IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 CRL.A.No. 346 of 2007() ---------------------------- SC.684/2004 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK - II, PATHANAMTHITTA .................... APPELLANT(S): ACCUSED: ------------------------------- KESAVAN NAMBUDIRI @ MONI, S/O. KESAVAN KESAVARU, ILLATHU MADOM VEEDU, KOTTANGAL VILLAGE, MALLAPPALLY TALUK. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE ADVS. SRI.R.JAYACHANDRAN SMT. SARITHA DAVID CHUNKKATH RESPONDENT(S): STATE & COMPLAINANT: -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, MALLAPPALLY. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- Crl. Appeal No.346 of 2007 ---------------------------------------------------- Dated this the 18th day of March, 2011 Judgment Balakrishnan, J. The appellant was found guilty of fratricide. He was hence convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life. This appeal is directed against the said conviction and sentence passed against him. 2. The gist of the prosecution case is stated thus: Neelakandan Nambudri-the deceased is the elder brother of the accused-appellant. The accused, his wife and their son aged about 11 years and also deceased Neelakandan Nambudri and his wife Subhadra Devi (P.W.4) were residing in the same house 'illathumadom'. That house was allotted to the accused as per Ext.P15 partition deed with a stipulation that deceased Neelakandan Nambudri can reside in that house for 10 years from the date of Ext.P15. That period expired in 1994. He did not vacate the house as per the stipulations contained in Ext.P15. He was in Air Force. Thereafter, he went abroad. After returning from gulf country also, he did not vacate the house. Therefore, the accused demanded the deceased to vacate the Crl.A.No.346/07 2 house. On 16.7.2002 the accused gave an ultimatum to P.W.4, the wife of the deceased Neelakandan Nambudri to vacate the house and if not, they would be forcibly evicted. On 17.7.2002 also, the accused demanded the deceased to leave the house. The deceased agreed to leave the house within two months. The accused nodded his head reluctantly. Accused decided to somehow or other finish his brother off. All the five members were staying in the very same house 'illathumadom'. In the early morning of 18.7.2002 at about 5.30 AM, P.W.4, wife of deceased Neelakandan Nambudri woke up and went out as usual to attend her daily routine domestic work. While going out she took her chappels which were kept in the room where her husband was sleeping and she closed the door when she went out. She went to the cow shed and removed the cow dung. When she was returning, she saw the door of the bedroom of the deceased lying open. Out of curiosity she went there. Then she saw her husband lying on the cot with deep injuries on the back of his head. She suddenly came out and made hue and cry. She could then see the accused standing in the adjacent room. Near to him, there was a blood stained axe kept slanting on the wall. On hearing her hue and cry, the neighbours reached there. P.W.1- Crl.A.No.346/07 3 Chellappan, a neighbour, after getting information regarding the incident went to Perumpetty Police Station and lodged Ext.P1, the first information statement to the Sub Inspector who registered Ext.P22 FIR at 8 AM. The Circle Inspector ( P.W.18) took up investigation, proceeded to the scene of occurrence and prepared Ext.P23 inquest. Thereafter the dead body of Neelakandan Nambudri was sent to the Medical College Hospital, Kottayam for postmortem examination. P.W.18 continued the investigation. The accused was arrested by him at 5.45 PM on 19.7.2002 from the tharawad house of the accused situated in Sasthamkoikkal. After completing investigation, charge sheet was laid against the accused by P.W.19. 3. After hearing, the charge was framed against the accused to which he pleaded not guilty. P.W.1 to P.W.19 were examined and Exts.P1 to P31 were marked. M.O.1 to M.O.6 were also identified. When accused was examined under Section 313 Cr.P.C. he contended that the prosecution case is not true. No evidence was adduced on the side of the defence. A portion of the statement of P.W.4 occurring as contradiction was marked as Ext.D1. After hearing both sides and after analysing the evidence, the learned Sessions Judge found the appellant guilty, convicted Crl.A.No.346/07 4 and sentenced as mentioned earlier. 