-examination.

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PW3 Sujatha is the star witness for the prosecution. She is an injured witness. She is the wife of deceased Sahadevan. Deceased

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Sahadevan is the maternal uncle of the accused/appellant is an undisputed

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fact. She asserted that she witnessed the incident on 13-01-2006 at about

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10.30 am. It is her version that at the time when the appellant inflicted 27

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injuries with a chopper on the deceased, she intervened and she also

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sustained very grave injuries. Testimony of PW3 would show that at the

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time of occurrence her husband (deceased Sahadevan) was having

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breakfast sitting on a chair. PW3 was cooking in the kitchen. When she

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heard a loud cry, she rushed to the hall and found the appellant chopping

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Crl. Appeal No.794 of 2017 8

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the deceased. PW3 deposed that appellant inflicted injuries on the

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deceased's head, shoulder, arms and thighs. When PW3 meddled with the

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matter, the appellant cut on her head and chin. She sustained fracture of

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skull and lost teeth. The incident had been clearly narrated by this witness.

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She identified the dress materials worn by the deceased at the time of occurrence. MO1 is the chair on which her husband was sitting at the time of attack. MO's 2 and 3 are his shirt and dothi. According to PW3,

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deceased Sahadevan and herself wanted PW1 and the appellant/accused to

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vacate that portion of the house occupied by them. This witness was

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subjected to a tough cross-examination. She adhered to the prosecution

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case to the hilt despite searching cross-examination. She deposed that the

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appellant inflicted cut injuries standing in front of the victims. Going by

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the evidence tendered by this witness, we find no reason to infer that somebody else would have attacked the deceased. Despite suggestions are

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Crl. Appeal No.794 of 2017 9

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made to this effect, PW3 strongly denied. On an evaluation of the testimony

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of PW3, we find that she has given a vivid picture relating to the incident

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and even after cross-examination, she remains credible. She can be

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qualified as a wholly reliable witness.

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PW4 is a taxi driver, who took the victims to the hospital. But

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on some other points, he refused to support the prosecution case and

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therefore he was declared hostile. Fact remains that the injured were taken

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to hospitals in PW4's taxi has not been disputed.

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PW5 is an attestor to Ext.P3 inquest report, through which the

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chopped off finger of the deceased was recovered.

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PW6 is an attestor to Ext.P4 inquest report relating to the dead

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body of Sahadevan.

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PW7 is the Woman Police Constable, who is a witness to Ext.P5

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mahazar through which MO1 chair was recovered.

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Crl. Appeal No.794 of 2017 10

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PW8 Dr.Gujaral, District Police Surgeon, Palakkad, conducted

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autopsy on the body of Sahadevan on 14-01-2006. The ante-mortem

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injuries are as follows :

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“1. Incised wound 14 x 1 x 3 cm, obliquely placed on left half of top of head, lower outer end 5 cm above outer end of left eyebrow. The upper inner end was 19 cm above midpoint of left eyebrow and 1.5 cm outer to midline top of head. Both ends of the wound were sharp cut and edges contused. The wound was curved with convexity to the left. The wound cut the scalp and the frontal and temporal bones of skull underneath. Dura was cut and the wound cut the temporal and parietal lobes of brain, causing a wound of size 9 x 0.3 x 1.5 cm. The wound was directed downwards, to right and to back.

¶119

Incised wound 14 x 2 x 3.6 cm, vertically oblique on left side of head and pinna of left ear, lower

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front end 0.5 cm above rot of tragus. The upper

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back end was 10 cm above top of left ear and reaching the outer edge of previous injury. Both ends of the wound were sharp cut and edges contused. The wound cut the pinna of ear in full thickness, scalp and temporal and parietal bones of skull underneath and caused an incised wound 6 x 0.4 x 3.5 cm on the temporal and parietal lobes of brain by cutting the dura. The wound was directed downwards, to right and to front.

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Incised wound 15 x 0.8 x 2.2 cm, vertically oblique on left side and left half of top of head, roughly parallel to previous injury, with lower front end 1.5 cm behind midpoint of back of pinna of left ear. The upper back end was at the outer edge of injury No.1 and 1 cm behind the upper back end of previous injury. Both ends of the wound were sharp cut and edges contused. The wound cut the scalp, skull bones and dura

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Crl. Appeal No.794 of 2017 12

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underneath and just cut the brain causing an incised wound 4 x 0.3 x 0.5 cm on parietal lobe of brain. The wound was directed to right, downwards and to front.

