Kerala High Court
Kumaran (C No. 691/2017) vs State Of Kerala on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
CRL.A NO. 1078 OF 2017
[CRIME NO.1710/2014 OF Perinthalmanna Police Station,
Malappuram]
[AGAINST THE JUDGMENT IN SESSIONS CASE No. 287/2015 ON THE
FILE OF THE ADDITIONAL SESSIONS JUDGE-II, MANJERI]
APPELLANT/ACCUSED:
KUMARAN (C NO. 691/2017), S/O. KURUMBAN,
CENTRAL PRISON, KANNUR
BY ADV SRI. P.P. PADMALAYAN (STATE BRIEF)
RESPONDENT/STATE:
STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR
SRI. ALEX THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05-07-2021, THE COURT ON 22.07.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.1078 of 2017 2
K.VINOD CHANDRAN & ZIYAD RAHMAN A.A., JJ.
-----------------------------------------------------------
CRL. APPEAL No.1078 of 2017
--------------------------------------
Dated this the 22nd day of July, 2021
JUDGMENT
Ziyad Rahman A.A., J.
1. This appeal is filed by the accused in S.C.No 287/2015 on
the file of the Additional Sessions Judge-II, Manjeri, wherein he was
tried for the offences punishable under Sections 450, 302 and 201 of
the Indian Penal Code. As per the judgment passed by the Sessions
Court, he was convicted and sentenced for imprisonment for life and
to pay fine of ₹25,000, with a default sentence of rigorous
imprisonment for 6 months.
2. The prosecution case is as follows: On 28-12-2014 at
4 AM, the accused committed trespass into the house of the victim by
climbing over the concrete roof thereof, where the deceased and PW1
were sleeping, inflicted multiple blows on his head and body with a
heavy hammer, causing fracture of skull bone, ribs, thoracic vertebrae
and fled from the spot immediately thereafter. The accused
succumbed to the injuries instantaneously and the Inspector of Police,
Perinthalmanna registered Crime no 1710/2014 in respect of the said
incident, chargesheet was filed after investigation, and the accused
was tried. The prosecution examined PWs 1 to 12, marked Exhibits P1
to P23, and identified Mos 1 to 11. Contradiction in the deposition of
PW4, with his statement recorded under S.161 of Cr.PC, was marked
as Exhibit D1. After prosecution evidence, all the incriminating
evidence were put to the accused under Section 313 of Cr.P.C and he
denied the same. On analysis of the entire materials, the Tribunal
found the accused guilty and accordingly he was sentenced in the
manner mentioned above.
3. We heard Mr. P.P. Padmalayan, the learned counsel
for the Appellant/accused and the learned Public Prosecutor
Mr. Alex Thombra. The learned counsel for the accused contented that
the prosecution miserably failed in establishing the guilt of the
accused and the judgment passed by the Sessions Court is not legally
sustainable. The learned counsel points out that there are several
discrepancies in the evidence. He disputes the prosecution case as to
the time of death by placing reliance upon the postmortem certificate.
The place of occurrence is also disputed, as according to him, the
offence was allegedly committed on the roof of a building, which is
built in a slanting position towards both sides from the middle and as
per prosecution case, at the relevant time, the victim along with PW1
was sleeping on the roof. According to him, it is impossible to sleep on
the slanting roof. He also raises serious disputes as to the veracity of
prosecution version, by pointing out that taking into consideration the
total space available on the roof, it is impossible to commit the act
alleged by the prosecution. The evidence of PW2 is highly suspicious.
PWs 1 to 3 are planted witnesses, whose presence was highly unlikely.
The son of the deceased who was available in the house was not
examined. The version of PW2 that in the early morning the accused
trespassed into the house armed with the hammer is very improbable
given the circumstance that she did not alert the other persons
residing therein. Similarly, he disputes the motive alleged against the
accused. The evidence projected by the prosecution for showing the
way the accused fled from the scene of occurrence, is not believable.
The recovery of weapon is also seriously disputed by highlighting
certain discrepancies in the evidence of PW4, the attestor of the
seizure mahazar of MO10 weapon. We shall deal with all those
contentions in due course, one by one.
