IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 CRL.A.No. 622 of 2005() ----------------------- SC.142/2003 of ADDL. SESSIONS COURT FAST TRACK-II, PALAKKAD .................... APPELLANT(S)/ACCUSED: ------------------------------------ SUBBAYAN, AGED 30 YEARS, S/O.VEERAN, KALLUKOTTEA SARI, NAIKAN PATTI, NILKATTIEA TALUK, ANNA DISTRICT, TAMIL NADU, DINDUKKAL DISTRICT. BY ADV. SRI.K.ABDUL JAWAD SRI.U.MOHAMMED MUSTHAFA RESPONDENT(S)/COMPLAINANT: ----------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER, J. & P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 622 of 2005-B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2009. JUDGMENT BASHEER, J, Appellant was charge sheeted by Kozhinjampara Police alleging commission of offences punishable under Sections 394 and 302 of the Indian Penal Code. The trial court, after considering the oral and documentary evidence adduced by the prosecution, found that the charge against the appellant had been satisfactorily proved. Accordingly, the appellant was found guilty and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- under Section 394 of the Code. He was also convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- under Section 302 of the Code. It was directed that sentences shall run concurrently. The fine amounts, if collected, were directed to be disbursed to P.W.10, the wife of the deceased. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case may be briefly noticed. Crl.Appeal. 622/2005. 2 3. P.W.1, Shri.Sivanandan was holding six acres of paddy field at Walara in Palakkad District. Appellant had been working as care taker cum Manager of the said farm land during the relevant period. Deceased Augusty, who hailed from Angamaly in Thrissur District had been moving from village to village with his 'Kubota' Power Tiller lending his services to the farmers to till their farm lands. According to the prosecution, Shri.Augusty was working in and around Walara at the relevant point of time. Shri. Augusty was permitted by P.W.1 to occupy the veranda of the threshing shed situated in his farm land. 4. At about 11.15 p.m. on December 5, 1999 the accused is stated to have informed P.W.6 that Augusty had been murdered by Senthil Kumar and Kadirvelu at the threshing shed. The appellant-accused allegedly told P.W.6 to inform the matter to P.W.1, the owner of the farm land. According to P.W.6, since he did not have the telephone number of P.W.1, he telephoned C.W.7, Mahalingam, who is a near relative of P.W.1. C.W.7, Mahalingam in turn telephoned P.W.1 and told him about the incident. P.W.1 came down to Kozhinjampara Police Station as directed by the Sub Inspector, who was telephonically informed by P.W.1 about the incident. The statement of P.W.1 was recorded by P.W.20 at 12.30 a.m. Thereafter Crime No.248 of 1999 was registered by P.W.20. P.W.21 on Crl.Appeal. 622/2005. 3 getting information, visited the scene of occurrence immediately and took up the investigation. He conducted the inquest in the forenoon of December 6, 1999 and postmortem was also conducted in the afternoon. He questioned the witnesses in the course of the investigation. P.W.18 laid the charge sheet before the court, thereafter. 5. The prosecution examined P.Ws.1 to 21 and marked Exts.P1 to P17 and M.Os. 1 to 21. Exts.D1, D1(a) and D1(b) were marked on the side of the defence. The learned Sessions Judge, as mentioned earlier, found that the prosecution had succeeded in proving the charge against the appellant/accused and accordingly convicted and sentenced him. 6. It is contended by learned counsel for the appellant that the court below had committed serious illegality and irregularity, in placing reliance on the evidence adduced by the prosecution, which is totally untrustworthy and unrealiable. He points out that there is glaring inconsistency in the evidence of the prime witnesses on the side of the prosecution. The trial court had glossed over striking incongruities in the prosecution case while appreciating the evidence on record, it is contended by the learned counsel. 7. Per contra, it is pointed out by the learned Public Prosecutor that the prosecution had clinchingly established that all the circumstances Crl.Appeal. 622/2005. 4 led to only one probable conclusion, namely, that it was the accused and no one else, who was responsible for the murder. The accused was admittedly staying with the deceased in the threshing shed at the relevant point of time. The recovery of M.O.2 weapon of the offence as well as the money, stolen from the body of the deceased, will undoubtedly show that it was only the accused, who was the culprit. He also points out several other material pieces of evidence, which according to him, would clearly establish the guilt of the accused. 