4. Smt.Saritha Chunkath, learned counsel for the accused- appellant contends that the learned Sessions Judge did not consider certain important aspects which would prove the innocence of the accused. The fact that there was no eye witness to the incident and the case was based purely on circumstantial evidence and so the burden was entirely on the prosecution to prove each link in the chain of circumstances was omitted to be considered by the court below. The conduct of the appellant in not attempting to escape from the scene of occurrence and the further fact that even according to the prosecution, the accused was taken to the police station on 18.7.2002 itself were also not properly considered by the learned Sessions Judge. All independent witnesses turned hostile. That also should have been taken into account to doubt the prosecution case. The learned Public Prosecutor Sri.Nazar resisted the argument and supported the impugned judgment. The following points arise for consideration: 1) What was the cause of death? 2) Was the motive proved? 3) Whether the presence of the accused in the room adjacent to Crl.A.No.346/07 5 the scene room would prove a link in the chain of the prosecution case? 4) Whether recovery of blood stained M.O.1 axe from the adjacent room immediately after the incident would connect the accused? 5) Could the prosecution prove all the links in the chain of circumstances to prove the complicity of the accused? 6) Whether the conviction and sentence passed against the appellant are unsustainable on any of the grounds urged by the appellant? Point No.1 5. P.W.11, the Assistant Professor of Forensic Medicine, Medical College Hospital, Kottayam has deposed that the postmortem on the body of the deceased was conducted by him at 2.15 PM on 18.7.2002. The following ante mortem injuries were found on the body of the deceased Neelakandan Nambudri. 1. Incised wounds with contused margins 5 x 1 cm horizontal on the right side of head 10 cm above right ear. Skull bone underneath showed cut and fractures. 2. Partly incised and partly lacerated wound 11 x 6 cm on the right side of head 4 cm above and behind right ear. Bone Crl.A.No.346/07 6 underneath showed cut and fractures. Underneath injuries Nos. 1 and 2, brain was lacerated and showed subdural and sub-archnoid haemorrhage bilaterally. 3. Incised wound 7 x 2.5 cm skin deep with bevelling backwards 9 cm behind the right ear. 4. Incised would with contused margins 5 x 2 cm muscle deep oblique on the top of shoulder 5 cm inner to the top oint of the shoulder. 5. Incised would with contused margins 4 x 2 cm muscle deep oblique on the top of left shoulder 9 cm inner to top point of shoulder. 6. Incised would 5 x 1 cm skin deep oblique on the top of left shoulder 6 cm inner to top point of shoulder. 7. Multiple contused abrasions 18 x 14 cm on the right side of back of trunk 5 cm below the top of shoulder. Right ribs 2 to 6 fractured on the back. It was testified by P.W.11 that the injury Nos.1 and 2 mentioned above are fatal in nature and that they are independently sufficient in the ordinary course of nature to cause the death of the victim. It was also stated by him that injuries 1 to 3 could be caused by M.O.1 axe and stated further that all the ante Crl.A.No.346/07 7 mortem injuries mentioned above could be caused by hitting or striking with M.O.1- axe. As requested by the police officer, the scalp hair of the deceased was taken separately and was handed over to the police. In the light of the evidence given by P.W.11 and the injuries noted in Ext.P17, there can be no doubt that Neelakandan Nambudri had a homicidal death. It is also found that those injuries could be caused by M.O.1 axe. The point is found accordingly. Points 2 to 4: 6. It was contended by the prosecution that because the deceased declined to vacate the house, the accused finished off his brother. It is vehemently argued by the learned counsel for the appellant that even P.W.4, the only witness who supported part of the prosecution version did not state that there was any quarrel or altercation between the deceased and the accused so as to contend that there was strong motive for the accused to cause the death of his elder brother. The learned Public Prosecutor would point out the statement given by P.W.4 that just two days prior to the incident the accused had given to her an ultimatum. It is put in her own words: Crl.A.No.346/07 8 Learned counsel for the appellant would argue that even according to P.W.4 the deceased had assured that he would vacate the house within two months and so it cannot be imagined that the accused would have murdered his elder brother who was staying in the very same house for a quite long time. One cannot normally see into the mind of another. What is the emotion which impels another to do a particular act is not expected to be known by another. It is possible that such impelling factors would remain undiscoverable. How the mind of the accused works in a particular situation, something which is within the exclusive knwoledge of the accused, cannot be expected to be proved. 