Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 5 (KER)

Achuthan v. State of Kerala

2013-01-01

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2013
JUDGMENT : K. T. SANKARAN, J. The appellant is aggrieved by the conviction and sentence imposed on him by the Sessions Court, Kollam, for offences under Sections 302 and 449 of the Indian Penal Code. The learned Sessions Judge sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs. 25,000/- under Section 302 of the Indian Penal Code and to undergo imprisonment for a period of five years and to pay a fine of Rs. 10,000/- under Section 449. The learned Sessions Judge held that the sentences shall run consecutively in case of commutation of sentence awarded under Section 302 of the Indian Penal Code. 2. The prosecution case is that on 19-3-2001 at 2 a.m. the appellant murdered Babu Dharmanandan (hereinafter referred to as 'Babu), who was sleeping in a shed in the farm belonging to his brother Dayanandan. Dayanandan is an Ayurvedic doctor. He owns a farm having an extent of about 20 Acres at Uliyanad. The farm is bounded by forest. Babu, the deceased, is the younger brother of Dayanandan. Babu was working abroad for quite some time and after his return to his native place, he indulged in agricultural activities in the farm belonging to his elder brother. There is a house in the farm and there is a shed attached to the house having no wall on three sides. There are two other sheds, one situated at a distance of about 400 metres on the north-eastern side of the house and the other is situated at a distance of about 125 metres on the northen side of the house. Workers employed in the farm used to reside in the sheds. Babu used to sleep on a wooden chest kept in the shed attached to the house. 3. On 18-3-2001 by about 10 p.m. Babu and his workers Gopalan (P.W. 1), Usha (P.W. 2) and Kunju Pillai (P.W. 3) went to sleep in the shed. Babu was sleeping on the wooden chest while the others were lying on the mat spread on the floor. The prosecution case is that by about 2 a.m. on 19-3-2001, Usha watched somebody entering into the shed and moving towards the side where Babu was sleeping. That person was the accused. Usha saw the accused attacking Babu with MO1 chopper. She cried aloud. Gopalan (P.W. 1) and Kunju Pillai (P.W. 3) woke up. The prosecution case is that by about 2 a.m. on 19-3-2001, Usha watched somebody entering into the shed and moving towards the side where Babu was sleeping. That person was the accused. Usha saw the accused attacking Babu with MO1 chopper. She cried aloud. Gopalan (P.W. 1) and Kunju Pillai (P.W. 3) woke up. By that time, the accused caused cut injuries on the neck of Babu. P.Ws. 1 to 3 tried to catch hold of the accused, but he ran away. Though P.Ws. 1 to 3 followed the accused, he escaped into the forest. The other workers sleeping in the other two sheds came to the scene of occurrence on hearing the hue and cry. Subhashini (P.W. 6) was one among them. 4. P.W. 1, P.W. 2 and another worker by name 'Thalavetti Sankaran- went to the shop of Badarudeen (P.W. 9), woke him up and made a telephone call to Dayanandan (P.W. 4). Dayanandan, the brother of the deceased, rushed to the place. P.W. 1 reported the matter to the police and Ext. P1(a) First Information Report was registered at 9.15 a.m. on 19-3-2001. P.W. 19 recorded Ext. P1 First Information Statement given by P.W. 1 and registered Crime No. 122 of 2001 of Pathanapuram Police Station. P.W. 25, the Circle Inspector of Police, Punalur, conducted the investigation. P.W. 26 verified the investigation, recorded the statements of several other witnesses and laid the charge. 5. The accused was absconding. The investigating officer deputed two Police Constables (P.W. 22 and P.W. 23) to trace out the accused. P.W. 22 and P.W. 23 got information on 25-9-2001 that the accused was hiding out in the thick forest. The policemen went to that place and with the help of one Murali (P.W. 10) and certain persons living in the forest, located the hide out of the accused. The police party found the accused living in a small shed in the forest. On seeing the police, the accused took out a pistol and fired at them and tried to escape. The police party could apprehend him. The accused was produced before the Sub-Inspector of Police, Pathanapuram (P.W. 24), who registered Crime No. 353 of 2001 in respect of the illegal possession of the country made rifle. On seeing the police, the accused took out a pistol and fired at them and tried to escape. The police party could apprehend him. The accused was produced before the Sub-Inspector of Police, Pathanapuram (P.W. 24), who registered Crime No. 353 of 2001 in respect of the illegal possession of the country made rifle. It is alleged that P.W. 24 recorded the confession statement of the accused and, on the basis of the same, MO1 chopper was discovered from the forest. 