IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 CRL.A.No. 868 of 2007(C) ------------------------ SC.55/2005 of SESSIONS COURT, WAYANAD, KALPETTA .................... APPELLANT/ ACCUSED --------------------- POTHAYAN, AGED 53, S/O NANU, KUNDUCHIRA,KURUMA COLONY, NOOLPUZHA AMSOM, SULTHAN BATHERY TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS/ COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE SULTHAN BATHERY POLICE STATION. PUBLIC PROSECUTOR SRI.M.S.BREEZE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.868 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2011 JUDGMENT Ramkumar, J. In this appeal filed under Section 374(2) Cr.P.C., the appellant, who was the sole accused in S.C.No.55/2005 on the file of the Sessions Court, Wayanad, challenges the conviction entered and the sentence passed against him for the offence of murder (fratricide) punishable under Section 302 IPC. PROSECUTION CASE 2. The case of the prosecution can be summarised as follows: The accused ( Pothayan) is one of the brothers of deceased Balan. They were residing in Kundichira Kuruma Colony in Noolpuzha village. The accused was involved in cases filed under the Kerala Forest Act and the Wild Life (Protection) Act and was in jail in the state of Kerala as well as in the state of Karnataka. The deceased Balan had spent amounts for releasing the accused on bail. On 10/08/2003 at about 6.45 p.m. at the Kundichira field about 100 metres to the east of Crl.Appeal No.868/07 2 the house of the accused, an altercation took place between the accused and the deceased consequent on the deceased demanding return of the money spent by him. On account of the enmity arising therefrom, the accused stabbed the deceased on the left side of his chest with MO 6 knife. The deceased was first rushed to the Vinayaka Hospital from where the doctor pronounced him dead and asked those who brought the deadbody to take the deceased to the Government Hospital, Sulthan Bathery. The accused has thereby committed an offence punishable under Section 302 IPC. THE TRIAL 3. On the accused pleading not guilty to the charge framed against him by the court below for the offence of murder, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 17 witnesses as PWs 1 to 17 and got marked 22 documents as Exts.P1 to P22 and 10 material objects as MOs 1 to 10. 4. After the close of the prosecution case, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the Crl.Appeal No.868/07 3 incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 5. The learned Sessions Judge after trial, as per judgment dated 15.03.2007 found the accused guilty of the offence charged against him and sentenced him to imprisonment for life and to pay a fine of Rs.25,000/- and on default to pay the fine to suffer rigorous imprisonment for one year. From out of the fine amount, a sum of Rs.20,000/- was directed to be paid as compensation to PW7, the wife of the deceased. It is the said judgment which is assailed in this appeal by the accused. THIS APPEAL 6. We heard the learned counsel appearing for the appellant and Advocate Sri.M.S.Breeze, learned Public Prosecutor who defended the State. 7. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? Crl.Appeal No.868/07 4 THE POINT THE MAIN EVIDENCE 8. PW1 ( Varghese) is an attestor to Ext.P1 inquest report prepared by the Investigating Officer. PW2 ( Narayanan) is the eldest brother of the accused and the deceased. He turned hostile to the prosecution. Exts.P2 and P3 are his case diary contradictions. PW3 ( Soman) is an occurrence witness who supported the prosecution. He is also one of the brothers of the accused and the deceased. He also gave Ext.P4 FI statement to the Sulthan Bathery police. MOs 1 to 5 were marked through him. Ext.P5 is the statement given by this witness to the Magistrate under Section 164 Cr.P.C. PW4 ( Babu) is the nephew of both the accused and the deceased. He is an attestor to the inquest report also. PW5 ( Eldo) is a witness to Ext.P6 scene mahazar. PW6 (Pushpa) is the sister of PW3. She along with PW7 (Thulasi), the wife of the deceased and PW8 (Gowri) sister of the deceased had proceeded to the scene of occurrence on hearing the screams of PW3. It was using MO4 towel carried by PW7 that PW3 bandaged the penetrating wound on the chest of the deceased. PW9 Crl.Appeal No.868/07 5 ( Dr.K.Prasannan) who was the Assistant Professor of Forensic Medicines, Medical College Hospital, Calicut conducted autopsy over the dead body of the deceased and issued Ext.P7 postmortem