Case: K.V. Chacko @ Kunju Vs. State of Kerala

The appellant has preferred these appeals against the judgment of the High Court of Kerala at Ernakulam dated 28th March, 2000 delivered in Criminal Appeal Nos. 105/98 and 642/98. Criminal Appeal No. 105/98 was filed by the appellant against the conviction and sentence imposed on him by the learned Single Judge, Kottayam Division, Kerala in Sessions Case No. 60 of 1993 dated 29.12.1997 wherein he was found guilty of offences punishable under Sections 449, 302, 397 and 201 IPC and was sentenced to undergo imprisonment for various terms including imprisonment for life under Section 302 IPC. Criminal Appeal No. 642/98 was preferred by the State of Kerala against the said judgment of the Sessions Court for not awarding capital punishment to the accused in the said case. The High Court heard both the appeals together and as per its impugned judgment dismissed the appeal of the appellant and allowed the State appeal by coming to the conclusion that the offence committed by the appellant deserved nothing short of capital punishment to meet the ends of justice. Accordingly, it enhanced the sentence from life imprisonment to death sentence. The appellant has preferred the abovesaid appeals against the said judgment from jail. Mr. Kh. Nobin Singh, learned Advocate, has appeared as an amicus curiae while the State is represented by Mr. A.S. Nambiar, learned senior counsel and Mr. Gracious Kuriakose, learned advocate.2. The prosecution case as presented before the trial Court is that on 6.8.1988 at about 3.20 a.m. the appellant entered the house of Johnny, a resident of Thadiyampadu in Idukki District by making an opening near the kitchen door of the house where deceased Johnny was sleeping with his family members, namely, his wife Mariakutty, daughter Rani aged 15 years, daughter Honey aged 9 years, and son Sony aged 7 years. It is stated that the appellant immobilised the said victims by hitting them on their heads by using an axeand removed the jewellery worn by the female victims, so also a revolver14) belonging to Johnny along with currency notes worth Rs. 60/which were inside the drawer of a table in the house and thereafter with a view to destroy the evidence of the crime, poured diesel oil which was kept by Johnny in a can in his house, set fire to the house and decamped with the booty so collected. It is the further case of the prosecution that Beeranwho happened to pass by the house of Johnny at about that time, came to notice the flames of fire emanating from the said house, hence, ran to a nearby night shop situated at Thadiyampadu junction and informed Ismailand some otherworkers who were withand brought them to the house of Johnny. It is further stated that on breaking open the front door by these people, they noticed a young girl who was later identified as Rani, lying and moaning but before any help could be rendered to her, the roof of the house fell on her and their efforts to save her failed. It is further stated that whenMuralidharan S.I. of police arrived at the spot, the house was completely burnt and he with the help of the people present including the fire force personnel, extricated the completely charred bodies of the abovesaid 5 victims from the burnt debris.then recorded the statement ofwhich is marked as Ex.the first information. Based on the said information, Crime No. 151/88 was registered at Idukki Police Station vide Ex.It is stated thatThulasidas conducted the further investigation and held inquest on the dead bodies as per Ex.as also the spot Mahazar. On his request a team of doctors led by the District Medical Officer arrived at the scene and conducted the post mortem. The report of the said post mortem signed by one Dr. Dias was marked as Ex.series. As per the said report the doctor gave a provisional opinion that the cause of death was due to burning and reserved his final opinion till after the receipt of the report of Chemical Examiner to whom the viscera were sent for examination. The saidis stated to have examined 116 witnesses and gave his report to the Superintendent of Police on 6.9.1988 to the effect that the death of these victims was due to fire accident. Based on his report the