Thomas @ Kunhumon, C.No.828/16 vs State Of Kerala
2021 Latest Caselaw 16170 Ker

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Crl.Appeal No. 297 of 2017



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
               THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                         &
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                             CRL.A NO. 297 OF 2017
  [AGAINST THE JUDGMENT IN SC NO.803/2014 DATED 31.08.2016 OF
          THE    ADDITIONAL SESSIONS JUDGE-III, THALASSERY]
             [CRIME NO.33/2014 OF PAYYAVOOR POLICE STATION]
APPELLANT/S:

              THOMAS @ KUNHUMON, C.NO.828/16
              CENTRAL PRISON & CORRECTIONAL HOME, KANNUR.

              BY ADV R.KRISHNAKUMAR (CHERTHALA) STATE BRIEF


RESPONDENT/S:

              STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR
              HIGH COURT OF KERALA

              BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR




       HIS     CRIMINAL      APPEAL    HAVING   BEEN   FINALLY   HEARD   ON
22.07.2021, THE COURT ON 04-08-2021 DELIVERED THE FOLLOWING:
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Crl.Appeal No. 297 of 2017



                                     JUDGMENT

Ziyad Rahman A.A., J.

The appellant is the accused in S.C. No. 803/2014 on the file

of the Court of Additional Sessions Judge-III, Thalasserry, who

stands convicted for the offence under Section 302 of Indian Penal

Code (I.P.C). He is accused of committing murder of his own

brother, in front of their mother.

2. Payyavoor Police registered Crime No. 33/2014 against

the appellant and after investigation, they filed a charge sheet

before the Judicial First Class Magistrate's Court, Thaliparamba.

After completing the formalities, it was committed to the Sessions

Court, wherein it was tried and it resulted in the impugned

judgment convicting the appellant and sentencing him to undergo

imprisonment for life and to pay a fine of ₹ 5000/-. The appellant

/accused was arrested on the next day of the incident, i.e on is

21/01/2014 and he is in judicial detention since then. The

prosecution case in detail is as follows;

The appellant and deceased are brothers and they were

residing in nearby houses. Smt. Neithy @ Annamma, is the sister of

their mother and she is the owner of a rubber plantation having an

extent of ¾ Acre. As she was working at Kottayam, she entrusted

Crl.Appeal No. 297 of 2017

the management of the said property with the appellant and his

brother Stephen, who is the deceased. The appellant used to tap the

rubber trees in the said property and he used to take the income

from the aforesaid property. It was the instruction of his maternal

aunt, the owner of the property, to give ₹ 1000/-per month to his

mother from the income derived from the property. On 20/01/2014,

at about 4 o'clock in the evening, PW1, the mother of the appellant,

who was residing along with the deceased, went to the house of the

appellant and demanded the amount, which was to be paid to her

from the income from the plantation of her sister. The appellant

informed he did not have the money but agreed to pay it shortly. At

that time, the deceased Stephen came to the house of the appellant

and questioned the appellant for wasting the income from the

aforesaid property for consumption of alcohol. The said questioning

enraged the appellant and it resulted in a scuffle between them. The

mother intervened, separated them and held his hand, to pull him

away and out of the house of the appellant. While so, the appellant

went inside the house, came back with a chopper and inflicted cut

injuries on the head of the deceased. Even though he was taken to

a hospital, next morning he succumbed to the injuries.

3. In support of prosecution case, PWs 1 to 21 were

examined, Exhibits P1 to P25 were marked and material objects,

Crl.Appeal No. 297 of 2017

M.Os 1 to 4 were identified. After completing the prosecution

evidence, the appellant was questioned under Section 313 of Cr.P.C,

wherein he denied all the incriminating evidence put to him and he

explained that at the time of the occurrence of the crime, he was

not in station, as he was engaged in concrete work at Irikkur.

4. After analysis of the entire materials, the Sessions Court

found the accused guilty of the offence and sentenced him to

undergo life imprisonment and to pay a fine of ₹ 5000/-.