4. On the other hand, the learned Public Prosecutor objects
to the contentions of the learned counsel for the accused and asserted
that the prosecution has established the guilt of the accused without
any reasonable doubt. The discrepancies highlighted by the learned
counsel for the accused are not at all material and not sufficient to
discard the case of the prosecution. Accordingly, he prays for
dismissal of the appeal.
5. Ext P22 FIR was registered on the basis of the information
furnished by PW1, vide Ext P1 First Information Statement. The
contents of FIS, which was recorded at 8 AM on 28-12-2014 are as
follows: PW1 is the wife of the accused, whose marriage was
solemnised four years prior to the date of occurrence. The marital life
of PW1 with the accused was not at all happy, as he was in the habit
of ill-treating her after consuming alcohol. As the ill-treatment became
unbearable, she left him and started living with the deceased who was
one of her relatives. Thereafter both lived as husband-and-wife for 6
days, until his death on 28.12.2014 at the hands of accused. Being
enraged by the relationship between PW1 and the deceased, the
accused used to threaten both, stating that they would be killed.
Previous night of the date of occurrence, both PW1 and the deceased,
after having food, climbed on to the roof of the house of the deceased
and slept. By about 4 AM on 28.12.2014, she heard the deceased
crying loudly and she woke up to see the accused beating the
deceased with a hammer. Even though she tried to interfere, she was
pushed aside by the accused. Hearing her outcry, the mother of the
deceased (PW2), who was sleeping inside the house, so also his uncle
(PW3) who is residing nearby, reached the spot. In the meanwhile,
accused ran over the roof of the adjacent houses and escaped from
the scene by getting down through a tree hanging over to the roof of
the house of Smt. Usha, which is in the near vicinity. On close
scrutiny of the deceased they realised that he is no more. She further
stated that the accused had married earlier and his 1 st wife Lakshmi
eloped with some other person. He is having a son in that
relationship. She stated that, the accused in this case, was also
involved in another murder case. According to her, the reason for
committing murder of the deceased is the grudge nursed by the
accused against the victim, as PW1 started living with the deceased.
6. Ext. P10 is the Post-mortem Certificate, which was proved
through PW11 doctor, who noted following injuries on the body of the
deceased;
" 1. Lacerated wound avulsed downwards and backward seen
on the Rt side Lead. 0.1 cm, 8.5 cm above, Rt ear, exposing
bone underneath which showed a rather Semi-lunar depressed
fracture. 2.5 X 2 cm on the outer table (more depress on the
upper arm) and a circular depressed fracture 3 X 3 cm the
inner table.
2. Contused abrasion 8 X 6 cm on the Rt side face, ear
below and in front year lobe, with multiple fracture jaw bone
underneath with the contusion on and around.
3. Contused abrasion 6 X 5 cm on the Rt side neck, 3 cm
behind the ear. Lower part 16 cm Rt to middle front, with
contusion of muscle underneath and fracture of the transverse
process. 1st and 2nd cervical vertebra, Rt side with rupture of
right vertebral artery. Spinal-cord was covered with blood.
4. Lacerated wound 3.5 X 2 cm on the left side head tissue
deep 8 cm above ear.
5. Abrasion 7 X 3 CM, on the left the forehead, from outer
half of left eyebrow and 1X1 cm below eyebrow.
6. Contused abrasion, 6 X 2 cm on the left side of chest
just outer to root of neck.
7. Abrasion, 1.8 X 1.5 cm on the left side face just below
eye.
8. Thick subarachnoid haemorrhage on the base of brain
with extension towards upper the haemorrhage was thin.
Ventricles contained blood with dust clots. Blood was coming
from the spinal column, on removal of brain."
As per the opinion of PW11, death was due to subarachnoid
haemorrhage due to blunt injuries to neck and head. Injury No. 3 was
the major injury which resulted in injury No. 8. Injury No. 1 was also
a fatal injury. PW11 further opined that, injuries 1 to 4, 6 and 8 could
be inflicted with the MO10 weapon. The said opinion was expressed by
him after the weapon was shown to him. From the evidence of PW11
coupled with the contents of Ext P10 Postmortem Certificate, it can be
safely concluded that the death of the deceased was a homicide and it
was due to the injuries, possibly caused with MO10 weapon. That
conclusion takes us to the next question as to whether it was the
accused, who committed the said homicide as alleged by the
prosecution.
