Kerala High Court
Vinu @ Kannan vs State Of Kerala on 12 April, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.A NO. 466 OF 2007
AGAINST THE JUDGMENT DATED 06.03.2007 IN SC NO.2476 OF
2004 OF II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM
ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP NO.155 OF
2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA
APPELLANT/ACCUSED:
VINU @ KUTTAN
S/O VIJAYAN, IDAVANAKUZHI MELE PUTHEN VEEDU,
CHERUPARA, KURISUMUTTAM MURI,, VILAPPIL
VILLAGE, THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
VISHNU BHUVANENDRAN
B.ANUSREE
SAIJO HASSAN
BENOJ C AUGUSTIN
MIRAL K.JOY
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH
COURT OF KERALA, ERNAKULAM.
BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 05.03.2024, THE COURT ON 12.04.2024 DELIVERED
THE FOLLOWING:
2
Crl.Appeal No.466 of 2007
P.G. AJITHKUMAR, J. "C.R."
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Crl.Appeal No.466 of 2007
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Dated this the 12th day of April, 2024
JUDGMENT
The sole accused in S.C.No.2476 of 2004 on the files of the Sessions Court, Thiruvananthapuram is the appellant. He was tried by the II Additional Sessions Judge, Thiruvananthapuram on a charge for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC). He was convicted for the offence under Section 304, Part I of the IPC and sentenced to undergo rigorous imprisonment for a period of eight years. The said judgment of conviction and order of sentence are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).
2. The case of the prosecution is as follows:
At about 5.30 p.m. on 27.05.2001 the appellant inflicted injuries to his wife using a chopper at her neck and other parts of the body at the kitchen of the house of PW2. The 3 Crl.Appeal No.466 of 2007 injured succumbed to the injuries on her way to the Medical College Hospital, Thiruvananthapuram. The appellant caused murder of his wife, doubting her chastity.
3. On the appellant denying the charge, the prosecution has examined PWs.1 to 18 and proved Exts.P1 to P17. MOs.1 to 11 were identified also. When examined under Section 313(1)(b) of the Code, the appellant denied all the incriminating circumstances appeared against him in evidence. He maintained that he was innocent. He stated that the chopper and the shirt seized by the police did not belong to him. He was taken to the police station for questioning with an assurance that he would be released after questioning. The police, instead, falsely implicated him in the case. The defence evidence let in was Exts.D1 to D3, which are the contradictions in the evidence of PWs.2 and 5.
4. The trial court considered the evidence in detail. The discrepancies and improbabilities pointed out by the appellant were explained away by the trial court. The court had concluded that the evidence tendered by the prosecution 4 Crl.Appeal No.466 of 2007 proved beyond doubt that the fatal injuries were inflicted to the deceased by the appellant. It was, however, held that the evidence tendered by the prosecution was insufficient to prove that the appellant did so with the intention to cause the death of his wife. Accordingly, the trial court found the appellant guilty of the offence punishable under Section 304, Part I of the IPC as against the charge for the offence punishable under Section 302 of the IPC.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. Direct evidence let in by the prosecution to prove the incident is that of PW2. The deceased is the cousin of PW2. His parents are PWs.3 and 5. The deceased is the daughter of PW3's sister. The appellant was the husband of the deceased and they were residing on a rental premises. It was a lean-to like portion of the house of one Raveendran. The incident had occurred at the kitchen of the house of PW2. He along with PWs.3 and 5 was residing in that house. The rented house of the appellant is not far away and only house 5 Crl.Appeal No.466 of 2007 is between is that of one Remadevi. These facts, which are deposed to by PWs.2, 3 and 5 as also the other witnesses, including PW1, who was a Member of the local grama panchayat and person launched Ext.P1 F.I.statement, are not in dispute.
7. The version of PW2 is that coming back home in the afternoon after work, he had his lunch and went to sleep. He slept at the verandah of his house, which adjoins the kitchen. He deposed that on hearing the cry of the deceased, "മ മ , മ മ " he woke up and then saw the appellant slashing chopper against the deceased. She sustained injuries and fell down. He immediately went to his grandmother's house, where his parents were. As informed by him, his parents, PWs.3 and 5, rushed to their house. Soon, PWs.2 and 3 with the help of others had taken the deceased first to a hospital at Peyad and from there to the Medical College Hospital, Thiruvananthapuram. The Doctor in the Medical College Hospital pronounced the injured dead.
