IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 1312 of 2005(C) ------------------------- SC.538/2003 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA CP.112/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... APPELLANT(S): ------------------------ MURUKAN, S/O.SUBBAYYA, C.NO.8965, C.P.TRIVANDRUM-12. BY ADV. MR.GRASHIOUS KURIAKOSE(STATE BRIEF) RESPONDENT(S): ---------------------------- STATE OF KERALA, REP. BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.Balakrishnan Nair & P.S.Gopinathan, JJ. ========================================== Crl.A.No.1312 of 2005 ========================================== Dated this the 25th day of August, 2009. JUDGMENT Balakrishnan Nair,J. 1.The accused in S.C.No.538 of 2003 on the file of the Additional Sessions Court (Ad-hoc-I), Thodupuzha, preferred this appeal, feeling aggrieved by the conviction and sentence imposed on him in the said case. The prosecution case in brief is as follows: 2.The accused/the appellant Murukan was the second husband of the deceased Mariyamma. Their marriage took place about one month before the date of occurrence. The appellant was living with his second wife and her children in the house of the latter after the marriage. He was a drunkard and used to quarrel with her when he came home after heavy drinking. On the evening CRA1312/05 -:2:- of 13.9.2001, there was quarrel between them. At about 6.45 p.m., P.W.1, the daughter of the deceased and step-daughter of the appellant went to fetch water from a nearby tap. While returning after taking water, she heard her mother crying. She immediately rushed to her house and saw the appellant pointing a blood stained knife at the chest of her mother. The sari worn by her mother was wet with oozing blood. The accused said he will also stab himself. She and her mother intervened and struck at the weapon. As a result, the knife fell down from his hand at a distance. Soon the brother of the deceased living in the neighbourhood came and he, along with P.W.1, took the injured to the nearby Devamatha hospital. On examination, the Doctor pronounced her dead and the body was taken back. Thereafter, P.W.1 went to the nearby police station, gave Ext.P1 First Information Statement, implicating the appellant CRA1312/05 -:3:- as the accused, who inflicted the fatal injury on the deceased. P.W.10 took over the investigation and prepared Ext.P3 inquest report. Thereafter, the investigation was completed and the charge was laid before the Judicial Magistrate of the First Class, Nedumkandam by P.W.9. The learned Magistrate committed the case for trial by the Sessions Court. 3.The appellant pleaded not guilty to the charge. The prosecution, from its side, examined P.Ws.1 to 10, marked Exts.P1 to P9 and produced M.Os.1 to 4. When the appellant was questioned under Section 313 Cr.P.C., he submitted that he is innocent and he was falsely implicated in the case. 4.The learned Sessions Judge, after hearing both sides, found the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to CRA1312/05 -:4:- undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-. A default sentence of six months rigorous imprisonment was also ordered. The aggrieved accused has preferred this appeal. 5.We heard the learned counsel for the appellant Sri.Grashious Kuriakose and learned Public Prosecutor Sri.Noble Mathew. Learned counsel for the appellant took us through the deposition of the witnesses and exhibits marked in this case. He submitted that there is no occurrence witness in this case. P.W.1, who came to the scene on hearing the cries of her mother did not see the accused stabbing her. Learned counsel pointed out that the subsequent conduct of the accused is also relevant. P.W.1 has deposed that the accused tried to console and nurse her injured mother and he accompanied her when the injured was taken to the hospital. He did not abscond. He then accompanied her to the police station CRA1312/05 -:5:- when P.W.1 went to give the FIS. So, the above conduct would tend to show that the appellant was not the real culprit. Further, there is a material discrepancy in the version of P.W.1 regarding M.O.1 knife, which was allegedly used for stabbing her mother. According to P.W.1, she has seen the knife in the hands of the accused several times. Its handle was made of horn and not of wood. But, the inquest report would show that, handle of M.O.1. was wooden. Therefore, M.O.1. belongs to somebody else. The said statement of P.W.1. would add credence to the defence version that a third party came and stabbed the deceased. According to the learned counsel, there is no clinching evidence to prove the guilt of the accused beyond doubt. The materials and the evidence on record may be sufficient to create a suspicion. But, from suspicion, the prosecution has to go a long way and prove the accusation beyond reasonable doubt. CRA1312/05 -:6:- So, the learned counsel prayed for acquitting the appellant. 