IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 CRL.A.No. 240 of 2005 ----------------------- SC.47/2000 of THE COURT OF THE ADDL.DIUSTRICT AND SESSIONS JUDGE (ADHOC)NO.II MANJERI. .................... APPELLANT: ----------- 1. IYYALIL JOSEPH @ THANKACHAN, S/O.VARGHESE, PANNIYAMPADAM VILLAGE, PULIYAMPALLY, MUNDOOR, PALAKKAD DISTRICT. 2. IDYVETTIYANIKKAL AGASTY @ BABY, S/O.MATHAYI, VALLICHIRA VILLAGE, VALAVOOR DESOM, PALA, KOTTAYAM. BY ADV. SRI.DEEPU THANKAN SMT.P.MAYA RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.A.NO.240 OF 2005 ============================ DATED THIS THE 6TH DAY OF AUGUST 2008 JUDGMENT Balakrishnan Nair,J. The appellants, who are the accused in S.C.No.47/2000 on the file of the Additional District & Sessions Court (Adhoc-II), Manjery, have come up in appeal feeling aggrieved by their conviction and sentence imposed on them for the offences under Sections 341 and 302 read with Section 34 of the Indian Penal Code. 2. The brief facts of the case are the following:- On 13-3-1993, Kunjumon @ Antony along with PW2, Sajini, were proceeding through the Neelamkuzhi - Pariyapuram Panchayath road. They were going to supply milk to their customers. They were neighbours. While so, accused 1 and 2, who were following them, suddenly attacked Kunjumon. Accused No.1 used a chopper and accused No.2 used a dagger. The first accused cut CRL.A.NO. 240//2005 :-2:- at the neck of Kunjumon and the second accused stabbed on his chest. On hearing the cries of Kunjumon, PW2 turned back and saw the incident. She cried and ran away and told about the incident to PW4. PW4 along with a few others came running. On seeing them, the accused ran away. Those persons who came running took the injured Kunjumon to the nearby road so that they could catch a vehicle to take him to the hospital. By the time he was taken to the nearby road, he breathed his last. PW4 informed the incident to PW1, who lodged Ext.P1 F.I.statement before the Sub Inspector of Police. The Circle Inspector of Police, Perinthalmanna, PW12 took over the investigation. He held the inquest and prepared the inquest report. He arranged for conducting post mortem examination and PW13, Doctor, who conducted the autopsy and issued Ext.P18 certificate opined that the death was caused due to the injuries on the neck and chest. He questioned the witnesses and sent the material objects for chemical examination. By the time, the investigation was over and he was transferred. PW14, who CRL.A.NO. 240//2005 :-3:- took over the investigation laid the charge before the Judicial First Class Magistrate, Perinthalmanna. 3. The learned Magistrate committed the case for trial to the Sessions Court, Manjeri. It was made over to the Additional District & Sessions Judge, Adhoc No.II, Manjeri for trial. 4. The accused pleaded not guilty to the charge framed against him. From the side of the prosecution, PWs.1 to 14 were examined and Exts.P1 to P20 were marked. Material Objects, Mos.1 to 15 were produced and marked. From the side of defence, Exts.D1 to D3 were marked. Exts.D1 and D2 were the portions of the statements of PW3 recorded by the police under Section 161 Cr.P.C. Those statements are at variance with what the witness has spoken before the court. Ext.D3 is the portion of inquest report containing the statement of PW4. When the accused were questioned under Section 313 Cr.P.C, they denied the incriminating circumstances that appeared against them. The learned Sessions Judge, after hearing both sides, found both the accused guilty of the offences charged and they were sentenced CRL.A.NO. 240//2005 :-4:- to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for one year for the offence under Section 302 I.P.C. They were also sentenced to undergo simple imprisonment for a period of one month for the offence under Section 341 I.P.C. 5. The aggrieved appellants have challenged their conviction and sentence in this appeal. The learned counsel for the appellants submitted that the entire case of the prosecution is founded on the deposition of PW2. The version of PW2 is quite unreliable, it is submitted. The very presence of PW2 at the scene of occurrence is doubtful as her name is not mentioned by PW1 in the F.I. statement, Ext.P1. The case of the prosecution is that PW2, who witnessed the incident, told about it to PW4 and PW4 in turn told the same to PW1, the brother of the deceased. Normally PW1 must have asked PW4 as to whether PW2 has witnessed the incident. Therefore, PW1, while lodging the