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Incised wound 4 x 0.3 x 0.5 cm, vertical on left side of head, lower end 5 cm above top of left ear. The wound was roughly parallel to upper portion of injury No.2 and was cut the outer table of skull underneath. Edges of the wound were contused and ends sharp cut.

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Incised wound 10 x 0.4 x 2.5 cm on left half of back of head, obliquely placed with lower left end 4 cm behind top of left ear. The upper right end was 3 cm below left parietal eminence. Both ends of the wound were sharp cut and edges contused. The wound cut the scalp, left occipital bone of skull and dura underneath and caused an incised wound 3 x 0.4 x 2 cm on left occipital lobe of brain. The wound was directed to front, to right

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Crl. Appeal No.794 of 2017 13

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and downwards.

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Incised wound 8 x 1 x 4.5 cm on left parietal eminence of head, obliquely placed with upper right end 21 cm above root of neck in midline. The lower left end was 10 cm above top of left ear and merging with injury No.1. Both ends of the wound were sharp cut and edges contused. The wound cut the scalp, parietal bone of skull and dura underneath and caused an incised wound 4 x 0.5 x 3 cm on the left parietal lobe of brain. The wound was directed downwards, to front and to right.

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Incised wound 8 x 0.5 x 1.5 cm on left half of back of head, oblique with upper front end over left parietal eminence, 16 cm above top of left ear. The lower back end was 8 cm behind top of left ear, at 2 O' clock position. Both ends of the wound were sharp cut and edges contused. The wound cut the scalp, parietal and occipital bones

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Crl. Appeal No.794 of 2017 14

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of skull and dura underneath causing an incised

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wound 4 x 0.2 x 0.2 cm on parietal lobe of brain. The wound was directed to right, downwards and to front.

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The scalp underneath the cut injuries 1 to 7 on head showed blood infiltration. The cuts in the bones caused fragmentation of left frontal, temporal, parietal and occipital bones. From the cuts on temporal and parietal bones, fractures extended to right middle and posterior cranial fossa. Dura was cut corresponding to the injuries. There was subdural and subarachnoid bleeding over brain. Brain edematous.

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Incised wound 5 x 0.5 x 1.2 cm on left half of back of neck, transversely placed with inner end at 3 cm above root of neck in midline back of neck. Both ends of the wound were sharp cut and edges contused. The wound cut the skin, subcutaneous tissues and muscles underneath.

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Crl. Appeal No.794 of 2017 15

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The wound was directed downwards, to front and to right.

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Incised wound 3 x 1 x 0.5 cm vertically placed over left collar bone upper end just above collar bone and 8 cm outer to midline.

¶140

Incised wound 4 x 0.5 x 0.6 cm on top of left shoulder, transversely placed with inner end 8 cm outer to root of neck.

¶141

Superficial incised wound 1.2 x 0.3 cm on outer aspect of shoulder, vertically placed with upper end 0.4 cm below outer end of previous injury.

¶142

Superficial incised wound 1.2 x 0.2 cm on top and outer aspects of left shoulder, 2 cm in front of outer end of previous injury.

¶143

Superficial incised wound 1 x 0.2 x 0.2 cm, vertically oblique, on outer aspect of right upper arm, 2.5 cm below top of shoulder.

¶144

Superficial incised wound 1.2 x 0.3 cm on outer aspect of left upper arm, vertically oblique with

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Crl. Appeal No.794 of 2017 16

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upper end 1.8 cm below outer end of previous injury.

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Incised wound 9 x 1 x 2 cm, obliquely placed on back of right hand, 3 cm below wrist and 2 cm inner to the inner border of hand. The lower outer end was at 3 cm below root of index finger. Both ends of the wound were sharp cut and edges contused. The wound cut the Ist phalanx of the middle finger obliquely and cut through the Ist interpahlangeal joint of index finger. The index finger was almost cut except for skin on palmar aspect. The wound was directed upwards, to front and to right.

¶148

Incised wound 1.8 x 0.2 x 0.5 cm on back of right thumb, transversely placed at 1 cm below root of thumb.

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Incised wound 3 x 0.2 x 0.2 cm, vertically splitting the thumb from its tip upwards and in full thickness, upper end at 2 cm below root of

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Crl. Appeal No.794 of 2017 17

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thumb.