8. P.W.1 is the owner of the farm land at Walara. Accused had been staying in the threshing shed at the farm land in the course of his engagement as care taker. According to P.W.1 the accused had been working under him for the last three years and he had a unblemished record. P.W.1 further stated that the deceased had sought his permission to stay at the threshing shed from the previous night of the alleged incident. According to P.W.1, at about 11.15 p.m. on December 5, 1999 his cousin Mahalingam (C.W.7) informed him over telephone that somebody had hit Augusty on his head with a stone. P.W.1 further stated that the above information was infact passed on by the accused to P.W.6 Mahalingam. P.W.1 further stated that he had immediately contacted Kozhinjampara police station and informed the matter. But the Sub Inspector asked him to Crl.Appeal. 622/2005. 5 come down to the police station and give a complaint in person. In his deposition, P.W.1 further stated that when he reached the threshing shed, he found Augusty lying on the varenda . He identified M.O.1 stone, which was lying near the dead body of Augusty. P.W.1 further stated that the appellant told him that Senthil Kumar (P.W.3) and Kadirvel had dropped M.O.1 stone over the head of Augusty. According to P.W.1, the accused had told him that when he woke up and came to the scene, he saw Senthil Kumar and Kadirvel. They threatened him and told him that he would be done away with. In his cross examination, P.W.1 reiterated that the appellant told him that it was Senthil Kumar and Kadirvel, who had dropped M.O.1 stone on the head of the deceased. P.W.1 went to the police station along with the appellant and C.W.7. The Sub Inspector, after recording the statement of P.W.1 asked the appellant to remain in the police station. Thereafter Senthil Kumar and Kadirvel were also brought to the police station. We will refer to the other aspects of the oral testimony of P.W.1 at a later stage. 9. P.W.2 was an attestor to Ext.P2 inquest prepared by P.W.21. P.Ws.2 and 4 were witnesses to Ext.P21. 10. P.W.3, Senthil Kumar deposed before the court that he also owned a Kubota Power Tiller. He was also engaged in tilling paddy fields of the farmers in the area. He knew Agusty since he came down to Walara Crl.Appeal. 622/2005. 6 during the relevant period. P.W.3 further stated that deceased Augusty had come to his residence in the morning on December 5, 1999 since he wanted his help to purchase some hay. He further stated that he had accompanied the deceased to the residence of Pushpamani (P.W.8) and also yet another person, (whose name he did not remember), from whom certain amounts were due to the deceased in connection with the tilling operation. P.W.3 stated that P.W.8 gave Rs.1000/- and the other man gave Rs.500/- being the tilling charges payable to the deceased. The above sum was paid in hundred rupee notes. The further case of P.W.3 was that he had later handed over Rs.1400/- to the deceased. He further stated that the said sum of Rs.1400/- was kept by the deceased in his waist belt. In cross-examination this witness admitted that he had spent the previous night of the incident with the deceased at the threshing shed. In cross-examination this witness admitted that the name of the other person from whom Rs.500/- was collected was Vijayanand (P.W.9). P.W.3 also stated that he and Augusty had a few drinks together on the previous day. He denied having made a statement before the police that he had had a quarrel with the deceased prior to the incident. He also denied that he owed Rs.8000/- to the deceased and that an altercation took place about the said money transaction. The other suggestion put to him in the course of cross-examination that he had shared Crl.Appeal. 622/2005. 7 a few drinks with Auguty at the threshing shed during the day time of the incident, was denied by him. He also denied having made a statement before the police that he and deceased had a drink on the varendra of the house of one Sivanatha Kounder. He pleaded ignorance about the prevailing rent for the tiller. According to P.W.3 he had gone for a movie along with Das and Murali on the night of the alleged incident. He had come back after the first show and got down from the bus about half a kilometer away from the place of incident at about 9.30 – 9.45. He also admitted that he was related to P.W.1 and Kadirvel. 