IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.A.No. 1706 of 2005(C) ------------------------- SC.114/2001 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CP.62/2000 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... APPELLANT: -------------- SALI MOSES, S/O.DANIAL MOSES, C.NO. 8994, C.P.TVM. 12. BY ADV. SREEPRAKASH K. NAIR [STATE BRIEF] RESPONDENT: --------------- STATE OF KERALA, REP. BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR, SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ---------------------------------------- Crl.Appeal. No.1706 OF 2005 ---------------------------------------- Dated this the 25th day of September, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.114/2001 of the Court of Additional Sessions Judge-I, Mavelikkara. He stood charge sheeted by the Circle Inspector of Police, Kayamkulam, for having caused the death of Sri. A.K.John, who was running Lauback Literacy Trust in Chingoli Panchayat. According to the prosecution, the appellant was in the habit of asking the deceased to give him money. Occasionally, he used to give money. But, when the amounts demanded were high, he declined to oblige. Infuriated by that on 23.10.1999 between 8.45 and 9.a.m, the appellant entered the office of the deceased, attacked him using a knife and inflicted fatal injuries, which caused the death of the said A.K.John. Thereafter, the appellant went out from the office. He carried the knife covered in a newspaper. The dead body of Crl.A.No.1706/2005 2 Sri.A.K.John was noticed by his driver, Vavachan, PW7, who in turn informed the son of the deceased, PW1. Ext.P1 F.I.Statement was lodged by PW1 and based on that information PW14 registered Ext.P1(a) First Information Report. PW15, Circle Inspector of Police, at the relevant time, held the inquest, questioned the witnesses, arranged for postmortem examination of the body etc. He arrested the accused on 26.10.1999 and based on the information furnished by him recovered his pants, MO1 and shirt, MO2, worn at the time of commission of the offence. MO4 knife was also recovered in the presence of the witnesses, based on the confession statement of the accused. PW16 verified the draft charge sheet and filed the final report before the Judicial First Class Magistrate Court, Kayamkulam. The learned Magistrate committed the case for trial by the Sessions Court as the offence disclosed was exclusively triable by a Court of Sessions. 2. Before the trial court, the appellant pleaded not guilty to the charges. From the side of the prosecution to prove its case, PWs 1 to 16 were examined. Exts.P1 to P21 were marked. Crl.A.No.1706/2005 3 MOs1 to 24 were produced and marked. A Psychiatrist, who treated the accused, was examined as court witness. From the side of the defence, D1 to D6 were marked, which proved the contradictions in the deposition of the prosecution witnesses with reference to their CD statements. 3. The learned Sessions Judge, after hearing both sides, found the appellant guilty of the offence under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for two years more. Feeling aggrieved by the conviction and sentence passed against him by the trial court, the appellant has preferred this appeal. 4. We heard Sri.Sreeprakash K.Nair, State Brief, for the appellant and Sri.Noble Mathew, learned Public Prosecutor for the respondent State. The learned counsel for the appellant took us through the depositions of the witnesses and submitted that there are several material contradictions in the deposition of the witnesses, who claim to have seen the appellant going inside the Crl.A.No.1706/2005 4 office room of the deceased and coming back from there. In view of those contradictions, their version lacks credence. Therefore, it is quite unsafe to convict him based on their version. Further, it is pointed out that the appellant used to visit frequently the house of the deceased and therefore, there is nothing unusual in having seen the appellant going to the office of the deceased or coming out from there. Therefore, the learned counsel for the appellant claimed the benefit of doubt and sought acquittal on that ground. 5. The learned Public Prosecutor, on the other hand, submitted that at about 8.45 a.m. PW7 saw the deceased going to his office in the second floor of the office building. When he came back after going to the post office to collect the postal articles the said witness found the deceased lying in a pool of blood. At the relevant time, the only person, who entered the office room, was the appellant. No one else could have come and gone away unnoticed. Therefore, the said circumstance is a clinching circumstance, which will prove the guilt of the accused. The medical evidence and the F.S.L. Report furnished Crl.A.No.1706/2005 5 by the Forensic Science Laboratory corroborate the above version of the prosecution, it is submitted. 