7. Motive is an important circumstance in the prosecution which is based on circumstantial evidence. However, we do not see any such strong motive on the part of the appellant in this case and therefore we reject the argument that there was a strong motive on the part of the appellant so as to commit the murder of the deceased (See also the decision of the Supreme Crl.A.No.346/07 9 Court in Niranjan Panja v. State of West Bengal [ (2010) 6 SCC 525]. Even if it is held that the motive alleged by the prosecution is not so strong, if there are clinching items of evidence pointing to the guilt of the accused, the mere fact that the prosecution has not been able to prove the motive may not by itself be fatal. Similarly, the mere existence of motive is not enough to find the accused guilty since motive alone cannot take the place of proof. 8. It is a case where P.Ws.1 to 3, 5 to 9 and 13 betrayed the prosecution. Out of them, P.Ws.1 to 3 and 7 were examined by the prosecution to prove the fact that the accused who was seen in the house when they reached the scene told or confessed to them that he had given 3 or 4 blows to the deceased. But since those witnesses resiled from their statements, the prosecution is deprived of that extra-judicial confession which the prosecution wanted to make use of. 9. The learned Public Prosecutor would submit that P.W.1, the neighbour who lodged Ext.P1 statement immediately within one or two hours; namely, at 8 AM on the day of occurrence also has chosen to unscrupulously deny the version given by him in Ext.P1. On going through the evidence of P.W.1, we have no Crl.A.No.346/07 10 hesitation to hold that he actually perjured before court. It was admitted by him that he had gone to the police station and a statement was given by him and his signature was obtained. But he wanted to contend that such a statement was obtained by the police at about 1 PM. That contention is fallacious in view of the fact that the FIR was registered by P.W.17, the S.I. of Police at 8 AM. Learned counsel for the accused would submit that Ext.P1 did not come into existence at 8 AM. For that purpose she would submit that the FIR reached the court only at 6 PM on 19.7.002. It is further submitted by the learned counsel that no explanation was offered by P.Ws.17 or 18 as to why that much delay was caused. However, in this case, the fact that there was delay in the FIR reaching the court may not be of that much relevance or significance since immediately after registration of the FIR P.W.18 proceeded to the scene and conducted the inquest. Ext.P23, the inquest report prepared by P.W.18 would show that the inquest was started at 10 AM and concluded at 12.30 PM. On going through Ext.P18, there can be no doubt that the crime was registered prior to the starting of the inquest and that it was based on the FIR, P.W.18 rushed to the place of incident. 10. It is also pointed out by the learned Public Prosecutor Crl.A.No.346/07 11 that even in Ext.P18 the statements of the some of the neighbours and panchayatdars were recorded, which would leave no room for suspicion that it was immediately after the registration of the FIR P.W.18 went to the scene-house. It is also submitted by the learned Public Prosecutor that even at the time of inquest it was stated that it was the accused who caused the murder of deceased Neelakandan Nambudri. But the learned counsel for the accused has rightly submitted that the statements of the witnesses contained in Ext.P18 cannot be used at all by the prosecution and that whatever was found by the investigating officer at the time of preparation of the inquest alone can be gone into. But the learned Public Prosecutor would submit that Ext.P23 has been relied upon only to show that the FIR was not ante-timed. The circumstances obtained in this case would lead to the inevitable conclusion that Ext.P22 FIR was registered at 8 AM on 18.7.2002 itself. 