6.In answer, the learned Public Prosecutor submitted that the description of the handle of M.O.1 by P.W.1 that it was made of 'kombu' can mean that it was made either of horn or of an young branch of a tree. Even assuming that there is discrepancy, it is submitted that it can only be taken as a wrong description. It cannot lead to the inference that a knife, other than the one belonging to the accused, was used for committing the offence. If the version of P.W.1 is believed, the guilt of the accused is proved beyond doubt. P.W.1 has seen the accused and the victim a few minutes before the incident. When she came back hearing the cries of her mother, they were found together. So, it is for the accused to explain how her mother sustained injury. In his 313 statement, he has no clear CRA1312/05 -:7:- cut version, which is credible. In the absence of any explanation, it can be safely inferred that, it was the accused and only the accused, who caused the injury, it is submitted. 7.Before dealing with the rival contentions, we will first refer to the deposition of some of the relevant witnesses. 8.P.W.1 is the daughter of the deceased. Her father died about three years ago. The accused and her mother got married about one month back before the incident and he started living with them. Her elder brother was married and he was living separately. In the house, she and her second brother were residing with their mother. The incident took place at 6.45 p.m. on 13.9.2001. The accused used to come home, after drinking and there were frequent quarrels. P.W.1 came to her house on the above said date at about CRA1312/05 -:8:- 5.30 p.m. from the house of C.W.2, where she went for watching the television. At that time, the accused and her mother were in the house. He was fully drunk and her mother was quarrelling with him for having come home in a drunken stage. She went to take water from the nearby tap. At that time, the accused was sitting in a cot in the bed room. The mother was in the kitchen. When she was returning after taking water, she heard her mother crying. On entering the house, she saw the accused holding the shoulder of her mother with his left hand and in the other hand he was holding a knife. There was blood in the knife. She found that her mother's sari was wet with blood. The accused stated that he was going to die by stabbing. She, along with her mother, intervened and struck at the knife. Thereupon, the weapon fell at a distance. There was an injury in her mother's chest. She cried out to save her mother. Thereafter, she went to call her CRA1312/05 -:9:- uncle, C.W.2. But, he was not there. Immediately, a cousin of her mother, P.W.2, came running. The mother was taken in an autorickshaw to Devamatha hospital, where she was pronounced dead by the Doctor. Thereupon, the body was brought back. P.W.1 later went to Santhanpara police station and gave Ext.P1 statement. She identified M.O.1 knife. She asserted that, M.O.1 belonged to the accused, which he used to carry always. Though she was extensively cross- examined, nothing was brought out to discredit the above version given by her in the chief examination. But, regarding the handle of the weapon, M.O.1, she has stated that, it was made of 'kombu'. To the suggestion that it was made of wood, she replied that she does not know. But, she reiterated that the knife shown was the one, used for stabbing her mother. 9.P.W.2 is the cousin of the deceased Mariyamma. CRA1312/05 -:10:- He was residing in a house in the neighbourhood, which is at a distance of about 10 to 35 ft. He stated that the incident took place at 6.45 p.m. on 13.9.2001. He rushed to the house of the deceased on hearing the cries of P.W.1. He found that the accused was holding Mariyamma in his hands. He told the accused to take her to the hospital. Thereafter, he returned to his house. He did not see M.O.1 and he has not seen M.O.1. being used by the accused. Thereafter, the witness was declared hostile and he was cross-examined. He stated, on cross-examination, that the accused was a drunkard and he used to quarrel with Mariyamma. He did not like the accused as he was not a person of good conduct. But, he did not want to quarrel with him. The next witness examined was P.W.3, the son of the deceased. He was not present at the scene when his mother was killed. But, he identified M.O.1 as the knife, which was being used by the CRA1312/05 -:11:- accused. He stated that, the accused used to quarrel with his mother demanding money. P.W.4 is an attestor to Ext.P3 inquest report. P.W.5 is the Doctor, who conducted post-mortem examination. He deposed that, Mariyamma died of the injury received on her chest, which even cut deep into her stomach and the injury found on her could be caused by a weapon like M.O.1. P.W.6 is an attestor to Ext.P3 inquest report and P.W.7 is an attestor