{"id":92599,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shaji-illickal-shaji-vs-state-of-kerala-on-15-march-2010"},"modified":"2017-07-19T00:15:59","modified_gmt":"2017-07-18T18:45:59","slug":"shaji-illickal-shaji-vs-state-of-kerala-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shaji-illickal-shaji-vs-state-of-kerala-on-15-march-2010","title":{"rendered":"Shaji @ Illickal Shaji vs State Of Kerala on 15 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Shaji @ Illickal Shaji vs State Of Kerala on 15 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1219 of 2006()\n\n\n1. SHAJI @ ILLICKAL SHAJI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.V.SABU\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :15\/03\/2010\n\n O R D E R\n                 R.BASANT & M.C. HARI RANI,JJ\n\n       ==============================\n\n                   CRL.A. NO. 1219 OF 2006\n\n         ============================\n\n     DATED THIS THE 15TH DAY OF MARCH 2010\n\n                           JUDGMENT\n<\/pre>\n
Basant,J.\n<\/p>\n
         i) Is it safe to place reliance on the oral evidence<\/p>\n
         of PW1?\n<\/p>\n
         ii) Can the evidence about dying declaration and<\/p>\n
         recovery of MO.1 on the basis of disclosure<\/p>\n
         statement of the appellant be accepted and made<\/p>\n
         use of to draw inspiration for the oral evidence of<\/p>\n
         PW1?\n<\/p>\n
         iii) Is the court below justified in entering a<\/p>\n
         verdict of guilty conviction and sentence under<\/p>\n
         Section 302 of the Indian Penal Code?\n<\/p>\n
     These are the three questions that are raised before us for<\/p>\n
consideration on the basis of the arguments advanced by Sri.<\/p>\n
K.V.Sabu, Advocate for the appellant.\n<\/p>\n
     2. The appellant faces a verdict of guilty, conviction and<\/p>\n
sentence for the offences punishable under Sections 302 and<\/p>\n
CRA.1219\/2006                   -2-<\/span><\/p>\n
324 I.P.C. He faces the sentence of imprisonment for life under<\/p>\n
Section 302 I.P.C. and rigorous imprisonment for a period of six<\/p>\n
months under Section 324 I.P.C. The sentences are directed to<\/p>\n
run concurrently. Set off under Section 428 Cr.P.C.is allowed.<\/p>\n
     3. The prosecution alleged that there was a dispute<\/p>\n
between PW1, brother of the deceased, and the appellant herein<\/p>\n
at about 8.15 p.m. on 27\/7\/2003 in a property belonging to one<\/p>\n
Hariharan. That dispute was about the refusal\/failure of PW1 to<\/p>\n
give the appellant his bicycle when asked for the same. In the<\/p>\n
course of that dispute, the deceased Shibu Kumar reached the<\/p>\n
scene. He allegedly tried to save his brother PW1 from the<\/p>\n
attack of the appellant. The appellant then drew out his knife,<\/p>\n
MO.1 and inflicted injuries – one on the forehead and one on the<\/p>\n
abdomen of the deceased. An injury with MO.1 was inflicted on<\/p>\n
PW1 also. The accused allegedly went away from the scene of<\/p>\n
the crime with MO.1. The deceased and PW1 were rushed to<\/p>\n
the local hospital. The deceased was removed from one hospital<\/p>\n
to other. He ultimately succumbed to his injuries on 30\/7\/2003.<\/p>\n
The prosecution alleged that the appellant had thereby<\/p>\n
committed the offences punishable under Section 324 I.P.C.<\/p>\n
CRA.1219\/2006                   -3-<\/span><\/p>\n
(against PW1) and Section 302 I.P.C.(against the deceased).<\/p>\n
     4. Investigation commenced with Ext.P9 F.I. statement<\/p>\n
which PW9 Head Constable had allegedly recorded from the<\/p>\n
deceased while he was undergoing treatment as an inpatient at<\/p>\n
the Medical Trust Hospital, Ernakulam on 28\/7\/2003 at 12.30<\/p>\n
p.m. That F.I.R.(Ext.P10) registered by PW10, it is seen, had<\/p>\n
reached the court on 29\/7\/2003 at 10.30 a.m. Investigation was<\/p>\n
conducted by police officials including PWs.11 and 12.         A<\/p>\n
successor of them filed the final report\/charge sheet against the<\/p>\n
appellant before the learned Magistrate.           The learned<\/p>\n
Magistrate, after observing the legal formalities, committed the<\/p>\n