11. In Ext.P23, the detailed description of the scene of occurrence has also been noted. Illathumadom house consists of ten rooms including three bedrooms. Deceased Neelakandan Nambudri as usual slept in the eastern room of the northern part (It is the north-eastern room). P.W.4 has stated that as the Crl.A.No.346/07 12 accused was having back pain, she did not sleep in that room, but slept in the adjacent room. Exts.P18 Scene mahazar and P23 inquest report would show that there is a door on the southern wall of the aforesaid bedroom where deceased Neelakandan Nambudri slept. But that room was locked from inside and therefore there was no possibility of anybody entering through that door. It was stated by P.W.4 that on the previous night she slept in the southern room. A slight confusion is there with regard to the actual room where P.W.4 slept on the previous night. The relevancy arises since she says that it was in that room the blood stained axe was found. In Ext.P23 it was stated that the room immediate to the west of the scene room is a store room. There is a door leading to that store room. It was lying open. The store room was a very tiny room. It was mentioned that near to the corner of the store room, besides a few articles like spade, broom-stick etc., M.O.1 axe was also seen kept. It was specifically noted: P.W.18 was fully satisfied that it was with that axe the fatal blows Crl.A.No.346/07 13 were given to the deceased. In Ext.P23, it was also noted: The description of the axe and other factors would make it indubitably clear that it was with M.O.1 the fatal blows were given to the deceased. It has come out in evidence that blood stains and brain matters, and the scalp hair found on M.O.1 were taken out separately in a plastic cover for the purpose of sending it for chemical examination. P.W.11, the doctor who conducted postmortem has deposed that the scalp hair with blood of the deceased was collected and handed over to the police in a sealed condition. 12. It was deposed by P.W.4, wife of deceased Neelakandan Nambudri that in the early morning on 18.7.2002 at about 5.30 AM, she woke up as usual and went outside to attend her daily routine domestic work. While going out she took her chappels from the bedroom where her husband was sleeping and she closed the door when she went out. Thereafter, she went to the cow shed and removed the cow dung and when she was returning she saw the door of the bedroom of the deceased which was closed by her, lying open. When she went there she saw her Crl.A.No.346/07 14 husband lying on the cot having sustained deep injuries on the back of his head. She suddenly came out and made hue and cry. She could then see the accused standing in the adjacent room. M.O.1 blood stained axe was near him. She immediately reacted, ...................................................... and then she came out of the room and cried for help. She immediately went to the neighbouring houses to inform the matter and sought their help to take the deceased to the hospital. According to her, P.W.1, the neighbour, on getting information, went to Perumpetty Police Station and lodged Ext.P1 first information statement. P.W.4 has further stated that at that time the accused was informing others over phone, ............................................ According to her, the accused inflicted the injuries on the head and other parts of the body of the deceased with M.O.1. P.W.4 did not then realise the fact that her husband had breathed his last. It is quite natural; she became fatigue, seeing the horrifying and shocking scene. 13. This is the main piece of evidence which is relied on by the prosecution to prove the guilt of the accused. Apart from this, the prosecution also wanted the court to rely upon the recovery of M.O.6 lungi. According to P.W.18, the accused was arrested Crl.A.No.346/07 15 from the tharavad house of the accused at Sasthamkoikkal at 5.45 PM on 19.7.2002. P.W.18 states that when questioned the accused give information regarding the place where he had kept the lungi which was worn by him at the time of the incident. As pointed out by the accused M.O.6 was seized, P.W.18 deposed. 