IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 CRL.A.No. 2528 of 2006() ------------------------ SC.587/2004 of ADDL. SESSIONS COURT (ADHOC) FAST TRACK COURT NO.1, THRISSUR CP.16/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA. .................... APPELLANT(S): ACCUSED. ---------------------- FRANCIS, S/O.MALIAKKEL VARKEY, RESIDING AT THRITHANIPADAM, KEEZHUTHANI DESAM, KARALAM VILLAGE. BY ADV. SRI.PROMY KAPRAKKATT RESPONDENT(S): --------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR. PUBLIC PROSECUTOR SRI. C.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2-9-2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P.S. GOPINATHAN, JJ. ----------------------------------------------- Crl. Appeal No. 2528 of 2006 ----------------------------------------------- Dated this the 2nd day of September, 2010 J U D G M E N T Gopinathan, J. The 3rd Addl. Sessions Judge (Ad hoc), Thrissur in Sessions Case No. 587 of 2004 convicted the appellant for offence under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs.1000/- with a default sentence. Assailing the above conviction and sentence this appeal was preferred. 2. The appellant was prosecuted by PW-12, the Circle Inspector of Police, Irinjalakuda with an allegation that at 6.30 p.m. on 5-3-2002 the appellant committed murder of Ramankutty, husband of PW-7 by inflicting cut injuries at his neck with M.O.1 chopper at a pathway near the house of PW-6 Vanaja. As a result of the injuries inflicted, the deceased fell down. PW-1 and another (CW-4) who came through the way lifted him to the Taluk Headquarters Crl.A. No. 2528/06 -2- Hospital, Irinjalakuda where Ramankutty was declared dead. Leaving the dead body at the Hospital, PW-1 rushed to PW- 10, the Sub Inspector of Police, Kattoor who recorded Ext.P1 statement given by PW-1 and registered a case as Crime No. 216 of 2002 for offence under Section 302 IPC by Ext.P1(a) First Information Report. In Ext.P1, the appellant was implicated on the basis of hearsay information .Express message was conveyed to PW-11, then Circle Inspector of Police, Irinjalakuda who got the same at 9.00 p.m. PW-11 immediately took over the investigation and while searching for the accused, the appellant was found at Chungam Junction. The Appellant was arrested at 10.10 p.m. The appellant was possessing an umbrella which was marked as M.O.2, inside which M.O.1 chopper was hidden. M.Os. 1 and 2 were seized by PW-11 in the presence of PW- 8, a Trustee of the local Church for which Ext.P4 mahazar was prepared. Ext.P9 arrest memo was prepared. Ext.P10 Crl.A. No. 2528/06 -3- arrest intimation was given. The appellant was produced before the local Magistrate along with Ext.P11 report. PW-11 proceeded with the investigation and on the next day he prepared Ext.P2 inquest report wherein PW-4, the son of the deceased is an attester. Body was sent for postmortem examination by PW-5, the Professor of Forensic Medicine, Medical College Hospital, Thrissur who issued Ext.P3 postmortem certificate. PW-11, then inspected spot of occurrence and prepared Ext.P6 scene mahazar, on the basis of which, M.Os. 3, 7, 8, 9, 10 and 11 were seized. PW-11 had also seized the clothes, viz. lungi and banian, which were marked as M.Os. 13 and 14 worn by the appellant at the time of occurrence on the basis of Ext.P7 seizure mahazar. All the material objects were produced before the local Magistrate along with Ext.P8 property list. The material objects produced were then forwarded to the chemical examiner. While so, the investigation was taken Crl.A. No. 2528/06 -4- over by PW-12 who, after completing the investigation, laid the charge sheet before the Judicial Magistrate of the First Class, Irinjalakuda. The learned Magistrate took cognizance as C.P. 16 of 2004. On finding that the offence alleged against the appellant is triable by a Court of Session, by order dated 14-10-2004 the case was committed to the Court of Session, Thrissur from where it was made over to the trial Judge. The learned Additional Sessions Judge on hearing the prosecution and the accused, was satisfied with sufficient materials to frame charge. Accordingly, he framed charge for offence under Section 302 IPC. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. 3. On the side of the prosecution PWs. 1 to 12 were examined. Exts.P1 to P11 and M.Os. 1 to 14 were marked. After closing the evidence for the prosecution the appellant was questioned under Section 313 of the Code of Criminal Crl.A. No. 2528/06 -5- Procedure. He denied all the incriminating evidence and further stated that he was neither arrested on 5-9-2002 nor M.O. 1 was seized from him and that there was a talk in the locality that some unknown assailant committed the murder. He had further stated that the charge sheet was laid without proper investigation and that due to the personal enmity PW-6 had been spreading scandals and on various occasions PW-6 had filed false complaint against him before the police. However, no defence evidence was let in. The learned Addl. Sessions Judge on appraisal of the evidence arrived at a conclusion of guilty. Consequently, the appellant was convicted and sentenced as stated above. Now the appeal. We heard the learned counsel Sri.K.N.Abhilash appearing for the appellant as well as Sri.C.M.Nazer, learned Public Prosecutor. 