certificate, as per which the deceased died due to the incised stab injury to his chest. PW10 (Sri.K.K. Salih) was the Magistrate who recorded Ext.P11 161 statement of PW3. PW11 (Ravi) is an attestor to Ext.P8 recovery mahazar pertaining to MO 6 knife allegedly pursuant to Ext.P19 confession statement made by the accused. He turned disloyal to the prosecution. Ext.P9 is his case diary contradiction. PW12 ( Dinesan) is the Special Village Officer, Noolpuzha who proved Ext.P10 scene plan prepared by him. PW13 ( T.K.Pathrose) is yet another witness to Ext.P8 recovery mahazar. He also turned unfriendly to the prosecution. PW14 ( P.Viswambaran) was the Sub Inspector of Sulthan Bathery police station who recorded Ext.P4 FI statement of PW3 and registered Ext.P4(a) FIR. PW 15 ( C.Sasi) who was the Circle Inspector of Pulpally holding the charge of the Circle Inspector of Sulthan Bathery conducted the major part of the investigation. On 11.08.2003 at 8 a.m., he held inquest over the dead body of Balan and Crl.Appeal No.868/07 6 issued Ext.P1 inquest report to which PW1 is an attestor. MO 3 shirt, MO 4 towel and MO 7 lungi found on the dead body were seized under the inquest report. Thereafter at 2 p.m. on the same day, PW 15 prepared Ext.P6 scene mahazar under which he took into custody MO 8 earth and grass and MO5 sheath made of Malayala Manorama paper, MO 2 lungi belonging to the accused and MO 1 series of chappel belonging to the deceased. On the same day at 4 p.m., he searched the house of the accused after sending Ext.P13 search memorandum to the court. Ext.P12 is the search list under which he seized MO 9 shirt which the accused was allegedly wearing on the date of the occurrence. PW15 produced the properties before court as evidenced by Exts.P14 to P16 property lists. PW 16 (V.Devarajan) was the Circle Inspector of Police, Sulthan Bathery. He conducted the rest of the investigation. On 16/08/2003 at 9.10 a.m., he arrested the accused. Exts.P17 and P18 are the arrest memo and inspection memo respectively. He proved Ext.P19 confession made by the accused and also effected recovery of MO 6 knife kept in MO 10 plastic carry bag on 16/08/2003 at 11 a.m. from underneath the coffee plants in the vicinity of the house of the Crl.Appeal No.868/07 7 accused. Ext.P8 is the recovery mahazar. PW16 produced MO 6 and MO 10 as per Ext.P20 property list. The original of Ext.P21 forwarding note was submitted by him requesting the committal Magistrate to send the properties to the Chemical Examiner for detecting human blood, if any, on the material objects. Ext.P22 is the certificate of Chemical Analyst as per which MOs 3, 4, 7 and 8 had human blood on them. PW17 ( M.Velayudhan) was the Circle Inspector of Police, Sulthan Bathery who succeeded PW16. PW17 laid the final charge before court. JUDICIAL EVALUATION 9. The place of occurrence is the paddy field by name Kundichira situated about 100 metres to the east of the house in which the accused was residing along with his family and bearing building No.NP IV/1. There is ginger cultivation on three sides ( west, north and east) of the said field. The vast area to the north of the ginger cultivation is reserved forest. Nanu, the father of the accused and the deceased had five sons and two daughters. Narayanan examined as PW2 is the eldest son and Sankaran, Pothayan ( accused), Balan Crl.Appeal No.868/07 8 (deceased) and Soman ( PW3) are the sons. Babu examined as PW4 is the son of Sankaran and one Ratheesh is the son of the accused. Thulasi examined as PW7 is the wife of the deceased. Gowri and Pushpa examined as PWs 8 and 6 are the sisters of the accused and the deceased. 10. Even though Narayanan ( PW2), the eldest brother of the accused and the deceased was examined to prove the occurrence, he did not support the prosecution and was declared hostile. The only other evidence is that of PW3 Soman who is also one of the brothers of the accused and the deceased and the evidence of PW8 Gowri. There is also the res gestae evidence of PW6 and PW7 who rushed to the scene after hearing the screams of PW3. 