IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 CRL.A. No. 1807 of 2005 ---------------------------------------- SC.224/2004 of SESSIONS COURT, PATHANAMTHITTA CP.58/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT/ACCUSED: ------------------ THAMPI THOMAS, S/O.THOMAS, CONVICT NO.8946, CENTRAL PRISON, THIRUVANANTHAPURAM 12. BY ADV. SRI.SAJEEV.T.P. RESPONDENT//STATE: ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.Appeal No.1807 of 2005 ------------------------------ Dated this, the 14th day of October, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C.No.224 of 2004 on the files of the Sessions Court, Pathanamthitta. The brief facts of the case are the following:- The deceased Abraham @ Jose was the father of PW.1. There was some ill-will between the deceased and the appellant for the reason that the former harassed Sugandhi, who is the sister of one Mr.Chandran. The said Chandran was a friend of the appellant. So, on the fateful day, 11.5.2002 at about 09.30 p.m., the appellant came to his house after taking drinks. The appellant is residing in the house next to the house of the deceased. The appellant started hurling abusive words against the deceased on seeing him standing in his courtyard. The dispute concerning harassment of Sugandhi was already settled between the deceased and the Crl.Appeal No.1807 of 2005 - 2 - brother of Sugandhi in the presence of Lalachan, who was PW.5 in this case. The appellant was a member of the trade union, of which PW.5 was the Convener. When the appellant started abusing and calling names, the deceased proceeded to the house of PW.5 to complain about the incident. He was followed by PW.1 also. When he was crossing the rubber estate of Pannivila John, the appellant suddenly stabbed him using a rubber tapper's knife. This was witnessed by PWs.2 and 4, apart from PW.1. The injured was immediately removed to the Marthoma Hospital. The duty doctor examined and pronounced him dead. Soon thereafter, PW.1 laid the information before the Ranni Police Station. Ext.P2 is the first information statement based on which Ext.P2(a) F.I.R. was registered by PW.14, the Sub Inspector of Police. PW.15 the Circle Inspector took over the investigation. He prepared Ext.P4 inquest report, sent the body for post mortem examination, made arrangements for guarding the scene, etc. He covered substantial part of the investigation including questioning of the witnesses etc. PW.16, the successor-in- Crl.Appeal No.1807 of 2005 - 3 - office, completed the investigation and laid the charge before the Judicial First Class Magistrate, Ranni. The learned Magistrate committed the case for trial to the Sessions Court, as the offence disclosed was one under Section 302 of the Indian Penal Code. 2. Before the trial court, the appellant pleaded not guilty to the charge framed against him. The prosecution to prove its case examined PWs. 1 to 16 and produced Exts.P1 to P17 documents. Material Objects 1 to 6 were also produced and marked. From the side of the defence, Ext.D1, which was a portion of the statement of PW.4 recorded under Section 161 Cr.P.C. and which was at variance with her deposition before the court was marked. While questioned under Section 313 Cr.P.C., the appellant denied all the allegations against him and claimed that in fact, he was attacked by the deceased and his children and therefore, all along he was lying quiet in his house on the night of 11.5.2002. The learned Sessions Judge after hearing both sides found the appellant guilty of Crl.Appeal No.1807 of 2005 - 4 - the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. A fine of Rs.25,000/- was also imposed and a default sentence of simple imprisonment for one year was also provided. Feeling aggrieved by the conviction and sentence, the appellant has preferred this Criminal Appeal. 3. We heard Sri. Sajeev T.P., learned counsel for the appellant and Sri. Noble Mathew, learned Public Prosecutor for the State. The learned counsel for the appellant submitted that as per the F.I. Statement, Ext.P2, the place of occurrence is the courtyard of the house of the deceased. But, as per the case before the Court as unfolded through the depositions of the witnesses, the scene of occurrence was the estate of Pannivila John. The above material discrepancy between the statement given at the earliest point of time and the version of the witnesses while in the box, knocks at the bottom of the prosecution case. The learned counsel also submitted that the defence version that Crl.Appeal No.1807 of 2005 - 5 - the appellant was attacked by the deceased and his children and he took shelter in his house throughout the night, is probable. The learned Public Prosecutor, on the other hand, pointed out that the discrepancy between the version in the F.I.R and the version before the court is of no consequence as far as the present case is concerned. The role of the appellant in the homicide of the deceased is spoken to consistently by the prosecution witnesses. The occurrence witnesses being closely related to the deceased, the possibility of their improving the case to ensure the conviction of the appellant is possible. But, there is no reason for them to spare the real culprit and to implicate falsely an innocent man. It is also submitted that PW.3 is an independent witness. Even that witness has also supported the version of PWs.1, 2 and 4, who are the respectively the sons and wife of the deceased. It is also submitted that the medical evidence also supported the case of the prosecution that the injuries were inflicted using the rubber tapping knife MO.1, recovered under Section 27 of the Evidence Act, based on the information Crl.Appeal No.1807 of 2005 - 6 - furnished by the appellant. So, the learned Public Prosecutor submitted that there is no reason for the appellate court to interfere with the judgment under appeal. 