case to the Court of Session. The appellant denied the offence<\/p>\n
alleged against him and thereupon the prosecution examined<\/p>\n
PWs.1 to 12 and proved Exts.P1 to P14. Mos.1 to 3 were also<\/p>\n
marked.\n<\/p>\n
     5. The appellant-accused, in the          course of cross<\/p>\n
examination of prosecution witnesses and when examined under<\/p>\n
Section 313 Cr.P.C. and still later while examining DWs.1 to 3,<\/p>\n
took up a fairly specific and definite stand. He did not dispute<\/p>\n
his presence at the scene of the crime. According to him,<\/p>\n
CRA.1219\/2006                   -4-<\/span><\/p>\n
friends were having a good time on a holiday. They had<\/p>\n
consumed alcohol.       This spree of consumption of alcohol<\/p>\n
continued into the late evening of 27\/7\/2003. There was a free<\/p>\n
for all at about 8.30\/9.00 p.m. In such free for all, the deceased,<\/p>\n
PW1, the appellant and one Ramesh had suffered injuries. It was<\/p>\n
not a case of deliberate infliction of injuries on PW1 and the<\/p>\n
deceased by the appellant as the prosecution now alleges .      In<\/p>\n
some manner all the four had suffered injuries. The appellant<\/p>\n
contended that at any rate the appellant is not responsible for<\/p>\n
the fatal injury on the deceased. He examined DWs.1 to 3 on his<\/p>\n
side. Exts.D1 to D3 were marked.\n<\/p>\n
      6. The learned Sessions Judge on an anxious evaluation of<\/p>\n
all the relevant inputs came to the conclusion that the<\/p>\n
prosecution has succeeded in proving beyond doubt all the<\/p>\n
offences alleged against the appellant. Accordingly, the learned<\/p>\n
Judge proceeded to pass the impugned judgment.<\/p>\n
      7. Before us, Sri.K.V.Sabu, learned counsel for the<\/p>\n
appellant has advanced      his arguments.    The learned Public<\/p>\n
Prosecutor Sri. Noble Mathew has also advanced his arguments.<\/p>\n
The learned counsel for the appellant assails the impugned<\/p>\n
CRA.1219\/2006                   -5-<\/span><\/p>\n
verdict of guilty, conviction and sentence on the three grounds<\/p>\n
that we have referred to in paragraph 1 of this judgment.<\/p>\n
      8. An appellate judgment      is and must be     read as a<\/p>\n
continuation of the judgment of the trial court. We note that the<\/p>\n
learned Sessions Judge has adverted to all the relevant<\/p>\n
circumstances, evidence adduced as also all matters before him.<\/p>\n
Specific reference has been made in the impugned judgment to<\/p>\n
all the relevant inputs. We are, in these circumstances, satisfied<\/p>\n
that it is   unnecessary for us     to attempt to re-narrate the<\/p>\n
relevant facts, circumstances, materials and matters. We shall<\/p>\n
advert to the relevant materials specifically as and when we<\/p>\n
discuss the relevant aspects in the course of this judgment.<\/p>\n
      9. The prosecution primarily relied on the following pieces<\/p>\n
of evidence.\n<\/p>\n
        1)Oral evidence of PW1,brother of the deceased,<\/p>\n
        who allegedly was present at the scene of the crime<\/p>\n
        and who had himself suffered injury allegedly at the<\/p>\n
        hands of the appellant with the same weapon, i.e.<\/p>\n
        MO.1<\/p>\n
        2) The alleged dying declarations made by the<\/p>\n
CRA.1219\/2006                     -6-<\/span><\/p>\n
        deceased to PW2, PW3, PW4,PW5 and PW9.\n<\/p>\n
        3) The evidence of recovery of MO.1 under Ext.P7<\/p>\n
        in the presence of PW7 on the basis of the<\/p>\n
        disclosure statement of the appellant marked as<\/p>\n
        Ext.P7(a) to PW12.\n<\/p>\n
      10. The question before us is whether the court below was<\/p>\n
justified from the inputs available in coming to the conclusion<\/p>\n
that the fatal injury was suffered by the deceased at the hands of<\/p>\n
the appellant. It will also have to be considered whether the<\/p>\n
case of the prosecution that PW1 also suffered injuries at the<\/p>\n
hands of the appellant can be accepted.\n<\/p>\n
      11. In support of its case, the prosecution wanted to examine<\/p>\n
two eye witnesses to the occurrence.       PW1, the brother of the<\/p>\n
deceased and PW2 a common neighbour\/friend were examined by the<\/p>\n