6. the prosecution examined P.W. 1 to P.W. 26 and produced Exts.P1 to P19 and MO1 to MO8. MO 2 to MO8 are the mat, pillows (MO3 and MO8), bed sheet, quilt, lungi and Shirt which were used by the deceased at the relevant time. P.W. 16 proved Ext. P9 series of F.S.L. reports which indicated traces of human blood belonging to 'O Group on material objects MO2 to MO8. It is also proved that the blood group of Babu, the deceased, was O positive. 7. As stated above, Usha (P.W. 2) witnessed the incident. A lightened lantern was available in the shed and she stated that she could see the accused in the light of the lantern. She stated in evidence that the lantern was lightened all through out the night since there was a likelihood of intrusion of wild animals into the shed. On hearing the cry of P.W. 2, P.W. 1 and P.W. 3 woke up and they saw the accused leaving the place from near the deceased and running out with the chopper in his hand. The trial Court relied on the evidence of P.W. 1 to P.W. 3 and held that there is nothing to disbelieve their evidence. 8. It was alleged by the prosecution that on 18-3-2001, Dr. Dayanandan (P.W. 4 - brother of the deceased) and his friends including P. R. Shine (P.W. 5) visited the farm and they remained there from about 9 a.m. to 5.30 p.m. The friends of Dr. Dayanandan, accompanied by the deceased, the accused and P.W. 1 went to Achankovil River situated on the side of the farm. The friends of Dayanandan had bath in the river. While so, the shirt belonging to P.W. 5 fell into the river and the currency notes became wet. The currency notes were placed under the sun for drying the same. Dayanandan, accompanied by the deceased, the accused and P.W. 1 went to Achankovil River situated on the side of the farm. The friends of Dayanandan had bath in the river. While so, the shirt belonging to P.W. 5 fell into the river and the currency notes became wet. The currency notes were placed under the sun for drying the same. P.W. 5 noticed that the accused stealthily removed one five hundred rupee note out of the currency notes. After coming to the house in the farm, P.W. 5 reported the matter to Dayanandan. Dayanandan and the deceased questioned the accused about the same and stated that unless Rupees five hundred was returned by the accused to P.W. 5, the accused need not come for work thereafter. The prosecution alleged that as a result of this incident, the accused had enmity towards the deceased and he committed the offence to wreak vengeance on the deceased. The trial Court accepted the prosecution case with respect to the motive alleged. 9. In the statement under Section 313 of the Code of Criminal Procedure, the accused stated that he left the place in the morning of 18-3-2001 after receiving the balance amount payable to him and went to the forest for some work as requested by some of the forest officials. In other words, the accused put forward a plea of alibi. He contended that he was not available at the place at the time of occurrence and he was working elsewhere. The court below held, after anlysing the evidence of the prosecution witnesses and the suggestions made to them, that the plea of alibi put forward by the accused is not established. Sri. Jikku Jacob, the learned Public Prosecutor submitted that the plea of alibi having been not established by the accused, that by itself is a sufficient ground to accept the prosecution case. Sri. Premnath, the learned counsel appearing for the appellant, submitted that even if the Court holds that the plea of alibi is not established by the accused, that is not a substitute for proof of guilt beyond reasonable doubt by the prosecution. The learned counsel submitted that the prosecution cannot take shelter under the plea of alibi made by the accused and claim that the guilt of the accused is proved on the failure of the accused to prove the plea of alibi. 10. The learned counsel submitted that the prosecution cannot take shelter under the plea of alibi made by the accused and claim that the guilt of the accused is proved on the failure of the accused to prove the plea of alibi. 10. In Binay Kumar Singh v. State of Bihar ( AIR 1997 SC 322 ), the Supreme Court considered the nature and burden of proof to establish alibi and held thus : '21. We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in S. 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context : 'The question is whether A committed a crime at Calcutta on a certain date : the fact that on that date, A was at Lahore is relevant.' 22. The Latin word alibi means 'elsewhere' and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166 : ( AIR 1981 SC 911 ); State of Maharashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63 ).' 