7. The crucial evidence relied on by the prosecution is that of
PW1, who is an eyewitness to the incident, and on whose first
information statement, the proceedings had commenced. She spoke
of the incident specifically in tune with what she had stated in Ext P1
FIS. She states that, for 6 days preceding to the date of occurrence,
she was residing along with the deceased in his house and the other
inmates were the mother and son of the deceased. She was forced to
leave the accused, who was her husband for the last four years, to
join the deceased, as the accused used to illtreat and assault her
under the influence of alcohol. After she started residing with the
deceased, on two occasions the accused approached them for taking
PW1 along with him, which she refused. Previous night of the date of
occurrence, they went on to the terrace of the house of the deceased
and slept there. By about 4 AM, she heard the outcry of the deceased
and the sound of hitting with hammer. When she woke up she saw the
accused beating the deceased with a hammer two or three times. She
cried loudly and hearing this the mother of the deceased and her
uncle Kumaran (PW 3) rushed to the spot. PW3 reached the place of
occurrence after switching on the lights of his house which is in the
neighbourhood itself. Immediately the accused took to his heels over
the terrace of the adjacent houses and slithered down through a tree
hanging towards the roof of the house of one Usha, a neighbour. She
further stated that, while inflicting blows, the accused was shouting :
"give my woman to me". The deceased died on the spot. She clearly
identified the accused in the moonlight. The motive for committing the
crime was stated to be that of PW1 having left her marital home to
live along with the deceased. The accused was earlier involved in
another case wherein he committed the murder of his uncle and he
was imprisoned in Central jail. She also identified MO10 weapon and
the other articles such as, shirts, undergarments, chappals etc.
recovered from the scene of occurrence. Even though she was
subjected to thorough and detailed cross examination, the defence
could not elicit any material to shake her credibility. She has given a
graphic description of the incidents occurred at the time of
occurrence, which was perfectly in tune with the FIS made by her
immediately after the incident.
8. The specific case of the learned counsel for the accused is
that, the presence of PW1 at the time of occurrence is highly
suspicious and she is a planted witness. However, on considering the
evidence available, we do not think that the said contention is legally
sustainable. Her presence at the place of occurrence at the relevant
time, is clear from the deposition of PW2 and PW3. As mentioned
above, PW2 is the mother of the deceased who was residing along
with the deceased and on the date of occurrence she was sleeping
inside the house. The evidence of PW2 is clearly in tandem with the
evidence of PW1 in all respects. According to her, at about 4 AM, she
heard an outcry of PW1 from the terrace and immediately she came
outside and from the road lying in front of the house, she had seen
the accused leaving the place of occurrence holding a hammer. He ran
over the roof of the adjacent houses and climbed down the roof of the
house of Usha, through a tree hanging towards the said roof. She also
narrates the history of the relationship of PW1 with the accused as
well as the deceased, just as mentioned by PW1. The motive
suggested by her was also in tune with what was stated by PW1.
However the learned counsel for the accused seriously disputes the
veracity of the evidence of PW2. One of main circumstances from
which he draws suspicion is the incident narrated by her, which
according to PW2, occurred just before the commission of offence.
She states that the accused came inside the house of the deceased
and opened the front door in search of deceased. As he could not find
the deceased, he left and she heard the outcry of PW1 sometime
thereafter. The learned counsel points out that this is something which
was not revealed to the Police when her statement was recorded
under Section 161 Cr.P.C. Apart from the above, the learned counsel
for the accused also brought our attention to the statement which she
made during cross examination wherein she stated that after the
accused left the house of the deceased, she slept and she came to
know about the death only in the morning. By highlighting the above
discrepancies, the learned counsel for the accused contents that the
evidence of PW2 is not at all relevant and must be discarded
completely.