5. Heard Sri R. Krishnakumar (Cherthala), the learned

counsel for the appellant (State Brief), and Sri S.U.Nazar, the

learned public prosecutor. The learned counsel for the appellant

raised various contentions such as; the evidence of PW1, the

mother of the deceased and the appellant are not at all believable,

as there are several inconsistencies therein, particularly with respect

to the exact spot of occurrence. He points out that as per the First

Information statement (FIS) given by the mother, the incident of

inflicting cut injuries occurred when the deceased was attempting to

step down from the veranda of the residence of the appellant,

whereas the place of occurrence as shown in Ext P14 site plan and

Ext P4 scene mahasar is 5.2 meters away from the said veranda. He

also points out certain discrepancies in the narrative made by her as

to the commission of the crime. Even though PW1 stated in the FIS

Crl.Appeal No. 297 of 2017

that she had seen the incident, when examined as PW1, she stated

that she had not seen the act of inflicting cut injuries on the

deceased. It is his further contention that there were no fingerprints

on MO1 chopper and even though bloodstains were found on the

same, Ext P25 FSL report does not contain any details as to the

characteristics of the blood found therein.

6. Per contra, the learned Public Prosecutor would argue

that the prosecution was successful in establishing the guilt of the

accused without any reasonable doubt and the contradictions and

inconsistencies highlighted by the appellant are not of much

significance when the entire evidence is considered as a whole. He

points out that, the evidence of PW1 provides a vivid picture of the

incident and the evidence of PWs 2, 3, 4, 5 and 6 lends credence to

the version put forward by PW1 and the events occurred

immediately after the incident. The complete chain of circumstances

was established, through the evidence of witnesses mentioned

above, and it is supported by the recovery of MO1 weapon and MO3

lunki worn by the appellant at the time, recovered from the

residence of the appellant, based on his confession statement. Both

the said material objects were found with blood stains. The learned

Public Prosecutor therefore prays for dismissal of the appeal.

Crl.Appeal No. 297 of 2017

7. The proceedings were commenced based on the FIS (Ext

P1) given by PW1 at 8:30 PM on 20/01/2014. In it she stated as

follows: She is a resident of Uppupadanna, in Payyavur and she has

five children. The 2nd son, the appellant herein was residing alone, in

a nearby house, as his wife and children deserted him. Her younger

sister is working in 'Karithas' at Kottayam and she has a rubber

plantation. She entrusted the tapping of rubber trees in the said

property with the appellant and the deceased. The deceased, who

is the younger son of PW1 is a concrete worker. On 20/01/2014 at

4:30 PM, she went to the house of the appellant and asked for the

amount towards maintenance. At that time, the deceased came to

the house of the appellant and questioned him for wasting the

money received from the rubber plantation for consumption of

alcohol. The appellant responded by saying "you need not interfere

in that matter" and the exchange of words resulted in an altercation

between them. All these incidents happened at the veranda of the

house of the appellant. PW1 intervened and pacified them and

thereafter she had taken the deceased out of the house of the

appellant by holding the hands of the deceased. While they were

attempting to step down from the veranda, the appellant went

inside, came back with a chopper and inflicted two cut injuries on

the back side of the head of the deceased. The deceased fell down

Crl.Appeal No. 297 of 2017

and immediately she had taken him to the house of the deceased.

Hearing the cry of PW1, Appachan and his daughter-in-law Bindu

(PW 2), Kuttappan and Radha, who are the neighbours came to the

spot. They covered the head injuries of the deceased with a piece of

cloth and immediately a jeep was summoned and he was taken to

Pariyaram Medical College, for treatment. On the way to the

hospital, PW1 got down at the residence of her daughter at

Parakadavu.

