Vinu vs State Of Kerala
2023 Latest Caselaw 7247 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                               &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
   TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                     CRL.A NO. 817 OF 2022
AGAINST THE JUDGMENT IN SC 494/2005 OF ADDITIONAL DISTRICT
             COURT (ADHOC)III, PATHANAMTHITTA
APPELLANT/ACCUSED:

         VINU, AGED 35 YEARS
         SON OF RAJAPPAN, VINU BHAVAN,
         UDAYANCHIRA VAZHAPPARA, PATHANAPURAM MURI
         PATHANAPURAM VILLAGE,
         KOLLAM DISTRICT,, PIN - 689695

         BY ADV SREEJA K.G.


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

         BY ADVS.
         P.NARAYANAN, SR.G.P. AND ADDL.PUBLIC PROSECUTOR
         SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST
         WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)


OTHER PRESENT:

         Smt.Ambika Devi.S, , Spl.P.P

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.06.2023,  THE  COURT  ON   27.06.2023 DELIVERED THE
FOLLOWING:
 Crl. Appeal No.817 of 2022                 2


              P.B.SURESH KUMAR & C.S.SUDHA, JJ.
               -----------------------------------------------
                  Criminal Appeal No.817 of 2022
               -----------------------------------------------
              Dated this the 27th day of June, 2023


                             JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.494 of 2005 on the files

of the Additional District and Sessions Court (Adhoc) Fast Track

-III, Pathanamthitta, is the appellant. He challenges in this

appeal, the conviction entered and the sentence passed

against him in the said case.

2. One Mariyamma Philip died in an occurrence

that took place on 28.01.2004. The accusation against the

accused in the case as narrated in the final report is that on the

said day, at about 12.45 p.m., the accused trespassed into the

house of the deceased with the intention of causing her death,

inflicted fatal injuries on her head with a chopper and robbed

the gold chain worn by her. A case was registered in connection

with the occurrence on the same day by the Pathanamthitta

police as Crime No.67 of 2004, on the basis of the information

furnished by a neighbour of the deceased. After investigation,

the final report has been filed in the case against the accused

alleging commission of offences punishable under Sections

449, 392 and 302 of the Indian Penal Code (IPC).

3. On committing the accused for trial, the Court

of Session framed charge against the accused and read over

the same to the accused. The accused pleaded not guilty. The

prosecution, thereupon, examined 34 witnesses as PW1 to

PW34 and proved through them as many as 30 documents as

Exts.P1 to P30. MOs 1 to 29 are the material objects caused to

be identified by the prosecution through its witnesses. Ext.D1 is

the portion of the case diary statement of PW1.

4. Among the witnesses examined, PW1 is the

neighbour of the deceased who gave the First Information

Statement, PWs 2 and 3 are persons who were engaged by the

deceased to carry out household work in her residence, PW4 is

another neighbour of the deceased who took the deceased to

the hospital, PWs 5 and 6 are persons who were engaged along

with the accused by the deceased in her house on the previous

day of the occurrence to form a waste pit, PW9 is the owner of

a textile shop from where the accused purchased clothes on

the date of the occurrence, PW10 is the salesman of the

jewellery shop from where the accused purchased ornaments

on the date of occurrence, PW11 is the owner of the shop from

where the accused purchased a watch on the date of

occurrence, PW19 is the husband of the deceased, PW22 is the

police surgeon who conducted the autopsy on the body of the

deceased, PW28 is the aunt of the accused, PW29 is the Police

Officer who witnessed the recovery of MO1 chain and other

articles based on the disclosures made by the accused and

PW31 is the licensee of JK Financiers where the accused

pledged MO1 chain.

5. Among the documents proved, Ext.P1 is the

First Information Statement, Ext.P5 is the card evidencing

pledge of MO1 chain by the accused with JK Financiers, Ext.P8

is the scene mahazar, Ext.P10 is the mahazar evidencing

recovery of MO6 cover and MO3 shirt from the house of PW6,

Ext.P11 is the mahazar evidencing recovery of MO1 chain from

JK Financiers, Ext.P13 is the mahazar evidencing recovery of

MO9 watch and MO27 series currency notes from the house of

PW28, Ext.P14 is the autopsy certificate, Ext.P15 is the report

of the Forensic Science Laboratory, Ext.P18 is the report of the

Finger Print Bureau and Ext.P20 is the site plan prepared by the

Village Officer.