9. It is true that the statement made by PW2 contain certain
material improvements from her statement under Section 161 of
Cr.P.C. At some point, she also makes a statement contradictory to
her main case, during the course of cross examination. But the
question that emerges is whether such exaggeration or embellishment
(if it is treated so) makes the evidence of PW2 unreliable. In our view,
merely because of the reason that there is some exaggeration or
embellishment in the deposition of the witness, from that stated to
the police, cannot be a reason to discard the entire evidence unless it
is so contradictory as to disprove the material aspects spoken of by
the witness. The attempt of the court should always be to find out the
grains of truth from such evidence, by carefully scrutinizing the
evidence as a whole. This is particularly so, when dealing with the
evidence of uneducated people with rustic background. It is evident
that crucial witnesses i.e PW1 to 3, in this case belong to a scheduled
tribe and are socially and economically backward. We cannot rule out
such witnesses attempting certain exaggerations and embellishments,
which presumably are made by them to project their version as more
truthful. Our view is fortified from the observations of the Hon'ble
Supreme Court in the decision rendered in Shivaji Sahabrao
Bobade and Another Vs State of Maharashtra ( 1973 (2) SCC
793). At para 8 of the said judgment it is observed as follows:
"Now to the facts. The scene of murder is rural, the witnesses
to the case are rustics and so their behavioral pattern and
perceptive habits have to be judged as such. The too
sophisticated approaches familiar in courts based on unreal
assumptions about human conduct cannot obviously be applied
to those given to the lethargic ways of our villages. When
scanning the evidence of the various witnesses we have to
inform ourselves that variances on the fringes, discrepancies in
details, contradictions in narrations and embellishments in
inessential parts cannot militate against the veracity of the core
of the testimony provided there is the impress of truth and
conformity to probability in the substantial fabric of testimony
delivered. The learned Sessions Judge has at some length
dissected the evidence, spun out contradictions and unnatural
conduct, and tested with precision the time and sequence of
the events connected with the crime, all on the touchstone of
the medical evidence and the post mortem certificate.
Certainly, the Court which has seen the witnesses depose, has
a great advantages over the appellate Judge who reads the
recorded evidence in cold print, and regard must be had to this
advantage enjoyed by the trial Judge of observing the
demeanour and delivery, of reading the straightforwardness
and doubtful candour, rustic naivete and clever equivocation,
manipulated conformity and ingenious unveracity of persons
who swear to the facts before him. Nevertheless, where a
Judge draws his conclusions not so much on the directness or
dubiety of the witness while on oath but upon general
probabilities and on expert evidence, the Court of appeal is in
as good a position to assess or arrive at legitimate conclusions
as the Court of first instance. Nor can we make a fetish of the
trial Judge's psychic insight."
In the decision in State of U.P Vs Anil Singh (AIR 1988 SC
1998), the Honourable Supreme Court observed as follows:
"It is also our experience that invariably the witnesses add
embroidery to prosecution story, perhaps for the fear of being
disbelieved. But that is no ground to throw the case overboard,
if true, in the main. If there is a ring of truth in the main, the
case should not be rejected. It is the duty of the court to cull
out the nuggets of truth from the evidence unless there is
reason to believe that the inconsistencies or falsehood are so
glaring as utterly to destroy confidence in the witnesses It is
necessary to remember that a Judge does not preside over a
criminal trial merely to see that no innocent man is punished. A
Judge also presides to see that a guilty man does not escape.
One is as important as the other Both are public duties which
the Judge has to perform."
When we consider the evidence of PW2 as a whole, by keeping the
above principles in mind, the only conclusion possible is that the
improvements made by her would not affect the veracity of her
version of the incident. The fact that she had not mentioned about the
act of the accused in entering the house of the deceased before
committing his murder, cannot be a reason to disbelieve her entire
testimony. There are several reasons for this. At first , the version of
PW2 regarding the manner in which the incident occurred is tallying
with the deposition of PW1 in all respects; except the minor
exaggeration. Further, the evidence of PW1 and PW2 were also
corroborated by the version of PW3 who came to the place of
occurrence immediately after the incident. According to PW3, he
heard the outcry of PW1, while he was sleeping on the sit-out of his
house, which is in the neighbourhood itself (about 30 mtrs away from
the house of deceased). Immediately he switched on the lights of his
house, and he could see the accused leaving the place of occurrence
holding a hammer. He identified the said hammer as MO10.
Immediately, he called his son and both together rushed to the house
of deceased. Thereupon he found the body of the accused and PW1
along with PW2 on the terrace. When the evidence of PWs 1, 2 and 3
are taken together, it provides mutual corroboration on all relevant
aspects. Even though the incident of the accused inflicting blows on
the body of the deceased with the hammer, was witnessed by PW1
only, all the incidents which occurred before and immediately after the
incident were clearly spoken of by PW2 and PW3, which are without
any inconsistencies/discrepancies other than some minor insignificant
variations. In short, when we are taking into consideration the entire
evidence of these three witnesses, it clearly goes along with the
prosecution case as to the manner in which the offence was
committed by the accused and the means which he had opted for
committing the same.