4. Before referring to the rival submissions made at the Bar, we will briefly refer to the facts of the case as disclosed from the depositions of the witnesses. It is not in dispute that the death of Abraham @ Jose was homicidal. The said fact is proved by the evidence of PW.9 (Doctor) and also Ext.P6 post mortem certificate. The evidence of the said witness also would prove that the injuries 1, 2 and 3 sustained by the deceased could be caused by MO.1 tapper's knife. Now the point to the considered is, whether the injuries were inflicted by the appellant as asserted by the prosecution. PW.1, the elder son of the deceased has deposed that on the night of 11.5.2002 at about 9.30 p.m., the appellant who was residing in the neighbouring house started abusing his father. At that time, he along with his brother and mother was standing in the courtyard of the house, where the deceased Crl.Appeal No.1807 of 2005 - 7 - was also standing. At the relevant time, one Mr.Bindu was also with the appellant. Though the persons present in the house of the appellant persuaded him to keep quiet, he went on abusing the deceased. So, the deceased decided to complain about the same to PW.5 and started in the direction of the house of the said witness. While so, suddenly the appellant stabbed the deceased using the tapper's knife held by him. He saw the incident in the torch light in his hand. The above version has been corroborated substantially by PWs.2, the second son of the deceased and PW.3, a person in the neighbourhood. PW.4 came to the scene hearing the hue and cry and she has deposed that her husband has told her that injury was caused by the appellant. All these witnesses identified MO.1 tapper's knife, which was stated to be used for inflicting the injuries We find that though these witnesses were cross examined extensively, nothing has been brought out to discredit their version. Though there are some minor discrepancies in their depositions, there is no contradiction regarding the material point as to who inflicted the injuries. Crl.Appeal No.1807 of 2005 - 8 - 5. We also notice that based on the information furnished by the appellant, as per Ext.P8(a), the tapper's knife was recovered from a place, where it was stated to be thrown by the appellant after the incident. The investigating officer, PW.15, proved the confession statement and also the recovery made as per Ext.P8(a) mahazar. PW.11 who is an independent witness has also supported the recovery of MO.1 by the appellant. Therefore, the version given by the occurrence witnesses regarding the involvement of the appellant is supported by medical evidence and also the recovery under Section 27. Ext.P16, forensic science lab report shows that MO.1 contained human blood, though grouping was not possible owing to insufficiency of quantity of blood. Normally, in a case proved by occurrence witnesses, proof of motive is not necessary. But, in this case, the incident leading to execution of Ext.P1 settlement between the deceased and Chandran, the brother of Sugandhi, offer the motive for the crime, according to the prosecution. There is no reason for us to discard the said case of the prosecution. Crl.Appeal No.1807 of 2005 - 9 - 6. We agree with the learned Public Prosecutor that the discrepancy regarding the scene of occurrence as per the First Information Report and as per the version of the witnesses before the court does not affect the veracity of the prosecution case. There may be some mistakes in the first information statement lodged. Such mistakes may be used to confront the maker of the statement and to discredit his version. But, we find the credibility of PW.1, who gave the F.I. Statement, has not been impeached by the defence in the cross examination. So, the above discrepancy pointed out by the appellant has not, in any way, affected the prosecution case. In support of the defence version, we find that, there is no material or evidence on record. Therefore, we are not impressed by the submission of the learned counsel for the appellant that defence version given while being questioned under Section 313 Cr.P.C. is possible. In the result, we hold that the case against the appellant has been proved by the evidence on record, Crl.Appeal No.1807 of 2005 - 10 - including the depositions of the witnesses and the medical evidence. We find no reason to take a view different from the view taken by the trial court on the guilt of the appellant. The Criminal Appeal, therefore, fails and accordingly, it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)