IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HON'BLE MR.JUSTICE P.Q. BARKATH ALI TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 CRL.A.No. 296 of 2007() ----------------------- SC.606/2005 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... APPELLANT(S): ACCUSED: ---------------------- MUNEER, S/O. KUNHAMMED, THODUVAYIL HOUSE, CHORODI AMSOM, MANGATTUPARA, VADAKARA. BY ADV. SRI.C.VATHSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTORSRI.M.S. BREEZE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: Crl.M. Application No. 1923 of 2007 V. RAMKUMAR & P.Q. BARKATH ALI. J J, ....................................... Crl. Appeal No. 296 of 2007 ........................................ Dated: 12-07-2011 JUDGMENT Ramkumar, J . In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the sole accused in S.C. No. 606 of 2006 on the file of the II Addl. Sessions Judge, Kozhikode, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 302 I.P.C. 2. The case of the prosecution can be summarised as follows:- The accused Muneer (then aged 28 years) is the youger brother of Noushad. Deceased Fousiya was the wife of Naushad and was aged 28 years on the date of occurrence. The wife of the accused is one Rahna. The accused has two Crl.A. No. 296 of 2007 -:2:- more younger brothers by name Siraj and Nizar. Their mother is P.W.2 (Aysha). All of them were residing at Thoduvayil House in Chorodu Village of Vadakara Taluk. Fousiya the wife of Noushad did not like the re-construction of the tarvadu house utilising the money sent from abroad by her husband. This led to an altercation between Fousiya and Rahna, the wife of the accused and Rahna had gone out of the tarvad house after the said altercation. The accused, therefore, nurtured a grudge against Fousiya. On 16-1-2005 at about 10.45 a.m. inside the kitchen of Thoduvauil House the accused on account of his previous enmity towards Fousiya inflicted a fatal cut on the neck of Fousiya with MO2 sickle. Fousiya who sustained fatal injury on her neck succumbed to the same on her way to the hospital. The accused who intentionally and knowingly caused the death of Fousiya has thereby committed an offence punishable under Crl.A. No. 296 of 2007 -:3:- Sec. 302 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the court below, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 14 witnesses as P.Ws 1 to 14 and got marked 13 documents as Exts. P1 to P13 and 9 material objects as Mos 1 to 9. 4. After the close of the prosecution evidence, the accused was examined under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He further submitted that what the prosecution alleges is something which he is incapable of doing and he was falsely implicated in the case at the instance of Shamsu (CW6). 5. Since this was not a case of no evidence, the learned Crl.A. No. 296 of 2007 -:4:- trial Judge did not record an order of acquittal under Sec. 232 Cr.P.C. The accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support there of. He examined three doctors as Dws 1 to 3 and got marked five witnesses as Exts. D1 to D5. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 22-01-2005 found the appellant guilty of the offence punishable under Sec. 302 I.P.C. After hearing him on the question of sentence, the court below as per order dated 24-01-2007 sentenced him to imprisonment for life and to pay fine of Rs. 10,000/- and on default to pay the fine to suffer rigorous imprisonment for one year with a direction to pay the fine amount as compensation to the legal heirs of the deceased. It is the said judgment which is assailed in this appeal. 7. We heard the learned counsel appearing for the Crl.A. No. 296 of 2007 -:5:- appellant as well as the learned Public Prosecutor. The only point which arises for consideration in this appeal is as to to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT:- 8. P.W.1 (Jabir) was the nine year old son of the deceased and the elder brother of the accused. He is the solitary occurrence witness. MO1 maxi of his mother and MO2 sickle with which the deceased was allegedly cut were marked through him. 9. P.W. 2 (Aysha) is the mother of the accused and mother-in-law of the deceased. She turned hostile to the prosecution and Ext.P1 series are her case diary contradictions. 10. P.W.3 (Reghunath) is a carpenter. He along with his father P.W.5 (Raghavan), CW8 (Achuthan) and C.W. 12 Crl.A. No. 296 of 2007 -:6:- (Rakesh) were engaged for the work of re-construction of Thoduvayil House. P.W.3 and his father allegedly came running hearing the cries of P.W.1. 11. P.W.4 (Ramakrishnan) is a witness of Ext.P1 scene mahazar prepared by the Investigating Officer. MO3 (broken piece of bloodstained tile) was marked through him. 12. P.W.5 (Raghavan), as mentioned earlier, is the faather of P.W.3 and at the time of occurrence he and the other workers were having tea. 13. P.W.6 (Abdul Kareem) is a witnesss to Ext.P4 inquest report by P.W.14. 