10. Even though the learned counsel for the accused
strenuously argues that the said witnesses are planted witnesses
whose presence at the relevant time at the place of occurrence were
doubtful, no materials are available to accept the same. He attempted
to project a case that, on the date of incident, PW2 along with the son
of the deceased, were at the residence of her daughter at Pattambi.
However no materials are available indicating the same and no such
case was put to any of the witnesses, despite the fact that, all the said
witnesses were cross-examined at length by the learned counsel for
the accused. It also has to be noticed that this very case set up by the
defence cuts at the root of the ground raised of the son of the
deceased having not been examined. Even otherwise there is no
mandate that every witness present at the scene of occurrence has to
be examined. When three very credible witnesses are available it is
not necessary that the son of the deceased, who too was present in
the house, had to be necessarily examined.
11. The learned counsel for the accused further contends that,
PWs 1 to 3 are close relatives of the victim and they are highly
interested. Similarly, he also contends that, the said witnesses,
particularly PW1 nursed an enmity with the accused and hence it is
not safe to base a conviction on such evidence. It is a well settled
position of law that, merely because, the witness is a close relative to
the victim, evidence of such witness cannot be discarded, treating it
as an interested version. Unless otherwise established, it cannot be
concluded that a person who is closely related to the victim, would
make any statement for falsely implicating any person, so as to
permit the real culprit to escape from the clutches of law. In the
judgment reported in 2009 (13) SCC 630 ( Mohabbat and others
Vs State of M.P), it was held by the Honourable Supreme Court as
follows:
"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. We shall
also deal with the contention regarding interestedness of the
witnesses for furthering the prosecution version. Relationship is
not a factor to affect credibility of a witness. It is more often
than not that a relation would not conceal actual culprit and
make allegations against an innocent person. Foundation has to
be laid if plea of false implication is made. In such cases, the
court has to adopt a careful approach and analyse evidence to
find out whether it is cogent and credible. "
Regarding the suspicion thrown on the evidence of witness due to
enmity, we are of the view that, mere enmity, even if it is proved
cannot be a ground to discard the evidence, if the such evidence is
found to be reliable. In the judgment reported in 2001 (1) SCC 318
(Anil Rai Vs State of Bihar) this question was specifically
considered. At paragraph 18 of the said judgment, it is observed as
follows:
"..................................The existence of animosity between the
accused and the witnesses may, in some cases, give rise to the
possibility of the witnesses exaggerating the role of some of
the accused or trying to rope in more persons as accused
persons for the commission of the crime. Such a possibility is
required to be ascertained on the facts of each case. However,
the mere existence of enmity in this case, particularly when it
is alleged as a motive for commission of crime cannot be a
basis to discard or reject the testimony of the eyewitnesses,
the deposition of whom is otherwise consistent and
convincing."
12. In this case, we have found the evidence of PWs 1 to 3 as
convincing, reliable, and consistent. We have no reason to believe that
their depositions were influenced by enmity. The contentions of the
learned counsel in this regard are only to be rejected.
13. Another major contention raised by the learned counsel
for the accused is regarding the improbability of committing the
alleged crime at the place of occurrence or rather the impossibility of
the prosecution version of the couple having slept on the slanting roof.
He points out that the body of the deceased was found on the terrace
of a building and nowhere in the records produced by the prosecution
it is mentioned about any staircase or any other means to climb over
the terrace. In such circumstances, the learned counsel for accused
contends that, the prosecution story that the deceased along with
PW1 were sleeping on the terrace at the time of incident cannot be
believed. To substantiate the said contention, he also relies on the
nature of the roof, which is slanting downwards from the middle, and
normally it may not be possible to sleep on such a surface. Similarly,
he further points out that the deceased and PW 1, started their
marital life (even if there was no proper marriage) very recently and
no prudent couple would chose to spend their initial days of a conjugal
relationship in such an open space.