11. In State of Kerala v. Anilachandran alias Madhu ( (2009) 13 SCC 565 ) : ( AIR 2009 SC 1866 ) the Supreme Court held that even if the plea of alibi set up by the accused is discarded that does not take away the duty of the prosecution to prove beyond reasonable doubt that the accused persons were guilty. It was also held that merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him. 12. The burden of proving alibi lies on the accused, in view of Section 103 of the Indian Evidence Act. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Though the burden of establishing the plea of alibi is on the accused, that does not absolve the prosecution from proving the case of the prosecution beyond reasonable doubt. Even if the accused makes a false case in respect of his defence, that by itself is not a ground to hold that the prosecution case is true. 13. The accused was working as a watchman in the farm. After the incident, he was not found at all and he was absconding. Even if the accused makes a false case in respect of his defence, that by itself is not a ground to hold that the prosecution case is true. 13. The accused was working as a watchman in the farm. After the incident, he was not found at all and he was absconding. The oral evidence of P.W. 10, P.W. 22 and P.W. 23 regarding the search made to locate the accused, his apprehension and the recovery of MO1 weapon were found to be reliable by the trial Court. We do not find any error or illegality in the finding rendered by the Court below in that regard. 14. Dr. K. Sreekumari P.W. 15) conducted the post-mortem examination and issued Ext. P7 post-mortem certificate. Ext. P7 post-mortem certificate shows the following ante-mortem injuries on the deceased : 'Incised wound 20.5 x 3.5 cm. with the maximum depth of 10.5 cm. at its middle, horizontally placed, on the right side of neck and face, its front rounded end being 3.5 cm. outer to outer angle of mouth. Its back end was sharply cut. It was situated 1 cm below the root of ear. Underneath the mandible 8x1 cm. blood vessels, muscles and nerves and on the right side of brain on the neck and third cervical vertebra were found transected. Base of brain on the right side showed staining of blood in the subarachnoid space. The wound was directed downwards and to the left.' 15. The first Information Statement gives a clear narration of the incident. Even the motive as alleged by the prosecution finds a place in the First Information Statement. Who committed the offence, who witnessed the incident and the other details are also clearly mentioned in the First Information Statement which was given without any delay. 16. On a careful consideration of the evidence adduced, we are of the view that it is clearly established by the prosecution that the accused inflicted injuries on the body of the deceased, which resulted in his death. The oral evidence in the case is corroborated by the medical evidence. We are in agreement with the view taken by the Court below that the accused committed the offence with M.O. 1 chopper, as alleged by the prosecution. The plea made by the accused is not believable and reliable. The oral evidence in the case is corroborated by the medical evidence. We are in agreement with the view taken by the Court below that the accused committed the offence with M.O. 1 chopper, as alleged by the prosecution. The plea made by the accused is not believable and reliable. There is clinching evidence in the case that the accused was available in the farm on 18-3-2001 throughout the day. There is no ground for interference with the conviction of the accused. 17. Sri. Premnath, the learned counsel appearing for the appellant submitted that the Court below was not justified in directing the sentence under Section 449 of the Indian Penal Code to run consecutively. Learned counsel submitted that the possibility or probability of commutation of sentence is not a ground to be taken note of to hold that the sentence under Section 449 should run consecutively. Learned counsel also submitted that on a combined reading of Sections 31 and 427 of the Code of Criminal Procedure, the only conclusion that could be made is that if life imprisonment is imposed on the accused and a term of imprisonment is also imposed under another section of offence, there is no question of the sentence to run consecutively. The learned counsel appearing for the appellant relied on the decision of the Supreme Court in Renjit Singh v. Union Territory of Chandigarh ( AIR 1991 SC 2296 ). Learned Public Prosecutor submitted, relying on the decisioin in Shibu v. State of Kerala (2010 (4) KHC 62), that in case of commutation of sentence, a direction to run the sentences consecutively would be justified. Learned Public Prosecutor submitted that in such a case, direction can be given that the sentence of imprisonment for life shall start running after the expiration of the sentence of imprisonment under Section 449 of the Indian Penal Code. 18. To consider the rival contentions put forward by the learned counsel for the appellant and the learned Public Prosecutor, it is apposite to extract Sections 31 and 427 of the Code of Criminal Procedure. '31. 18. To consider the rival contentions put forward by the learned counsel for the appellant and the learned Public Prosecutor, it is apposite to extract Sections 31 and 427 of the Code of Criminal Procedure. '31. Sentence in cases of conviction of several offences at one trial.- (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments, prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court : Provided that - (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.' '427. Sentence on offender already sentenced for another offence.- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence : Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.' 19. In Renjit Singh v. Union Territory of Chandigarh ( AIR 1991 SC 2296 ), the Supreme Court considered the cases where the accused was sentenced to life in one case and later, sentenced to life in another case which was committed while the accused was on parole in the first case. The Supreme Court while rendering the judgment in the second case, directed that in case any remission or commutation in respect of the earlier sentence is granted in favour of the accused, the second sentence should commence thereafter. Commutation was granted in respect of the sentence in the first case. The accused moved the Supreme Court under Article 32 of the Constitution of India. Dealing with the matter, the Supreme Court held thus : '8. Sub-section (1) of Section 427, Cr. P.C. provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment. In other words, sub-section (1) of Section 427, Cr. P.C. deals with an offender who while undergoing sentence for a fixed term is subsequently convicted to imprisonment for a fixed term or for life. In such a situation, the first sentence, being for a fixed term, expires on a definite date which is known when the subsequent conviction is made. Sub-section (1) says that in such a situation, the date of expiry of the first sentence which the offender is undergoing being known, ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the Court directs the subsequent sentence to run concurrently with the previous sentence. Obviously, in cases covered by sub-section (1) where the sentence is for a fixed term, the subsequent sentence can be consecutive unless directed to run concurrently. Sub-section (2), on the other hand, provides for an offender 'already undergoing sentence of imprisonment for life' who is sentenced on a subsequent conviction to imprisonment for a term or for life. Obviously, in cases covered by sub-section (1) where the sentence is for a fixed term, the subsequent sentence can be consecutive unless directed to run concurrently. Sub-section (2), on the other hand, provides for an offender 'already undergoing sentence of imprisonment for life' who is sentenced on a subsequent conviction to imprisonment for a term or for life. It is well settled since the decision of this Court in Gopal Vinayak Godse ( AIR 1961 SC 600 ) and reiterated in Maru Ram ( AIR 1980 SC 2147 ) that imprisonment for life is a sentence for the remainder of the life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority. This being so at the stage of sentencing by the Court on a subsequent conviction the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in sub-section (1) of Section 427. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as sentence to serve, the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is stated in sub-section (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the Courts direction the subsequent sentence will not run concurrently but consecutively. The only situation in which no direction of the Court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the Court to that effect. The only situation in which no direction of the Court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the Court to that effect. Sub-section (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the Court directs it to run concurrently. The meaning and purpose of sub-sections (1) and (2) of Section 427 and the object of enacting sub-section (2) is, therefore, clear.' 20. In Shibu v. State of Kerala (2010 (4) KHC 62), a learned single Judge of this Court took the view that when the Court passes a sentence of imprisonment for life and another sentence of imprisonment for a term in the same trial, there is no reason why the principle of Section 427 (2) of the Code of Criminal Procedure should not be applied to hold that the subsequent sentence in the same trial will run only concurrently and not consecutively. The learned single Judge also held thus: 'If a person is sentenced to imprisonment for life or imprisonment for a fixed term in the same trial but subsequent in point of time, then the principle underlying Section 427(2), Cr.P.C. as adverted to in paragraphs 6 and 7 of this judgment, will operate to make the sentences run concurrently even without a Courts direction unless the Court, having regard to the facts and circumstances of the case directs that the sentences shall run consecutively in which case the direction can only be that the sentences of imprisonment for life shall start running after the expiration of the sentence of imprisonment for the fixed term. It will, however, be illegal to mechanically direct that the sentences shall run consecutively or to direct that the sentence of imprisonment for fixed term will commence only after the convict has undergone the sentence of imprisonment for life.' 21. In the present case, apart from imposing a sentence of life imprisonment under Section 302 of the Indian Penal Code, the accused was sentenced to undergo rigorous imprisonment for a period of five years under Section 449 of the Indian Penal Code. In the present case, apart from imposing a sentence of life imprisonment under Section 302 of the Indian Penal Code, the accused was sentenced to undergo rigorous imprisonment for a period of five years under Section 449 of the Indian Penal Code. Though strictly speaking, Section 427 of the Code of Criminal Procedure as such may not apply since the sentences were imposed not in separate trials but in the same trial, still, we are of the view that the principles of Section 427 can be applied to cases where separate sentences were imposed in the same trial. When a sentence of imprisonment for life is imposed, there is no reason to think that after suffering that sentence, the accused would be able to suffer imprisonment for a particular term under Section 449 of the Indian Penal Code. The question of commutation or remission is not a matter to be taken note of by the Court at the time of passing the judgment imposing the sentence. The question whether the sentences should run concurrently or consecutively is a matter to be decided by the Court irrespective of the probability or possibility of commutation or remission at a future point of time. When imprisonment for life is imposed on the accused, even if that sentence is commuted, nonetheless, it does not cease to be a sentence of imprisonment for life, within the meaning of sub-section (2) of Section 427 of the Code of Criminal Procedure. A subsequent commutation of sentence of the life imprisonment could not be made a basis to take a particular case out of the purview of sub-section (2) of Section 427, if the contingencies mentioned therein exist on the date of judgment. 22. Though we are in agreement with the view taken by Justice V. Ramkumar in Shibu v. State of Kerala (2010 (4) KHC 62), that the principles under Section 427(2) of the Code of Criminal Procedure can be applied to a case where sentence for life and sentence for a term of imprisonment are imposed in the same trial, we do not agree with the view in Shibus case that the term of imprisonment could be directed to be suffered first before commencing the term of imprisonment for life. When a sentence of imprisonment is passed, unless the sentences are to run consecutively, the sentences would start to run at once. When a sentence of imprisonment is passed, unless the sentences are to run consecutively, the sentences would start to run at once. Imprisonment for life having been imposed, the sentence under Section 449 cannot be postponed on the ground that there is a likelihood of the sentence under Section 302 being commuted at a future point of time. Commutation of sentence under Section 433 of the Code of Criminal Procedure need not be confined to commutation of sentence under Section 302 of the Indian Penal Code or for sentence for life imposed under any other section. Commutation would apply even to any term of imprisonment other than imprisonment for life. If so, the view taken by the learned single Judge in Shibu v. State of Kerala (2010 (4) KHC 62) that a direction could be issued that the sentence of imprisonment for life shall start running after the expiration of the sentence for a fixed term, does not appear to be a sound principle. With respect, we do not agree with that view taken by Justice V. Ramkumar in Shibus case. 23. In the facts and circumstances of the case, we are of the view that the substantive sentences under Sections 302 and 449 of the Indian Penal Code shall run concurrently. We allow the appeal in part and while confirming the conviction and sentence under Sections 302 and 449 of the Indian Penal Code, we set aside the direction issued by the Court below that the sentence under Section 449, IPC shall run consecutively in case of commutation of sentence under Section 302 of the Indian Penal Code. We hold that the substantive sentence under Sections 302 and 449 of the Indian Penal Code against the appellant shall run concurrently. Appeal partly allowed.