IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 1528 of 2005() --------------------------------- SC.337/2003 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): ACCUSED: ---------------------- 1. BIJU @ KUTTAN, S/O. KUTTAPPAN, PATTUMUDI PUTHUVAL, PATTUMUDI KARA, PEERMADE. 2. OMANA, W/O. MOHANAN, PATTUMUDI ESTATE LAYAM, PATTUMUDI KARA, PEERMADE. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S): COMPLAINANT: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/8 /2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PKK A.K. BASHEER & P.S. GOPINATHAN, JJ. -------------------------------------------------- CRL.APPEAL. NO. 1528 OF 2005 ----------------------------------------------- DATED THIS THE 10TH DAY OF AUGUST 2009 JUDGMENT ---------------- Basheer, J. The appellants were tried for offences punishable under Section 302 and 201 r/w Section 34 of the Indian Penal Code on the charge that they had committed murder of one Baby by hitting him with Mo1 iron pipe and Mo2 hammer at about 8.30 pm on 9-7-1998. Though Baby was removed to the hospital, he succumbed to the injuries later on 13-7-1998. 2. The court below after evaluating the oral or documentary evidence available on record held that the prosecution had succeeded in proving the charge against the appellants under Section 302 r/w Section 34 IPC and accordingly convicted and sentenced them to undergo imprisonment for life and to pay fine of Rs. 5,000/- each with a default sentence of rigorous imprisonment for six months each. The above order of conviction and sentence is under challenge in this appeal. CRL.APPEAL. NO. 1528 OF 2005 2 3. The prosecution case may be briefly noticed. Deceased Baby had been living with PW3, who was stated to be his second wife, in a property having an extent of 23 cents assigned by the government in his favour shortly before his death. The two appellants, the son and younger sister respectively of PW3 apart from PW4, the mother of PW3, were also living with Baby and PW3 at the relevant point of time (Appellant No.1 is the son born to PW3 in her first marriage). According to the prosecution, deceased Baby had very often expressed his displeasure about the stay of the appellants with him. It is the case of the prosecution that Baby had been mentioning to PW3 that he was prepared to maintain her and her mother (PW4); but not the appellants. This had infuriated the appellants which led to developing animosity in their minds towards deceased Baby and culminated in the crime in question. 4. At about 8.30 pm on 9-7-1998 the two appellants CRL.APPEAL. NO. 1528 OF 2005 3 allegedly hit the deceased on his head several times; accused No.1 using Mo2 hammer and accused No.2 using Mo1 iron pipe for the said purpose. The deceased was taken to Periyar hospital in the jeep of PW6 in the night itself. The doctor(PW10) who examined the injured referred him to the Medical College Hospital,Kottayam. The victim succumbed to the injuries while he was undergoing treatment in the hospital at 10.55 pm on13-7-1998. 5. PW1, the sister of deceased Baby who had visited him on 13-7-1998 before his death, had lodged Ext.P1 first information statement at Peerumedu Police Station at about 8 pm on that day. PW17 Sub Inspector of Police had initially registered a crime in this connection for offences punishable under Section 324 IPC and Ext.P19 is the First information report recorded by him. Later in the night, Baby succumbed to the injuries sustained by him. PW18 conducted the investigation and laid the chargesheet against the appellants. 6. The prosecution examined PWs 1 to 18 and marked as CRL.APPEAL. NO. 1528 OF 2005 4 Exts.P1 to P20 and Mo1 to Mo4 (series) on its side. There was no oral or documentary evidence on the side of the defence. 7. It is contented by the learned Counsel for the appellants that the court below has committed serious illegality in holding the appellants guilty without even an iota of evidence against them. According to the learned Counsel the court below has relied on conjectures and surmises rather than on any cogent or reliable pieces of evidence. He submits that the prosecution could not have fallen back on circumstantial evidence when its attempt to prove the charge against the accused with the help of the so called ocular witnesses failed. Learned Counsel places reliance on the decision of the Apex Court in Muralidhar and Others v. State of Rajasthan reported in AIR 2005 (SC) 2345, in this context. 8. We will briefly refer to the evidence on record as it unfolded. PW1, the sister of deceased Baby deposed before the court that her brother had been residing about 1 km away from her residence. He had been living with the appellants and PW3 and CRL.APPEAL. NO. 1528 OF 2005 5 PW4 at the relevant point of time. When she came to know about the admission of her brother in the hospital she went there and found him lying in an unconscious condition. She went to the police station and gave Ext.P1 statement on 13-7-1998. She identified her signature in the statement. She asserted that there was some dispute between the deceased and appellant No.1. She further stated that she came to know that her brother had been assaulted and Appellant No.1 was conspicuously absent either in the hospital or at the time of funeral of the deceased. 9. PW2 is an 83 year old woman residing in the immediate neighbourhood of deceased Baby. She stated that she saw deceased Baby on the date of the incident. He had gone for work on that day. After coming back from work she saw the deceased going inside the house after taking bath. Sometime during night after she fell asleep, PW4 and appellant No.2 came and asked for some water. PW4 told her that if she did not get water, her daughter Omana (appellant No.2) would die. This witness also CRL.APPEAL. NO. 1528 OF 2005 6 stated that she saw blood stain on the dress of PW4 and appellant No.2. Four or five days thereafter she saw appellant No.1 being brought to the residence by the police. This witness was declared hostile by the learned Public Prosecutor when she stated that she did not hear any sound from the house of the deceased. This witness further stated that she had heard deceased Baby telling PW3 Mariakutty (2nd wife of the deceased) that he would lookafter her and her mother, but not her son and sister (the appellants). She had heard this being said by the deceased on several occasions. She further stated that she had gone inside her house when she saw blood on the dress of PW4 and appellant No.2. 10. It appears that she had told the police in her statement under Section 161 of the Code of Criminal Procedure that she had heard the cry of deceased Baby from his kitchen. She had further allegedly stated that Baby, appellant No.1 and PW3 were inside the house at that time. But she disowned the above statement which was marked by the Public Prosecutor as Ext.P2. She further CRL.APPEAL. NO. 1528 OF 2005 7 disowned her statement that there was dispute between deceased Baby on one side and PW3, appellants and others on the other, about transfer of the property in their name. Significantly she also stated that brother of PW3 had been threatening her that she would face dire consequence if she spoke anything against PW3 before the Court. 11. PW3, the 2nd wife of deceased Baby ( mother of appellant No.1 and sister of appellant No.2) had a totally different version before the Court. She deposed that deceased Baby died because of a fall in a granite quarry. She could not remember the date of the incident. The quarry was a little far away from the house. According to her she went to the quarry at about 10 p.m in search of Baby. Initially she said she found Baby dead in the quarry. But she changed her version and stated that Baby died on the way to the hospital. She had a further case that PW2 was shown the dead body when it was brought from the quarry. When she was confronted with the statement given by her before police, CRL.APPEAL. NO. 1528 OF 2005 8 her response was one of total denial of having given any such statement. She stated that she did not tell the police that appellant No.1 had hit the deceased with Mo2 hammer. She further stated that she did not see any blood in the body of appellant No.2. The contradictions in her statement were marked as Exts.P4 to P8. She denied the suggestion that she was trying to protect her son and sister (the appellants) by uttering false hood before the court. 12. Significantly this witness stated that appellant No.1 came back to the house at about 10 - 11 in the night. She further stated that deceased Baby was in the Medical College Hospital for two days where he died. We will revert back to the evidence of this witness a little later. 13. PW4 is the mother of PW3. She admitted that she was present in the house on the day when Baby passed away. But she stated that she had only hearsay information about the incident. According to her on that day Baby had come home drunk and without any dress on his body. When he came she ran away with CRL.APPEAL. NO. 1528 OF 2005 9 appellant No.2. According to her Baby fell down on a heap of laterite stone. When she came back she saw blood on the body of Baby. She further stated that she found blood on the body of appellant No.2 also. She could not say how appellant No.2 sustained injury on her head. According to her, Baby came back to the house at about 6 pm in the evening. She stated that Baby took his bath with the water given by appellant No.2. At that time there was no quarrel. But the quarrel took place before they went to sleep. She could not say how the quarrel started. According to PW4 Baby hit appellant No.2 on her head with spoon . It started bleeding. She did not see Baby catching the vital parts of appellant No.1. She did not see Baby being hit with a hammer. She admitted that she went to the residence of PW2 and asked for water in order to give to appellant No.2 who was exhausted because of the injury on her head. She saw deceased Baby lying on the heap of laterite stone. She disowned several of her statements to the police incriminating the appellants which were marked as CRL.APPEAL. NO. 1528 OF 2005 10 Exts.P9 and P10. Significantly this witness in her cross examination stated that she did not know anything about PW3 going to the granite quarry in search of deceased Baby. According to her Baby was taken to the hospital by the appellants and PW3 in the night itself. 14. PW5 is the jeep driver in whose jeep deceased Baby was taken to Periyar hospital initially, and thereafter to Medical College Hospital,Kottayam. According to this witness appellant No.1 had hired his jeep and taken it to the residence of Baby. He found that a cloth was wrapped on the head of Baby. PW5 stated that PW6 and Kunjumon had taken injured Baby to the Hospital along with PW3. This witness asserted that appellant No.1 did not accompany the deceased to the hospital. He stayed back stating that he would reach the hospital after taking cash. This witness disowned his statement to the police to the effect that he had seen blood stain on the shirt and dhoti of deceased Baby. This portion in his statement was marked as Ext.P11. He further stated that he had CRL.APPEAL. NO. 1528 OF 2005 11 not told the police that appellant No.1 had hired the jeep. He saw 3 to 4 injuries on the head of Baby. He was convinced that those injuries could not have been caused because of a fall. 15. PW6 deposed that he went along with PW5 in the jeep while deceased Baby was taken to the hospital. This witness also stated that appellant No.1 did not accompany them to the hospital. He saw 3 wounds on the head of Baby. He asserted that the above injuries could not have been caused because of a fall. 16. PW7 deposed that at about 9.30 pm on the date of incident PW2 had come to his residence asking for some water. This witness was also declared hostile. But he stated that PW2 had told him that she had heard a cry from the residence of Baby. But he did not hear any cry. In cross examination this witness asserted that Baby had not fallen in the quarry. He had seen Baby walking infront of his house at 5.30 pm. When he saw Baby at the Medical College Hospital on 13th July, he was not in a position to talk. 17. PW8 and PW9 are witnesses to Ext. P12 inquest report. CRL.APPEAL. NO. 1528 OF 2005 12 18. PW9 stated that he had remained with Baby (his uncle) at the hospital for about 4 days. He had seen the injuries on the head and face of Baby. This witness also asserted that appellant No.1 had not visited Baby in the hospital. 19. PW10 doctor attached to Periyar hospital had examined Baby when he was taken there at about 12.40 am. He examined Baby and issued Ext.P13 wound certificate. The following injuries were recorded by PW10 in Ext.P13. i) Blood all over the body. ii) Unconscious and restless iii) Lacerated wound left side of nose iv) Lacerated would left side of fore ahead v) Lacerated would scalp above and behind the left ear. vi) Lacerated wound on the back vii) Abrasions all over the body. This witness stated that alleged cause of injuries was due to a CRL.APPEAL. NO. 1528 OF 2005 13 fall from a height of about six feet. This information was furnished to him by somebody who accompanied the injured. This witness further stated that the injuries noted by him could not have been caused by such a fall and that he had not noted the size and shape of the wounds. 20. PW11 conducted autopsy upon the body of the victim and issued Ext.P14 post mortem certificate. The following ante mortem injuries were noted by the doctor in the certificate. i) Healing lacerated wound 4 x 3 x 1 cm, obliquely placed on the right side of the back of head, its lower inner end just outer to the mastoid process. ii) Healing lacerated wound 4 x 2 x 1 cm. on back of the left side of the head with its lower inner end 4 cm. outer to the prominance of the back of head. iii) Healing lacerated wound 2.5x2x1cm. on the left side of the forehead obliquely placed with its lower inner and was 6 cm. above the middle of eyebrow. CRL.APPEAL. NO. 1528 OF 2005 14 iv) Healing lacerated wound 5x3x1 cm. over the left parietal eminance. On dissection, the scalp tissue around the above injury No.1,2,3,4 showed contusion greenish black in colour. Fissured fracture 8 cm. obliquely on the left temporal bone which was seen extending downwards into the left middle cranial fossa and passing along the petrous part of the temporal bone and terminated in the pitutory fossa. Cribriform plate of the ethnoid bone showed comminuted fracture. Subdural haematoma 6x3x1 cm. seen on the right temporal region. Sub arachnoid space of the brain had diffuse haemorrhages. Under surface of the right temporal lobe of brain showed laceration 6x4x3 cm. with softening around and brownish pigmentation. v) Healing wound with adherent edges 2x1x0.5 cm. on the left side of the face just outer to the ala of CRL.APPEAL. NO. 1528 OF 2005 15 nose. vi) Healing wound covered with adherent scab over an area 6x0.5x0.3 cm. on the front of left side of the chest just below the middle of collar bone. vii) Abrasion 3x2 cm. on the tip of right shoulder. viii) Abrasion 4x3 cm. on the tip of left shoulder. ix) Abrasion 7x2 cm. on the outer aspect of right side of the abdomen 3 cm. above the prominence of hip bone. x) Abrasion 3x1.5 cm. on the outer aspect of left side of abdomen 4 cm. above the hip bone. xi) Multiple small abrasions over an area 3x4 cm. involving the front of right side of the chest and adjoining areas of the abdomen. It's upper extent being 17 cm. below collar bone. xii) Abrasion 3x2 cm. on the front of left leg 5cm. Below knee. CRL.APPEAL. NO. 1528 OF 2005 16 PW11 opined that death was due to head injury. In his chief examination he stated that injury Nos.1,2,3 and 4 would be sufficient to cause death in the ordinary course. Injury No.1 and 3 could have been caused by Mo2 hammer. Injury No.2 and 4 could have been caused by Mo1 iron pipe. Tip of iron pipe can produce injury Nos.5 and 6. Injuries 7 and 8 could have been caused by contact with a hard and rough surface. This witness asserted that all the 12 injuries could not have been caused by a single fall from a height. But if the injured happens to roll on a rocky surface, after a fall these injuries could be caused. But according to this witness such a possibility was much lesser. In cross examination the only question put to this witness was whether the injuries could have been caused if the victim falls on a rocky surface and rolls on thereafter. 21. PW12 is a witness to Ext. P15 scene Mahazar. PW13 is an attester to Ext.P16 recovery mahazer under which Mo2 hammer was CRL.APPEAL. NO. 1528 OF 2005 17 seized on the basis of the alleged statement given by accused No.1. This portion of the statement was marked as Ext.P16(a). This witness though admitted his signature in Ext.P16, stated that he did not see any recovery being effected. He could not say why he signed in Ext.P16. 22. PW14 was an attestor to Ext. P17 mahazar under which Mo1 iron pipe was seized. Ext.P17(a) is that portion of the statement on the basis of which Mo1 was allegedly recovered by PW18 investigating officer. This witness also did not support the prosecution case. However he admitted his signature in Ext.P17. According to him he put his signature at Pattumudi and not at the residence of Baby. He further admitted that he had signed Ext.P17 after it was read over to him. 23. PW15 Village Officer prepared Ext.P18 scene plan. PW16 had conducted investigation at the initial stage and PW17, as mentioned earlier, had registered Ext.P19 First Information Report. 24. PW18 conducted investigation of the case. According to CRL.APPEAL. NO. 1528 OF 2005 18 him he had arrested appellant No.1 on 10-8-1998. Mo2 hammer was recovered on the next day on the basis of the information furnished by appellant No.1, from his residence. Appellant No.2 surrendered before the police on on October 26, 1998. PW18 spoke about the various steps taken by him in the course of investigation, like preparation of scene mahazer holding of inquest, recovery of Mo3 and Mo4 series dresses etc.. 25. A scrutiny of the oral testimony of the material witnesses on the side of the Prosecution will undoubtedly show that some of them, particularly PW3 and PW4, were definitely trying to conceal the true facts from the court. It may be noticed that PW3 and PW4 did not have a case that they were not present in the house on the ill fated night when the alleged incident took place. The evidence of PW2,3,4 to 7 will undoubtedly show that some incident had taken place inside the house of deceased Baby on that night. PW2 who was the immediate neighbour stated that PW4 and appellant No.2 had come to her house and requested for some CRL.APPEAL. NO. 1528 OF 2005 19 water sometime during the night after she had already gone to sleep. She saw blood stain on the dress of PW4 and appellant No.2. She stated that she was upset on seeing the blood. But ofcourse she disowned this statement given before the police when she was examined in court. 26. The statement of PW4, mother of PW3 and appellant No.2 is more interesting. She admitted that there was a quarrel in the night. She further stated that Baby fell down on a heap of stone and sustained injuries. She further stated that she did not know anything about Baby falling in the quarry. She saw Baby lying on a heap of stones when she came back along with appellant No.2 after they had run away from the house. Baby was in a drunken condition. According to this witness Baby had hit appellant No.2 with a spoon on her head. She did not see Baby being hit with a hammer. Significantly this witness also admitted the presence of appellant No.1 in the house on that night. 27. PW3, second wife of the deceased is the other material CRL.APPEAL. NO. 1528 OF 2005 20 witness . According to this witness Baby had fallen in the granite quarry. She stated that she had gone in search of Baby to the quarry at 10 p.m and found him lying dead in the quarry. But she changed her version immediately and stated that Baby died on the way to the hospital. This witness also stated that the dead body was shown to PW2. This witness also admitted the presence of the appellants in the house at the crucial point of time. She further admitted that there was blood stain on the body of appellant No.2. Less said the better about the testimony of this witness. Suffice it to say that PW3 was deliberately trying to mislead and confuse the court by giving totally inconsistent versions. 28. We have already referred to the evidence of PW5 and PW6 a little earlier. PW5, jeep driver stated that he took injured Baby to the hospital along with PW3 and PW6. This witness also stated that he was convinced that the injuries found on the body of Baby could not have been caused by a fall. PW6 also spoke in the same lines. PW7 in his cross examination asserted that Baby did CRL.APPEAL. NO. 1528 OF 2005 21 not fall in the quarry. This witness was ofcourse declared hostile when he stated that he did not hear any cry from the residence of Baby. 29. The evidence of the above witnesses will reveal a common thread running through the entire prosecution case. The evidence will show that some untoward incident had taken place inside the house of Baby on that night. 30. Admittedly Baby was removed to the hospital with several injuries on his body. Baby was unconscious throughout, till his death. PW10, the doctor who examined Baby for the first time, stated before the court that the injuries which he noted in Ext.P13 could not have been caused by a fall. According to this witness he was informed by one of the persons who accompanied Baby that he had a fall from a height of six feet. If in fact Baby had a fall in the quarry, it cannot be believed that the other people in the locality would not have come to know about it. This story of a fall in the quarry was significantly spoken to only by PW3 and none else and CRL.APPEAL. NO. 1528 OF 2005 22 that too for the first time before the court. Even PW3 had a totally confusing and misleading version about the alleged fall and how the body of