IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 CRL.A.No. 1977 of 2005() ------------------------ SC.430/2002 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD .................... APPELLANT(S): ACCUSED: ---------------------- CHENNIYAPPAN, AGED 45 YEARS, S/O. ARUNACHALA KOUNDER, PULIYANKANDI, CHEMMANAMPATHI, MUTHALAMADA, CHITTUR. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA 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 15.10.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr.A. No.1977 OF 2005 ------------------------------------------------------------------ Dated 15th October 2009 Judgment Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.430/02 on the file of the Court of Additional Sessions Judge, Fast Track Court No.II, Palakkad. The prosecution case, in brief, is as follows : 2. The appellant, at about 12.45 pm., on 06.10.1998, attacked his younger brother Pazhaniswami, while he was standing in the eastern courtyard of a small Ganapathy temple situated at Chammanampathi, Anna Nagar of Muthalamada Village, using MO1 chopper. Pazhaniswami ran, to save his live. The appellant chased him, overtook him and inflicted multiple cut injuries on him, using the chopper. He came to the scene, in a gearless TVS Scooter. He, after the attack, mounted the scooter and travelled towards west, through the Main Road on the northern side of the above said Ganapathy Temple. At that time, his mother, Chellammal was coming back from a nearby milk society, carrying an empty milk can. The appellant caught hold of her hair and inflicted cut injuries on her neck. She fell down and died on the spot. The appellant, after committing the CRA 1977/05 2 crimes, made his escape. 3. PW1, who was residing on the eastern side of the Ganapathy Temple, witnessed these incidents. The neighbours, who assembled there, immediately took Palaniswami to the nearby hospital, but he was pronounced dead. PW1 laid Ext.P1 FI statement, which was recorded by PW25 SI of Police and Ext.P1(a) F.I.R. was registered by him. PW26, the C.I. of Police took over the investigation. He prepared Ext.P12 scene mahazar. He held inquest on the dead bodies of the victims and prepared Exts.P9 and P10 inquest reports. He arranged for the autopsy of the dead bodies. The autopsy was conducted by PW21 Doctor of the Medical College Hospital, Thrissur and Exts.P18 and P19 postmortem certificates were issued by him. The appellant was arrested on 09.10.1998. The CI of police recovered MO1 Chopper, allegedly used by the appellant, based on Ext.P23 confession statement made by him. He recovered the same under Ext.P13 mahazar in the presence of witnesses. The Investigating Officer completed the investigation and laid the charge for the offence under S.302 IPC against the appellant before the Judicial First Class Magistrate's Court, Chittur. The learned Magistrate committed the case for trial by the Sessions CRA 1977/05 3 Court, as the offence disclosed was exclusively triable by the Court of Sessions. The learned Sessions Judge made over the case to the Fast Track Court No.II, Palakkad for trial. 4. The appellant pleaded not guilty to the charge framed against him by the trial court. The prosecution, to prove its case, examined PW1 to PW26 and marked Exts.P1 to P28 documents. Material Objects 1 to 10 were produced and marked. While questioning under S.313 Cr.P.C., the appellant denied the allegations raised against him. From his side, DW1 was examined to show that it was in fact, Pazhaniswamy, who murdered Chellammal and he died at the hands of the infuriated mob, who assembled there. 5. The learned Sessions Judge, after hearing both sides, found the appellant guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.20,000/- and in default, to undergo rigorous imprisonment for a further period of six months. Feeling aggrieved by the conviction and sentence, the appellant has preferred this appeal. 6. We heard the learned counsel on both sides. The learned counsel for the appellant took us through the depositions of the witnesses and the documents produced in this case. He pointed out CRA 1977/05 4 that there were six witnesses to the occurrence i.e., PW1 to PW5 and PW12. All of them, except PW1, have turned hostile. Having regard to the deposition of PW1, it is quite unsafe to rely on his version and sustain the conviction. The learned counsel also pointed out that in his deposition before the court, PW1 has stated that there was no compound wall, dividing his property on the eastern side and the compound of the Ganapathy temple on the western side. But in the cross examination, he would admit that there was a compound wall, dividing their property. According to the learned counsel for the appellant, his evidence would show that he was standing on the northern side of his residential building in the roadside. So, going by Ext.P22 scene plan, it is not probable that he could have witnessed the alleged attack on Pazhaniswami, who was standing on the eastern side of the temple, i.e., on the western side of the property of PW1. Further, according to the prosecution, Pazhaniswami ran towards the south-west direction and fell down in a pathway. If that be so, what happened at the place, where the deceased fell down, could not have been watched by PW1. Even assuming the said witness has rushed to the place, where Pazhaniswami fell down, then, it is inherently improbable that he could have seen CRA 1977/05 5 Chellammal, coming from the Society, through the road on the northern side and the alleged attack made on her by the appellant. So, having regard to the lie of the land and the buildings available, as disclosed by the scene mahazar and the site plan, the version of PW1 cannot be believed, it is submitted. 7. Secondly, it is submitted that MO1 chopper was recovered from an open space where everyone had access. So, the probative value of that recovery is considerably eroded by the fact that it was recovered from an open space. Thirdly, it is pointed out that there is no material on record to support the allegation of motive put forward by the prosecution. According to the prosecution, there was a dispute in the appellant's family, regarding partition of properties and the same led to the brutal murders. Except the unreliable statement of PW1, there is nothing on record to prove the motive of the appellant to commit the crime. Finally, it is submitted that having regard to the facts proved, the defence version is more probable. PW2 and DW1 have stated that it was Pazhaniswami, who murdered Chellammal. The mob gathered there, manhandled him, in which incident, he sustained injuries and died. Therefore, the prosecution has failed to prove the involvement of the appellant beyond doubt, in CRA 1977/05 6 the murders of the aforementioned persons. So, the appellant is entitled to get acquittal, it is submitted. 8. The learned Public Prosecutor, on the other hand, pointed out that going by the scene mahazar and the other evidence on record, the Ganapathy Temple is at a lower level, when compared to the road on its northern side. If that be so, the road is at a higher level. Therefore, PW1 , who was standing on the northern side of the eastern courtyard of the temple, in the public road, could have definitely witnessed the attack made by the appellant on Pazhaniswami and from standing at the place, where Pazhaniswami fell, PW1 could have seen the attack made by the appellant on his mother. Further, on hearing the cries of Chellammal, PW1 and another rushed to the scene also. So, even if there is some minor contradictions or inconsistencies, the version of PW1 has the ring of truth. Having regard to the lie of the land, there is nothing improbable in his claim that he has watched both the incidents. The learned Public Prosecutor also submitted that there is no reason for the PW1 or the Police to falsely implicate the appellant and spare the real culprit. The learned Public Prosecutor further submitted that the trial court has rightly rejected the defence version and relying on the CRA 1977/05 7 deposition of PW1 and the recovery of MO1, rightly convicted the appellant. 9. In this case, the case of the prosecution is mainly supported by the evidence of PW1, who was residing near the scene of occurrence and therefore, he was a natural witness, who saw the commission of the crime. Regarding the existence of compound wall on the western side of his property, it would appear that there is some minor contradiction. But the scene mahazar, which is prepared contemporaneously proves beyond doubt that there is no compound wall separating the property of PW1 and the temple property, but, there was only a fence. So the suggestion of the defence that there was a compound wall of substantial height dividing the properties of the temple and that of the PW1 is unsustainable. Further, as rightly pointed out by the learned Public Prosecutor, the property of the temple was lying at a lower level and it means, the road was at a higher level. Therefore, a person standing in the road, could have watched the appellant, coming to the scene in a scooter, getting down from it, inflicting a cut injury on Palaniswami, chasing him and inflicting multiple injuries on him. The version of the said witness that he and another followed the appellant to the place, where the victim CRA 1977/05 8 fell down, is quite natural and there is no reason for us to disbelieve it. Regarding the second incident, the case of PW1 is that he heard a cry of Chellammal that she is being killed. Immediately, he, along with another, rushed to the spot and saw the incident. The version of the witness is that he saw the appellant mounting his scooter, riding westwards through the public road on the northern side of the temple, accosting the victim, his mother and attacking her. The materials on record would show that the road at that place is slightly at a higher level and so, there is nothing incredible in the version of PW1. Further, we find no reason for PW1 to falsely implicate the appellant. We equally find no reason for the Police to falsely implicate him. This is a village, where everyone knows whatever happens and it is inherently improbable that the police will foist a false case on an innocent person. In the absence of compelling materials to show that there was foul play from the part of the Police, we are inclined to believe that the official acts were done in this case properly and correctly. The unfounded suggestions of an accused, made to the witnesses, are not sufficient to sustain the case of the defence. In this case, contemporaneous records, including the F.I. statement lodged before the Station House Officer and the CRA 1977/05 9 registering of the crime, rule out the possibility of manipulation of the F.I.R. or false implication of a person, who is not involved in the crime. In this case, the chopper recovered at the instance of the accused under S.27 of the Evidence Act, has been identified by PW1 as the chopper, which was used by the appellant. The medical evidence also supports the case of the Prosecution. PW20, the doctor, who conducted the postmortem examination and gave P18 and P19 certificates relating to Pazhaniswami and Chellammal, has categorically stated that the injuries found on the deceased could be caused as suggested, i.e., they could be caused using MO1 chopper. The recovery of a material object from an open space, does not mean that the said recovery should be ignored. Whether it is reliable or not, will depend upon the facts of each case. In this case, we find no reason to disbelieve the version of the Prosecution that MO1 chopper was recovered, solely on the basis of the information furnished by the appellant. We notice that it was recovered from a place about 2 kms. away from the place of occurrence, hidden under a heap of peanut waste. 10. The final point argued by the learned counsel for the appellant is regarding want of proper proof of motive. For every CRA 1977/05 10 crime, there will be a motive. But in many cases, the Prosecution may not be able to prove it because it is buried deep in the chest of the perpetrator of the crime. Even in a case, where the offence is sought to be proved based on circumstantial evidence, the Apex Court has also held that the absence of sufficient proof of motive will not be fatal. In a case where the commission of the crime is proved through direct evidence of the witnesses, who have seen it, the absence of proof of motive is totally irrelevant. In the result, we uphold the view taken by the trial court and we find none of the grounds raised by the learned counsel for the appellant is sustainable in law. Accordingly, the Criminal Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta CRA 1977/05 11 CRA 1977/05 12