6Crl.Appeal No.466 of 2007
8. PWs.3 and 5 deposed as regards their getting information about the incident, rushing to their house and taking the injured to the hospital, almost in terms of what has been stated by PW2. Along with the said evidence, recovery of the weapon of offence, MO1, the presence of blood, of same group as that of the deceased, in MO1, chopper as well as MOs.10 and 11, which were the dress said to have been worn by the appellant at the time of occurrence and also other circumstances were placed on reliance by the prosecution to prove the charge.
9. The learned counsel for the appellant would urge that the findings of the trial court are wrong and against evidence. His essential contentions are,- (i) no neighbour was examined so as to depose about the attending circumstances of the incident and also presence of the appellant at or near the place of occurrence; (ii) PWs.2, 3 and 5 are interested witnesses; firstly they are close relatives of the deceased and secondly they want to avert accusation against PW2, who was, in fact, with the deceased at the time of her sustaining 7 Crl.Appeal No.466 of 2007 fatal injuries; and (iii) the incident was on 27.05.2001 and the appellant was arrested on 29.05.2001 from the locality itself and therefore there was no abscondence on his part. The possibility of PW2 committing such a crime was not ruled out by the prosecution, especially in the light of the circumstances that nobody in the locality heard the screaming of the deceased which PW2 deposed about and he, without informing anyone in the vicinity, went to his grandmother's house to inform PWs.3 and 5, which is suspicious. Evidence concerning recovery of the weapon of offence and dress of the appellant is not creditworthy. And, absolutely no evidence was let in to prove the motive for the appellant to commit such a crime.
10. PW1 is not an occurrence witness. He was the local panchayat member. He deposed that on knowing about the incident while he was sitting in his uncle's house, he went to the house where the incident occurred. He informed the matter to the police over phone and later he went to the police station and gave Ext.P1 statement. It was based on Ext.P1, PW11, the Sub Inspector of Police, Vilappilsala 8 Crl.Appeal No.466 of 2007 registered the crime. Ext.P1(a) is the F.I.R. As stated, PW2 alone is the person who witnessed the incident. He deposed regarding the incident before the court. PWs.3 and 5, parents of PW2, deposed that while they were in the house of PW5's mother, they were informed about the incident by PW2 following which they reached their house. Both of them almost similarly stated that PW2 came running and informed them that Viji was assaulted by the appellant. On reaching their house immediately, they saw Viji lying injured in the kitchen. PW3 further stated that he along with PW2 and two others took the deceased to the hospital at Peyad and then to the Medical College Hospital, Thiruvananthapuram.
11. PW6 was cited to give evidence about the matrimonial discord between the appellant and the deceased. He admitted being a neighbour, but he did not state about the matrimonial disharmony and thus resiled from the statement before the police. Ext.P4 is the relevant portion of the statement in police from which he departed from. Except as to the fact that Smt.Viji died as a result of the injuries she 9 Crl.Appeal No.466 of 2007 sustained while at the house of PW2, the evidence of PW6 is of no worth.
12. PW4 Dr.Sasikala held autopsy on the body of Smt.Viji. Ext.P2 is the autopsy report. She noticed the following antemortem injuries:
"1) Incised wound 3x0.5 to 1.5x0.5 cm reflecting a flap 1.5x0.5 cm from the outer margin of each lobe, its upper margin is 1.5 cm below the tragus;
2) Incised wound 7x3.5 cm bone deep, horizontal reflecting a flap of skin 5.5x3 cm from the lower margin on the right side of the neck, its front inner end 5 cm outer to midline and 0.8 cm below the lower border of jaw bone. Muscles and outer wall of internal jugular vein were seen cut cleanly. The wound terminated at the outer border of third cervical vertebra;
3) Incised wound 7x5x0.3 cm to bone deep, horizontally placed on the top of left shoulder its inner end 7.5 cm outer to the root of neck. Wound showed a tailing 1.5 cm long extending downwards from the outer margin.
4) Small contusions of sizes varying from 0.5x05.x0.2 cm to 1x0.5x0.3 cm over an area 4.3x1.5 cm on the top of head in the midline and 12 cm above the root of nose."