F.I. statement, would have mentioned the name of PW2, if the above case of the prosecution is correct. CRL.A.NO. 240//2005 :-5:- Since her name is not mentioned in the F.I.S., the presence of PW2 at the scene of occurrence as claimed by the prosecution is doubtful, it is submitted. PW2 was only a girl aged about 13 years at the time of the incident. It is inherently improbable that she remembers all the details and she has even identified weapons which she has seen from a distance while they were being used by the accused. So, her evidence given after a lapse of 11 years cannot be believed. She has also stated in her cross examination that on hearing the cries of Kunjumon, she ran away. She admits, she is a timid girl. Therefore, the details of the incident spoken to by PW2 cannot be believed. The learned counsel for the appellants finds fault with the prosecution for non examination of CW4, who is the husband of PW3 and also CW6, Babychan who was present in the house of PW3, who saw the deceased, accused and PW2 passing through the Panchayath road in front of her house. Several persons came running to the scene along with PW4. None of them other than PW4 was examined. The non-examination of the above material CRL.A.NO. 240//2005 :-6:- witnesses will cast serious doubt on the genuineness of the prosecution case, it is submitted. The learned counsel also submitted that the dagger recovered, which was allegedly used by the second accused to stab the deceased did not contain any human blood. His clothes also did not show blood stains in the chemical examination. So, there is nothing to corroborate the version of PW2 as far as the second accused is concerned, it is submitted. 6. We heard the learned Public Prosecutor for the State also. He submitted that the non-mentioning of the name of PW2 in the F.I. statement will not have any effect on the veracity of the prosecution case. The witness need not state everything he knows while lodging first information statement. The capacity to memorise the incident of a 13 year old girl cannot be doubted. The children will definitely remember such instances vividly, it is submitted. It is clear that she has witnessed the cut made by the first accused using the chopper and the stabbing done by the second accused using a dagger. CRL.A.NO. 240//2005 :-7:- For proving some point, it is unnecessary to examine more than one witness. If the evidence of PWs.3 and 4 could be believed, the same cannot be discarded for not examining some more witnesses to prove the very same point, it is pointed out by the learned Public Prosecutor. 7. Before referring to the contentions raised by both sides, we will now refer to the evidence of the witnesses briefly. PW1 is the elder brother of the deceased Kunjumon @ Antony. On coming to know of the incident in which his brother was killed at 7.45 a.m.on 13-3-1993, he went to the police station, Perinthalmanna and lodged the F.I. statement. He stated that Thankachan @ Joseph and his brother-in-law Baby were the accused, who killed his brother by cutting and stabbing. On knowing about the incident, he rushed to the scene of occurrence. He collected the details from Appachan @ Joseph, PW4. He gave the statement at 8.45 a.m. and the F.I. statement was marked as per Ext.P1. He has also spoken about the motive for the murder. He said the tapioca which was CRL.A.NO. 240//2005 :-8:- spread by the first accused for drying on a rock was eaten by the cow of Kunjumon. There was some quarrel between them regarding that incident. The same was the motive for the incident. He was cross examined by the defence but nothing has been brought out to discredit his testimony. 8. PW2 is the only witness, who has witnessed the occurrence. She has stated as follows: Her house is at Pariyapuram. She knew the deceased Kunjumon. They were neighbours. The incident in which Kunjumon died took place on 13-3-1993. On that day she saw Kunjumon at 6.45 a.m. in the morning. She saw Kunjumon carrying milk. She used to take milk to the house of Joy at the eastern Junction. She used to go along with the deceased at the relevant time. She was studying in the VIII Standard. Some portion of her route is without any human habitation and therefore, she used to go along with Kunjumon for giving milk. On her way, she saw Thomaskutty (CW3), Lillykutty(PW3) and Karivetty Baby. Lillykutty is called Rosamma also. Thankachan and Baby (A1 and A2) were CRL.A.NO. 240//2005 :-9:- following them. She knew Thankachan very well. She asked Kunjumon, who was the other person accompanying Thankachan. Kunjumon told her that he is the brother-in-law of Thankachan. At the relevant time, Thomas and Rosamma were standing in their courtyard. CW6 Baby and CW3, Thomas, came out from the house. Kunjumon talked to CW6 Baby. While so, she went ahead. Behind her, there was Kunjumon and also the two accused. When she reached Neelamkuzhi area, she heard a cry “please come, I am being killed”. She turned back. It was Kunjumon who was crying. She saw the accused lifting Kunjumon and throwing to the bushes. Kunjumon fell down. There were a basket and a can of milk in the hands of Kunjumon. They fell down. The first accused using chopper in his hand attacked Kunjumon several times. The second accused Baby took the dagger and stabbed him several times. On seeing this, she became scared and she ran away. She ran crying out Kunjumon Chettan is being killed. On hearing this, PW4 and a few others came running there. She ran away and went to the shop of CRL.A.NO. 240//2005 :-10:- Varghese. PW4 along with Rosy, Reji, Sunil and Tomy carried Kunjumon to the nearby road. Kunjumon was bleeding and the blood spread into his shirt and dhothi. People said Kunjumon died. PW4 asked about the details. She told him that it was the accused who killed Kunjumon by cutting and stabbing. PW4 (Appachan) later went to Neelamkuzhi direction. She proceeded to the house of Joy and gave milk. Joy asked her what is the reason for the hue and cry. She told Joy that Kunjumon was killed. Thereafter she went to the place where the dead body was lying. Some persons were assembled there. PW4 came there. She told that Kunjumon was killed by the accused. She narrated the details to PW4. Thereafter, she went home. Later, she pointed out the place of incident to the police. The police questioned her and her statement was recorded. It was after eight days from the date of incident. She can recognise the chopper and dagger. She identified MO.1 chopper and MO.2 dagger. She also spoke about the dress worn by the accused. She identified the accused, who were in the dock. In the cross CRL.A.NO. 240//2005 :-11:- examination, she has stated as follows: The scene of incident is at a distance of 100 metres away from her house. The distance between the scene of occurrence and Kunjumon's house will come to about one kilo metre. The distance to Joy's house where she gives milk will come to ½ kilo metre from the scene of occurrence. She took about 15 minutes to reach the scene from her house. The distance between the scene of occurrence and the place where the dead body was laid will come to ¼ kilo metre. Kunjumon talked to Baby in front of the house of CW3, Thomas. The incident happened at a place which is at a distance of ¼ kilo metre from there. The nearest house from the scene of occurrence is that of Thresiamma, Thirumattamkulam. It is on the eastern side of the place of incident. The distance between the place of incident and her house will come to 100 metres. The next house is that of Anto. That is also on the eastern side of the place of the incident. The distance between these two houses will come to 25 metres. People are residing there. The place where there is wild bush is at a distance of ½ CRL.A.NO. 240//2005 :-12:- kilo metre. The bushes were having a height of 4.75 feet. When Kunjumon stopped to talk to Baby, she was not afraid to go ahead alone. She walked a distance of 4-5 metres. After their talk, Kunjumon was coming behind her. She did not see Baby thereafter. She does not know where Baby went after talking to Kunjumon. They talked for only 1 or 2 minutes. The two accused were standing near to them. She did not hear the accused talking to Baby. The accused were walking behind Kunjumon. They were walking at a distance of 4-5 metres behind the witness and Kunjumon. She does not remember whether she has stated about this before the police. Kunjumon did not tell her that the accused were harbouring ill-will towards him. Initially she did not hear any sound from behind. The incident happened within one minute after the conversation with Eapen @ Babychan was over. On hearing the Kunjumon crying, she was scared. On hearing it, she ran away. She is a timid girl. To a specific question whether on hearing the cries of Kunjumon, anyone came to the scene of occurrence, she CRL.A.NO. 240//2005 :-13:- answered in the negative. No one came running. Kunjumon was thrown into the bush. It was before cutting and stabbing him. She saw Kunjumon falling into the bush. Both the accused used force and Kunjumon fell into the bush. The accused used their hands to push Kunjumon and to make him fall down. This was done while she was walking. She saw both the accused pushing Kunjumon when she looked back. She did not see the accused catching and holding Kunjumon. She does not remember whether she has stated to the police that the accused caught hold of him. The bushes were growing by the side of the pathway. There was a wooden stump having a height of 2/3 feet in the neighbourhood. Kunjumon fell down at a distance of about 5 metres from her. She did not see any specific sign on the chopper or the dagger. She can recognise those weapons. She was asked whether she has seen any peculiarity for the chopper. She answered in the affirmative. She said the size of the chopper is the same as of the one she has in her house. She can recognise the chopper. The knife used was having the CRL.A.NO. 240//2005 :-14:- appearance of a dagger. She saw the accused cutting and stabbing several times. She cannot say how many times the same was done. She know the house name of Thankachan(A1) as “Mulanthanathil” from her father. She did not see anyone else. She reached the shop of “Kuttiadichettan”. Kunjumon was crying in a loud voice. He did not mention about the names of persons who attacked. Mr. Joseph was not there in the shop of Kuttiadichettan. On reaching the said shop, she told all persons present there what has happened and thereafter she ran away. A question was put to her whether after the incident she ran, crying out somebody is killing Kunjumon. She answered in the negative and added that she told the persons assembled in the shop the names of assailants. At that time PW4 was present there. She has told about the incident on her own volition. It is not correct to say that she told about the incident because PW4 asked her. She does not remember whether she has told the police that she narrated the incident on being asked by PW4. If the police has recorded like that then it must be correct. The CRL.A.NO. 240//2005 :-15:- members of her family and Kunjumon's family were very close. There was a cow in her house. The colour of the cow is white with black patches. She does not remember the colour of the calf. Kunjumon was carrying an empty basket. He was carrying a six litre aluminum can. She denied the suggestion that she was deposing falsely as requested by the family members of Kunjumon. The first accused used to come to collect the branches of “Kilatheen”. She told about it to the police. If the police has not recorded the same, she has nothing to say. Since A2 was a stranger, she asked Kunjumon about his name. She denied the suggestion that she did not see the incident nor took milk on that day nor saw the accused. 9. In re-examination she has stated the name of Kuttiadi Chettan is Varghese Chettan. PW3 is also a material witness, who saw the accused following the deceased and PW3 has also spoken about the accused rushing back after a few minutes in the direction from where they have gone. PW4 is the witness, who along with others came to the scene on hearing the cries of PW2 CRL.A.NO. 240//2005 :-16:- and took the injured to the nearby road so that he could be taken to the hospital. PW5 is the witness to Ext.P2 scene mahazar and PW6 is the witness to Ext.P3 inquest report. PW7 is the witness to Exts.P4, P5 and P6 mahazars. Under Ext.P4 mahazar, the dress of the second accused was recovered and under Ext.P5 the dagger allegedly used by the accused was recovered. Ext.P6 is the seizure mahazar recovering the dress of the first accused. PW8 is the witness to Ext.P7 mahazar for the recovery of MO.1 chopper. PW9 is the doctor, who is a witness for Ext.P8 mahazar as per which hair of the first and second accused was collected for chemical examination. PW10 is the Junior Superintendent of the Judicial First Class Magistrate's Court, Perinthalmanna, who sent various items for chemical analyses . Ext.P9 is the report of Chemical Examination Laboratory, Kozhikode and Ext.P10 is the report of the Forensic Science Laboratory, Thiruvananthapuram. PW11 was the Sub Inspector of Police at the relevant time of Perinthalmanna police station, who recorded Ext.P1 F.I. statement and registered CRL.A.NO. 240//2005 :-17:- Exts.P1(a)F.I.R. PW12 is the investigating officer, who conducted the major part of the investigation including the questioning of witnesses, holding of inquest, sending the body for post mortem and recovering material objects. PW13, the Doctor, identified the signature of the Doctor, who conducted autopsy and gave Ext.P18 post mortem certificate. The said Doctor is no more. So, Ext.P18 certificate was proved through PW13. Ext.P18 would show that the deceased died of multiple injuries, which could be caused by chopper and dagger. The cause of death is the injuries on the neck and chest. PW14 completed the investigation and laid the charge before the Judicial First Class Magistrate Court, Perinthalmanna. 10. We gave anxious consideration to the rival submissions made by the defence and the prosecution. The fate of the case will depend upon the view taken by this Court on the deposition of PW2. The said witness used to carry milk from her house to the house of Joy every day morning. She has stated that since a portion of the route is deserted, she used to accompany CRL.A.NO. 240//2005 :-18:- Kunjumon, who is her neighbour, and who also used to carry milk in a can to a nearby shop. On the fateful day also, they were walking together. Since Kunjumon took a few minutes to talk to the persons in the court yard of PW3, she was walking a few metres ahead of him. While so, she heard the cry of Kunjumon and witnessed the incident. 11. We find no reason to disbelieve the version of PW2. She has no reason to falsely implicate the accused and screen the real culprit. Her presence at the scene of occurrence is further corroborated by the version of PW3. She has stated that she saw the deceased and PW2 walking together. While so, Kunjumon had a few words with Baby who was in her house. She also spoke about the presence of the accused. She saw them walking behind Kunjumon and PW2. She further stated that after the incident she saw the accused rushing back. The defence has failed to shatter her evidence in the cross examination. PW2 has spoken about the use of chopper and dagger by the accused to attack Kunjumon. The medical evidence also supported the CRL.A.NO. 240//2005 :-19:- said version. Going by the nature of injuries noticed in the post mortem certificate, they can be caused by chopper and dagger. The injury on the neck could be caused by chopper and the injury on the chest could be caused by dagger as per the post mortem certificate, Ext.P18. So, the version of PW2 is corroborated by PW3 and also the medical evidence. Therefore, we have no doubt in our mind that the evidence of PW2 can be relied on and acted upon. We find no merit in the contentions of the defence raised against accepting her evidence. The first objection is that PW1 did not mention about the presence of PW2 in the F.I. statement. The F.I. statement need not be catalogue of everything that is known to the witness. Even if PW1 knew that it was PW2 who told PW4, who in turn told him about the incident, it is unnecessary for him to give all the details in the F.I. statement. So, the non-mentioning of the name of PW2 in the F.I. statement is of no consequence in this case. A girl aged 13 will definitely remember an incident which she witnessed, even after 11 years. Since this incident is a blood-chilling CRL.A.NO. 240//2005 :-20:- incident, no child of 13 years will ever forget it. So, the criticism raised in this regard by the defence has only to be rejected. The defence pointed out that in the cross examination of PW2, she has deposed that on hearing the cries of Kunjumon, she ran away. But her evidence read as a whole would show that she has actually witnessed the incident. The evidence of a witness cannot be assessed by taking out an isolated sentence from her deposition. The non-examination of CW3 or CW6 or the persons who came running along with PW4 to the scene is not of any consequence. PW3 and CW.3 and CW.6 were included in the witness list by the prosecution to prove the same point. Once it is proved by PW3, it is unnecessary to examine other witnesses further. It is not seriously disputed that the persons who came to the scene of occurrence, carried the injured to a nearby road for taking him to the hospital. So, the non- examination of the other witnesses to prove the very same point is quite unnecessary. 12. We notice that the learned Sessions Judge has rightly CRL.A.NO. 240//2005 :-21:- appreciated the evidence and came to the conclusion that the accused are guilty of the offences charged. We agree with the reasons and conclusions of the trial court. None of the contentions raised by the defence is sufficient to interfere with the findings entered by the trial court. In the result, the