14. Learned counsel for the appellant assails the evidence given by P.W.18. Even according to the prosecution, on hearing the hue and cry of P.W.4, so many persons had come to that house. In Ext.P23 inquest report detailed description of all rooms was given by P.W.18. The articles found in each of those rooms were also noted. Hence it is quite unlikely that M.O.6 which was there could have escaped the notice of P.W.18. It cannot be said that it was within the exclusive knowledge of the accused so as to 'discover' the same pursuant to the information given by the accused. The learned counsel would also draw our attention to the fact that even according to P.W.4 and other witnesses, the accused was taken to the police station in the morning of 18.7.2002 itself. That will belie the theory of P.W.18 that the accused was arrested on 19.7.2002 at 5.45 P.M. We agree with the learned counsel for the appellant that the evidence given by P.W.18 that the accused was arrested on 19.7.2002 at 5.45 PM Crl.A.No.346/07 16 cannot be true. If so, the case advanced by P.W.18 that the accused gave the information that M.O.6 was kept by him in the room adjacent to kitchen also cannot be accepted. Had M.O.6 been in that room near the kitchen, it could not have escaped the notice of P.W.4 and P.W.5 nor could it have been lost sight of by P.W.18 when he made a detailed report of the same room in Ext.P23. 15. Since P.W.18 had already seen and seized M.O.1 from the room adjacent to the scene of occurrence on 18.7.2002 itself, the information alleged to have been given by the accused pertaining to M.O.1 subsequent to the same cannot be admitted under Section 27 of the Evidence Act. 16. The next question is regarding the presence of blood on M.O.6. Learned counsel for the appellant would argue that if the accused had caused the fatal injuries with M.O.1 axe, certainly blood must have been found on all parts of the body of the accused. But, even according to the prosecution, blood was found only on the two sides and the lower portion of M.O.6. It was not specifically stated at how many places the blood was seen nor about the dimension of the blood stained portion. It is pertinent to note that P.W.18 did not request the expert to get the blood Crl.A.No.346/07 17 group matched to ascertain the blood group. The blood group of the deceased was proved to be B positive. If so, why P.W.18 did not make a request to ascertain the blood group of the blood stains found on M.O.6, is the pertinent question posed by the learned counsel, Smt.Saritha. As blood matching was not done, it could not be proved that M.O.6 contained the blood of the deceased. Learned counsel for the appellant would further submit that according to P.W.4 and other witnesses, the accused was taken into custody by the police in the morning of 18.7.2002 itself. Even if it is accepted that the accused had kept M.O.6 lungi in the room in his house illathumadom, and gone to the police station only after changing the dress, still there is no evidence to show that the accused had washed off his hands or other parts of the body. It is reasonable to infer that there was every chance of his hands and other parts of the body stained with blood, had he been the actual assailant. P.W.18 did not venture to ascertain whether the accused had washed his body before he was taken to the police station. Had the accused not washed his hands and other parts of the body, certainly the blood stains would have been on his body, and if so, there was no reason why the body mahazar of the accused was not prepared and why the blood Crl.A.No.346/07 18 stains were not taken from the body of the accused by using cotten or other materials. That, according to the learned counsel, would have been a clinching circumstance to connect the accused. Since that was not done, another link is missing in the chain of circumstances. 17. As stated earlier, the story putforward by P.W.18 that the accused was arrested only on the next day at 5.45 PM, that too from another place, does not inspire confidence in the mind of the court especially when the evidence given by P.W.4 and other witnesses would show that the accused was taken into custody by the police in the morning of 18.7.2002 itself. There is one more aspect to be said with regard to M.O.6. No witness did say that they saw the accused wearing M.O.6 immediately after the incident (when they reached there on hearing the outcry). Nobody deposed that M.O.6 belonged to the accused or that the accused was seen wearing M.O.6. Therefore, there is no iota of evidence to show that M.O.6 was of the accused. That link is also lost, the prosecution now laments. 18. Yet another circumstance projected by the prosecution to prove the complicity of the accused in the commission of this crime is the alleged conduct of the accused. The evidence of Crl.A.No.346/07 19 P.W.4 is to the effect that after the incident when the neighbours reached there, on hearing her outcry, the accused was informing others over phone that he had finished off his brother. It was stated by