3. In fact, the murder is not disputed by the appellant. Only the involvement of the appellant is disputed. PW-1 had Crl.A. No. 2528/06 -6- seen Ramankutty lying at the pathway with cut injuries. Regarding the assailant, PW-1 has only hearsay information. PW-1 along with others took the injured to the hospital where he was declared dead. Ext.P1 First Information Statement corroborates PW-1 on this aspect. Ext.P2 inquest report also corroborated with the evidence of PW-1 regarding death. PW-5, the Professor of Forensic Medicine and Police Surgeon then attached to the Medical College Hospital, Thrissur had deposed that on 6-9-2002 he conducted autopsy on the body of Ramankutty. He noted the following antemortem injuries: 1. Incised wound, 2.50 X 0.3 X 1.2 cm, transverse, over right side of neck, with front end 2.5 cm. vertically below tip of mastoid process. 2. Incised would, 1.5 X 0.2 X 0. 2 cm. parallel to and 1 cm. below front aspect of injury No.1. 3. Cut abrasion, 3.5 cm. long linear, transverse, over right side of front of neck, with inner end 1 cm. outer to midline and 7 cm. above root of neck. 4. Cut abrasion, 1 cm. long, linear, transversem in a Crl.A. No. 2528/06 -7- line with and 1.5 cm. outer to injury No.3. 5. Incised penetrating wound, with skin part 2 X 1 cm. transverse, over right side of neck, with front end rounded, 5 cm. outer to midline and 3 cm. above collar bone, continuing frontwards as transverse linear cut abrasion for 4 cm. the other end sharp cut showing tailing transversely backwards for 5 cm., coursing inwards and backwards for 3 cm. 6. Incised penetrating wound, with skin part 2.5 X 1 cm. parallel to and 0.3 cm. above injury No.5, with front end rounded, extending forwards as linear transverse cut abrasion for 3 cm. other end sharp cut and coursing inwards and backwards for 3 cm. Underneath injury numbers 5 and 6 muscle fibres, minor nerves and vessels, carotid sheath, jugular veins, carotid artery and vagus nerve were cut separated. 7. Flap dissection of neck under bloodless field showed vertical fracture of thyroid cartilage along middline with infiltration of reddish blood around. Hyoid bone and other cartilages of neck intact. He would further depose that injuries No. 5 and 6 are sufficient in the ordinary course of nature to cause death and that all the injuries found on the body of Ramankutty could be caused with a weapon like M.O.1. The cause of Crl.A. No. 2528/06 -8- death deposed by PW-5 is not challenged in cross examination. We find no reason to disbelieve PW-5. So by the evidence of PW-1, PW-5, Exts. P1, P2, and P3 the prosecution had succeeded to establish that Ramankutty had a homicidal death. 4. The question then arises is whether it was the appellant who committed the murder or by any unknown person as alleged by the appellant. To implicate the appellant with the murder the only relevant material evidence available is that of the evidence of PW-6 and the recovery of M.O.1 from the custody of the appellant within 3 ½ hours of the occurrence. PW-6 had deposed that she is an Anganavadi teacher and that the appellant as well as the deceased are neighbours and that at about 6.00 or 6.30 p.m. on 5-9-2002, while she sitting inside the house, she had seen a wordy quarrel between the appellant and the deceased at a pathway near her house regarding the ration Crl.A. No. 2528/06 -9- card of the deceased alleged to have been taken by the appellant and during the wordy quarrel the appellant took M.O. 1 chopper from a bag in his hand and inflicted 5 or 6 cut injuries. As a result of the injuries inflicted Ramankutty fell down. The appellant took to his heels along with the umbrella and chopper. PW-2 who was passing through the way reported the matter to PW-1. PW-1 and CW-4 rushed to the spot and they took the deceased to hospital and later it was known that Ramankutty was dead. Though PW-6 was subjected to a very searching cross examination, no material was disclosed to disbelieve her. The injuries found on the body also corroborates with the evidence of PW-6. According to the learned counsel for the appellant, in fact, PW-6 had not witnessed the incident and she had implicated the appellant with personal motives. Though it is revealed that there was some complaint in the police against the Crl.A. No. 2528/06 -10- appellant by PW-6, it is not sufficient enough to come to a conclusion that it is because of that, the appellant was implicated. Going by Ext.P1 it is seen that PW-6 had stated