IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 CRL.A.No. 1804 of 2005() ------------------------ (SC. 387/2001 OF SESSIONS COURT, ERNAKULAM. C.P. NO. 8/2001 OF J.F.C.M. PERUMBAVOOR. CR. NO. 272/2000 OF KALADY POLICE STATION) APPELLANT(S): ---------------------- RIJO, S/O. JOSE, CONVICT NO.4254, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. SRI.B.RAMAN PILLAI ADV. SHERRY J. THOMAS. RESPONDENT(S): ----------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: C.R. K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1804 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT Bhavadasan, J, This case discloses the story of a good student, well behaved boy, liked by his teachers and companions, and who had considerable expectations about him, transforming into a villain and landing in prison. If true, this is a typical instance where a teenage boy exposed suddenly to the outside world got caught in the mesh of luxurious life and drugs, and ruined himself. His parents had toiled hard to fund his studies. They borrowed money from people and people generously contributed. Nobody noticed the transformation that was going on in him, until it culminated in a shocking incident on 16.6.2000. Crl.A.1804/2005. 2 2. 16.6.2000 morning turned out to be a horrifying one to the people of Neeleswaram Kara, Kalady Village. The story goes thus: The deceased, the injured, P.Ws. 2 and 4 reside in the same house. P.Ws. 5 and 6 are neighbours. P.W.6 is the sister of P.W.5. Though P.W.6 was married, she was staying with her brother since her mother was ill at the relevant time. In fact the accused and the witnesses knew each other very well. It would appear that the family of the deceased used to extend financial aid to the accused, to continue his nursing course in Karnataka, since quite often P.W.16, the father of the accused found his income insufficient to meet the education and other requirements of his son. 3. The incident occurred on 16.6.2000 at about 7.30 a.m. P.W.5 is a salesman. He was taking his bath. P.W.5 and Crl.A.1804/2005. 3 P.W.6 heard the wails of P.W.1. They rushed to the spot from where the cry had come. They found P.W.1 lying near a nut-meg tree. They asked her what had happened. She was bleeding from wounds on her body. She said that it was the accused who had caused the wounds. She asked for water. It was raining. Water that had collected near the nut-meg tree was given to her by P.W.6. P.W.4, the husband of P.W.1, had left for work early in the morning on that day. Hearing the cries, other people also gathered at the spot. P.W.1 told them that her mother-in-law was lying behind the house. Some of the people, who had gathered, picked up the mother-in-law from there and laid her on the varenda. P.W.1 was also laid on the varenda. P.W.4 was informed. Vehicles were brought and the injured were removed to the hospital. C.W.21, who is closely related to the deceased was informed over phone. He went to Little Flower Hospital, Crl.A.1804/2005. 4 Angamaly, where the injured had been taken. He found the deceased in an unconscious state. But P.W.1 had regained consciousness. P.W.19, the Doctor, had attended to them at Little Flower Hospital. Ext.P15 is the wound certificate relating to the deceased, and Ext.P20 is the wound certificate of P.W.1. C.W.1 came to know of the details from the hospital. Getting intimation of the incident at Kalady Police Station, ASI, C.W.44, went to the hospital. As the injured was unable to give statement, the statement was taken from C.W.21, who furnished Ext.P21 first information statement. C.W.44 is no more. C.W.44 then registered crime as per Ext.P22 FIR. Meanwhile, Mariyamkutty, the mother-in-law of P.W.1 died in the hospital on 20.6.2000. P.W.24, the Circle Inspector of Police, had taken over investigation on 16.6.2000. He had prepared Ext.P4 scene mahazar. He had also recovered blood stained plastic bucket, Crl.A.1804/2005. 5 pillow cover and blood stains from the scene of occurrence. He directed P.W.23 to conduct inquest over the body of Mariyamkutty. Thereupon, P.W.23 conducted the inquest and prepared Ext.P13 report. As authorised by P.W.24, P.W.23 arrested the accused on 20.6.2000 at about 11.15 a.m. and produced him before P.W.24. Ext.P11 mahazar was also prepared. The bag and other materials in the possession of the accused at the relevant time were seized, i.e., M.O.7, bag and its contents, M.Os.15 and 16 etc. In the meanwhile the body of Mariyamkutty was sent for postmortem examination. P.W.20, the Forensic Surgeon conducted autopsy over the body of Mariyamkutty and prepared Ext.P17 report. P.W.24 recorded the statement of witnesses. On the basis of the confession statement said to have been given by the accused, M.O.1 weapon was seized as per Ext.P1 mahazar. He had also got M.O.19 seized. M.O.3 was Crl.A.1804/2005. 