prosecution as eye witnesses. PW1 had suffered injuries also. Of this,<\/p>\n
PW2 turned hostile to the prosecution. He was declared hostile and<\/p>\n
was cross examined. In the course of such cross examination, Exts.P1<\/p>\n
to P1(c), four case diary contradictions were marked. PW2<\/p>\n
surprisingly did not subscribe to his version in the case diary before<\/p>\n
court.      But   his   evidence     shows    that    the   deceased<\/p>\n
CRA.1219\/2006                  -7-<\/span><\/p>\n
and PW1 had suffered injuries at the spot identified by the<\/p>\n
prosecution as the venue of the crime. His evidence further<\/p>\n
shows that the deceased, PW1 and the accused were present<\/p>\n
and available at the scene. His evidence further shows that he<\/p>\n
arranged to take PW1 and the deceased to the hospital also from<\/p>\n
the scene of the crime. He completely deviated from his version<\/p>\n
in the case diary that he had actually witnessed the occurrence.<\/p>\n
Instead, he advanced a version that he did not see the incident<\/p>\n
but the deceased had stated to him that he had suffered the<\/p>\n
injury at the hands of the appellant. The learned counsel for the<\/p>\n
appellant contends that PW2 cannot be believed at all as he has<\/p>\n
deviated substantially from his earlier version.   He has now<\/p>\n
spoken against the prosecution version that he was an eye<\/p>\n
witness to the occurrence. To satisfy the prosecution, he has<\/p>\n
now advanced this theory that the deceased had given a dying<\/p>\n
declaration to him as to how he had suffered the injury. The<\/p>\n
prosecution relied on the alleged cause narrated to PW3 and<\/p>\n
recorded in Ext.P2 wound certificate by PW3 that it was the<\/p>\n
appellant who inflicted injury on the    deceased. The learned<\/p>\n
counsel for the appellant points out and we note that the<\/p>\n
CRA.1219\/2006                   -8-<\/span><\/p>\n
evidence of PW3 does not show that the alleged cause was<\/p>\n
narrated to PW3 by the      deceased in Ext.P2.     Similarly, the<\/p>\n
prosecution wanted to rely on the dying declaration made by the<\/p>\n
deceased to PW4 in Ext.P4 wound certificate. But Ext.P4 wound<\/p>\n
certificate does not reveal as to how – i.e. at whose hands, the<\/p>\n
deceased had suffered the injury described in Ext.P4. In these<\/p>\n
circumstances, counsel contended that the contents of Ext.P4<\/p>\n
cannot be reckoned as a dying declaration.\n<\/p>\n
      12. The prosecution primarily relied on the dying<\/p>\n
declaration made to PW5,Doctor and recorded by him in Ext.P5<\/p>\n
wound certificate. Ext.P5 wound certificate prepared by PW5<\/p>\n
shows that when PW5 examined the deceased at 10.30 p.m., he<\/p>\n
found him to be conscious and well oriented.     It is the specific<\/p>\n
case of PW5 that the alleged cause was narrated to PW5 by the<\/p>\n
deceased, i.e. the injured. The prosecution contends that the<\/p>\n
oral evidence of PW5 that the deceased had narrated the alleged<\/p>\n
cause recorded in Ext.P5 has got to be accepted and at any rate<\/p>\n
the said dying declaration offers convincing assurance for the<\/p>\n
version of PW1.\n<\/p>\n
      13. The incident took place on 27\/7\/2003. F.I. statement,<\/p>\n
CRA.1219\/2006                  -9-<\/span><\/p>\n
Ext.P9 was lodged and the F.I.R., Ext.P10, was registered on<\/p>\n
28\/7\/2003. The same had reached the court at 10.30 a.m.on<\/p>\n
29\/7\/2003. Thereafter, the deceased had expired on 30\/7\/2003.<\/p>\n
The appellant herein was arrested by PW12 on 2\/8\/2003. He was<\/p>\n
allegedly interrogated and in the course of            the said<\/p>\n
interrogation, the appellant allegedly gave Ext.P7(a)confession<\/p>\n
statement.   On the basis of the confession statement,PW12<\/p>\n
proceeded to the house of DW3 and recovered MO.1 which was<\/p>\n
concealed outside the house by the side of the outer wall under a<\/p>\n
bag. The prosecution examined PW7, an attestor to Ext.P7. PW7<\/p>\n
admitted his signature in Ext.P7 and was not declared hostile.<\/p>\n
However, in the course of cross examination, PW7 stated that he<\/p>\n
had not seen the accused taking the knife from its place of<\/p>\n