8. Ext P8 is the post-mortem certificate which was proved

by PW12 Doctor. The antemortem injuries mentioned in the said

document were as follows:

" 1. Sutured incised wound, 7cm long, horizontal with slight obliquity, on the left side of head just behind the ear; the inner end of the wound was, 2cm above the mastoid process. Underneath, the temporal bone was found cut open; the left petrous temporal bone was fractured at its middle. Brain showed a thin film of subarachnoid bleeding. Minimal cerebral oedema was noted. There was a small contusion at the left frontal pole.

2. Sutured superficial incised amount, 2.5 CM long, on the head, 2 cm above the back end of injury no.1

3. Abrasion covered with black scab 0.7 x 0.2cm, on the back of left forearm at its middle.

4. Fracture of sternum, at its middle; 2 - 5 ribs and 7th rib on the left side were fractured, with minimal infiltration of blood only (resucification artefacts)."

Crl.Appeal No. 297 of 2017

9. The cause of death was shown as lung complication,

following the chop wound sustained to the head. PW12 reiterated

the said findings in the witness box and categorically opined after

examining M.O.1 chopper that, the injuries mentioned in the

postmortem report, particularly the injuries 1 and 2 can be caused

by the said weapon. It is further deposed by him that injury No. 1 is

sufficient to cause the death in the ordinary course of nature.

10. From the analysis of the evidence of PW12, coupled with

Ext P8 post-mortem certificate, it can be safely concluded that the

death of the deceased was a homicide. Having found so, the next

question that emerges is as to whether it was the accused, who

inflicted those injuries upon the deceased with an intention to cause

the death of the deceased, as claimed by the prosecution.

11. The crucial evidence that prosecution relies on, is the

evidence of PW1, who is none other than the mother of the

appellant as well as the deceased, and the only eyewitness to the

incident. On going through the evidence of PW1, it can be seen that,

she deposed about the incident clearly and substantially in tune with

her statement in Ext P1. Of course, it is true that there was some

deviation with regard to the witnessing of the particular act of

inflicting the cut injuries upon the body of the deceased. In this

regard, it is to be noted that, even though she initially stated that

Crl.Appeal No. 297 of 2017

she had seen the appellant inflicting the injuries upon the deceased,

immediately she retracted and corrected herself that she had not

seen the act of inflicting injuries. However she categorically stated

that, while she was returning to her house with the deceased

following her, after the scuffle between the deceased and the

appellant; hearing a sound she looked back and saw the deceased

inflicted with head injuries and in a profusely bleeding stage. She

had also seen the appellant nearby, with a bloodstained chopper in

his hands. From the above statement, it is evident that, the

retraction from the statement that she had seen the incident of

inflicting cut injuries on the body of the deceased, is not of much

significance. The statement of PW1 that as she looked back, she

saw the deceased with injuries and the appellant standing nearby

with the bloodstained chopper, itself is sufficient evidence to find the

culpability of the appellant.