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Superficial incised wound 1 x 0.2 cm, oblique, on front of right knee.

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Superficial incised wound 3 x 0.2 cm, transversely oblique on outer aspect and front of left leg, 7 cm below knee.

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Incised wound 14 x 2 x 6 cm, transversely oblique on front, outer and inner aspects of left thigh, 3 cm above knee. Both ends of the wound were sharp cut and edges contused. The wound cut the skin, subcutaneous tissues and muscles underneath and cut the femur bone in full thickness. The wound had a side cut on upper border at 1.5 cm inner to the outer upper end. There was another side cut on the lower border at 2 cm to the left of lower inner end. The wound was directed upwards, backwards and to right.

¶155

Avulsed incised wound 14 x 6 x 7 cm, obliquely

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placed on back and outer aspect of left forearm,

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Crl. Appeal No.794 of 2017 18

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upper inner end 12 cm below elbow. The lower

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outer end was 1 cm above wrist. Both ends of the wound were sharp cut and edges contused. The wound cut the skin, subcutaneous tissues and muscles underneath, avulsing the cut tissues upwards and outwards. The wound cut the ulna bone in full thickness and radius bone partially. The wound was directed upwards, outwards and to front.

¶160

Superficial incised wound 3 x 0.2 cm, obliquely placed on front of left forearm, 12 cm above wrist.

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Avulsed incised wound 3 x 0.5 x 1.5 cm, obliquely placed on thenar eminence of palm of left hand, 3.5 cm below wrist. The cut skin, subcutaneous tissues and muscles were avulsed outwards and downwards.

¶162

Incised wound 1.2 x 0.2 x 0.3 cm, transversely placed on palm of left hand 1 cm above root of

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Crl. Appeal No.794 of 2017 19

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index finger.

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Incised wound 1.2 x 0.2 x 0.4 cm on inner and

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back aspects of left middle finger, at just below root of finger.

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Incised wound 2.5 x 0.5 x 1 cm, obliquely placed

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on palmar and inner aspects and back of left middle finger, 0.5 cm below root of finger. The wound cut the Ist phalanx of finger partially, except for skin on outer aspect of finger.

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Incised wound 3 x 1 x 1.2 cm, obliquely placed on back and inner aspects of left ring and little fingers. The wound obliquely cut the distal phalanx of little finger except for skin on palmar aspect of the finger. The wound cut off the ring finger obliquely at 0.5 cm below root of finger. The chopped off portion of the ring finger was lost. ”

¶170

Ext.P6 is the post-mortem certificate. PW8 proved Ext.P6 meticulously. It

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Crl. Appeal No.794 of 2017 20

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can be seen that very serious incised injuries were inflicted on the

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deceased. He also deposed in conformity with PW3. From the nature of

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injuries it appears that they must have been inflicted with a heavy cutting

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chopper and the assailant standing in front of the victims. A piece of finger

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severed from the deceased's body was also subjected to post-mortem examination. Injuries 1 to 7 singly are fatal, according to PW8. There was

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no effective cross-examination on this witness.

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PW9, Dr.Rajesh, while working as Senior Lecturer in Surgery

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at Medical College Hospital, Thrissur, examined PW3 and issued Ext.P8

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wound certificate. The injuries sustained by PW3 as noted in Ext.P8 are as

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follows :

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Fracture of skull.

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Fracture of mandible.

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Fracture of skull with cerebral oedema.

¶185

Multiple lacerable wound on the left parietal

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Crl. Appeal No.794 of 2017 21

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region and the occipital region wound in the left

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parietal region 7 x 3 cm, bone deep.

¶189

PW10 Dr.Suresh Kumar was working as Dental surgeon in

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Karuna Medical College Hospital, Chittur, Palakkad. He treated PW3 and issued Ext.P9 certificate. He proved Ext.P9 and stated that the patient (PW3)

¶191

had sustained fracture of mandible. Though it was reduced from Medical

¶192

College Hospital, Thrissur, she complained of pain. PW10 deposed that on

¶193

taking X-ray, it was revealed that after reduction, there was a small gap

¶194

and surgically it was corrected. Medical evidence in this case remain

¶195

unchallenged despite cross-examination. Medical records coupled with

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testimony of doctors support the version of PW3 regarding the manner in

¶197

which the appellant inflicted injuries on her.

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PW11 is the Village Officer, who prepared a site plan.