14. When we consider the probabilities/improbabilities
suggested by the learned counsel for the accused, it can be seen that
all those contentions are unsustainable. Regarding the lack of
evidence of existence of staircase or other means to climb over the
roof, we are of the view that, the same is not very crucial in the
peculiar facts and circumstances of this case. We have gone through
Ext P4 scene mahaser wherein, no description of the building is
specified and the scene of occurrence, the terrace of the building and
that of the neighbouring buildings through which the accused fled
alone are mentioned. It is hence, nothing is mentioned in Ext P4
Scene mahazer about the existence of any staircase. We also see that
the road proceeds on an incline and the terrace in which the murder
was committed was at just a height of 2.35 meteres from the mud
road and the terrace of the house of Usha is just at a height of 90 cm
from the mud road. The houses were hence situated at a lower level
than the road, with its terrace just above the road. It is hence the
accused is said to have ran down from the terrace of the deceased to
the adjacent house of Usha, the terrace of which was closer to the
road. The death occurred on the terrace and the body was lying on
the concrete slab on a mat as seen from Ext.P3 inquest report. Pws 1
to 3 clearly mentioned that at the relevant time PW1 and the
deceased were on the terrace at the relevant time. Neither the police
officers who prepared Ext P3 inquest report as well as Ext P4 scene
mahazer, nor the witnesses who attested the said documents, have
stated anything about placing or making any additional means to
climb over the roof of the building. It is also evident from the above
evidence as well as the contents of Ext P3 that, several articles were
found along with the dead body and were taken into custody as per
Ext P2 seizure mahasar, which were identified as a MOs 1 to 9. The
said articles were the dresses and sandal clearly leading to the
inference that the said place was being used for normal human
habitation indicating frequent ingress and egress. The presence of
PW1 with the deceased on the terrace was clearly spoken of by her
and the same was corroborated by the evidence of PW 2. From the
reading of Ext P3 inquest report, there is no indication that the body
was placed on the terrace after committing the murder of the
deceased. In such circumstances, non-mentioning of existence of any
means to climb over the roof cannot be treated as a discrepancy, so
as to create a shadow of doubt on the prosecution case. That, the
body of the deceased was found on the terrace, the accused's
presence in the place of occurrence as proved by the evidence of PWs
1 to 3, the presence of PW1 on the terrace as proved by the evidence
of PWs 2 and 3 etc. are crucial pieces of evidence which rule out the
necessity to give any significance to the non-mentioning of existence
of means to climb on to the roof. This is more so, as there are no
materials to arrive at any other theory regarding the place of
occurrence or commission thereof, in any manner other than that
described by the prosecution.
15. Regarding the improbability of sleeping on a slanting
surface, we are of the view that the same also cannot be sustained.
The incline of the roof is mentioned in Exts. P3 & P4 to be very slight.
PW2 in her evidence has clearly stated that it is possible to lay on the
terrace just as laying on a cot. From Ext P4 scene mahazar also, we
are unable to find anything to conclude that the slanting of the terrace
makes it impossible for a person to lie there and sleep. Next
improbability highlighted by the learned counsel for the accused is
relating to the chances of a newly married couple opting to sleep on
an open space. According to the learned counsel for the Appellant
during the initial days of marriage the couple would be more
concerned about their privacy and under no circumstances they would
choose an open space. This cannot be treated as a ground at all.
Privacy is something very subjective and person centric. It varies from
person to person. Moreover, it is evident from Ext P4 that, just in front
of the house of the deceased there is a road and there is rubber
plantation beyond that. Apparently the road in front of their house is
not a busy street being a village road, and the population density in
the area is not so high. Further, they used to sleep there during night.
For these reasons, it cannot be treated as a crucial matter sufficient
enough to throw suspicion on the prosecution case. Another instance
pointed out by him is that, the deceased was found wearing
undergarments when he was attacked and this is also not probable
particularly as the deceased and PW1 were a new couple. Here again,
it depends upon the individual habits and nature, and it varies from
person to person. Those aspects are not sufficient to draw any
adverse inference against the case advanced by the prosecution.