to PW-1 immediately after the occurrence that the appellant was the assailant and that he ran away. Ext.P1 would show that the intimation was given at 8.15 p.m. on the very same day, i.e., just 1 ¾ hours after the occurrence. Though PW-6 denied of having stated to PW-1 and deposed that it was PW-2 who had stated to PW-1 about the assailant and PW-2 denied it, there is nothing suggested to PW-1 or PW-6 that PW-1 got any axe to grind against the appellant so as to have any conspiracy with PW- 6 and to implicate the appellant within a short span of time. Since some motive is alleged against PW-6, we had a very critical scrutiny of her evidence. We see that there are some minor discrepancies in her evidence. Those minor discrepancies does not affect the core of her evidence. It Crl.A. No. 2528/06 -11- did not appear that she was falsely implicating the appellant. The minor discrepancies appear to be discrepancies of truth. 5. Supporting to the evidence of PW-6 there is the recovery of M.O.1 from the appellant within 3 ½ hours of the occurrence. PW-1 had deposed that while he proceeding with investigation, he saw the appellant at Thanissery, Chungam and that the appellant was having an umbrella in which a chopper was kept and that the chopper and umbrella were seized for which Ext.P4 mahazar was prepared and M.Os. 1 and 2 are the objects so seized. Though the appellant had denied the recovery of M.O.1 chopper and M.O.2 umbrella, there is no good reason to disbelieve PW-11 or to reject Ext.P4. There is no suggestion to PW-11 that the appellant was falsely implicated. The appellant did not care to deny the ownership of M.Os. 1 and 2. PW-8, a trustee of the Church of which the appellant Crl.A. No. 2528/06 -12- was a member, is the attester to Ext.P4. PW-8 had given evidence regarding recovery of M.Os. 1 and 2 from the appellant and that he is an attester to Ext.P4 recovery mahazar. M.Os. 1 and 2 were identified by him as the chopper and umbrella seized by PW-11 from the appellant. PW8 was also subjected to a searching cross examination. No material was disclosed to show that he has got any axe to grind against the appellant or that PW-8 has falsely implicated him regarding the recovery of M.O.1. On a critical scrutiny of the evidence of PW-8 and 11 along with Ext.P4, we find no material to reject their evidence regarding the recovery of M.O.1 from the appellant. Evidence of PW-8 and 11 inspire confidence. We have already stated that PW-5 had deposed that the injuries found on the body of the victim could be caused with M.O.1. That evidence of PW-5 on that aspect remains unimpeached. By the evidence of PW-5 it could be safely concluded that Crl.A. No. 2528/06 -13- Ramankutty could have been inflicted injuries with M.O.1 weapon. Therefore, we find that the recovery of M.O.1 chopper with which injuries were inflicted on Ramankutty, within 3 1/2 hours of the occurrence from the appellant deposed by PW-8 and PW-11 is a very strong circumstantial evidence against the appellant. So the recovery of M.O. 1 from the appellant also supports to evidence of PW-6. 6. Ext.P12 is the report of the chemical examiner. PW- 11 had deposed that he seized the lungi and banian which were marked as M.Os. 13 and 14 worn by the appellant at the time of occurrence. M.Os. 13 and 14 along with other material objects were forwarded to the Chemical Examiner. Ext.P12 would show that M.Os. 13, 14 and M.O.1 Chopper were containing human blood. Ofcourse, there is no conclusive proof regarding the origin of the blood as it is not revealed out of the report of the Chemical Examiner. However, Ext.P9 arrest memo would show that appellant Crl.A. No. 2528/06 -14- was having no external injury so as to have his lungi as well as the banian and M.O.1 stained with blood. So we do not think that the blood stain found on those dresses and chopper were that of the appellant. We also fail to find out any material to show that the investigating officer had stained those clothes and weapon with blood so as to implicate the appellant. There is no suggestion to the investigating officer that he had any ulterior motive to implicate the appellant. In the above circumstance the presence of blood stain on the clothes of the appellant as well as on the weapon also gives credence to the evidence of the prosecution case. On anxious and critical consideration of the evidence on record we do not find any reason to disbelieve the evidence of PW-6, 8 and 11 which convincingly leads to the guilt of the appellant supporting the prosecution case. We are of the opinion that the conviction is based upon cogent evidence and requires no Crl.A. No. 2528/06 -15- interference. The sentence awarded is only minimum sentence with a small fine. The sentence also requires no interference. In the result the appeal is devoid of merits. Accordingly it is dismissed. (PIUS C.KURIAKOSE, JUDGE) (P.S. GOPINATHAN, JUDGE) ksv/-