12. The learned counsel for the appellant further points out

that there are other crucial discrepancies in the evidence of PW1 as

to the place of occurrence of the incident and it is not safe to base a

conviction on such evidence. He took us to the statement in Ext P1

made by PW1 and submits that as per the version contained

therein, the incident occurred on the veranda of the house of the

appellant, whereas the contents of Ext P4 scene mahasar and Ext

Crl.Appeal No. 297 of 2017

P14 site plan reveals a different story. He points out that the

Sessions Court found the said statement to be a mistake on the part

of PW1, which is not sustainable. But, on a careful examination of

the statement made by PW1 in Ext P1 statement, it can be clearly

seen that the said statement is neither contradictory to her

statement in deposition, nor can it be treated as a mistake on her

part. The statement regarding the exact spot of occurrence as

narrated in Ext P1, is clearly in tandem with the evidence of PW1

and also with the scene mahazer. It is to be noted that the exact

statement made by her in Ext P1 in this regard is that, when she

along with the deceased were attempting to get down from the

veranda of appellant's house, Thomas (appellant) went inside and

came back with a chopper, shouting "I will not spare you" and

inflicted cut injuries on the back of his head. From a closer

examination of the said statement, it can be seen that, when they

were attempting to step down from the veranda, the appellant went

inside. At the relevant time, PW1 and the deceased were evidently

walking towards their house from the appellant's house, through the

exit on the northern side and by the time the appellant came out

with a chopper, they moved a little bit forward and the injuries were

inflicted slightly away from the veranda. This is very clear from the

description of the spot of occurrence as contained in Ext P4, as it is

Crl.Appeal No. 297 of 2017

a place which is located 5.20 meters towards the north-eastern side

from the north-western corner of the veranda of the house of the

appellant. In such circumstances, the aforesaid statement cannot be

treated as an inconsistency or contradiction so as to disbelieve the

evidence of PW1. It is also to be noted in this regard that, the spot

of occurrence has been clearly mentioned in Ext P4 and the same

was prepared based on the information furnished by PW1 and it was

proved by evidence of PW7, who witnessed the preparation of scene

mahasar. Apart from the above, PW9 is the witness to Ext.P5 seizure

mahasar, evidencing seizure of bloodstained soil collected in packets

by PW10 scientific assistant from the exact spot. PW9 clearly stated

that, at the time of preparation of Ext P5, the spot was identified by

PW1 and PW10 collected the blood stained soil found there. The said

evidence is corroborated by evidence of PW10, who collected the

samples of blood stained soil and also the blood samples found in

the vicinity. All the above evidence clearly lead to a conclusion that

the incident occurred at the spot as asserted by the prosecution and

the contention raised by the learned counsel for the appellant in this

regard is only to be rejected.

13. It is true that evidence of PW1 contain more details than

stated in Ext P1 statement. In her deposition, PW1 stated about the

instruction given by PW6 to the appellant, the owner of the rubber

Crl.Appeal No. 297 of 2017

plantation to give Rs 1000/- per month to her, which was an

improvement of her statement in Ext.P1. Further, Ext. P1 also does

not contain the fact that initially, the deceased was taken to Mercy

Hospital and later to Pariyaram Medical College. However, in our

view, those deviations would not in any matter affect the credibility

of PW1 as those were clarifications of Ext.P1. The FIR has been

held by the Hon'ble Supreme Court as not an encyclopaedia of

events (Superintendent of Police, CBI v. Tapan Kr.Singh

[(2003) 6 SCC 175]). So nothing precludes the witness in

furnishing more information than stated in the F.I.S. as long as it is

not an embellishment regarding the crime or a clear contradiction

which produces a reasonable doubt as to how the crime occurred.