16. Another aspect highlighted by the learned counsel for the
accused is the case of the prosecution to the effect that, immediately
after the incident he ran over the roof of the adjacent houses and got
down through a tree hanging towards the roof of the house of one
Usha. According to the learned counsel, there are no materials to
conclude that the roof of the buildings are close enough to run over
from one to another. However, Ext P4 scene mahazar shows
otherwise. Ext P4 was proved by PW6, the attestor of the same. In
the said document, the distance mentioned between the roof of the
building where the incident took place and the roof of the adjacent
house is only 5 cms and the height difference is only 30 cms. All the
three houses including the 3rd house, from the roof of which the
accused got down through a tree hanging over to the same, are
identical in size and close to each other. Further, Ext P4 clearly
mentions the existence of a tree close to the 3 rd house, which can be
used climbing down from the terrace on to the mud road. So, when
all these materials are taken together, it is evident that there cannot
be any improbability as projected by the learned counsel for the
accused, but on the other hand, it makes the case of the prosecution
more probable.
17. Apart from the above aspects, the learned counsel points
out several aspects such as, going by the size of the terrace, it is
impossible to commit such a crime thereon and that if the PW1 was
pushed away by the accused, as stated by her, she would have fallen
down and sustained injuries. We are of the view that, those aspects
cannot create any shadow of doubt over the prosecution case for in
any situation there could be probabilities otherwise. Considering the
nature of weapon used, which is a heavy one normally used for
breaking granites, the fact that the victim and PW1 were sleeping at
the relevant time, the manner in which the gruesome act was
committed of striking the head of a supine person and the immediate
fleeing of the accused, it can be held that the prosecution case is
proved beyond reasonable doubt. PW1 did not say that she intervened
or was pushed away by the accused. The prosecution case cannot be
disbelieved on the various contingencies which could have arisen,
which from the narration is not inevitable of having occurred.
18. The learned counsel also attacks the prosecution case on
the ground that, as per the probable time of death as mentioned in
Ext P10 postmortem certificate, the time of incident as per the
prosecution case cannot be correct. He points out that, as per Ext P10
postmortem certificate, the death might have occurred between 6 -19
hours prior to the postmortem. The postmortem was conducted at
1.30 PM, whereas the prosecution case is that the incident occurred at
4 a.m. Relying upon this, the learned counsel contends that, the
death might have occurred much earlier. We are of the view that, time
mentioned in Ext P10 is not specific and it only indicates a span of
time during which the death might have occurred. The time of death
as per the prosecution case falls within the said span. So, there is no
significance in the contention of the accused in this regard.
19. Next is regarding the recovery of MO10 weapon. The
weapon was recovered based on the confession statement given by
the accused and the seizure was affected as per Ext P2, which was
proved by PW4. Serious disputes are raised by the learned counsel for
the accused regarding the presence of PW4 at time of siezure. A
contradiction of the said witness, with reference to his statement
recorded under Section 161 of Cr.P.C was also marked as Ext D1. The
recovery was affected based on Ext P11 confession statement in
which, the accused stated that, he had concealed the hammer in a
firewood shed near a place where the labourers were residing. The
said recovery was proved by the evidence of PW12 investigating
officer as well. On scanning the entire evidence, we are unable to find
any material to suspect the recovery as having not been properly
made on the confession of the accused. The contradiction marked is of
the witness having told the police that he came there on getting prior
information that the accused is being brought to the spot by the
police. In court he said that on seeing the police vehicle he followed it.
The contradiction is not material enough to eschew the recovery .
The confession statement of the accused is proved through the
evidence of PW12 as well. It is a valid and admissible piece of
evidence under Section 27 of the Indian Evidence Act and the
contention of the accused is only to be rejected.
20. The learned counsel for the accused attacks the
prosecution case for not explaining the relevance of several dress
materials recovered from the scene of occurrence and identified as
MOs 1 to 9 and it includes dress materials other than those worn by
the deceased at the time of death. According to him all those dresses
were menswear and it suggests the probability of the presence of
another male at the place of occurrence. However, detection of such
materials from the place of occurrence cannot lead to any such
inference, unless there are supporting materials. There are sufficient
materials to rule out all hypothesis supporting the innocence of
accused. Hence that contention of the learned counsel for the accused
is only to be rejected.