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PW12 Panchayath Secretary issued Ext.P11 ownership

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certificate showing that the house in which the incident occurred stood in

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Crl. Appeal No.794 of 2017 22

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the name of PW3.

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Learned counsel for the appellant argued that PW3 has a case

¶204

that she started residing with deceased Sahadevan only six months before

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the incident. But Ext.P11 would show that from 1993-1994 onwards the

¶206

house was standing in the name of PW3. According to him, this improbabilizes the prosecution case that they started living as man and

¶207

wife recently. That may not be a relevant issue, according to us, for the reason that the straight, convincing and reliable testimony of PW3 shows

¶208

that the appellant was solely responsible for inflicting injuries on the

¶209

deceased and PW3.

¶210

PW13 Assistant Sub Inspector recorded Ext.P1 F.I Statement. He proved that PW1, at the time of giving Ext.P1 statement, mentioned that

¶211

she called out her son by name “Sura” and she found him walking out of

¶212

the house with a chopper in his hands.

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Crl. Appeal No.794 of 2017 23

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PW14 registered Ext.P12 First Information Report (FIR) in

¶215

accordance with Ext.P1 F.I.S.

¶216

PW's 15, 16, 17 and 18 are the investigating officers. Each one

¶217

of them conducted different portions of the investigation. PW15 had done initial investigation. He prepared Exts.P3 and P4 inquest reports. He forwarded the body for post-mortem examination. PW16 arrested the accused on 19-03-2010. He was spotted at Parassinikadavu in Kannur district on 18-03-2010 suggesting that he was absconding after the incident and could be apprehended only after four years. Ext.P16 arrest

¶218

memo is proved through this witness. PW17 is yet another investigating officer, who caused the statement of PW1 to be recorded by PW19 under Section 164 Cr.P.C. PW18 conducted another portion in the investigation.

¶219

The testimony of all these investigating officers would clearly show that there was no flaw in the investigation and they have discharged their duty

¶220

Crl. Appeal No.794 of 2017 24

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properly.

¶222

PW19 Magistrate recorded the statement of PW1 under

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Section 164 Cr.P.C. According to him, he had complied with the rules regarding recording of a statement under the above provision and PW1

¶224

deposed touching the role played by the accused/appellant in the incident

¶225

at length.

¶226

Learned counsel for the appellant strongly contended that

¶227

PW1's testimony cannot be relied on by the prosecution to find guilt of the

¶228

accused person. PW3, according to him, is not wholly reliable. It is also

¶229

pointed out that going by Ext.P6 post-mortem certificate, there are 27 injuries on the victim suggesting that it would have been inflicted by more

¶230

than one person. According to the learned counsel for the appellant, within

¶231

a short time, such number of injuries could not have been inflicted by one

¶232

person.

¶233

Crl. Appeal No.794 of 2017 25

¶234

Learned Public Prosecutor opposed all these contentions by

¶235

saying that PW3 had vividly narrated the incident and her presence at the

¶236

scene of occurrence cannot be doubted for the reason that she is an injured

¶237

witness. More over, even after a tough cross-examination, nothing

¶238

worthwhile could be elicited from PW3 to discard her testimony.

¶239

On going through the impugned judgment, we find that the

¶240

learned Sessions Judge has considered all the evidence meticulously and

¶241

relied on a large number of decisions, relating to the reliability of statement

¶242

under Section 164 Cr.P.C. On a reappraisal of the entire evidence and on

¶243

going through the narration of facts and law in the trial judgment, we find

¶244

no reason to take a different view. It is well settled that if the trial court,

¶245

which had the occasion to see the witnesses and appreciate the evidence at

¶246

the first time, has taken a reasonable view and if the appellate court does

¶247

not find any reason to interfere with the view taken by the trial court, then

¶248

Crl. Appeal No.794 of 2017 26

¶249

the appellate court will not be justified in substituting its view in the place

¶250

of the trial court's view. Having regard to these principles, we find no merit

¶251

in the appeal. Hence the appeal is dismissed confirming the conviction and

¶252

sentence.

¶253

All pending interlocutory applications will stand dismissed.

¶254

A. HARIPRASAD, JUDGE.

¶255

M.R.ANITHA, JUDGE

¶256

amk

Suresh, S/O.Vasu, C.9510 v. State of Kerala

Case brief

What is this about?

What did the court decide?

Suresh, S/O.Vasu, C.9510 v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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