6 recovered as per Ext.P4 based on the confession statement of the accused. Based on Exts. P6(a), P8(a) and Ext.P10(a) confession statements given by the accused while in custody, gold ornaments, of which theft was committed by the accused were recovered from various places. The accused was examined by P.W.21 the doctor and Ext.P19 certificate was obtained. P.W.24 had the materials collected by him during investigation sent for chemical analysis through court. Ext.P18 is the report. He completed investigation and laid charge before Judicial First Class Magistrate, Perumbavoor. 4. JFCM, Perumbavoor took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offence is one exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Ernakulam. Crl.A.1804/2005. 7 The said court made over the case to Additional Sessions Court, North Paravur for trial and disposal. 5. On receipt of records, the said court issued summons to the accused and he entered appearance. After hearing both sides, charges were framed for the offences punishable under Sections 449, 392 397 and 302 Indian Penal Code. To the charges, the accused pleaded not guilty and claimed to be tried. Prosecution had therefore P.Ws. 1 to 24 examined Exts.P1 to P23 marked. M.Os. 1 to 19 were identified and marked. Defence had Exts.D1 to D5 marked. Exts. C1 and C2 were marked as court exhibits. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. He denied all the incriminating circumstances brought out against him and maintained that he had been falsely implicated in the case. He stated that on 16.6.2000 the police had taken him into custody Crl.A.1804/2005. 8 from Chitradurgah and at that time Adv. Anto and Kolencherry Joy were with him. He was brought to Thrissur and again taken to Bangalore. He claimed that he never stayed at Bangalore, but used to go to Chitradurgah directly, which was 200 meters away from Bangalore. He was top in the class in the first year examination and the second year examination was fast approaching. He had come to his native place in May, 2000 and returned after two or three days. Till 16.6.2000 he was regularly attending classes. It was then that he was arrested. He was studying in a Seminary for three and a half years and thereafter he had gone for nursing course. 6. Presumably finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On appreciation of the evidence the court below found that the prosecution has succeeded Crl.A.1804/2005. 9 in establishing the case against the accused and convicted and sentenced him to undergo rigorous imprisonment for a period of one year under Section 449 I.P.C., rigorous imprisonment for a period of seven years under Section 397 IPC and rigorous imprisonment for a period of seven years under Section 307 IPC. He was also sentenced to undergo imprisonment for life under Section 302 I.P.C. The said conviction and sentence are assailed in this appeal. 7. The question that arises for consideration is whether the court below has erred in any manner in entering the convictions. 8. Late Mariyamkutty, P.Ws. 1, 4, 5 and 6 were neighbours. So were the accused and his family. The family of the accused was financially very poor. The accused joined for nursing course in Chitradurgah. P.W.16, the father of the accused, has Crl.A.1804/2005. 10 stated that he used to receive financial aid from the family of the deceased for the studies of his son. The prosecution case is that after joining the Nursing Course the accused developed extravagant habits and he found money wanting for his activities. He did not have the financial resources to meet his demands and needs. So he planned to commit robbery. He found his neighbourhood most convenient as he new about the assets of the family. In an attempt to rob P.W.1 and Mariyamkutty, when they resisted he inflicted fatal injuries on them. Mariyamkutty, the mother in law of P.W.1 succumbed to the injuries. Fortunately P.W.1 survived. The weapon used was M.O.1. 