case was closed as deaths due to accident.3. It is the further case of the prosecution that on 7.8.1988K.S. Augustine arrested the appellant in an unrelated case and seized a3) and under a Mahazar Ex.the accused was prosecuted for the offence of resisting arrest and illegal possession of arms under Sections 332, 324, 506 IPC and 25(1)(a) of the Indian Arms Act before the JFCM Court, Adimali.4. While the incident of 6.8.1988 involving the death of Johnny and his family lay closed as an accidental death, in the year 1992M.V. Thomas came to know through reliable sources that the appellant was involved in the said case of death of Johnny and his family, and having come to know that this appellant was in custody in some other cases, he filed an affidavit and a report before the JFCM Court, Chalakkudy to obtain custody of the appellant to interrogate him. The said custody was ordered by the Magistrate on 4.5.1992 and the appellant was handed over to the custody offrom 4.5.1992 to 11.5.1992. It is also stated that the accused was interrogated byand Superintendent of Police, Crime Branch, by name K.I. Michael,and during the course of questioning on 11.5.1992 the appellant admitted before these persons that he had committed the murder of Johnny and his family and he was also involved in 4 other crimes, namely, SC No. 77/93, SC No. 26/93, SC No. 29/93 and SC No. 47/93. Since the appellant was required for further investigation in view of the said confession,filed another report and an affidavit for the further custody of this appellant which was granted till 25.5.1992. The prosecution further states that on the statement made by the appellant which was marked as Ex.he was taken to the house of Johnny at Thadiyampadu at 10.30 a.m. on 25.5.1992 and on being pointed to the well by the appellant,requisitioned the help to one George to recover the axesaid to have been thrown by the accused into the said well. The prosecution also relied on the evidence ofKunhu Achari to show that the appellant was in Thadiyampadu the night proceeding the incident i.e. on 5.8.1988. They also relied on the evidence ofElikutty, aunt of the accused to show that a few days before and after the incident, the appellant, who was her nephew, was visiting her and stayed with her. Prosecution also relied on the evidence ofThomas, the taxi driver, to establish the activities and whereabouts of the appellant on 7.8.1988.Annamma who was a neighbour of Johnny being the occupant of a house situated hardly 50 meters away from Johnnys house, identified?), the axe, as belonging to her and which was found missing a couple of days after the incident in question. The prosecution has not examined Dr. Dias who conducted the first post mortem on the bodies of the victims since he was not available but has marked his report as Ex.series through the evidence ofDr. M.N. Vijayan. It is stated by the prosecution that on being satisfied that the death of Johnny and his family members was due to homicidal act,requestioned the services ofDr. C. Radhakrishnan to give his opinion as to the cause of death of these victims and, accordingly, with the permission of the authorities concerned the bodies of the victims were exhumed on 1.6.1992 and during the forensic examination of the bodies, the said doctor noticed in the skull of Johnny a fissured fracture involving the right parietal bone which was extending to the floor of the right middle cranial fossa. Similar fractures were also noticed in the skull of Mariakutty. The said doctor also opined that the fractures noticed by him could have been caused by use of a blunt edge of weapon likeHe also stated that Dr. Dias who conducted the previous post mortem had committed many errors and did not do a proper professional job. He opined that the deceased Johnny and his family members suffered a homicidal death. It is based on the evidence collected during the investigation conducted for the second time underthat the appellant was sent up for trial and both the courts below having noticed that the prosecution case is based on purely circumstantial evidence, proceeded to accept the prosecution case and convicted the appellant as aforesaid and the appellant is now before us in these appeals.