concealment and handing it over to PW12.\n<\/p>\n
     14. While the learned Public Prosecutor contends that the<\/p>\n
conclusion of the court below are perfectly justified by the oral<\/p>\n
evidence of PW1 which is        duly supported by the dying<\/p>\n
declarations made by the deceased to PW2, PW5 and PW9 as<\/p>\n
also the recovery of blood stained MO.1 used for commission of<\/p>\n
the crime on the basis of the disclosure statement, Ext.P7(a) of<\/p>\n
CRA.1219\/2006                  -10-<\/span><\/p>\n
the  appellant,   the  learned    counsel    argues   that  these<\/p>\n
circumstances cannot be believed at all.\n<\/p>\n
     15. We shall now proceed to consider the relevant<\/p>\n
circumstances.\n<\/p>\n
     16. PW1 was present at the scene of the crime. He had<\/p>\n
suffered an injury which, in a telltale manner, corroborates his<\/p>\n
version that he was present at the scene of the crime. It is<\/p>\n
crucial to note that even the accused does not dispute the<\/p>\n
presence of PW1, the deceased as also the appellant at the scene<\/p>\n
of the crime. The version of PW1 that he and the deceased had<\/p>\n
suffered injuries at the hands of the appellant is convincingly<\/p>\n
corroborated by the alleged cause narrated to PW3 by PW1 and<\/p>\n
recorded by PW3 in Ext.P3 wound certificate. That certificate<\/p>\n
was issued by PW3 after examination of PW1, on that night.<\/p>\n
Thus, inherently and on broad probabilities, we find absolutely<\/p>\n
nothing to doubt or suspect the version of PW1. PW2, of course,<\/p>\n
has turned hostile. Notwithstanding his hostility, it is seen that<\/p>\n
he had spoken about the alleged dying declaration made by the<\/p>\n
deceased to him.   PW2, it is evident, is not a witness, who went<\/p>\n
out of his way for supporting the prosecution.      If he were so<\/p>\n
CRA.1219\/2006                  -11-<\/span><\/p>\n
inclined, he could easily have tendered evidence in tandem with<\/p>\n
the case diary statement (contradictions) marked as Exts.P1 to<\/p>\n
P1(c).   Cross examination of PW2 does not at all suggest that<\/p>\n
PW2 is an unworthy witness. Be that as it may, we shall not, in<\/p>\n
this appeal, make use of the evidence of PW2 about the alleged<\/p>\n
dying declaration made by the deceased to him for any purpose.<\/p>\n
This is not to say that we reckon PW2 as a witness who had<\/p>\n
perjured about the dying declaration. We intend only to say<\/p>\n
that we do not think it necessary to place reliance on the oral<\/p>\n
evidence of PW2 for any purpose considering the nature of the<\/p>\n
other evidence available in the case.\n<\/p>\n
     17. PW5 is the Doctor, who examined the deceased at the<\/p>\n
Medical Trust Hospital and issued Ext.P5 wound certificate. We<\/p>\n
find entries in Ext.P5, which shows that the appellant was<\/p>\n
conscious and oriented. It is in the wake of such record made in<\/p>\n
Ext.P5 that PW5 asserts that it was the deceased who narrated<\/p>\n
to him the alleged cause recorded in Ext.P5. There is not a<\/p>\n
semblance of data which can persuade the court to doubt the<\/p>\n
alleged dying declaration made by the deceased to PW5<\/p>\n
recorded in Ext.P5 that the deceased suffered the injuries at the<\/p>\n
CRA.1219\/2006                   -12-<\/span><\/p>\n
hands of the appellant herein. We cannot afford to ignore that<\/p>\n
PW5 is an unbiased and independent Medical Officer. We find<\/p>\n
no interest for PW5 to falsely assert before the court that it was<\/p>\n
the deceased who narrated the alleged cause to her. In fact, we<\/p>\n
note that the prosecution had not      brought in this evidence<\/p>\n
during chief examination and it is only in the course of cross<\/p>\n
examination that it was asserted by PW5 that the alleged cause<\/p>\n
was narrated to her by the deceased who was conscious and<\/p>\n
oriented as per Ext.P5. We do, in these circumstances, find the<\/p>\n
oral evidence of PW5 about the alleged dying declaration of the<\/p>\n
deceased recorded in Ext.P5 to be absolutely acceptable.<\/p>\n
Relying on Ext.D2 case diary contradiction of PW5, it is argued<\/p>\n
that PW5 is not a trustworthy witness.         The deceased had<\/p>\n
injuries. He had to be operated upon immediately. He and his<\/p>\n
relatives were not able to raise the requisite money. That is why<\/p>\n
the operation was not done at the hospital of PW5. That is why<\/p>\n
the deceased had to be referred later to the Medical College<\/p>\n
Hospital.   In these circumstances, PW5 has an animus against<\/p>\n
the appellant -accused to save the hospital from the blame of<\/p>\n
not attending to the surgery immediately, contends the learned<\/p>\n
CRA.1219\/2006                    -13-<\/span><\/p>\n
counsel for the appellant.      We find this theory is absolutely<\/p>\n
unjustifiable. We have gone through the oral evidence of PW5<\/p>\n
in detail.\n<\/p>\n
      18. Ext.D2, according to us, is only on the assessment of<\/p>\n
PW5 as to whether immediate surgery was necessary or not<\/p>\n
when she examined the deceased. Ext.D2 cannot persuade a<\/p>\n
prudent mind to doubt or suspect the version of the independent<\/p>\n
and the unbiased Medical witness        (PW5) about the alleged<\/p>\n
cause narrated to her by the deceased recorded by her<\/p>\n
contemporaneously in Ext.P5. That dying declaration, we are<\/p>\n
satisfied, is absolutely inspiring and can be accepted and acted<\/p>\n
upon.\n<\/p>\n
      19. We have evidence of PW9, the Head Constable about<\/p>\n
the statement of the deceased, which he recorded in Ext.P9 F.I.<\/p>\n
statement. The deceased was in the I.C.U.at that time and PW9<\/p>\n
appears to have      recorded Ext.P9 on 28\/7\/2003 not in the<\/p>\n
presence of any Medical officer or Para Medical personnel. It is<\/p>\n
argued in these circumstances that this F.I. statement, Ext.P9<\/p>\n
does not deserve to be      accepted. In the wake of the dying<\/p>\n
declaration made to PW5 in Ext.P5, which we have already<\/p>\n
CRA.1219\/2006                  -14-<\/span><\/p>\n
chosen to accept , we find it unnecessary to embark on a more<\/p>\n
detailed discussion as to whether the oral evidence of PW9<\/p>\n
about the F.I. statement recorded by him from the deceased can<\/p>\n
or need be accepted. Suffice it to say that inherently and on<\/p>\n
broad probabilities, we find no reason not to accept and act<\/p>\n
upon the oral evidence of PW9 about the genuineness of the<\/p>\n
dying declaration made to PW9 by the deceased.<\/p>\n
     20. The prosecution attempts to offer final assurance to<\/p>\n
the version of PW1 by the evidence of PW12 about the recovery<\/p>\n
of MO.1 on the basis of the confession\/disclosure statement<\/p>\n
Ext.P7(a) given by the appellant to PW12 under Ext.P7. In the<\/p>\n
absence of support from the attesting witnesses, of which PW7<\/p>\n
is one, we have gone through the oral evidence of PW12 in<\/p>\n
detail. Inherently and on broad probabilities, we find no reason<\/p>\n
to doubt or discard the evidence of PW12. It is true that PW12 is<\/p>\n
a police official. The fact that he is a police official cannot<\/p>\n
certainly   persuade us to approach his     testimony with any<\/p>\n
amount of doubt, suspicion or distrust.    The version of PW12<\/p>\n
about the disclosure statement and the recovery of MO.1 on the<\/p>\n
basis of such statement of the appellant is convincingly<\/p>\n
CRA.1219\/2006                 -15-<\/span><\/p>\n
corroborated by the contents of the contemporaneous Ext.P7<\/p>\n
seizure mahazar.     PW7, a witness who did not support the<\/p>\n
contents of Ext.P7 in greater detail admitted that he had signed<\/p>\n
as an attestor in Ext.P7.      In these circumstances, we are<\/p>\n
satisfied that   the convincing corroboration offered by the<\/p>\n
contents of contemporaneous Ext.P7 seizure mahazar can be<\/p>\n
used by us to draw inspiration and support for the oral evidence<\/p>\n
of PW12.\n<\/p>\n
      21. The learned counsel for the appellant submits that two<\/p>\n
witnesses cited by the prosecution as charge witnesses have<\/p>\n
been examined by the appellant as DWs. 2 and 3. They were<\/p>\n
cited to be examined by the prosecution as eye witnesses to the<\/p>\n
occurrence.    Those witnesses when examined        as  defence<\/p>\n
witnesses had not supported the prosecution case. They, like<\/p>\n
the appellant, have no specific case that the deceased and PW1<\/p>\n
suffered injuries in any other specific manner.    They, i.e. the<\/p>\n
defence witnesses have no case that the appellant suffered<\/p>\n
inconsequential injuries described in Ext.D3 proved by DW1 at<\/p>\n
the hands of the deceased or PW1.       They   have no specific<\/p>\n
explanation as to how the appellant suffered the inconsequential<\/p>\n
CRA.1219\/2006                   -16-<\/span><\/p>\n
injuries referred to in Ext.D3.   Ext.D3 does not give details of<\/p>\n
injuries. There is no allegation that it was a medico legal case or<\/p>\n
that the accused had suffered the injuries at the hands of any<\/p>\n
other. Suffice it to say that the oral evidence of DWs.2 and 3 or<\/p>\n
the oral evidence of DW1 and Ext.D3 do not in any way generate<\/p>\n
any distrust or suspicion against the prosecution’s case. They<\/p>\n
are insufficient to generate any reasonable doubt in our mind<\/p>\n
against the version of the prosecution.\n<\/p>\n
      22. The learned counsel for the appellant submits that PW1<\/p>\n
is not a trust worthy witness. Going by his version, PW1 was<\/p>\n
examined by the police official on 28\/7\/2003 itself even before<\/p>\n
the F.I.S., Ext.P9, was recorded.     The counsel   builds up an<\/p>\n
argument that Ext.P9 is not the real F.I.S. and there must have<\/p>\n
been an earlier F.I.S.       This argument is built up on the<\/p>\n
statement of PW1 that the police had examined him on<\/p>\n
28\/7\/2003. No police officer has a case that PW1 was examined<\/p>\n
on 28\/7\/2003.     It is transparently evident that PW1 is getting<\/p>\n
confused about the date on which he was actually seen by the<\/p>\n
police official for recording his statement.      That innocuous<\/p>\n
inaccuracy in the oral evidence of PW1 about the date on which<\/p>\n
CRA.1219\/2006                   -17-<\/span><\/p>\n
the police officer contacted him does not at all persuade us to<\/p>\n
reject the oral evidence of PW1.      The oral evidence of PW1,<\/p>\n
according to us, gets convincing assurance from        the dying<\/p>\n
declaration given by the deceased to PW5 and recorded by PW5<\/p>\n
in Ext.P5. The final assurance for the version of PW1 is offered<\/p>\n
by the recovery of MO.1 on the basis of Ext.P7(a) disclosure<\/p>\n
statement under Ext.P7 in the presence of attestors like PW7 by<\/p>\n
PW12.     We are satisfied, in these circumstances, that the oral<\/p>\n
evidence of PW1 can safely be accepted. We are unhesitatingly<\/p>\n
concur with the conclusion of the court below on that aspect.<\/p>\n
     23. The learned counsel for the appellant argues that in<\/p>\n
Ext.P9, F.I.S., the deceased had not made a specific statement<\/p>\n
that the injury,which was attempted to be planted on his chest<\/p>\n
which he avoided and which fell ultimately on his abdomen had<\/p>\n
actually landed on his abdomen.        Much is attempted to be<\/p>\n
made out of this omission in Ext.P9. Exts.P9 and P10 read<\/p>\n
together clearly reveals that such a statement had actually been<\/p>\n
made by the deceased to PW9 and it was only a human<\/p>\n
error\/inadequacy in the recording of the statement by PW9.<\/p>\n
PW9 does not bring credit to himself or the police force of which<\/p>\n
CRA.1219\/2006                    -18-<\/span><\/p>\n
he is a member by stating that he omitted to specifically record<\/p>\n
the same. But all the same, we are of the opinion that sinister<\/p>\n
significance    cannot     be    attached      to    that  innocuous<\/p>\n
omission\/inadequacy on the part of PW9 while recording Ext.P9<\/p>\n
F.I. Statement. The deceased had suffered the injury on his<\/p>\n
abdomen. He had stated that he suffered it at the hands of the<\/p>\n
appellant. He did state that he was attacked with a weapon.<\/p>\n
The injury, he alleged was attempted to be inflicted on his chest.<\/p>\n
He tried to escape and avoided the injury on the chest. But he<\/p>\n
omitted to state specifically that the stab landed on the abdomen.<\/p>\n
We do, in these circumstances,          reckon that omission to be<\/p>\n
insignificant.\n<\/p>\n
     24. The learned counsel for the appellant argues that no witness<\/p>\n
had been examined who occupies the house of DW3 from the<\/p>\n
compound of which MO.1 was recovered. We note that the recovery<\/p>\n
was not from inside the house. It was concealed outside the outer<\/p>\n
wall of the house. DW3 was not available in the house. The mere fact<\/p>\n
that the womenfolk in the house were not arrayed as witnesses in<\/p>\n
Ext.P7 is, according to us, too unsatisfactory a circumstance to doubt<\/p>\n
or suspect the evidence of PW12 about the recovery of MO.1.<\/p>\n
CRA.1219\/2006                   -19-<\/span><\/p>\n
      25. We are, in these circumstances, satisfied that the<\/p>\n
evidence of PW1 deserves acceptance. Notwithstanding the fact<\/p>\n
that he is an injured and the brother of the deceased, we are<\/p>\n
satisfied that the evidence of PW1 supported convincingly by the<\/p>\n
dying declarations made in Exts.P5 and P9 particularly in Ext.P5.<\/p>\n
Final assurance of the version of PW1 is available from the<\/p>\n
recovery of MO.1 on the basis of the confession\/disclosure<\/p>\n
statement of the appellant which led to the recovery of MO.1<\/p>\n
under Ext.P7. We are satisfied in these circumstances that the<\/p>\n
final conclusion of fact that PW1 and the deceased suffered<\/p>\n
injuries with MO.1 at the hands of the appellant does not<\/p>\n
warrant interference at all.\n<\/p>\n
      26. The learned counsel for the appellant argues that one<\/p>\n
of the Doctors(PW5) to whom the deceased was taken after the<\/p>\n
incident had recorded that he was smelling          alcohol.   The<\/p>\n
learned counsel argues that this is in tandem with the version<\/p>\n
of the appellant that all of them including PW.1, the deceased,<\/p>\n
the appellant and DW3 were consuming alcohol at the scene of<\/p>\n
the crime. The mere fact that the deceased was smelling alcohol<\/p>\n
is no guarantee for the probability of the version of the appellant<\/p>\n
CRA.1219\/2006                   -20-<\/span><\/p>\n
that all of them were consuming alcohol at that scene. The very<\/p>\n
specific version of PW1 is that the deceased had come to the<\/p>\n
scene while the appellant was engaged in the altercation with<\/p>\n
PW1. If the deceased who came from outside was found to have<\/p>\n
consumed alcohol, that is no guarantee or the assurance for the<\/p>\n
version advanced by the appellant that all of them were<\/p>\n
consuming alcohol at the scene.      All witnesses including the<\/p>\n
hostile witnesses had adamantly refused that there was any<\/p>\n
such spree of drinking at the scene on that day.<\/p>\n
     27. The learned counsel for the appellant argues finally<\/p>\n
that at any rate, the appellant must be saved of a verdict of<\/p>\n
guilty, conviction and sentence under Section 302 I.P.C.<\/p>\n
Detailed arguments have been advanced.\n<\/p>\n
     28. That the deceased sustained the fatal injury, i.e. injury<\/p>\n
No.11 in Ext.P6 postmortem certificate is clearly established.<\/p>\n
Death followed as a result of that injury. Offence under Section<\/p>\n
299 I.P.C. is thus clearly established. Even assuming that a very<\/p>\n
prompt and better medical attendance might have saved the<\/p>\n
deceased from death, that is not a defence considering<\/p>\n
Explanation (2) of Section 299 I.P.C.     Offence defined under<\/p>\n
CRA.1219\/2006                   -21-<\/span><\/p>\n
Section 299 I.P.C. is thus clearly established.<\/p>\n
      29. The learned counsel for the appellant argues that in<\/p>\n
any view of the matter, it cannot be assumed that the appellant<\/p>\n
had any intention to cause the death of the deceased. Therefore,<\/p>\n
the offence of murder under Section 300 I.P.C. is not attracted at<\/p>\n
all, contends the counsel. We are unable to agree. To convert<\/p>\n
an offence of culpable homicide under Section 299 I.P.C. to an<\/p>\n
offence of murder defined under Section 300 I.P.C, it is very<\/p>\n
trite that it is not necessary that the offender must have the<\/p>\n
intention to cause the death of the deceased. Any one of the four<\/p>\n
circumstances    in Section 300 I.P.C. can transform\/exalt     an<\/p>\n
offence under Section 299 I.P.C. to one under Section 300 I.P.C.<\/p>\n
In the instant case, the oral evidence of PW6 clearly shows that<\/p>\n
the injury No.11 inflicted with MO.1        was sufficient in the<\/p>\n
ordinary course of nature to cause death. It was a serious injury<\/p>\n
inflicted with MO.1 and the evidence of PW6 shows that the<\/p>\n
weapon must have been thrust into the abdomen to cause that<\/p>\n
injury. It involved the kidney and the intestine. PW6 stated that<\/p>\n
the said injury was individually capable of causing death in the<\/p>\n
ordinary course of nature to cause death.       Clause Thirdly of<\/p>\n
CRA.1219\/2006                    -22-<\/span><\/p>\n
Section 300 comes into play. The fatal injury was objectively<\/p>\n
sufficient in the ordinary course of nature to cause death. That<\/p>\n
injury, the evidence shows, was intentionally inflicted. There is<\/p>\n
nothing to assume that the injury that resulted was not the<\/p>\n
injury, that was intended. In these circumstances, clause Thirdly<\/p>\n
of Section 300 I.P.C. comes into play and the offence committed<\/p>\n
by the accused falls within the offence of murder defined under<\/p>\n
Section 300 I.P.C. The learned counsel for the appellant argues<\/p>\n
that it has to be held that the offence can slide back to Section<\/p>\n
299 I.P.C. by the play of Exception 4 to Section 300. According<\/p>\n
to the learned counsel for the appellant, it was a sudden quarrel<\/p>\n
that led to a sudden fight. The fight was without pre-meditation<\/p>\n
and the injury was inflicted in the heat of passion. The counsel<\/p>\n
argues that the appellant, at any rate, must be held to have not<\/p>\n
taken undue advantage or acted in a cruel or unusual manner.<\/p>\n
We are unable to accept this contention also. Even going by the<\/p>\n
version of the appellant, all those who were present there, were<\/p>\n
very friendly persons. It is in the course of such quarrel between<\/p>\n
friendly persons that the appellant is shown to have drawn out a<\/p>\n
knife like MO.1 and thrust the same into the abdomen of the<\/p>\n
CRA.1219\/2006                  -23-<\/span><\/p>\n
deceased. Evidence of PW6 shows that only a forcible thrust of<\/p>\n
MO.1 weapon could have caused the injury. Any person who in<\/p>\n
the given circumstances used such a weapon against an unarmed<\/p>\n
deceased must be held to have acted in a cruel and unusual<\/p>\n
manner. In any view of the matter, we are not hence persuaded<\/p>\n
to agree that Exception 4 can rescue\/save the appellant from the<\/p>\n
offence of murder committed by him.\n<\/p>\n
     30. It follows from the above discussions that the verdict of<\/p>\n
guilty and conviction under Sections 302 and 324 I.P.C. do not<\/p>\n
warrant any interference. Sentence imposed on the appellant<\/p>\n
also, we find, is absolutely reasonable and just. The same does<\/p>\n
not warrant any interference.\n<\/p>\n
     31. In the result,<\/p>\n
     a)this appeal is dismissed.\n<\/p>\n
     b)The impugned verdict of guilty and conviction and<\/p>\n
     sentence under Sections      302 and    324 I.P.C.are<\/p>\n
     upheld.<\/p>\n
\n\n                                     R. BASANT, JUDGE\n\n\n\nks.                                  M.C. HARI RANI, JUDGE\n\nCRA.1219\/2006    -24-<\/span>\n\n\n\n\nks.\n\n\n\n\n                      R. BASANT, JUDGE\n\n\n\n\n                     M.C. HARI RANI,JUDGE\n\n\n\n\nks.\n\nCRA.1219\/2006    -25-<\/span>\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Shaji @ Illickal Shaji vs State Of Kerala on 15 March, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1219 of 2006() 1. SHAJI @ ILLICKAL SHAJI, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY … Respondent For Petitioner :SRI.K.V.SABU For Respondent : No Appearance The Hon’ble MR. Justice […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-92599","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nShaji @ Illickal Shaji vs State Of Kerala on 15 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shaji-illickal-shaji-vs-state-of-kerala-on-15-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shaji @ Illickal Shaji vs State Of Kerala on 15 March, 2010 - 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