9. The prosecution mainly relied on the evidences of P.Ws. 1, 2, 5, 6, 7, 9, 10 to 15, 23, 24 and Exts.P1(a), P6(a), P8(a), P10(a), P23 and P1, P6, P8 and P10 to prove their case. 10. P.W.1 is one of the victims, who was fortunate Crl.A.1804/2005. 11 enough to survive. P.W.2 is her son and he was aged five years at the relevant time and he too claims to have been attacked by the accused. P.Ws. 5 and 6 are neighbours of P.W.1. P.Ws. 7 and 9 are persons who had occasion to see the accused in the house of P.W.1 on the date of the incident at the relevant time. P.Ws. 10 to 15 pawn brokers who had occasion to receive gold ornaments stolen by the accused and had advanced amounts and from whom recoveries were made by the investigating officer and witnesses to the said recovery. P.Ws. 23 and 24 are the officers, who conducted the investigation of the case and had arrested the accused. 11. P.W.1 says that the incident had occurred on 16.6.2000 at about 7 a.m.. The accused and his family were her neighbours. She belongs to Neeleswaram. She was brought to Manikkamangalam on her marriage to P.W.4. On the date of the incident, her husband P.W.4 had gone to Trivandrum early in the Crl.A.1804/2005. 12 morning. P.Ws. 1, 4 and their two children along with the deceased were residing in the house. As P.W.4 had left early morning on the date of the incident, she went back to bed. At about 7 a.m., she was woken up by the cries of 'thief' by her mother in law. She heard the sound from the bathroom. She rushed to the place and found her mother in law was being repeatedly attacked by the accused with M.O.1 chopper. Several injuries were inflicted on her head. She claimed that she had pushed aside the accused and asked why he was doing so. Her mother in law fell down. She states that the accused then closed her mouth with his hands and she bit him on his fingers. Then he repeatedly attacked her with M.O.1 and caused several injuries. She fell down. He removed the bangles worn by her cutting her wrists and also removed the ornaments from the body of the deceased. Even though she tried to cry aloud, she could not raise Crl.A.1804/2005. 13 her voice. She remained there for some time. Thereafter she managed to run towards the southern side. She called P.W.6, who was her immediate neighbour. P.Ws. 5 and 6 came immediately and she told them what the accused had done. She informed that her mother in law was lying in the bathroom behind the house. She also claims to have given the phone numbers of P.W.4 and her father. By that time, people had gathered at the spot. P.W.1 and the deceased were removed to Little Flower Hospital, Angamaly in separate vehicles. Her mother in law died in the hospital and she had to undergo treatment for 18 days. M.O.1 belongs to them. She identified all the ornaments said to have been recovered by the investigating officer. 12. P.W.2 is the child of P.Ws. 1 and 4. He was aged 5 at the time of the incident. The child speaks about the incident. P.W.2 identified the accused and claimed that the accused resides Crl.A.1804/2005. 14 near his house. He claimed that both his mother and grandmother suffered injuries at the hands of the accused. He would state that the accused came inside the house and then removed the gold chain and gold griddle of his brother. He tried to suffocate him with a pillow. Then the calling bell rang and the accused ran away. 13. P.W.3 says that he was acquainted with P.Ws. 1 and 2 and the deceased as well as the accused. He knew about the injury suffered by P.W.1 and her mother in law. He came to know about the incident and rushed to the spot. He happened to see P.W.5 and 6 nearby and P.W.1 was lying in the varenda. He claims that P.W.1 told him that it was the accused who had inflicted injuries on her. P.W.1 also told him that her mother in law was lying in the bath room. They were removed to the hospital. He deposed that later the police brought the accused to the place and recovered M.O.1 from a canal nearby at the instance Crl.A.1804/2005. 15 of the accused. Accused took M.O.1 chopper from the canal and he had affixed his signature in Ext.P1. 