11. P.W.5 was a witness to Ext.P3 mahazar for seizure of currency notes (M.O.3 series) and also M.O.2 chopper. 12. P.W.6 Mahalingam stated that he was holding a property in the immediate neighbourhood of the property of P.W.1. He was working in Chitur Sub Treasury at the relevant point of time. At about 11 – 11.15 p.m. on December 5, 1999, appellant came to his residence and woke him up. Appellant informed him that Senthil Kumar and Kadirvel had murdered Augusty. Appellant requested P.W.6 to inform P.W.1 about the matter over telephone. Since P.W.6 did not have the telephone number of P.W.1, he dialled the number of C.W. 7 Mahalingam and handed over the receiver to the appellant. In cross-examination this witness stated that he had told Crl.Appeal. 622/2005. 8 C.W.7 over the telephone that appellant had told him that Senthil Kumar and Kadirvel had committed murder of Augusty. P.W.6 admitted that he was also related to P.Ws. 1 and 3. 13. P.W.7 was an attestor to Ext.P4 mahazar prepared by the police for seizure of M.Os. 4 and 5, soil and stone particles recovered from the place of occurrence. 14. P.W.8 Pushpamani, who is also admittedly related to P.W.3 stated before the court that she was a resident of Walara. The deceased had tilled her land with his tiller. She had paid Rs.1000/- (ten notes of Rs.100/- each) to the deceased. At that time P.W.3 was also present with the deceased. 15. P.W.9 is yet another witness who deposed that he had paid Rs.500/- (five notes of Rs.100/- each) to the deceased on the previous day of his death. This witness also stated that P.W.3 was present at the time when the payment was made to the deceased. In cross-examination this witness stated that he did not remember what was the amount, which was due from him to the deceased. 16. P.W.10, the wife of deceased Augusty identified M.O.6 belt, which was allegedly worn by the deceased at the time of his death. In cross-examination she stated that her husband used to bring home around Crl.Appeal. 622/2005. 9 Rs.10,000/- whenever he returned after finishing his tilling operation. During his stay at Walara, the deceased had not sent any money to her. She further stated that on the previous day of his death, the deceased had called her and instructed her to send a tempo to Walara to bring back the tiller to Angamaly. 17. P.W.11 Head Constable had accompanied P.W.21 in the course of the investigation of the case. He spoke about the seizure of M.O.7 Lungi and M.O.8 shirt allegedly worn by the accused. Ext.P5 mahazar was prepared in respect of the above seizure. Similarly P.W.11 also spoke about the recovery of M.O.3 series currency notes and M.O.2 chopper under Ext.P3 mahazar. He also referred to Exts.P4 and P6 mahazars for seizure of soil and scalp hair. 18. P.W.12 was working as Scientific Assistant in the Mobile Unit of the Forensic Science Laboratory at Thrissur during the relevant period. She stated that on December 7, 1999 the police had shown M.O.1 stone to her. On examination of the same, she could not find any remnants of blood stains, hair etc., to indicate that it had been used for committing the crime. She also identified M.Os.4, 5 and 9. 19. P.Ws. 13 and 14 were photographers, who took M.Os. 10 and 11 photographs of the dead body and the surrounding area, which were Crl.Appeal. 622/2005. 10 seized under Exts.P7 and P8 mahazars. 20. P.W.15, Assistant Circle Inspector, Chittur was an attestor to Ext.P7 mahazar (photographs). P.W.16, Police Constable was an attestor to Ext.P8 mahazar (M.O.11 series photographs). P.W.17 Village Officer prepared Ext.P10 scene plan. He also issued Ext.P9 ownership certificate in respect of the property of P.W.1. 21. P.W.18 Circle Inspector of Police laid the charge sheet in the case, P.W.19 doctor conducted autopsy on the dead body and issued Ext.P11 postmortem certificate. In his evidence P.W.19 stated that blunt portion of M.O.2 was used for causing the injury. He further stated that injuries noted by him in Ext.P11 could not have been caused by using M.O.1 stone. We will refer to the injuries noted by P.W.19 on the dead body a little later. 22. P.W.20, Sub Inspector of Police recorded Ext.P1 First Information Statement of P.W.1 and registered Ext.P1(a) First Information Report. P.W.21, Circle Inspector of Police conducted the investigation and recorded the statements of the witnesses. We will come back to his evidence a little later. 