6. MO1 is the gold chain allegedly robbed by the

accused from the deceased, MO3 is the shirt allegedly worn by

the accused at the time of occurrence, MO5 is the chopper

allegedly used by the accused to inflict injuries on the

deceased, MO6 is the cover in which the accused kept his used

clothes in the house of PW6, MOs 7 to 9 are the ornaments and

watch purchased by the accused on the date of occurrence and

MO27 series are the currency notes stated to have been

entrusted by the accused on the date of occurrence to PW28.

7. After the prosecution tendered its evidence, the

accused was questioned under Section 313 of the Code of

Criminal Procedure (the Code) as regards the incriminating

circumstances brought out by the prosecution against him. The

accused denied the same and stated that on the previous day

of the occurrence, he was required by the deceased to do a

repair work inside her house; that while he was coming out of

the house of the deceased after the said work, he found MO1

gold chain in the bathroom and that he committed theft of the

same. He also stated that he pledged the said ornament on the

following day with JK Financiers and entrusted the money with

PW28 and it was PW28 who purchased clothes, a watch, ring

and bracelet for him and retained the balance with her. Since

the Court of Session did not find the case to be one fit for

acquittal under Section 232 of the Code, the accused was

called upon to enter on his defence. The accused however

chose not to adduce any evidence.

8. On an appraisal of the materials on record, the

Court of Session found the accused guilty of the offences

punishable under Sections 447, 392 and 302 of the IPC and

sentenced him to undergo imprisonment for life for the offence

punishable under Section 302 IPC, rigorous imprisonment for a

period of seven years and to pay a fine of Rs.5000/- for the

offence punishable under Section 392 IPC and simple

imprisonment for a period of three months and to pay a fine of

Rs.5000/- and in default of payment of fine, to undergo simple

imprisonment for a period of three months for the offence

punishable under Section 447 of IPC. It is aggrieved by the said

decision of the Court of Session that this appeal is preferred by

the accused.

9. Heard the learned counsel for the appellant as

also the learned Special Public Prosecutor.

10. The essence of the submissions made by the

learned counsel for the appellant is that the evidence let in by

the prosecution is not sufficient to justify the conviction of the

appellant under Section 302 IPC. The learned Special Public

Prosecutor refuted the said argument by taking us elaborately

through the oral and documentary evidence let in by the

prosecution.

11. The point that arises for consideration in the

appeal is whether the conviction entered and the sentence

passed against the accused by the Court of Session are

sustainable in law.

12. As noticed earlier, the case of the prosecution is

that the accused caused the death of the deceased by inflicting

fatal injuries on her head with a chopper. PW22 is the Police

Surgeon who conducted the autopsy and Ext.P14 is the autopsy

certificate issued by him. PW22 deposed that the following anti-

mortem injuries were found on the body of the deceased at the

time of autopsy:

"1. An incised wound on right side of face 10x3x1.5cm, transverse with tailing outwards, The wound deep up to muscle the inner end 1.5cm outer chin midline bone deep. The Jaw bone exposed.

2. Incised wound on right side of chest 12x0.8cm muscle deep transverse the outer end at right arm pit, the inner and at middle of right collar bone with tailing outwards.

3. Incised wound on the left side of jaw 12.6cmx0.8cm bone deep, the inner end 1.5cm outer to middle chin.

4. Incised wound on left side of face and neck 7.5x2cm oblique with upper inner end 4.5cm front to dragus bone deep with cutting of right ear lobule.

5. Abraded contusion on left side of root of neck 1.5cmx0.5cm front to back direction.

6. Abraded contusion on tip of left shoulder 1x0.3cm, transverse.

7. Incised wound on left hypothenar eminence 3.5x0.3cm bone deep 3cm below root of little finger.

8. Incised wounds on back of right middle finger

2x0.4cm muscle deep at pyonimal digit on right index finger, distal digit 1.6x0.2cm muscle deep.

9. Incised wound on front of neck on midline 6.5x2cm, 5cm below chin, cut opened the right Jugular vein at the level of thyroid cartridge, branches of arteries to right sternomastoid, muscles were severed, the front aspect of thyroid cartridge cut opened 2.5x0.4cm entered the larynx.

10. Incised wound on front of neck on midline 7.5x1.5cm, transverse 5.2cm above root of neck cut opened the junction between thyroid cartridge and first tracheal ring, the wound deep upto back were of trachea hyoid intact. Major arteries and nerves spared."

PW22 also deposed that the death of the victim was due to the

incised wounds sustained by her; that injury Nos.9 and 10 were

fatal and that the said injuries could be inflicted with the knife

portion of MO5 chopper. PW22 also deposed that he collected

the blood sample of the deceased and entrusted the same to

the police for forensic examination. Nothing has been brought

out in the cross-examination of PW22 to discredit the said

evidence tendered by him. The evidence of PW22 establishes

beyond doubt that the death of the victim was a homicide.

13. The next question is whether the prosecution

has established beyond reasonable doubt that it was the

accused who caused the death of the victim by inflicting fatal

injuries on her head.

14. PW1 is a lady residing in the neighbourhood of

the house of the deceased. She deposed that the house of the

deceased is on the immediate west of her house; that she used

to go to the house of the deceased and stay with her every

night to give the deceased company; that on 28.01.2004, at

about 12.45 p.m. while PW1 was sitting along with her sister in

the courtyard of their house, she heard a sound from the

eastern courtyard of the house of the deceased and when she

peeped into the courtyard of the house of the deceased over

the compound wall by climbing over the same, she found a

person running away from the eastern side of the house to its

southern side. PW1 also deposed that she then found the

deceased lying in the courtyard near the well and when she

enquired with the deceased as to what happened, the

deceased told PW1 that somebody hacked her and ran away.

PW1 also deposed that the deceased was thereafter taken to

the hospital by PW4 and another person. PW1 also proved

Ext.P1 First Information Statement and identified MO1 as the

gold chain normally worn by the deceased and MO3 as the shirt

found to have been worn by the person who ran away from the

scene after attacking the deceased.

15. PW2 deposed that she used to work in the

house of the deceased; that on 27.01.2004 when she went to

the house of the deceased for work, three persons, including

the accused were found forming a waste pit; that she gave

water to the accused when sought for by him and that she saw

the deceased handing over to the accused a chopper and an

axe for carrying out the work. She also identified MO1 as the

gold chain normally worn by the deceased and MO5 chopper as

one used in the house of the deceased. PW3 also deposed that

she found the accused working in the house of the deceased on

27.01.2004 and identified MO1 as the gold chain usually worn

by the deceased.

16. PW4 is a neighbour of the deceased who took

the deceased to the hospital. PW4 deposed that the sister of

PW1 informed her that somebody hacked the deceased and

when PW4 went to the house of the deceased thereupon, she

found the deceased lying near the well in her courtyard. She

also deposed that the deceased was not in a position to talk at

that point of time.

17. PW5 who worked along with the accused in the

house of the deceased on the previous day of the occurrence

deposed that the accused came back from the house of the

deceased after the work along with him. PW5 also deposed that

on the following morning and evening, he met the accused at

the venue of the marriage of the brother-in-law of PW6 and that

on the next day, the accused left his company after the

marriage. PW6 also gave evidence more or less on the same

lines of evidence tendered by PW5. In addition, PW6 deposed

that on 28.01.2004 morning, when he went to a tea shop along

with the accused, the accused told him that he had only Rs.30

with him. PW6 also deposed that the accused came to the

house of his brother-in-law on the night of 28.01.2004 in a new

attire; that he was wearing a watch, a bracelet, and a ring at

that time and when PW6 asked the accused about the said

articles, the accused told PW6 that the same belong to his

aunt, PW28. PW6 also deposed that on 30.01.2004 early

morning, the police brought the accused to the house of PW6

to ascertain whether he had worked with him in the house of

the deceased on 28.01.2004 and PW6 affirmed the said fact to

the police. It was also deposed by PW6 that later in the course

of the day, the accused was brought to the house of PW6 by

the police again and at that time, the accused took a cover

kept by him beneath a few wooden logs containing his used

clothes and handed over the same to the police. PW6 identified

MO6 as the cover in which the accused kept his clothes and

MO3 as the shirt kept in the said cover. PW6 also identified

MO7 ring, MO8 bracelet, and MO9 watch as the ring, bracelet

and watch respectively worn by the accused on the night of

28.01.2004 when he met the accused at the house of his

brother-in-law.

18. PW9, the owner of the textile shop deposed

that the accused came to his shop and purchased two shirts

and a dhoti and after two days, the police brought the accused

to his shop to his shop to ascertain whether the same are

clothes sold by him and PW9 affirmed the same to the police.

PW9 identified MO6 as the cover in which he handed over the

clothes to the accused. PW10, the salesman of the jewellery

shop, deposed that the accused purchased from his jewellery

shop, MO7 ring and MO8 bracelet on 28.01.2004. PW11

deposed that the accused purchased from his shop MO9 watch

on 28.01.2004. PW19, the husband of the deceased identified

MO1 gold chain as the chain normally worn by the deceased.

19. PW23 is the official attached to the Forensic

Science Laboratory who proved Ext.P15 report of chemical

analysis. PW23 deposed that the chemical analysis revealed

that the blood found in MO3 shirt belongs to 'Group O' and that

the blood group of the deceased is also 'Group O'. PW25 is the

official of the Finger Print Bureau who proved Ext.P18 finger

print final report. PW25 deposed that the chance finger prints

collected from the door frames of the house of the deceased

were found identical to the right thumb impression and right

ring impression of the accused.

