IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 CRL.A. No. 110 of 2006 --------------------------------------- SC.221/2003 of ADDL. SESSIONS COURT (ADHOC) I, KALPETTA .................... APPELLANT(S)/ACCUSED: -------------------- PAILYKUNJU, CONVICT NO.2507, CENTRAL JAIL, KANNUR. BY ADV. SRI.SAJEEV.T.P. RESPONDENT(S)/STATE: ---------------------- STATE OF KERALA. REPRESENTED BY THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.Appeal No.110 of 2006 ------------------------------ Dated this, the 19th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C.No.221 of 2003 on the files of the Court of Additional Sessions Judge (Adhoc)-1, Kalpetta. The trial court found him guilty of the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.50,000/-(Rupees Fifty Thousand) and in default to undergo rigorous imprisonment for two years. If the fine is paid or recovered, Rs.40,000/-(Rupees Forty Thousand) out of it shall be paid to PW.7, the widow of the deceased. 2. The prosecution case in brief is as follows:- The accused, the deceased (the son of the accused), PW.7 (wife of the deceased) and her children were residing in a house owned by the accused. The land in which the house was constructed belonged to the wife of the accused and the mother of the deceased. On 15.3.2003 the Crl.App. No.110 of 2006 - 2 - deceased was sitting on the steps in front of the said house. PW.7 was telling her prayers. While so, the accused asked the deceased to give him a large aluminium pot, available with the latter, for the purpose of distilling illicit liquor. The deceased did not concede to the said request. There was a quarrel. Initially, they were separated by PW.8, who is a person stated to be residing in the neighbourhood. After some time, again the quarrel started and the accused using MO.6 knife inflicted multiple stab injuries on the deceased. Hearing the hue and cry, PW.7 rushed to the scene from the room where she was praying and found the accused inflicting stab injury on her husband, the deceased. On seeing her, the accused threatened to kill her also. The frightened daughter-in-law retreated to her room and cried aloud, which brought the neighbours to the scene. On finding the injured profusely bleeding, a jeep was called and he was taken to the nearby Government Hospital, Mananthavady, where the doctor who examined him pronounced him dead. PW.8, at about 1.00 a.m. in the night, lodged the first information and based on that PW.15, the Sub Inspector Crl.App. No.110 of 2006 - 3 - of Police registered the crime. PW.17, the Circle Inspector of Police took over the investigation. He examined the body of the deceased, prepared Ext.P1 inquest report. As per the inquest report, he has seized the dress and other belongings found on the body of the deceased. He has sent the body for autopsy. Later, he visited the scene, prepared the scene mahazar and seized the relevant materials found there. He questioned the witnesses, arrested the accused on 16.3.2005 itself and recovered MO.6 knife, used for the commission of the offence, from the accused. He sent the relevant materials for analysis to the Forensic Science Laboratory. He completed the investigation and laid the charge before the Judicial First Class Magistrate's Court, Mananthavady. The learned Magistrate, after completing the formalities, committed the case for trial by the Sessions Judge, as the offence disclosed was exclusively triable by a Court of Sessions. The learned Sessions Judge, in turn, made over the case to the Additional Sessions Judge (Ad hoc) I, Kalpetta. 3. The accused pleaded not guilty to the charge Crl.App. No.110 of 2006 - 4 - framed by the trial court. The prosecution, to prove its case, examined PWs.1 to 19, marked Exts.P1 to P13 and produced MO.1 to MO.11, material objects. From the side of the defence, Exts.D1 to D3 were marked, which were respectively the relevant portions of the inquest report, remand report and relevant portion of the statement of PW.6, recorded under Section 161 Cr.P.C., which was at variance with his statement before the Court. While questioned under Section 313 Cr.P.C., the accused denied the circumstances in the evidence against him. The trial court after hearing both sides, found the appellant/accused guilty of the offence under Section 302 I.P.C. and sentenced him as mentioned earlier. 4. Challenging the conviction and sentence, the accused has preferred this appeal. The learned counsel for the appellant took us through the depositions of the witnesses and referred to the relevant documents. The learned counsel submitted that the deposition of PW.7, the wife of the deceased and the daughter-in-law of the accused, cannot be Crl.App. No.110 of 2006 - 5 - believed. The deposition of PW.8, Sukumaran, who is stated to be a person residing in the neighbourhood, is equally unreliable, it is submitted. The learned counsel for the appellant further pointed out that the recovery of MO.6 weapon from the accused does not inspire confidence. The relevant mahazar would show that there were blood stains on MO.6 knife, but there were no blood stains on the clothes worn by the accused at the relevant time of his arrest. At any rate, the clothes were not seized or sent for analysis. Further, regarding the time of recovery, the versions of PW.5 and PW.18 are diametrically opposite. According to PW.5, the recovery was made at 10 a.m. on the same day, whereas, PW.18, who was examined after a few days, has stated that the recovery was made at 5 p.m., which is in tune with the case of the prosecution. It appears, to fill the lacuna in the version of PW.5, PW.18 has been tutored and examined, it is submitted. The recovery of MO.7 kerosene lamp under Ext.P2 mahazar is not admissible in evidence and cannot be relied on against the accused. The size of injury Nos.3 and 4 Crl.App. No.110 of 2006 - 6 - in Ext.P5 post mortem certificate does not tally with the description of MO.6 knife contained in Ext.P3 seizure mahazar. The learned counsel also pointed out that the appellant is aged and infirm and he cannot move around without the help of a walking stick. This submission is made based on the presence of a walking stick in the room of the accused, mentioned in Ext.P10. To support this submission, reliance is also placed on his statement made before the Court, while he was given a chance to make his submission on the punishment. Finally, it is pointed out that the motive alleged for the commission of the offence cannot be correct. When the house was searched, no such large aluminium pot was found there. 5. We heard the learned Public Prosecutor for the State. He supported the judgment under appeal and submitted that based on sound reasoning, the trial court has found the appellant guilty. Crl.App. No.110 of 2006 - 7 - 6. From the evidence of PW.11, the doctor who conducted autopsy and issued Ext.P5 post mortem certificate, it is clear that death of Johnson, the deceased, was homicidal. The next point to be considered is, who has committed the crime. The incident took place at 10 p.m. on the night of 15.3.2003. There was no one else in the house other than the victim, the accused, the victim's wife and one child. Hearing the cries of her husband, PW.7 rushed to the scene and found the accused/appellant inflicting stab injury on her husband. When she rushed to the scene, she was also threatened with death by the accused by waving the knife. So, she has to rush back to her room and to cry out to attract the attention of neighbours. Thereupon, the neighbours came running to the scene. The incident that happened thereafter is not seriously disputed by the defence and cannot be disputed also. So, the point to be considered is whether the version given by PW.7 should be believed or as tried to be suggested by the learned defence counsel, somebody came stealthily and inflicted the injuries. To impeach the version of Crl.App. No.110 of 2006 - 8 - PW.7, the learned counsel pointed out that, a close reading of her evidence would show that she has seen the infliction of only one stab injury. But, on the body of the victim, there were four stab injuries. So, her version does not tally with the medical evidence, it is submitted. 7. But, we think, none of the contentions raised by the appellant to impeach the credibility of PW.7, can be accepted. We notice that the deceased was her husband. The wife will be the last person to spare the real culprit and to falsely implicate an innocent man for the murder of her husband, especially her own father in law. Admittedly, PW.7 came to the scene on hearing the cries of her husband. That means, some of the stab injuries must have been inflicted before she reached the scene. Therefore, necessarily she did not see the infliction of all the wounds. Therefore, it cannot be said that, her version does not tally with the medical evidence. Further, it is inherently improbable that the said witness would conspire with all the neighbours who came there and also influence the police to spare the real culprit Crl.App. No.110 of 2006 - 9 - and to falsely implicate her father-in-law. So, even if there are minor discrepancies or contradictions in the statement of PW.7, we have no reason to disbelieve her version, that she saw the accused inflicting stab injury on her husband. The case of the prosecution is further corroborated by the medical evidence and the depositions of other witnesses, who also reside in the neighbourhood. Therefore, the criticism levelled by the appellant against the credibility of the evidence of PW.7, cannot be accepted. Same is the case regarding the version of PW.8. He came to the scene immediately after the occurrence, like few other witnesses also. His role was in taking the injured to the hospital. Therefore, the credibility of PW.8 or lack of credibility will not have any impact on the outcome of the case. Regarding the recovery of MO.6 knife, the criticism raised have already been noticed by us. If the dress of the accused was seized and the same was also sent for chemical analysis, it would have been better, but the lapses on the side of the investigating officer cannot be a ground for throwing out the case of prosecution. MO.6 knife Crl.App. No.110 of 2006 - 10 - has been identified by PW.4, the son of the accused and also PW.7, who is admittedly residing with him in the same house. The witnesses have spoken that he was always carrying that weapon while going around. The medical evidence also go with the case of the prosecution that injuries could be inflicted with MO.6 knife. Regarding the size of injury Nos.3 and 4, the learned counsel for the appellant made certain submissions, which we have already mentioned. According to him, the size of the injury is larger when compared to the size of the blade of the weapon. But, if the hand shakes when the stab is inflicted, and when the knife is withdrawn, the size of the mouth of the injury can be larger than the size of the blade of the weapon. There is nothing unusual about it. Pointing out the age of the accused, it was contended that such an old person could not have inflicted the said injuries. The accused was aged 76 at the time of occurrence. Persons aged 76 can be quite healthy and nothing has been brought out on record to show that he was infirm and weak and could not have inflicted such heavy blows. The criticism regarding motive is Crl.App. No.110 of 2006 - 11 - also irrelevant in this case, as the crime is sought to be proved based on the direct evidence of PW.7. The apparent conflict between the versions of PW.5 and PW.18, regarding the recovery of the weapon also does not affect the case of the prosecution that it was the accused who committed the crime. If the case was sought to be proved based on circumstantial evidence only, then the recovery being one of the links, conflicting versions may have some bearing. But, in this case, we are of the view that the said conflict in the versions of two witnesses has, in no way affected the credibility of the prosecution case. In the result, we find no reason to interfere with the judgment of the court below. Accordingly, the Criminal Appeal fails, and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)