to Ext.P5 mahazar for the recovery of M.O.2 lungi, M.O.3 shirt and M.O.4 baniyan, which were the dresses worn by the accused at the time of his arrest. P.W.8 is the village officer, who prepared Ext.P6 scene plan. The Sub Inspector, who recorded the FIS and registered Ext.P7 F.I.R., was not available as he was serving in Kosava at the time of the trial of the case. But, P.W.9, the Circle Inspector, was familiar with the signature of the said Sub Inspector and P.W.7 F.I.R. was marked and proved through him. CRA1312/05 -:12:- Ext.P8, the certificate of chemical analysis of the Chemical Examiner's Laboratory, Ernakulam was also marked through him. It was he, who completed the investigation and laid the charge. P.W.10 was the Circle Inspector of Police, who investigated the case initially. 10.In this case, if we believe the version of P.W.1, the same will go a long way in accepting the case of the prosecution. Going by the deposition of P.W.1 and the arguments of the learned counsel for the appellant, we find no reason to disbelieve her. We gave anxious consideration regarding the alleged discrepancy in her statement pointed out by the learned counsel for the appellant concerning the handle of M.O.1. She has identified the weapon and stated that, it was the knife found in the hands of the accused at the relevant time. But, on a question regarding the material with which the CRA1312/05 -:13:- handle was made, she gave an answer, which could be interpreted to mean that the handle was made of horn and not of wood. In fact, it was made of wood. Learned Public Prosecutor pointed out that the word 'kombu' not only means horn but it can also mean an young branch of a tree. The wrong description of the material of the handle will not, in any way, affect the veracity of her version regarding the incident. She has identified M.O.1. as the weapon found in the hands of the accused at the relevant time. P.W.3 has also identified M.O.1 as the knife usually used by the accused. Further, we notice that, the accused and the deceased were together in the house, when P.W.1 went out to fetch water. When she returned, it was found that her mother was injured and the accused was found pointing M.O.1. knife towards her. No one at the relevant time spoke of any third party. If a third person came there, stabbed her and went away, the re-action CRA1312/05 -:14:- of the injured, the accused and P.W.1 would definitely have been different. Further, the presence of a third party and he, using the weapon of the accused to stab the deceased, is improbable. Going by the afore-mentioned circumstances, we are of the view that, the defence version that somebody else came and stabbed the mother of P.W.1, is inherently improbable. Further, the medical evidence corroborates the version of P.W.1. The injury sustained could be caused by a weapon in the nature of M.O.1. It was stated by the Doctor, who conducted post-mortem examination. The Doctor also said that the cause of death was the injury found on the chest of the deceased. The dress worn by the accused, which was seized under Ext.P5 mahazar, was also found to contain human blood, which was of Group-B, the blood group of the deceased. The medical evidence and scientific evidence, lends further support to the CRA1312/05 -:15:- prosecution story. The above evidence and materials on record prove beyond doubt that, it was the accused, who committed the offence. All the circumstances point to the guilt of the accused and we find no hypotheses, which is consistent with the innocence of the accused. 11.At this stage, the learned counsel for the appellant submitted that, even if the accused is presumed to have committed the crime, the offence under Section 304 Part II alone is made out. But, we find it very difficult to accept the said submission. The conduct of the accused proved in this case would come under the third limb or at any rate under the fourth limb of the definition of murder under Section 300. A dangerous weapon was used and a fatal injury was caused on the chest. So, the act done by him was imminently dangerous and it will probably cause the death or such fatal injury as is likely to cause death. CRA1312/05 -:16:- The accused must be presumed to be knowing the consequences of what he was doing. We find that his conduct does not come under any of the exceptions to the definition of murder. So, the above contention of the appellant, cannot be accepted. In the result, we find no reason to differ from the view taken by the learned Sessions Judge that, it was the accused, who committed the crime. The criminal appeal, therefore, fails and it is accordingly dismissed. K.Balakrishnan Nair, Judge. P.S.Gopinathan, Judge. sl. CRA1312/05 -:17:- K.Balakrishnan Nair & P.S.Gopinathan, JJ. ========================================== Crl.A.No.1312 of 2005 ========================================== JUDGMENT Dated:25.8.2009