6. We considered the rival submissions made at the Bar. From the evidence of PW10, the doctor who conducted the postmortem examination, Mr.John died of the injuries suffered on his neck. His evidence including the certificate issued by him would prove beyond doubt that death of Mr.John was homicidal. The next point to be considered is, who committed the crime. PW7, the driver of the deceased, would swear that he dropped Mr.John in front of his office at about 8.45 a.m. He watched him going to his office in the second floor of the building of the trust, of which the deceased was the Director. When he came back, at about 9.30 a.m., he found Mr. John was lying in a pool of blood motionless. He immediately informed his son, PW1, who was a doctor, who rushed to the scene, examined the injured and found that Mr.John was already dead. So, the evidence of PW7 would show that the death took place between 8.45 a.m and 9.30 a.m. We notice that PW2 and PW3 have deposed before the court that they found the appellant going to the office room of the deceased Crl.A.No.1706/2005 6 at the relevant time. PW2 further added he also found the deceased coming out after about 15 minutes, waved at him and walked away. The deposition of PW3 also substantially corroborates the said version. PWs4 and 5 would swear that they saw the accused coming out from the office of the deceased at about 9.30 a.m. PWs 6 and 8 have also noticed the presence of the appellant in the neighbourhood on the relevant date at the relevant time. Though those witnesses were subjected to searching cross-examination, nothing was brought out to discredit their version. Further, we find no reason why they should falsely implicate the appellant. Except the bald suggestion that the witnesses were giving evidence as desired by the family of the deceased, nothing was brought on record to show that they have any axe to grind against the appellant and therefore, they have given false evidence. We believe the versions of the above witnesses that the appellant has entered the room after 8.45a.m. and came out from there before 9.30a.m. Then the irresistible inference that can be drawn is that it was the appellant, who committed the murder of the deceased. The above view is further fortified by the recovery of the knife Crl.A.No.1706/2005 7 used for the crime and also the dress worn by the appellant, MO1 and MO2, at the relevant time. The appellant was found washing his clothes in MO3 bucket. In the chemical analysis, the MO1 pants, MO2 shirt and MO3 bucket were found to contain traces of blood. MO4 knife also contained traces of blood. 7. The above facts thus further fortified the view that it was the appellant alone, who could have committed the murder. The witnesses, who have seen him going inside and coming out, also deposed that he was found carrying something covered in a paper. The same supports the case of the prosecution that the appellant after commission of the crime carried the weapon with him and hid it in his house. 8. Though the case is sought to be proved based on circumstantial evidence only, we think that the circumstances proved in this case are sufficient to hold that it was the appellant, who committed the crime. The possibility of someone else committing the crime has to be ruled out, as it was impossible for someone else to stealthily come to the scene Crl.A.No.1706/2005 8 between 8.45a.m. and 9.30a.m. unnoticed, commit the crime and make his escape. We notice that the learned counsel for the appellant tried to make out a case based on absence of proper proof of motive. As we have already noticed in the earlier part of the judgment, the case of the prosecution was that the appellant was demanding money frequently from the deceased and because the deceased declined to oblige him always, he was harbouring ill-will towards him. It may be pointed out that for a normal man the same is insufficient to commit a murder. But, it is not easy to decipher how the mind of perverted persons work and further the materials on record otherwise point unerringly to the guilt of the accused. Even if, there is absence of proof of motive, the same is not fatal to the prosecution. There must be motive for murder. But, in certain circumstances, it may not be possible for the prosecution to prove it. It is a settled position in law that such absence of proof of motive will not weaken the prosecution's case, if all other circumstances unerringly point to the guilt of the accused. Crl.A.No.1706/2005 9 In view of the above position, we find it difficult to accept the contention of the learned counsel for the appellant that because of the minor contradictions in the depositions of the witnesses, the appellant is entitled to get the benefit of doubt. In the result, the Criminal Appeal fails and it is accordingly dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.BHAVADASAN, JUDGE) ps Crl.A.No.1706/2005 10 K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. =========================== Crl.A.NO.1706/2005 =========================== JUDGMENT DATED 25TH SEPTEMBER, 2009 ==============================