11. The evidence of PW3 is to the following effect :- Both the accused and the deceased are his elder brothers. On 10/08/2003 he had gone for work and had come home after the day's work. He asked his wife to boil some water and stirred out of the house into the field. It was about 6.30 p.m. and there was sufficient light to identify people. While so, he saw two persons quarreling and Crl.Appeal No.868/07 9 engaged in a push and pull in the field. He went closer to find who they were. He soon identified them as the accused and the deceased. By the time he reached closer, Balan ( the deceased) had fallen down. When he held Balan up he found a penetrating injury on his chest and blood oozing out from the wound. The accused soon got into the nearby forest holding a knife in his hand. At that time, the accused was wearing a shirt only and his dhoti was not found. PW3 suddenly made a hue and cry and people came running. They included PWs 6 to 8. Ratheesh, the son of the accused was sent to fetch a vehicle. PW3 tied MO4 towel brought by PW7( Thulasi) around the bleeding wound of Balan. All of them then carried Balan to the road which was motorable. Balan was first taken to Vinayaka Hospital where the doctor pronounced him dead and on the advice of the doctor the dead body was taken to Govt. Hospital, Sulthan Bathery where it was kept in the mortuary. PW3 then went to the Sulthan Bathery police station and gave Ext.P4 FI statement. 12. Even though PW3 was subjected to a searching cross examination, he was categoric that the fatal and penetrating injury on Crl.Appeal No.868/07 10 the chest of Balan was inflicted by none other than the accused who had thereafter made good his escape through the forest on the northern side of the field. PWs 6 to 8 namely Pushpa, Thulasi and Gowri who had rushed to the spot on hearing the screams of PW3 had also heard from the mouth of PW3 that the accused had stabbed the deceased. The testimony of PW8 Gowri would go to show that in the same night at about 7. 30 p.m., the accused had come to their house brandishing MO 6 knife and remarked that there was one more person to be done away with 13. PW9 ( Dr.Prasannan) who conducted autopsy over the dead body of Balan has credibly deposed that the incised penetrating wound 5 x 1 cm. found on the left side of the chest had entered the chest cavity after cutting the 4th and 5th ribs and muscles below piercing the lower lobe of the left lung and cutting the left side of the heart and entering the left ventricle. The autopsy surgeon has credibly stated that such an injury could be inflicted with a weapon like MO 6 knife and that the said injury is fatal and sufficient in the ordinary course of nature to cause death. It is true that MO 6 knife was Crl.Appeal No.868/07 11 not sent to the Chemical Examiner for detecting human blood on it. But then PW3 has credibly identified the said weapon as the one which was carried by the accused while going away from the scene of crime. PW8 has also identified MO 6 as the knife which the accused was wielding when he came that night. Notwithstanding the hostility shown by PWs 11 and 13, the credible testimony of PW16, the Investigating Officer coupled with the contemporary records including Ext.P8 recovery mahazar clearly show that MO 6 knife was recovered consequent on the confession made by the accused. The court below which had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe the testimony of PWs 3, 6 to 9 and 16. Sitting in appeal we find little scope for interference with the conclusions reached by the trial Judge. The inescapable result is that it was the appellant who inflicted the fatal stab injury on the chest of his brother Balan and going by the description of the injury also, it is the result of an intentional and forceful stab from which the intention to bring about that result is clearly discernible. We therefore endorse the conclusion reached by the trial Judge that the appellant is guilty of Crl.Appeal No.868/07 12 murder punishable under Section 302 IPC. The conviction entered against the appellant is accordingly confirmed. 14. The sentence imposed on the appellant also cannot be said to be excessive or disproportionately harsh. After all, the trial Judge has imposed only the lesser of the two penalties provided under Section 302 IPC. Having regard to the fact that the deceased had spent huge amounts for releasing the appellant from the prison and the occurrence itself took place in connection with the demand made by the deceased to return the amounts spent by him for the appellant, we do not find that the imposition of fine and the direction to pay a portion of the same as compensation was uncalled for. The sentence imposed on the appellant also does not call for any interference at the hands of this court. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed against the appellant. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sv. Crl.Appeal No.868/07 13 Crl.Appeal No.868/07 14