14. P.W. 4 is the husband of P.W.1 and the deceased is his mother. He is a contractor by profession. On the date of the incident, for going to Trivandrum he left the house at 5.30. a.m. When he reached Tripunithura while travelling in a train, he received information about the incident. He got down at the next station and returned in a car. When he reached near his house he got the information that the injured had been removed to the hospital. He went to the hospital and found his wife lying in a stretcher outside the operation theater. She told him that the accused had attacked his mother. She also told him that when she went to the aid of her mother-in-law hearing her cries, he found the accused repeatedly inflicting the injuries on the deceased with M.O.1. She tried to push away the accused and then the accused Crl.A.1804/2005. 16 caught hold of her by her hair and attacked her with M.O.1. She also told him about the accused taking away the ornaments worn by her and her mother in law. He identified M.O. 1 (chopper), M.O.4 (four bangles) and M.O.5 (four bangles). He would also state that the accused was studying for nursing at Bangalore. 15. P.W.5 is working in Vidyarthimithram Book depot at Ernakulam. The residential plots of P.Ws.4 and 5 lie as a contiguous one without any well demarcated boundary. He leaves for work only after 8 a.m.. The accused is familiar to him. P.W.6 is his sister and she is married to a person at Kottayam. He claims to know about the incident. He would say that during the relevant time P.W.6, whose husband was working abroad, was staying with him and looking after their mother, who was sick. The incident occurred between 7 a.m. and 7.30. a.m. On 16.6.2000, while he was taking his bath, he heard P.W.1 calling Crl.A.1804/2005. 17 his sister P.W.6. The cries of P.W.1 came from the northern side of his house. P.Ws. 5 and 6 rushed to the place. They found P.W.1 lying near a nut-meg tree. He asked her what had happened. P.W.1 told him that it was the accused who had caused the injuries to her. It was raining then and she asked for water. They gave the water that was collected below the nut-meg tree. She gave him the phone numbers of P.W.4 and her house. He would say that by that time quite a few people had gathered at the spot. P.W.1 then told him that the deceased was lying behind the house and they went in search of her. They found her and carried her to the northern varenda of the house. They carried P.W.1 and laid her down on the southern side of the house. He informed P.W.4 about the incident. Thereafter he along with others removed the injured to the hospital in two vehicles. He also accompanied them. He was present when the doctor examined P.W.1. Information was given Crl.A.1804/2005. 18 by him to the doctor. 16. P.W.6 is the sister of P.W.5. She too says about the incident. She gave an identical version like P.W.5. It is unnecessary to narrate her evidence in detail. She would say that at the time of cremation of Mariyamkutty, the accused was brought by the police. 17. P.Ws. 7 to 9 were examined to prove that the accused was found near the place of incident at about the time on the date of the incident. P.W.7 is the person, who claims to have pressed the calling bell of the house of P.W.1 at the time of the incdent. He claims to have seen the accused in the house of P.W.1. His evidence is not of much significance. 18. P.W.10 claims to be the Director of Parrys Chit Company at Thrissur. He knows the accused. He would say that the accused came to his branch to pledge ornaments on 16.6.2000 Crl.A.1804/2005. 19 at about 10.30 a.m. He had brought a gold chain to pledge. P.W.10 deposed that at the time of pledge, a receipt is given to the pawner. Later the police had to come his business concern along with the accused and he had shown them the records. M.O.3 was seized from his shop. He identified M.O.10 as the ticket given to the accused at the time of pledging M.O.3. M.O.11 is the relevant register. He identified his signature in Ext.P4 mahazar prepared at the time of seizure of M.O.3. He had got the original register back on kychit and it was brought to the court at the time of giving evidence. M.O.11 is the relevant ledger. M.O. 12 is the voucher. He identified the signature of the accused on M.O.12. 19. P.W.11 is the Proprietor of Wardhaman Bankers. He says that whenever gold is taken, a receipt is given. He identified M.O.13 as the receipt issued by him. He stated that on 17.6.2000 two persons had come to his concern. He names one of Crl.A.1804/2005. 