PW4 opined that injury No.2 was the cause of death. That was an incised wound at the neck of the deceased. From the evidence of PW1 to 6 and Ext.P2 it stands proved that Smt.Viji died of 10 Crl.Appeal No.466 of 2007 injuries inflicted at her neck and other parts of the body inside the house of PW2 at about 5.30 p.m. on 25.07.2001.
13. The learned counsel for the appellant attacks the credibility of PW2. It is submitted that his behaviour of rushing to her parents without mentioning about the incident to anyone in the vicinity is doubtful. If he was sleeping, there was no possibility for him to see the incident. Regarding the time when he reached back home on that day and the presence of Smt.Viji in the house the evidence is quite doubtful. His narration about the matters transpired while taking the deceased to the hospital is discrepant. Also, his failure to return to his house on that day creates suspicion. When no neighbour deposed about the presence of the appellant at or about the time of occurrence at his house or the house where the incident occurred, the solitary testimony of PW2 cannot be believed. Had the appellant been the assailant, his leaving from the place of occurrence, reaching his house to change the dress before leaving the place should have been noticed by the neighbours. But no such evidence is 11 Crl.Appeal No.466 of 2007 coming forth. Further, the recovery of the chopper and dress of the appellant from his house is not convincing. For the aforesaid reasons, it is urged by the learned counsel for the appellant that there is absolutely nothing in evidence to connect the appellant with the crime.
14. The information passed on by PW2 to his parents that the appellant assaulted Smt.Viji using a chopper is projected as a res gestae by the prosecution. What amounts to res gestae was considered by the Apex Court in Sukhar v. State of U.P. [(1999) 9 SCC 507]. It was held that Section 6 of the Evidence Act, 1872 is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter.
12Crl.Appeal No.466 of 2007
15. This Court in Imbayi v. State [1989 (1) KLT 956] held that term res gestae may be defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. The Division Bench dilated the concept of res gestae in the following words:-
"In a general way res gestae could be defined as meaning and including the circumstances, facts and declarations which grow out of the main fact and serve to illustrate its character and which are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabrication, and it has been made to embrace all facts which are relevant to the principal fact in any degree as tending to establish the existence of a claim or a liability in dispute between the parties which directly arises, if at all, from the primary fact."
16. PW2, after seeing the incident, rushed to his grandmother's house, which is at a distance of five minutes walk and informed PWs.2 and 5 about the incident. It is not possible to say that the said act is contemporaneous with the main fact. If it were an outburst to the persons available in the vicinity, it could amounted to res gestae. But the 13 Crl.Appeal No.466 of 2007 information passed on by PW2 to PWs.3 and 5 in the circumstances of this case cannot be made relevant as a res gestae. But the fact that on passing on that information, PWs.3 and 5 reached the scene of occurrence immediately and found the deceased lying with injuries is quite relevant. At the time when PWs.3 and 5 together with PW2 came back, so many others, including PW1, were there. When PW1 gave Ext.P1 statement at about 8.00 p.m. on the same day in police narrating the incident almost in similar terms, the narration of PW2 regarding the incidents gets corroboration. Of course, complicity of the appellant can again be dependent upon the reliability of PW2 and the attending circumstances.
17. Based on the telephonic information PW1 gave to the police immediately, no crime was registered. That is pointed out as a reason to doubt the genesis of the case. I am unable to agree with that submission of the learned counsel for the appellant. Without much delay PW1 went to the police station and gave a statement. By that time the injured was reported dead. Therefore non-registration of a crime based on 14 Crl.Appeal No.466 of 2007 the cryptic information given by PW1 is irrelevant in the circumstances of this case.
18. As pointed out above, PW2 is the sole eye witness and the appellant has an allegation that it was PW2 who committed the offence. Hence, his evidence has to be approached with care and caution. In Narendra Sinh Keshubhai Zala v. State of Gujarat [2023 SCC OnLine 284], the Apex Court held that in a case of a sole eye witness the witness has to be reliable and trustworthy. His testimony should be worthy of credence and helpful to prove the case beyond reasonable doubt. Unnatural conduct and unexplainable circumstances can be grounds for disbelieving such a witness.
19. The learned counsel for the appellant relying on Maranadu and another v. State by Inspector of Police, Tamilnadu [(2008) 16 SCC 529] would submit further that PW2 as also PWs.3 and 5 are relatives of the deceased. Their evidence is inherently weak and therefore they cannot be believed. However, the following observations in the said 15 Crl.Appeal No.466 of 2007 decision are relevant:
"Merely because the eyewitnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible."