Reasoning:
The High Court especially while doing so held that the point involved in the said judgment was not the same as is involved in the present case. The High Court even went to the extent of observing that in the present case the accused is not being prosecuted for either possessing or usingas a weapon of offence. By this observation, in our opinion, the High Court totally misdirected itself as to the relevancy of the finding of the Magistrate because the very question whetherwas in fact seized from the appellant on 7th August, 1998 was an issue before the Magistrate in that case and the same is also an issue of this case. In the judgment as perthe learned Magistrate disbelieved the evidence ofwho, in that case, was examined asThe Court in that case also disbelieved the recovery ofin specific terms from the appellant. Therefore, the said finding of the Magistrate is a relevant fact in deciding whetherwas recovered from the appellant immediately after the crime so as to implicate the accused in this case. This finding of the Magistrate ought to have been given due weightage, hence the courts below committed a grave error in rejecting the findings of the Magistrate as irrelevant. If this very evidence ofas to the recovery ofis rejected as unreliable in that case, in our opinion, the prosecution should establish convincingly why the very same evidence should be believed in this case. This having not been done, the evidence ofremains to beis extremely difficult to accept this version ofbecause either in the inquest Mahazar or in the post mortem report no trace of blood was found in the head of Johnny or other members of the family. This witness though had given a complaint as per Ex.a few days after the incident to the Chief Minister, did not mention this fact in the said complaint nor has he sated before the investigating agency in the first round of litigation as to the existence of blood clots. That apart, as seen from the post mortem report Ex.series, the doctor who conducted the post mortem then did not notice any external head injury much less any blood clots. For all these reasons we are not in a position to place reliance on the evidence ofThe prosecution in this regard has also relied on the evidence ofDr. C. Radhakrishnan who in his evidence has stated that the skulls examined by him had suffered fractures and he was of the opinion that the said fractures could be caused by the use of blunt edge ofIn our opinion, this evidence also does not help the prosecution because in the original post mortem no external injury to the head was noticed nor was any blood clot or external injuries were noticed in the inquest Panchnama of the bodies. In the absence of any such recorded injuries, it is difficult to accept the evidence ofor that ofBoth the courts below have placed strong reliance on the evidence ofwhich only goes to show that the skulls examined by the said witness contained fractures which in his opinion were ante mortem. Per contra, Ex.series which is the first post mortem report, does not refer to any external head injury much less any bleeding injury. It is the case of the prosecution that the doctor who conducted the first post mortem did not do a professional job. But, we cannot accept this explanation on the face of it. Dr. Dias who signed the said post mortem report as per Ex.series, has not been examined by the prosecution on the ground that he was not available for examination. Without examining Dr. Dias, it will be unfair to come to the conclusion that the contents of Ex.series do not reflect the true state of affairs as it existed when the first post mortem was conducted. Similarly, without such examination of the said doctor, it will not be possible for us to accept the evidence ofto come to the conclusion that Dr. Dias did not do a proper professional job. The benefit of doubt, which arises out of the two conflicting post mortem reports, in our opinion, must go to the appellant. Therefore, we are unable to accept the finding of the Courts below that the prosecution has established beyond reasonable doubt thatwas used by the appellant in execution of the crime, as stated by the prosecution.The Courts have also failed to take into consideration two important improbabilities in the prosecution case. It is the case of the prosecution that the appellant gained entry to the house of the deceased by making a hole in the wall next to the kitchen door. It has come in evidence that the walls of the house of Johnny were constructed with bricks and were strong. If that be so, the prosecution has not established how the appellant could have made a hold in such a wall without noise and without waking up the inmates of the house. This inference of ours improbablises the possibility of the victims being attacked when they were asleep. The next improbability in the prosecution version is that the crime was committed in the manner alleged by the prosecution or that the appellant alone could possibly have committed it in the manner alleged because the house of Johnny is aaccommodation and such an attack on one victim cannot go without awakening the other inmates. If that be so, the victims who were yet to be attacked, in all probability, would have cried for help which would have certainly awakened the neighbour likeThe prosecution has not adduced any evidence to show any such hue and cry were raised by the victims. A feeble attempt was made throughto say that she did wake up in the middle of the night that day after she was told by her father that he had heard some noise outside but she stated that after satisfying herself that there was no such cause for noise, she went back to sleep. The fact that the incident of assaulting five victims by a lone attacker has gone unheard by anybody in the vicinity, also improbablises the prosecution case as to how the crime in question was committed.