23. It may at once be noticed that the prosecution case is based on circumstantial evidence. Necessarily the prosecution has to establish that Crl.Appeal. 622/2005. 11 all the links in the prosecution case are in tact while leading to the only irresistible conclusion that it was the appellant and appellant alone who was responsible for the crime. 24. As mentioned earlier, deceased Augusty was permitted to occupy the varenda of the threshing shed belonging to P.W.1 from the previous day of the alleged incident. It is not in dispute that one room in the threshing shed was being occupied by the appellant. Deceased Augusty was found dead on the varenda of the threshing shed. P.W.1 had set the law in motion by giving Ext.P1 First Information Statement before the police, which was recorded at about 12.30 a.m., in the early hours of December 6, 1999. In his statement P.W.1 had stated that C.W.7 Mahalingam, his brother in law (....................................) had informed him over telephone about the unfortunate incident. The specific case of P.W.1 in Ext.P1 was that C.W.7 had told him that the driver of the tiller (deceased), who was sleeping in the shed was hit on the head by somebody with a stone. According to C.W.7, this information was passed on to P.W.6 by the appellant. But in his deposition, P.W.1 had a totally different version. He asserted that the appellant had told him that Senthil Kumar (P.W.3) and Kadirvel had dropped M.O.1 stone over the head of the deceased. He further stated that the appellant had also told him that Senthil Kumar and Crl.Appeal. 622/2005. 12 Kadirvel had also threatened him that he would be put to death. 25. In this context it may be noticed that P.W.1 is closely related not only to Senthil Kumar (P.W.3) Kadirvel, P.W.6 Mahalingam, P.W.8 Pushpamani but also to P.W.5 Ratnaswamy, who was an attestor to Ext.P3 mahazar for seizure of M.O.2 weapon of offence and currency notes (M.O.3 series). Learned counsel for the appellant has laid heavy emphasis on this aspect while contending that Ext.P1(a) FIR was registered by the police at a much later point of time. In this context he also points out that Senthil Kumar and Kadirvel were admittedly detained by the police immediately after the incident. This is seen admitted by P.W.1, P.W.20 and 21 also (Sub Inspector and Circle Inspector respectively). Obviously the needle of suspicion was pointed at these two persons at least at the initial stage. It is true that according to P.W.1 the appellant had informed him that it was Senthil Kumar and Kadirvel who were responsible for the murder. 26. But significantly P.W.1 did not have such a case when he allegedly gave Ext. P1 statement before the Police at about 12.30 in the night after he came down from Pollachi. But in the course of his evidence P.W.1 was categoric - and he repeatedly stated so - that appellant had told him that it was Senthil Kumar and Kadirvel, who had dropped M.O.1 stone Crl.Appeal. 622/2005. 13 over the head of Augusty. 27. It may also be significant to note that the appellant had remained in the custody of the police right from the moment he had gone to the police station along with P.W.1 to lodge Ext.P1 First Information Statement. He had remained in the custody or surveillance (as the police would put it) from the mid night of December 5 till 2 p.m. on 7th of December when his arrest was formally recorded under Ext.P13. According to P.W.21, the investigating officer, the appellant had confessed about his involvement in the crime sometime during the day on 7th December and it was pursuant to the information furnished by the appellant that M.O.2 chopper and M.O.3 currency notes were recovered from his room after his arrest. The relevant portion of the statement allegedly given by the appellant, which led to the recovery of M.O.2 and M.O.3 is marked as Ext.P12. We will deal with that aspect in the latter part of our judgment. 28. Having carefully perused the evidence of P.W.1 and Ext.P1 First Information Statement, we are not persuaded to place implicit reliance on both of them. As mentioned earlier, P.W.3 Senthil Kumar, who was admittedly a close relative of P.W.1 had been keeping company with the deceased immediately before his death. According to this witness he had gone along with the deceased to collect money from P.Ws.8 and 9. While Crl.Appeal. 622/2005. 14 P.W.8 had stated that he had given Rs.1000/- to the deceased, the case of P.W.3 was that he had received the money from P.W.8 and P.W.9. He further stated that he had handed over Rs.1400/- to the deceased, which he had kept in M.O.6 waist belt. P.W.3 did not have a case that anyone else had seen the deceased keeping the money in the waist belt. It had also come out in evidence that P.W.3 and the deceased had taken liquor together not only on the day of alleged incident, but also on the previous day. In fact P.W.3 had spent the previous night with the deceased at the threshing shed. Thus it is clear from the evidence on record that no one else other than P.W.3 was aware that deceased was keeping some money with him. 29. In this context we may also refer to the evidence of P.W.10, the wife of the deceased. It may be remembered that deceased Augusty had been doing tilling operations in that area for nearly 20 days. P.W.10 had stated that usually when her husband went for such operations, he came back with atleast Rs.10,000/- or more. On this occasion he had not sent any money to her. Going by the evidence on record deceased Augusty had kept Rs.1400/- with him. It is in this context we have to refer to the statement allegedly made by P.W.3 to the police. According to the police, P.W.3 had stated that there was a quarrel between him and Augusty about the non-repayment of Rs.8000/-, which was due from P.W.3 to the Crl.Appeal. 622/2005. 15 deceased. In cross-examination P.W.3 had denied of having given such a statement before the police. But the fact remains that deceased had only Rs.1400/- with him going by the prosecution case. Can it be believed that deceased Augusty collected Rs.1400/- during his twenty day operation in that area? Can the statement of P.W.3 that he had not told the police that a quarrel took place between him and the deceased about Rs.8000/- be believed? These questions have not been answered by the prosecution. 30. In this context it may also be noticed that P.W.3 had been doing tilling operations with a tiller in that area. In other words, he had a monopoly of the operation in the area in question. Obviously the deceased had come to that area as a rival in business to P.W.3. As rightly submitted by the learned counsel for the appellant, there was a possibility of trade rivalry between P.W.3 and the deceased. We find some force in the above contention. We have referred to the above aspects only to indicate that there are some loose ends in the prosecution case. 31. Now we will refer to the prosecution version about the manner in which the deceased was put to death. The prosecution case is that the appellant had tried to cut the waist belt worn by the deceased using M.O.2 chopper while he was asleep. But apparently the deceased woke up while the belt was being cut, which resulted in the appellant hitting on the Crl.Appeal. 622/2005. 16 head of the deceased with M.O.2 chopper. If in fact the appellant wanted to commit theft of the money kept by the deceased in his belt, it is beyond one's comprehension as to why the appellant would have tried to cut the belt and that too with M.O.2 chopper. There is no answer to that mystifying question. 32. There is yet another aspect of the matter. In Ext.P11 postmortem certificate P.W.19 had noticed the following injuries. “B. Injuries (Ante-mortem): 1. Lacerated wound 3.2x0.4cm vertical over the back of right side of head; its lower end 6.5 cm behind root of ear. 2. Lacerated wound 2.2x0.2 cm through and through vertical over the middle of pinna of right ear. 3. Lacerated wound 1.5x1.2cm involving the tragus of right ear. 4. Fracture dislocation of root of left index finger. 5. Two lacerated wounds 0.7x0.1cm and 0.6x0.1cm over the front of middle of left index finger placed one below the other respectively and int he same plane.” It may be noticed that injury No.1, which is a “lacerated wound 3.2x0.4cm vertical” was found on the back of right side of the head. Similarly, the second injury, which was yet again lacerated wound 2.2x0.2 cm, was found Crl.Appeal. 622/2005. 17 over the middle of pinna of right year. Going by the prosecution case, if really the deceased had woken up while the appellant was trying to cut and remove the belt and if a scuffle had ensued as alleged, the above two injuries could not have been caused at the back of the head as alleged by the prosecution. Those two fatal injuries could have been caused only when the deceased might have been lying on his belly. Further, injury No.4, which was fracture dislocation of root of left index finger will indicate that the prosecution story cannot be totally believed. Injury No.5 is two lacerated wounds over the front of middle of left index finger placed one below the other.