20. The inconsistencies pointed out in the evidence of PW2 are regarding the mode of taking deceased to a hospital at Peyad, availing of outpatient ticket at the Medical College Hospital, and the presence of PW1 at the Medical College Hospital while taking the injured there. The fact that the deceased was taken in an auto rickshaw to a hospital at Peyad, where she was only examined and not even given first aid, has been sufficiently proved by the evidence of PW1 and PW2. At the Medical College Hospital Smt.Viji was pronounced brought dead by the doctor on first examination itself. In such a situation, the inconsistency in the version of PW2 as to availing of an O.P. ticket cannot be termed a material one. Of course, PW1 stated that he did not go to the Medical College Hospital; he went up to the hospital at Peyad alone. In that 16 Crl.Appeal No.466 of 2007 situation, the statement of PW2 that PW1 reached the Medical College hospital is incorrect. However, having regard to the situation, that also cannot be a reason to disbelieve PW2 altogether.
21. On the day of occurrence, PW2 did not return to his house in the night. He went to the house of PW3's brother at Kesavadasapuram, a place nearer than his house. Evidently the postmortem examination on the body of the deceased was held on the next day. PW2 went back to the Medical College hospital on that day and returned to his house after postmortem examination. It has come out that on that day he was questioned by police and recorded his statement. Thus it is seen that PW2 had been available throughout and there could notice no unnatural or suspicious behaviour on his part.
22. PW2 deposed that while he went to sleep, his parents and the deceased were in that house. It was at about 2.30 p.m. PWs.3 and 5 deposed that after 3.30 p.m. they went to the house of PW5's mother, which is at a distance of five minutes walk. The version of PWs.3 and 5 is that Smt.Viji 17 Crl.Appeal No.466 of 2007 was sent to her house while they left for the house of PW5's mother. A contradiction with respect to the exact time when PWs.3 and 5 left their house is brought out; whether at 3.30 or 4.30 p.m. Considering their rustic nature the same does not have the effect of discrediting their veracity.
23. It is not known at what time Smt.Viji returned to that house. From the evidence on record including Exts.P8 and P9 mahazars, it is quite evident that her rented house was within a short distance from the house of PW2. Only house in between is that of Smt.Remadevi and nobody was there in that house on the fateful day. The learned counsel for the appellant urged that non examination of neighbours is fatal to the prosecution, in the above circumstances. PW6 is a neighbor. He did not choose to say anything about the aforesaid aspects. He deposed against the prosecution by resiling from his version before the police. PW13 the Investigating Officer explained that the witnesses who have acquaintance with the occurrence were cited as witnesses. It is seen that PW13 had questioned several persons in the 18 Crl.Appeal No.466 of 2007 neighbourhood. The prosecution cannot be found fault with for not citing all the persons in the locality: those who are capable of giving evidence about relevant facts alone need be cited as witnesses. There is nothing on record to show that any other witness who could have spoken more about the incident was left out. In the said circumstances, non examination of other neighbours does not fail the prosecution.
24. As stated above, the inconsistencies pointed out in the evidence of PW2 are not of such a nature as to render him totally unreliable. He could have alerted the immediate neighbours before rushing to inform her parents about the incident. A Division Bench of this Court in Ali Noushad v. Rasheed [2022 CriLJ 3023] observed that no standard behaviour can be expected of a human being who witnessed commission of a serious crime, nor is it permissible in law to brand a witness as reliable or unreliable on the sole basis of such standard behaviour, or deviation therefrom. The deceased is the cousin of PW2. On seeing such a drastic act, PW2 might have thought of immediately informing his 19 Crl.Appeal No.466 of 2007 parents. He was around 22 years old at that time. He fetched his parents and soon came back. He along with his father and others took the injured to the hospital. He knew that PW1 informed the police about the incident. The evidence on record would not show that persons in the neighboring houses were available to be informed immediately also. In the said circumstances, I am of the view that no infirmity in the evidence PW2 had tendered about the incident can be found and therefore his evidence stands reliable.