14. Even though the learned counsel for the appellant

strenuously argued against the trustworthiness of PW1, we cannot

find any reason to accept the said contention. The entire chain of

events which started from the commission of crime and until the

death of the deceased, as stated by PW1, is clearly established by

the circumstances revealed through various materials and also from

the evidence of PWs 2 to 6. PW 3, is a neighbour who rushed to the

spot upon hearing the outcry of PW1. According to her, when she

reached the place along with her father-in-law, she found the

deceased lying near the house of PW1 with bleeding injuries. PW2

Crl.Appeal No. 297 of 2017

who is another neighbour who came to the spot immediately after

the incident when he was informed of the incident by PW3, stated

that when he reached the house of the deceased, he found the

deceased lying with injuries. Both of the said witnesses have stated

that, immediately a jeep driven by PW4 was summoned and the

deceased was taken to Mercy Hospital. PW2 accompanied PW1 to

Mercy hospital and he further stated that as the injuries were

serious, Mercy hospital authorities did not admit the deceased there

and instead, he was referred to Pariyaram Medical College. PW2

also stated that, PW5 brother-in-law of the deceased came to Mercy

Hospital, upon getting information. From Mercy Hospital, deceased

was taken to the Medical College Hospital in an ambulance. PW4,

the driver of the jeep also spoke of the said sequence of events

exactly as stated by the other witnesses and he would further state

that he dropped PW1 at the residence of her daughter and this

statement is also in perfect alignment with the version of PW1. PW5,

the brother-in-law of the deceased as well as the appellant who

came to the Mercy Hospital upon getting information and

accompanied the deceased to the Pariyaram Medical College

Hospital, also has spoken about the same in tandem with the above

version. All the said witnesses have vividly described the nature of

injuries sustained by the victim and also the information furnished

Crl.Appeal No. 297 of 2017

by PW1 that the said injuries were inflicted by the appellant. So

what is revealed from the analysis of the entire materials is that the

entire chain of events are clearly established as all the witnesses

have consistently spoken of the episode, exactly as projected by the

prosecution.

15. It is true that, there is only one eye witness to the

incident. However her presence in the scene of occurrence cannot

be disbelieved. She clearly stated about the arrangements made by

her sister, PW6, with regard to the amount to be paid by the

appellant to PW1 from the income derived from the rubber

plantation of PW6. PW1 clearly stated that, she went to the house of

the appellant on that day for asking the said amount. Similarly, PW6

has also clearly spoken of the said arrangements and the instruction

she had given to the appellant for paying the amount to PW1 every

month. So the version of PW1 in this regard is clearly established. It

is true that, there were some minor embellishments in her evidence,

but nothing material could be brought out by the defence, so as to

shake the veracity of her evidence. Moreover, being the mother of

the appellant, we cannot assume any interest on her part, in seeing

the appellant punished. On the other hand, even while she was

narrating the incident, some attempts were made by her to play

down the acts of the appellant, presumably to reduce his culpability.

Crl.Appeal No. 297 of 2017

Her statements such as, she had not seen the appellant inflicting

injuries on the deceased, when asked for money the appellant

expressed his willingness to pay the same at a later point of time

etc, bear testimony of such intention. The conduct of PW1 in making

such statements, reveal the motherly affection towards the

appellant, and it adds more genuineness to her version, particularly

because of the reason that, despite her attempt to make her version

as soft as possible as regard to the acts committed by the appellant,

the facts revealed from such evidence constituted the offence under

section 302 of IPC. Her predicament is understandable since both

the victim and the assailant were her children. So we find her

evidence truthful, trustworthy and it inspires confidence. It is a well

settled position of law that, evidence is to be weighed and not

counted; what matters is not quantity, but quality. In Veer Singh

and others Vs State of U.P.(2014(2) SCC 455) the Honourable

Supreme Court held as follows;

"Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but - quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove / disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under S.134 of the Evidence Act. As a

Crl.Appeal No. 297 of 2017 general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide: Vadivelu Thevar and Another v. State of Madras AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638; Mahesh and Another v. State of Madhya Pradesh 2011 (9) SCC 626; Prithipal Singh and Others v. State of Punjab and Another 2012 (1) SCC 10; Kishan Chand v. State of Haryana JT 2013 (1) SC 222 and Gulam Sarbar v. State of Bihar (Now Jharkhand) - 2013 (12) SCALE 504)."

16. Another crucial aspect to be taken into consideration, is

the confession statement made by the appellant, which led to the

recovery of MO1 chopper and MO3 lunki worn by the deceased at

the time of incident. Ext P19 is the relevant extract of the confession

statement made by the appellant. The aforesaid recoveries were

witnessed by PW2 and PW7. Both of them have spoken of the

recovery in the manner as mentioned by PW21, the investigating

officer and also as revealed through Ext P2 seizure mahazer. Ext P19

is the relevant extract of the confession statement, as per which,

the appellant informed PW21 that, he had kept the chopper in his

house and he further stated that if he is taken there, he can show

the place of concealment. He also made a similar statement with

respect to M03 lunki as well. In pursuance to the aforesaid

statements, PW21 had taken the appellant to his house on

22/01/2014 and the recovery was effected. Both PW2 and PW7

Crl.Appeal No. 297 of 2017

deposed in tune with the prosecution case as to the aforesaid

recovery and the manner in which it was conducted. The crucial

aspect to be noticed in this regard is that, when the appellant was

brought to his house in pursuance of the confession statement made

by him, his house was locked. It was opened by the appellant

himself using the key kept by him. The aforesaid fact was clearly

spoken of by both PW2 and PW7. This would clearly rule out all

possibilities of manipulations as regards the material objects, and

at the same time, it would also add credibility to the prosecution

version.

17. Scientific examination of the said material objects would

further strengthen the case of the prosecution. Ext P25 is the report

of the Scientific Assistant (Biology) Regional Forensic Science

Laboratory, Kannur. In the said report, MO1 chopper was described

as item no 2 and as per the report, it contained bloodstains, but due

to insufficiency of quantity thereof, origin and grouping could not be

done. Similarly, MO3 lunki which was worn by the accused at the

time of commission of the crime and was recovered as per Ext P2

mahasar, also contained human blood, but the origin and grouping

could not be done as the available quantity was not sufficient. The

facts that, (1) the above material objects were recovered from the

residence of the appellant which was under the lock and key of the

Crl.Appeal No. 297 of 2017

appellant himself, (2) the recovery on the basis of the confession

statement made by the accused, and (3) the presence of

bloodstains on both the above material objects are matters of

crucial importance, indicating the culpability of the appellant. On the

other hand, the appellant does not have any explanation to offer,

for the presence of bloodstains in the aforesaid material objects,

which were proved to have been recovered from the residence of

the appellant. Since the aforesaid discovery of material objects were

in pursuance of a confession statement made under Section 27 of

the Evidence Act, it is an admissible piece of evidence. In such

circumstances, the recovery of the aforesaid material objects

coupled with the presence of bloodstains found therein, would

corroborate the evidence of PW1.

18. It is true that, there are materials to show that MO1

chopper did not contain the fingerprints of the appellant. However,

the prosecution case cannot be disbelieved only because of the

same. In this case, there is reliable evidence of PW1, as to what

transpired on the ill-fated day and she identified MO1 as well. MO1

was recovered from the house of appellant kept under lock and key

by him and his ownership over the said house is proved through Ext

P12 ownership certificate which was proved by PW16, the Secretary

of Payyavoor Grama Panchayat. The recovery of MO1 was based on

Crl.Appeal No. 297 of 2017

a confession statement duly proved. MO1 and also MO3 lunki

recovered from the said house contained blood stains and the

appellant has nothing to offer in explanation to the same. In our

view, the facts mentioned above are sufficient to arrive at the

conclusion of guilt of the appellant and the absence of fingerprints

on MO1 chopper would not come to the rescue of the appellant

under any circumstances. This is particularly because, the case set

up by the appellant when his statement was recorded under Section

313 Cr.P.C was that, at the relevant time he was not present in the

place of occurrence as he was engaged in construction work at

Irikur. Apart from the mere statement, no materials were brought in

by the appellant to substantiate the same. On the other hand,

materials available on record and discussed above, would clearly

show a clear connection of the appellant with Material Objects and

his presence at the place of occurrence at the relevant time.

19. Regarding the motive, the prosecution case is that the

appellant failed to pay the amount to PW1 out of the income from

the property of PW6, as per the instructions of PW6 and this was

questioned by deceased. However, evidence of PW1 and PW6 do not

reveal that there was any refusal on the part of the appellant and

hence the same cannot be treated as a motive. But, as mentioned

above, evidence of PW1 would clearly establish that both of them

Crl.Appeal No. 297 of 2017

were not in good terms for the past three years. The altercation

between the parties just before the commission of crime, which

stemmed up from the questioning of the deceased spending money

for consuming alcohol, is a clear indication of the strained

relationship between the appellant and the deceased. These facts

clearly show the motive behind the action of the appellant. Further,

when there is evidence of a credible eye witness, there cannot be

much predominance for the existence of a motive. In this case, as

we have found the evidence of PW1 creditworthy, the absence of

motive cannot absolve the appellant.