20 them as Joby and he identified the accused as the other person. As per M.O.13 four bangles were pledged and he identified M.O.4 series as the ornaments. He paid Rs.7500/-. He had brought the ledger to the court and he located the relevant entry at page 138. He says that after a week of pledging the ornaments, police had come to his business concern and recovered the gold ornaments pledged by the accused. Police had also brought the accused with them. Ext.P7 is the relevant mahazar, by which the register was recovered and Ext.P6 is the mahazar regarding recovery of ornaments. 20. P.W.12 runs a concern by name Payal Bankers. It is a family business. At the time of pledging, the pawner is given a receipt called pawn ticket. He identified M.O.14 as the ticket issued to the accused, which contained his signature. He would say that going by the records four bangles were pledged with the Crl.A.1804/2005. 21 bank on 17.6.2000. Pledge was effected by a person by name Reji. He would recollect that Reji was accompanied by another person and he identified the accused as the said person. He had to pay Rs.10,000/- to them. Since he did not have the sufficient cash, he paid Rs.5000/- to Reji and his companion. He found it difficult to identify M.O.5 bangles. However, he recollected that a few days after the pledge, police had come to his shop and police had brought two persons with them and they were identified by him as Reji and the accused. He claims that police had prepared mahazar at his business place and he had signed in the mahazar. He claims that police had verified the register in his concern and had returned it to him. Rajendra Kumar was not in station. He is familiar with the signature of Rajendra Kumar, who was the proprietor of the concern and he claims that the pawn ticket was given to the pawner by him. M.O.14 is in his handwriting. Crl.A.1804/2005. 22 21. P.W.13 is none other than Reji. He says that the accused is familiar to him. When he studied for Nursing course at Bangalore the accused was his junior in the college. The accused used to visit him. He says that earlier he was working with Coco Cola Company and he was staying at B Dasra Hally. Now he was residing with Jinson and Joby. He knows Payal Bankers at Bangalore. He deposed that the accused had entrusted four bangles and a bracelet to him to pledge at Payal Bankers. He claims that he had pledged the above articles as per M.O.14 ticket and he was to be paid Rs.10,000/-. But only Rs.5,000/- was paid initially and that was handed over to the accused. He identified M.Os.5 and 6 as the ornaments pledged by him. He deposed that the accused had told him that the ornaments belonged to his mother and she gave it to him since they had no money to pay his fees. This witness deposed that the police brought the accused and Crl.A.1804/2005. 23 enquired about the pledge. He along with the accused was taken to Payal Bankers and then M.O.5 was seized. Police prepared Ext.P8 mahazar and he affixed his signature on the same. He also deposed that the police had examined the relevant registers of Payal Bankers. He identified his signature on Ext.P9 mahazar. He also claimed that he had gone to Payal Bankers along with the police and from there also bangles were seized. He identified his signature on both Ext.P6 and Ext.P7. He says that the accused was a spend thrift. 22. P.Ws. 23 and 24, as already referred, are the investigating officers. Ext. P1(a) is the portion of the confession statement which led to the recovery of M.O.1. Ext.P6(a) is that portion of the confession statement which led to the recovery of bangles from Vardhaman Bankers run by P.W.11. Ext.P8(a) is the portion of the confession statement given by the accused, which Crl.A.1804/2005. 24 led to the recovery of ornaments from Payal Bankers run by P.W.12. Ext.P.10(a) is the portion of the statement which led to the recovery of M.O.3 from the chitty company run by P.W.10. These are the main items of evidence. 23. The court found the above clinching items of evidence are convincing enough to hold that the prosecution has succeeded in establishing the case against the accused. 24. Learned counsel appearing for the appellant pointed out that the prosecution story is nothing but a cock and bull story. The items of evidence relied on to hold the accused guilty in fact cannot establish the role of the accused at all. The evidence is to the effect that the deceased, P.W.1, and her family members knew the accused well. Still the deceased at