25. PW13 testified that at about 7.00 p.m. on 29.05.2001 he arrested the appellant from Aruvippuram. Exts.P12 and 13 are the arrest memo and inspection memo. His further version is that the appellant gave a statement that he kept the chopper in his residence and he could show the same, if he was taken to that place. They accordingly went to that residence which is the building bearing door No.VPII/155. The appellant along with the deceased was residing at the lean-to like portion of that building. From inside that lean-to MO1 chopper was recovered as pointed out by the appellant. 20 Crl.Appeal No.466 of 2007 Ext.P9 is the Mahazar for the seizure. MOs.10 and 11, a lungi and a shirt which were found on a box in that premises were also seized as pointed out by the appellant under Ext.P9 Mahazer. PWs.9 and 17 are the witnesses to Ext.P9. They did not support the case of the prosecution. Although they admitted having signed Ext.P9 on the request of the police from near the said house, they denied having seen any recovery. They did not state about the presence of appellant also at that time. When they resiled from the statements they gave to the police, and they admitted having signed Ext.P9 from near the house in question, the evidence of PW13 concerning recovery of MOs.1, 10 and 11 from the place of residence of the appellant cannot be doubted. Further, PW18, a police personnel who accompanied PW13 also deposed substantiating the seizure.
26. The learned counsel for the appellant would submit that the said premises was so close to the place of occurrence, and it cannot be expected that PW13, or for that matter, PW11, who registered the crime did not inspect that premises ever 21 Crl.Appeal No.466 of 2007 before 29.05.2001. The said lean-to portion being the residence of the appellant, it cannot be said that any and all have free access to the premises. Therefore recovery effected from there can certainly be said to be one from an enclosed place and relevant under Section 27 of the Evidence Act.
27. This Court in Muhammed Faisal M.T.P @ Faisal v. Inspector of Police, Kasaragod and another [2021 (4) KHC 13] held that when the knife was recovered from residential property belonging to the accused himself, such a place cannot be said to be an open place easily accessible to the public or even the police nor would it be visible to the public. Therefore, the said recovery was found relevant under Section 27 of the Evidence Act. Here the premises from where the recovery was effected is an enclosed building and was not a place accessible to the public. MOs.1, 10 and 11 were recovered as pointed out by the appellant from his place of residence. He was then in the custody of PW13. That evidence stands reliable and is relevant under Section 27 of the Evidence Act.
22Crl.Appeal No.466 of 2007
28. MOs.1, 10 and 11 as well as the objects including dress collected from the dead body were examined in the Forensic Science Laboratory. Exts.P10 is the report. Blood of the deceased was found to be group B. MOs.1, 10 and 11 also found stained with human blood belonging to group B. The said evidence established the fact that MO1 was in the possession of the appellant after the incident and the same was a weapon used to inflict injury to the deceased. When human blood of the same group of the deceased was found in the dress of the appellant, the irresistible inference is that it was the appellant who inflicted injuries to the deceased using MO1.
29. The appellant was the husband of the deceased, a fact not in dispute. They were residing together also. The incident occurred at 5.30 p.m on 27.05.2001. The appellant was not available after the incident and only on 29.05.2001 he could be arrested by PW13. He was arrested from Aruvippuram, a place which is not very far away from the place of occurrence. But when the deceased is his wife, his 23 Crl.Appeal No.466 of 2007 non-availability even during the funeral amounted to abscondence. Therefore that becomes a fact relevant under Section 8 of the Evidence Act.
30. As held by the Apex Court in Harvinder Singh @ Bachhu v. State of Himachal Pradesh [2023 SCC OnLine SC1347] abscondence by itself cannot be the sole reason for convicting a person. One may abscond out of fear or illegal arrest even. But abscondence of the accused becomes relevant if there is other evidence pointing to the complicity of the accused to the crime. Here, the evidence of PW2 that he saw the appellant inflicting injuries using a chopper to the deceased is found reliable. Recovery of MO1 which was found stained with human blood of deceased's blood group is satisfactorily proved. The dress of the appellant recovered from his place of residence also found stained with blood of the same group. Those proven facts together with the abscondence of the appellant proved beyond doubt that it was the appellant, who inflicted fatal injuries to Smt.Viji.
24Crl.Appeal No.466 of 2007
31. The trial court found that the prosecution could not succeed to prove the allegation that on account of the appellant's doubt about his wife's chastity, he attacked her. When there is sufficient evidence to prove the commission of the offence by the appellant, motive becomes irrelevant. (See Jaikam Khan v. State of Uttar Pradesh [(2021) 13 SCC
716).
32. In the light of the discussion, I had above, there is no reason to interfere with the findings of the trial court. The appeal fails and it is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr