IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 CRL.A.No. 1618 of 2005() ------------------------ SC.44/2004 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): -------------- BIJI S/O. SIVARAMAN, KUZHIPARAMBIL HOUSE, EDADU MUTTOM BHAGOM, EDADU KARA, ELAPPALLY VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.P N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2009, ALONG WITH CR.A.NO.2073/05, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr.A.Nos.1618 & 2073 of 2005 ------------------------------------------------------------------ Dated 21st October 2009 Judgment Balakrishnan Nair, J. These appeals are filed by the second accused and the first accused respectively in Sessions Case No.44/04, on the file of the Additional Sessions Court (Adhoc-I), Thodupuzha. Since both the appeals are directed against the very same judgment, they are heard and disposed of together. The case of the prosecution, in brief, is as follows : 2. The appellants and the deceased were friends and relatives and they were in the habit of distilling illicit arrack. On 12.04.2003, PW2 found the above said three persons, distilling illicit arrack. The said witness purchased arrack for Rs.20/- from them and thereafter, he went to pluck cashew nuts from the property owned by him and his wife. The place where the liquor was being distilled, was between the property of his wife and that of him. On the above said date, by about 4 pm, PW2 and his wife returned home. On their way home, they went to the house of PW10, who is the wife of the brother of the father of PW2. Since they had gone there after a long gap, PW10 Cr.A.Nos.1618 & 2073 of 2005 2 told them to stay in her house during the night. Therefore, they decided to stay there and they did some help in the ongoing construction work of the house of PW10. While so, A1 and A2 came there. A1 is the son-in-law of PW10. They took arrack, while in the house of PW10. After some time, A2 felt some uneasiness in his stomach and therefore, A1 told him that he will accompany A2 to his house. PW2 also went along with them. They decided to take bath first from the nearby river, before leaving A2 in his house. Earlier, it appears, there was some altercation between the deceased and the accused for the reason that he took away some arrack distilled by them. PW2 overheard the discussion between A1 and A2 that they should question the deceased, why he did that. After taking bath, both the accused, along with PW2, came in front of the house of the deceased, which was by the side of a public road. A2 went to the house of the deceased and requested him to come down. Thereupon, the deceased came to the road along with A2, calling names and abusing the accused. There was some altercation and A2, using the torch in his hand, hit on the head of the deceased and immediately, the deceased fell down. A1 used to carry a cord, made of tyre, which is used by him for climbing coconut trees. He took out Cr.A.Nos.1618 & 2073 of 2005 3 that cord and strangulated the deceased. Since PW2 was afraid to go near the quarrelling people, he was standing at a distance. On seeing A1 strangulating the deceased, PW2 ran back to the house of PW10. After some time, A1 arrived at the house of PW10. 3. PW3, the wife of the deceased, on hearing the quarrel between her husband and the accused, came out, carrying a small kerosene lamp. But, its flame was put out by the wind and therefore, she went back and came with a torch and also carrying her child. She searched for her husband and when he was not found, she went to the neighbouring house and came along with PW11 and PW12 and again, searched for her husband. They found that the deceased was lying in a nearby compound, motionless. On finding the body of the deceased, PW3 swooned. The next day, PW1, the brother of the deceased lodged first information which was recorded by PW14 Sub Inspector of Police as per Ext.P1. Based on the said statement, he registered the crime as per Ext.P16 F.I.R. PW20, the Circle Inspector of Police took over the investigation. He held the inquest and prepared Ext.P15 inquest report. The body was sent for autopsy. No separate scene mahazar was prepared as the same formed part of the inquest report. Based on the information furnished by the Cr.A.Nos.1618 & 2073 of 2005 4 accused, PW20 seized MO1 torch and MO2 tyre cord. He completed major part of the investigation. His successor-in-office PW21 verified the charge and filed the final report before the Judicial First Class Magistrate's Court, Thodupuzha. The learned Magistrate committed the case for trial by the Sessions Court as one of the offences disclosed was exclusively triable by a Court of Sessions. The case was made over for trial to the Additional Sessions Judge (Adhoc-I) Thodupuzha. 4. The accused pleaded not guilty to the charge framed by the trial court. The prosecution, to prove its case, examined PW1 to PW21 and marked Exts.P1 to P23. MO1 to MO5 were also produced and marked. The learned Sessions Judge, after hearing both sides, found the first accused, i.e., the appellant in Cr.A.No.2073/05 guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life. The second accused, i.e, the appellant in Cr.A.No.1618/05 was found guilty of the offence under S.324 IPC and he was sentenced to undergo three years' imprisonment. A fine of Rs.2,000/- was also imposed on him with a default sentence of simple imprisonment for three months. Feeling aggrieved by the above conviction and sentence, the appellants have preferred these appeals. Cr.A.Nos.1618 & 2073 of 2005 5 5. We heard the learned counsel Shri.T.J.Michael appearing for the appellant in Cr.A.No.1618/05 and Shri.Unnikrishnan.V.Alappat, appearing for the appellant in Cr.A.No.2073/05. The learned counsel took us through the depositions of the witnesses and referred to the documents marked by the prosecution. They submitted that there are full of contradictions between the depositions of PW2, who claims to be the occurrence witness and the deposition of PW3, the wife of the deceased. The version of PW2 that he has watched the fight between the deceased and the appellants and the subsequent murder from a distance, without trying to save the deceased, lacks credence. His conduct in not telling the details of the incident to others in the house of PW10 also appears to be unusual. During night time, it is inherently improbable that he could have watched and seen the details of the commissions from the part of the appellants. Going by the deposition of PW3, it is really strange that when she came to the scene with a torch, she did not search for her missing husband. Instead, she went away and came along with PW11 and PW12 to do further search. The said conduct of the said witness appears to be strange and her version cannot be believed. Regarding the details of the incident, there are several Cr.A.Nos.1618 & 2073 of 2005 6 inconsistencies between the versions of the above two witnesses. The motive is also not proved. The recovery of MO1 and MO2 does not have any probative value. MO1 is a torch, which is usually used in the house and it is recovered from the house of A2. MO2 is usually carried by the first accused. There is nothing unusual in he being found in possession of it. In view of the above facts, the learned counsel for the appellants pleaded that they are entitled to get the benefit of doubt and therefore, be acquitted. 6. The learned Public Prosecutor, on the other hand, submitted that there is no reason for PW2 or PW3 to falsely implicate the accused. All the main witnesses are relatives or friends. PW3 is the wife of the deceased. So, if they are convinced of the involvement of A1 and A2 in the murder, there may be some embellishment from their part to ensure the conviction of the accused, but, they will never spare the real culprit and falsely implicate innocent persons. The discrepancies in the versions of PW2 and 3 do not touch upon any material point, affecting the prosecution case. Therefore, the learned Public Prosecutor prayed for dismissal of the appeals. 7. We considered the rival submissions made at the Bar and went through the evidence and materials on record. The evidence of Cr.A.Nos.1618 & 2073 of 2005 7 PW18, the doctor, who conducted postmortem examination and who issued Ext.P20 postmortem certificate would prove beyond doubt that the death of Rajendran, the deceased in this case, was a homicide. According to the doctor, the cause of death is blunt force applied to the neck. 8. Now, the point to be considered is, who committed the crime and whether the oral evidence of PW2 and PW3 along with other evidence on record, is sufficient to hold the appellants guilty. PW3, the wife of the deceased has deposed that on the fateful day, between 8 and 8.30 pm, A2 came to her house and wanted her husband to come out. She also stated that her husband had earlier told her that during day time, there was some quarrel between him and the accused. Though PW3 tried to dissuade him, he went out along with A2. While going out, the deceased told her to remain in the house. But, she sat on a bench near the door of her house, trying to watch the happenings outside. She heard sounds of quarrel and altercation between her husband and the accused. So, she came out with a kerosene lamp, but its flame was put out in the wind. Since it was dark, she could not see what was happening. Though she called out her husband by name, there was no response. She came back, took a torch from the house and again went to the roadside along Cr.A.Nos.1618 & 2073 of 2005 8 with her child and made a search for her husband. Since he was not found, she went to the house of PW11 and again came to the roadside with the said witness and his wife PW12 and made a search for her husband. Thereupon, she found her husband lying in a nearby compound, motionless. On seeing the husband's body, she embraced him and thereafter, fell unconscious. The evidence of PW2 was already recorded by PW19 under S.164 Cr.P.C. He, while in the box, deposed on the details of the incident, in which the deceased was killed. He, along with the accused, went from the house of PW10 to the nearby river for the purpose of taking bath and also for leaving A2 in his house. After taking bath, when they returned, the accused 1 and 2 planned to question the deceased, why he took the arrack distilled by them without their consent. A2 came to the house of the deceased, called him out and the deceased came to the road along with A2. PW2 deposed that he saw A2, hitting the deceased on his head, using the torch in his hand. Immediately, the deceased fell down. Thereafter, the first accused, using MO2 cord, strangulated the deceased. On seeing the above incidents, he immediately returned to the house of PW10. Regarding the death of Rajendran, the above versions given Cr.A.Nos.1618 & 2073 of 2005 9 by the two witnesses have remained unshaken, notwithstanding the extensive cross-examination by the defence. 9. We fully agree with the learned Public Prosecutor that there is nothing on record to suggest that these witnesses are falsely implicating the accused and sparing the real accused. Though some minor discrepancies in their version were pointed out, on that ground, their depositions cannot be rejected. We are of the view that on most of the material points, they corroborate each other. The medical evidence also corroborate the version of PW2. In view of the above position, we think it is unnecessary to refer to the versions of other witnesses and other documents. Most of the witnesses, who are neighbours or relatives of the accused, have turned hostile to the prosecution but we agree with the trial court that the above evidence of the two witnesses is sufficient to find the accused guilty of the offences, with which they are charged. We agree with the reasons and conclusions of the trial court. In the result, these Criminal Appeals fail and they are accordingly dismissed. 10. The second accused, i.e., the appellant in Cr.A.No.1618/05 was released on bail as per the orders of this court dated 20.09.2005. His bail bonds are set aside and he shall surrender Cr.A.Nos.1618 & 2073 of 2005 10 before the Additional Sessions Judge (Adhoc-I) Thodupuzha, on or before 4.11.2009 to suffer the punishment imposed on him. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.Nos.1618 & 2073 of 2005 11