21. When moving on to scientific evidence, the relevance is on
the blood stains on MO10 weapon. The specific case of the
prosecution is that, after committing the crime, the accused washed
MO10, for removing the bloodstains therein and for this he was also
charged with offence punishable under Section 201 of the Indian
Penal Code. Even though MO10 weapon was subjected to chemical
analysis, only result was that there were bloodstains found on the
same, but it was not sufficient enough to identify the characteristics of
the blood. In our view, the presence of blood itself is a crucial factor
which provides a link to the crime. PWs 2 and 3 have mentioned that
the said hammer is usually used for breaking granites and its
characteristics as mentioned in Ext P2 makes the said assumption
probable. Normally it would be impossible to find blood stains on such
a hammer, unless the same is used for any purpose as alleged by the
prosecution. The fact that the bloodstain could be detected only
during scientific analysis is also an aspect leading to the sustainability
of the prosecution case that the accused washed MO10 after
commission of the crime, to destroy the evidence and thereby
committed the offence under Section 201 of I.P.C.
22. The evidence of the Doctor who was examined as PW11,
coupled with the injuries noted in Ext P10 Postmortem Certificate
clearly lends support to the prosecution case that it was with MO 10,
the offence was committed. The nature of injuries clearly suggest that
those were inflicted with a hard/heavy object and after examining
MO10, PW 11 clearly opined that the injuries mentioned in the
Postmortem Certificate could be inflicted with that. We have no reason
to disbelieve or discard the expert evidence of PW11 and the contents
of Ext P10.
23. Similarly, the contention of the learned counsel for the
accused that the prosecution failed to examine the fingerprints of the
accused on MO10 and this creates a shadow of doubt on the
prosecution case, is also not sustainable. It is true that no such
exercise has been done by the prosecution. However the lapses of the
prosecution on this aspect cannot lead to the finding that the accused
is not guilty, particularly when there is ample evidence available to
arrive at the conclusion of guilt of the accused. In this case, there is
evidence of PW1, who is an eyewitness and her evidence is clearly
corroborated by the evidence of PWs 1 and 3. The finding on the
question of guilty or not guilty is to be based on quality of evidence
and not on the quantity thereof. It is a well settled position of law that
even if there is only a single piece of evidence which is reliable and
valuable, it could be the basis of a conviction.
24. The learned counsel for the accused throws suspicion on
the motive suggested by the prosecution as well. According to the
learned counsel, the fact that PW1 was not assaulted by the accused,
even while attacking the deceased brutally, creates a suspicion.
However, in our view, the materials available and also the words
spoken of by the accused while committing the crime that "give me
my woman" clearly indicate the grievance of the accused, against the
deceased and not towards PW1. The said words make the motive
suggested by the prosecution to be reasonable and in any event
motive is not an imperative requirement where there is direct
evidence, as is the case here of the eye-witness testimony of PW1.
25. Thus, from overall analysis of entire materials, our
findings can be summed up in the manner as follows: The prosecution
case is clearly spoken of by PW1, an eye witness, in very clear terms
and it leaves no room for any other possibilities. The evidence of PW2,
though contain certain exaggerations are embellishments, cannot be
discarded as unreliable. It corroborates the version of PW1, in the
matter of commission of crime and also the motive behind the same.
The evidence of the said witnesses are fortified by the evidence of
PW3 as well. In short, the evidence of PWs 1 to 3 is mutually
supportive and lends credence to each other. The said evidence,
coupled with the recovery of MO10, as proved by PW4, PW12 and
Ext P2, points to the use of the said weapon in the commission of the
offence. Evidence of PW11 and Ext P10 Postmortem Certificate, clearly
establishes the fact that, death was due to the injuries sustained by
the deceased, which could in all likelyhood have been inflicted by
MO10. PWs 1 to 3 have clearly spoken of the presence of the accused
at the place of occurrence at the relevant time and immediately
thereafter, with MO10 weapon and the said witness have identified the
said weapon as well. The fact that PW1 is the wife of accused who
deserted him some days before the incident to live with the deceased,
clearly indicate the grudge of the accused against the victim and thus
establishes the motive for crime. The past of the accused, which is
tainted with criminal antecedents, i.e his involvement in another
murder case, makes the prosecution case stronger. From all the above
crucial evidence, no conclusion, other than the guilt of the accused is
possible and accordingly we hold him guilty as has been done by the
trial Court.
In such circumstances, we find no infirmity in the findings of the
Sessions Court, holding the accused guilty and the imposition of
sentence for the offences charged against him. Accordingly, this
appeal is dismissed, being devoid of any merit.
Sd/-
K. VINOD CHANDRAN
JUDGE
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