14. P.W.7 (V.P. Kunhabdulla) is a witness to Ext.P5 seizure mahazar as per which MOs 2,4, and 5 found inside MO6 plastic cover were allegedly seized by the Investigating Officer in pursuance of Ext.P5 (a) confession said to have been made by the accused. According to the prosecution, Crl.A. No. 296 of 2007 -:7:- the seizure was from a coconut shed near the house of the accused. 15. P.W. 8 (Pavithran) is a photographer who was engaged for taking photographs of the deceased and the scene of crime. Ext.P6 series are the photographs and Ext. P7 series are the negatives. 16. P.W.9 (J. Sivan Pillai) was the Village Officer of Chorodu Village. He proved Ext.P8 scene plan. 17. P.W. 10 (Ponnappan Achari) was the Panchayath Secretary who had proved the ownership certificate dated 28-3-2005 to show that Thoduvayil house belongs to the late father of the accused. 18. P.W.11 (Sudhakaran) is a witness to Ext.P10 seizure mahazar prepared by the Investigating Officer for the seizure of Ext.P6 and P7 series of photographs and negatives. 19. P.W.12 (Balakrishnan) was the Sub Inspector of Crl.A. No. 296 of 2007 -:8:- Police, Vadakara who proved Ext.P3 F.I. statement given to him by P.W.5 and Ext.P3 (a) F.I.R. registered by him on the basis of Ext.P3 F.I. statement. 20. P.W.13 (Dr. Kishore Kumar) was the Medical Officer in the Department of Forensic Medicine, Medical College Hospital, Kozhikode. He conducted the autopsy on the dead body of Fousiya and prepared Ext.P11 postmortem certificate dated 17-01-2005. 21. P.W.14 (Sadanandan) was the Circle Inspector of Police, Vadakara . He held inquest over the dead body of Fousiya on 16-1-2005 from 12.45 p.m. to 3 p.m. and seized MO1 maxi, MO7 underskirt, MO8 brassier and MO9 underwear. P.W.14 claims to have arrested the accused at 4 p.m.on 16-1-2007 from Kainatty bus stop. At 630 p.m. on 16-01-2005 he inspected the scene of occurrence and prepared Ext.P2 scene mahazar. He seized MO3 blood Crl.A. No. 296 of 2007 -:9:- stained piece of tile from the scene of crime. On 17-01-2005 at 10.30 a.m. P.W. 14 prepared Ext.P5 seizure mahazar pursuant to Ext.P5 (a) confession statement given by the accused. The accused had allegedly confessed to P.W.14 that he had concealed the sickle, his T-shirt and black pants in a plastic cover in between the wall and the roof of the coconut shed situated near his house. Mos 2,4 and 5 are the above items of properties found inside MO6 plastic cover. Thereafter, P.W.14 prepared Ext.P10 seizure mahazar dated 21-1-2005 taking into custody of P6 and P7 series of photographs and negatives. He gave the original of Ext.P12 forwarding note requesting to forward Mos 1, 2,3,4 and 7 to the Chemical Examiner's Laboratory. Ext.P13 is the report of the chemical analysis to the effect that all the above items were found smeared with human blood. After the conclusion of investigation P.W.14 laid the final report before the Crl.A. No. 296 of 2007 -:10:- Magistrate. 22. DW1 (Dr. Ramdas) was the Assistant Surgeon, Beach Hospital, Calicut. He had treated the accused while he was in Jail. Ext.D3 medical certificate was marked through him. DW2 (Dr. Girija) did not treat the accused and the defence, therefore, did not pursue her examination. DW3 (Dr. Abdul Rahim) was the Neurologist attached to the Department of Neurology, Medical College Hospital, Kozhikode. He had examined the accused on 22-3-2005 . This witness was cited for proving that the accused always needs a walking stick for walking. He also proved Ext.D4 and D5 entries in the case sheet pertaining to the accused. 23. The learned counsel appearing for the appellant made the following submissions before us in support of the appeal:- P.W.1 the son of the deceased is a tutored witness. He Crl.A. No. 296 of 2007 -:11:- cannot be believed to convict the accused. This witness has been categoric that the appellant had cut the deceased while both of them were in a standing position and from her back holding the sickle in his right hand. Admittedly, the fatal injuries sustained by the deceased was on the left side of her neck. Going by the position of the deceased and the accused as stated by P.W.1 it will be impossible for the accused to inflict such an injury on the left side of her neck by cutting Fousia from behind with MO2 sickle. This solitary circumstance is enough to discard the testimony of P.W.1. P.W.5 has deposed before Court that when the police came to the house of occurrence at 5 p.m. on 16-01-2005 for preparing a mahazar, they had seized a sickle from the house. This witness was without any justification declared hostile during his re-examination. According to the prosecution MO2 sickle was actually seized only on 17-1-2005 as per Crl.A. No. 296 of 2007 -:12:- Ext.P5 mahazar allegedly pursuant to Ext.P5 (a) confession made by the accused. In paragraph 20 of the judgment of the trial Court that Court has rejected the recovery evidence adduced by the prosecution after noticing the testimony of P.W.5 to the effect that the sickle was taken into custody on 16-1-2005 itself. Moreover, there was absolutely no circumstance elicited from the testimony of P.W.5 so as to justify the prosecutor declaring him hostile. The decision reported in Rabindrakumar Dey v. State of Orissa - AIR 1977 SC 170 will clearly show that no case had been made out for declaring P.W.5 hostile. The recovery evidence adduced by the prosecution also cannot be believed for a moment. P.W.7 the independent witness examined by the prosecution to prove the recovery has categorically stated that it was after entering into the coconut shed that the accused took MO6 plastic cover containing MO2 sickle and MO3 Crl.A. No. 296 of 2007 -:13:- teeshirt and MO4 pants. But what Ext.P5 recovery mahazar states is that MO6 plastic cover containing the other Mos was taken by the accused from outside the coconut shed. In the face of such conflicting evidence the testimony of P.W.14 with regard to the recovery cannot be accepted. The prosecution has also not proved the specific motive alleged. The conviction entered and the sentence passed by the court below overlooking these vital aspects cannot be supported. 24. We are afraid that we find ourselves unable to agree with the above submissions made by the learned counsel for the appellant. 25. P.W.1 is the nine year old son of the deceased who has credibly proved the occurrence. He was examined by the trial Judge after ascertaining his testimonial competence through voire dire examination. This witness has given a graphic account of the manner in which his mother was cut Crl.A. No. 296 of 2007 -:14:- from behind by the appellant using MO2 sickle. It is true that the appellant is a physically handicapped person. He was formerly in the Gulf. He had an attack of cerebral hemorrhage pursuant to which his left side has been partially paralised. He was, therefore, having some disability with regard to his left hand and was walking about using a walking stick which he used to hold in his right hand. Going by the testimony of P.W.1 the accused cut his mother with the sickle held in his right hand. Admittedly, the fatal injury sustained by Fousiya was on the left side of her neck. It must be remembered that the weapon of offence is not a knife or a chopper or a sword having a straight blade. The weapon used here is a sickle having its blade curved in a semi circle. Hence, the situs of the injury will depend upon the exact part of the neck coming into contact with the tip of the blade of the weapon. The relative position of the injured at that moment also will Crl.A. No. 296 of 2007 -:15:- attribute to the nature of the injury. Hence, it cannot be said that an injury on the left side of the neck cannot be inflicted if the victim were to be cut from behind with a sickle held in the right hand. The medical evidence adduced through P.w.13 also lends support to the testimony of P.W.1. The trial judge who had seen the witnesses depose had the advantage of assessing the demeanor and such other features of the witnesses to come to the conclusion that the testimony of P.W.1 was credible enough to muster scrutiny . Sitting in appeal we do not find any circumstance justifying the rejection of his testimony. 26. P.W.2 Aysha, is undoubtedly the mother of the accused and the mother-in-law of the deceased. It was after hearing the screams of P.W.1 that she entered the kitchen. P.W.2 deposed that there was no difference of opinion or altercation between the deceased and the accused with regard Crl.A. No. 296 of 2007 -:16:- to the expenses incurred for the reconstruction of the Thoduvayil House. This was the testimony given by P.W.2 in her chief-examination. This was contradictory to her statement given to the police during investigation. She was, therefore, declared hostile and the prosecutor was permitted to put questions which might be put in cross-examination by the adverse party. Much strain is not necessary for us to conclude that P.W.2 was fitting neatly into the mould of an interested witness. She has demonstrated that blood is thicker than water. During her further examination by the Public Prosecutor she has confessed that children of Naushad , the elder brother of the accused had no sort of hostility towards the accused. If so, there is no reason why P.W.1 should give perjured evidence against his paternal uncle. P.W.2 has spoken about two earlier instances in which the accused who is hot tempered had pelted stones and Crl.A. No. 296 of 2007 -:17:- broken the window glasses of his neighbour who had lodged a case against him and also yet another instance in which he had beaten with a belt the mentally retarded younger sister of P.W.1. 27. P.W 3 is one of the carpenters engaged in the very same house for the re-construction. P.W.5, the father of P.W.3 was also among the workers so engaged. When the occurrence took place at 10.45 a.m. inside the kitchen of Thoduvayil house, P.W5 and other workers were just outside the house and having tea. It was at that time that P.W.3 heard the screams of P.W.1 to the effect that his uncle was cutting his mother. P.W.3 and others came running to the kitchen which was only 15 metres away from the spot where they were standing. On reaching the kitchen, they saw the deceased lying in a pool of blood and the accused , P.Ws 1 and 2 standing there. The accused was having a walking stick in Crl.A. No. 296 of 2007 -:18:- his left hand and a sickle in his right hand. No doubt, this witness would say that the accused used to walk holding the walking stick in his left hand. But from that alone it is not possible to hold that he was not speaking the truth, particularly when no sort of enmity or oblique motive is attributed to this witness. It was P.Ws 3 and 2 and one Mohammed took the deceased to the hospital. 28. P.W.4 (Ramakrishnan) is a witness to Ext.P2 scene mahazar prepared by P.W.14 at 6.10 p.m. on 16-1-2005. He admitted that the broken tile was taken from the slab. He further deposed that the accused had been taken into custody by the police in the morning itself. 29. P.W.5 (Raghavan) is the father of P.W.3. He is the person who lodged the F.I. statement before the Vadakara Police Station where P.W.12 was the Sub Inspector. He also substantially corroborated the testimony of his son P.W.3. All Crl.A. No. 296 of 2007 -:19:- of them had seen the deceased writhing in a pool of blood in the kitchen with an injury on her neck. The accused PWs 1 and 2 were seen in the kitchen and P.W.1 was crying aloud that accused had cut his mother with the sickle and the accused was holding the walking stick in his left hand and the sickle in his right hand. This witness also had admitted that the accused had suffered a set back while in the Gulf and his left hand is incapacitated. No doubt this witness deposed that when the police came to the house of occurrence at 5 p.m. for preparing the mahazar they had taken into custody a sickle. But this witness had not deposed that the sickle so taken into custody was MO2 sickle. But we find from paragraph 20 of the judgment of the trial court that the trial judge was labouring under a misconception that P.W5 had deposed that the sickle which was seized from the house was MO2. That perhaps induced the trial judge to discard the recovery evidence Crl.A. No. 296 of 2007 -:20:- adduced by P.W.14 and substantially corroborated by P.W.7 the independent recovery witness. It is also true that P.W.5 was declared hostile during his re-examination but it cannot be said that it was without any tangible reason. P.W.5 had deviated from his case diary statement and even to come out with a statement that the police had seized a sickle from the house at 5 p.m. on 16-1-2005. No doubt, the way in which the deposition is recorded does not make happy reading. But, going by the decision of the Apex Court in Bhagwan Singh v. State of Haryana - AIR 1976 SC 202 there was every reason for permitting the Public Prosecutor to treat P.W.5 hostile and cross-examine him. 30. P.W.7 (Kunhabdulla) is a witness to Ext.P5 seizure mahazar as per which on 17-1-2005 at 10.55 a.m. P.W.14 has seized MOs 2 and 4 to 6 pursuant to Ext.P5 (a) confession given by the accused. MO2 sickle , MO3 T-shirt and MO5 Crl.A. No. 296 of 2007 -:21:- pants were kept inside MO6 plastic cover which was seen kept in between the wall and the roof. There is no discrepancy with regard to the testimony of P.Ws 7 and 14 regarding the manner in which MO6 plastic cover was taken out by the accused. Ext.P5 seizure mahazar shows that MO6 plastic cover was found in between the wall and roof of the coconut shed as if they were kept from outside. There is no statement in Ext.P5 mahazar to the effect that the accused had taken out MO6 cover from the outside of the coconut shed where it was kept. Hence, there is nothing improbable in the testimony of P.W.7 who deposed that the accused took MO6 plastic cover from inside the shed. It was after leading the police party to the coconut shed pursuant to Ext.P5 (a) confession statement that the accused took the above material objects and handed over them to P.W.14. 31. As rightly observed by the learned trial judge, Crl.A. No. 296 of 2007 -:22:- even if the prosecution is not able to establish the motive alleged by it that will pale into insignificance if there is direct ocular evidence regarding the occurrence. It is well settled that motive is something which is known exclusively to the perpetrator of the crime and it seldom shows itself to others so as to be discernible to them. Motive locks itself in the mind of the accused and it need not necessarily be known to others. Hence, failure to prove the motive cannot be fatal in all cases particularly, when there is direct ocular evidence regarding the occurrence. We, therefore, did not find any infirmity in the conviction recorded by the court below against the appellant and the same is hereby confirmed. 32. The sentence imposed on the appellant is also lesser of the two penalties provided under Sec. 302 I.P.C. Hence the same also does not call for any interference. The result of the foregoing discussion is that this appeal Crl.A. No. 296 of 2007 -:23:- is liable to be dismissed and we do so, confirming the conviction entered and the sentence passed against the appellant. Dated this the 12th day of July, 2011. V. RAMKUMAR, JUDGE. P.Q. BARKATH ALI, JUDGE ani/