20. The nature of injuries mentioned in postmortem

certificate clearly indicate that those were inflicted by using a sharp

weapon and it was used with such a force to cause injuries leading

to death. PW12 doctor conducted the postmortem and issued Ext P8

certificate, after examining MO1 chopper. He offered a definite

opinion that those injuries could be inflicted with the said weapon.

In such circumstances, it can be safely concluded that the injuries

were inflicted by the appellant with the knowledge that those

injuries could result in the death of the deceased and hence the act

of the appellant would come under section 300 of IPC. We have also

examined as to whether the commission of the acts were at a time,

while he was deprived of the power of self-control by grave and

Crl.Appeal No. 297 of 2017

sudden provocation. The facts of the case do not make out a case

for such mitigation. It is evident from the deposition of PW1 that,

even though there was an altercation between the appellant and the

deceased, PW1 could manage the situation by putting an end to it

and she was leading the deceased away from the scene of

occurrence by holding his hands. However, after the immediate

tension of the altercation was apparently over and when the

deceased was retreating from the appellant's house along with PW1,

the appellant went inside his house, took a dangerous weapon, the

chopper and came back to attack the deceased, to inflict injuries

which in the ordinary course would result in death, as would any

reasonable man be aware of. The act of the appellant going inside

the house for collecting the MO1 chopper would clearly indicate an

intention to commit the crime. Under no circumstances the said act

can be treated as one done while he was deprived of the power of

self-control by grave and sudden provocation. Moreover, the words

exchanged between the appellant and the deceased, as spoken of

by the PW1 do not reveal anything so serious as to invoke such a

grave and sudden provocation, which would persuade a normal

person to commit an act resulting in the death of another. It is also

discernible from the evidence of PW1 that, for the past 3 years, the

appellant and the deceased were not in talking terms. Thus all the

Crl.Appeal No. 297 of 2017

aforesaid aspects would clearly point to the fact that appellant had

inflicted cut injuries upon the head of the deceased with an intention

to cause death or with the knowledge that those injuries could result

in his death. In such circumstances, we have no hesitation in

arriving at the conclusion that, the finding entered into by the

Sessions Court holding the appellant guilty for the offence under

section 302 of IPC is legally sustainable and liable to be confirmed.

21. From the above discussion, our findings can be

summarized as follows; the evidence of PW1 is reliable, trustworthy

and reveals the manner in which the injuries were inflicted by the

appellant on the deceased. The sequence of events immediately

after the assault on the deceased and till his death are clearly

revealed from the evidence of PWs 2 to 5. The recovery of the MO1

chopper and MO3 lunki from the residence of the appellant, based

on Ext P19 confession statement made by him, is clearly established

by the evidence of PW2, PW7 and PW21, with the support of Ext P2

seizure mahazer. As the recovery pursuant to the confession

statement of the victim is an admissible piece of evidence under

Section 27 of the Evidence Act, it is a valuable material, pointing out

the guilt of the accused. The scientific evidence of postmortem

certificate (Ext P8,) proved through PW 12, would clearly indicate

that the injuries which resulted in the death of the deceased could

Crl.Appeal No. 297 of 2017

be caused by MO1 weapon. The aforesaid weapon as well as MO3

lunki which were recovered from the house of the appellant that was

kept locked by him, contained bloodstains as revealed from Ext P25

report. The aforesaid evidence when considered along with the

evidence of PW1 would rule out all hypothesis of innocence of the

accused. The evidence of PW1 would further prove that the

appellant and the deceased were not in good terms for the past

three years. All the above aspects would clearly establish the guilt of

the accused, beyond any reasonable doubt.

22. In the above circumstances, we find no reason to

interfere with the finding entered into by the Sessions Court and

accordingly the conviction and sentence passed by the Sessions

Court in S.C 803/2014 is hereby confirmed. The appeal is dismissed

accordingly.

Sd/-

K. VINOD CHANDRAN JUDGE

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk