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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. Jayasankaran Nambiar, Syam Kumar V.M., JJ.
Francis @ Sekofy – Petitioner
Versus
State Of Kerala Represented By The Circle Inspector Of Police – Respondent
CRL.A NO. 407 OF 2018
Decided On : 19-06-2024
Evidentiary value of the sole testimony of PW2: The prosecution has examined only one eyewitness, PW2, who was an eyewitness to the incident of stabbing and the entire events leading up to the same. The deposition of PW2 was clear, precise, and remained uncontroverted. The prosecution was not faulted for not examining any additional witness to corroborate PW2 as his testimony was of sterling quality and devoid of any need for corroboration. The contention that the testimony of PW2 cannot be relied on and ought to have been further substantiated or corroborated by other eyewitnesses is unsustainable. Recovery of the MO1 knife: The recovery of MO1 knife was supported by the testimony of PW3 and PW8, and PW2 identified MO1 as the knife used in the stabbing. The absence of blood stains on MO1 in the FSL report does not discredit the prosecution case. Nature of injury No.1 and the absence of ingredients to attract Section 300 IPC: The injury No.1 was a deep wound capable of leading to fatality and not a plain cut. The prosecution evidence only points to a sudden and spontaneous altercation between the appellant and the deceased, leading to the stab injury and consequent death. Prosecution has not placed on record any evidence to reveal that the death of the deceased was a premeditated murder. The prosecution evidence does not reveal any intention in the appellant to cause death of the deceased or to cause injury No.1 as one that is likely to cause death. The conviction and sentence of the appellant under Section 302 IPC is legally unsustainable. The appellant's conviction and sentence under Section 304 Part –II IPC is ordered accordingly.
Fact of the Case:
The appellant was convicted under Section 302 IPC for causing the death of a fellow fisherman by fatally stabbing him on the right side of his neck. The prosecution's case was based on the testimony of a sole eyewitness, PW2, and the recovery of the alleged weapon, MO1 knife. The appellant pleaded not guilty and claimed that the stabbing occurred during a melee among a group of drunken fishermen, and he was falsely implicated by the police.
Finding of the Court:
The court found that the testimony of PW2 was clear, precise, and remained uncontroverted, and there was no need for corroboration. The recovery of MO1 knife was supported by witness testimony, and the absence of blood stains on MO1 did not discredit the prosecution case. The court also found that the prosecution evidence only pointed to a sudden and spontaneous altercation between the appellant and the deceased, and there was no evidence of premeditation or intention to cause death.
Ratio Decidendi: The court concluded that the appellant's conviction and sentence under Section 302 IPC were legally unsustainable, and the evidence only supported a charge under Section 304 Part –II IPC. The court ordered the appellant's release based on the period of custody already undergone.
Final Decision: The Criminal Appeal was allowed in part with the modification of the conviction and sentence of the appellant under Section 304 Part –II IPC, and the appellant was ordered to be released forthwith.
JUDGMENT :
SyamKumar V.M., J.
This appeal is filed by the sole accused in S.C.No.440 of 2011 before the Additional Sessions Judge, Neyyattinkara, challenging the judgment dated 08.09.2016 which found him guilty under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-, with a default sentence of rigorous imprisonment of one year.
2. The prosecution case is that the accused had, on 21.08.2010, at 6.20 P.M., caused the death of a fellow fisherman Arogyadas, by fatally stabbing him on the right side of his neck. The provocation for the act was that on the fateful day, while Arogyadas was having a shave seated in the open along the seashore, the accused, who was sitting alongside mending fishing nets with other fisher folk, had purportedly on a lighter vein, ridiculed Arogyadas by calling him a local epithet “chakka poonji” which roughly translates as “loser”. Irked by this ignominy, Arogyadas, once his shave was done, approached the accused and questioned his impertinence. The accused, it is alleged, had at that point got up and stabbed Arogyadas on the right side of his neck using the steel knife with which he was mending the fishing net. The injury proved fatal and Arogyadas died at 10.35 P.M. on the same day at the Medical College Hospital, Thiruvananthapuram.
3. An FI Statement was lodged by PW1, the brother of the victim at the jurisdictional Police Station at Pozhiyoor. Based on the same, Crime No.324 of 2010 was registered and an investigation was commenced by the Police. The weapon alleged to have been used for the commission of the offence was recovered on the next day from the seashore. Accused was arrested at 11 A.M., on 25.08.2010, and was remanded to judicial custody. Charge was laid by the Circle Inspector of Police, Parassala, before the jurisdictional Magistrate who committed the case to the concerned Sessions Court.
4. After due framing of charge and upon the accused pleading not guilty, trial commenced before the Sessions Judge. Prosecution examined PW1 to PW9 and marked Exts.P1 to P15. MO1 to MO5 were also identified.
5. After closure of the prosecution evidence, appellant was questioned under Section 313 Cr.P.C., to which he stated that he was innocent of all the charges levelled and that on the relevant day, a drunken brawl had taken place between the deceased and certain fisher folk, some of whom are witnesses arrayed in the crime laid against him. Deceased was injured in the said scuffle and appellant had nothing to do with the incident. However, after three days, appellant was picked up from his house by the police and falsely implicated as the accused.
6. Though opportunity was extended, no evidence was tendered from the side of the appellant.
7. The learned Sessions Judge, after trial, relying principally on the deposition of PW2 who was an eyewitness to the incident and basing on the deposition of PW6 doctor who had issued Ext.P6 Postmortem Certificate who had, interaliastated the cause of death as due to stab injury to the neck of the deceased, found the appellant guilty of the charge laid. He was consequently convicted under Section 302 IPC.
8. After due compliance with the sentencing procedure, the learned Judge sentenced the appellant to imprisonment for life and to a fine of Rs.50,000/-and in case of default of payment of fine, to rigorous imprisonment for a further period of one year. The learned Judge also directed that out of the fine amount, if realised, an amount of Rs.40,000/-shall be paid to the wife and children of the deceased.
9. Challenging the said conviction and sentence, the appellant has filed this appeal.
10. The learned counsel for the appellant assails the conviction and sentence mainly on the following grounds:
(ii) Recovery of MO1 knife is illegal and its use as a weapon of offence not validly proved.
(iii) Nature
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