20. PW28 deposed that the accused was staying

with her and that the accused left her house during the first

week of January 2004 and came back only on 28.01.2004 by

about 5 p.m. PW28 also deposed that when the accused came

back to her house on 28.01.2004, he was wearing MO7 ring,

MO8 bracelet and MO9 watch and carrying MO6 cover

containing new clothes. PW28 also deposed that on that day,

the accused entrusted with her MO27 series currency notes

and left her house after changing his attire. PW28 also deposed

that when the accused left her house, he carried with him MO6

cover and the used clothes. PW31 deposed that the accused

pledged with them MO1 gold chain on 28.01.2004 and Ext.P5 is

the pledge card issued by JK Financiers to the accused.

21. PW29 Police Officer has proved the recovery of

MO3 shirt and Ext.P5 pledge card kept in MO6 cover from the

house of PW6, MO1 gold chain from JK Financiers, MO9 watch

and MO27 series currency notes from the house of PW28,

based on the disclosures made by the accused.

22. Although the witnesses referred to in

paragraphs 14 to 21 above have been cross-examined

thoroughly by the counsel for the appellant, we find that

nothing has been brought out in the cross-examination to

discredit the evidence tendered by the said witnesses. The

evidence tendered by PW1 and PW4 coupled with the seizure of

MO5 chopper from the drawing room of the house of the

deceased would establish beyond doubt that on 28.01.2004, at

about 12.45 p.m., a person inflicted fatal injuries on the head of

the deceased and robbed MO1 gold chain which she was

wearing at the relevant time. Similarly, from the seizure of MO5

chopper from the house of the deceased coupled with the

evidence tendered by PW22 Police Surgeon as regards the

cause of death of the deceased, and PW23, the official

attached to the Forensic Science Laboratory as regards the

group of the blood found on MO5 chopper, it is established that

fatal blows were inflicted on the deceased by the assailant

making use of MO5 chopper. But, there is no direct evidence to

prove the attack on the deceased and to prove the robbery of

MO1 gold chain. The prosecution relies on various

circumstances to prove that it is the accused who attacked the

deceased and committed robbery of MO1 gold chain.

23. The evidence tendered by PWs 2, 3, 5 and 6

would establish beyond doubt that the accused is a person who

was engaged by the deceased on the day prior to the date of

occurrence for forming a waste pit in her house. The accused

does not dispute the said fact. In other words, it can certainly

be inferred that the accused had occasion to observe the house

of the deceased and its surroundings as also the particulars of

the ornaments normally worn by the deceased at her house.

The evidence tendered by PWs 1 to 3 and 19 would show that

MO1 is the gold chain normally worn by the deceased.

Similarly, the evidence of PW3 would show that MO5 was a

chopper used in the house of the deceased. It has come out

from the evidence of PW5 that on the following morning and

evening, he met the accused at the venue of the marriage of

the brother-in-law of PW6. Similarly, it has come out from the

evidence of PW6 that the accused who had only a sum of

Rs.30/- with him in the morning of the date of occurrence,

came to the house of the brother-in-law of PW6 in the evening

in a new attire, wearing in addition MO7 ring, MO8 bracelet and

MO9 watch. The evidence of PWs 9 to 11 and 31 would show

that the accused pledged MO1 gold chain with JK Financiers on

the date of occurrence and making use of the amount received,

he purchased new clothes, a watch, ring and bracelet and

entrusted the balance MO27 series currency notes with PW28.

The evidence tendered by the official witnesses would show

that Ext.P5 pledge card, MO1 gold chain, MO7 ring, MO8

bracelet, MO9 watch and MO27 series currency notes were

recovered by the police based on the disclosures made by the

accused. The aforesaid evidence would establish that the

accused could manage to obtain MO1 gold chain from the

house of the deceased and it is by pledging the said gold chain,

that he purchased the aforesaid articles on the same day. The

question is whether the said evidence is sufficient to arrive at

the conclusion that it is the accused who inflicted fatal injuries

on the head of the deceased using MO5 chopper and

committed robbery of MO1 gold chain.

24. At this juncture, it is necessary to refer to the

stand taken by the accused in his 313 statement. As noted,

what is stated by the accused in his 313 statement is that on

the previous day of the occurrence, he was required by the

deceased to do a repair work inside her house; that while he

was coming out of the house after the repair, he found MO1

gold chain in the bathroom and that he committed theft of the

same. He also stated that he pledged MO1 gold chain on the

following day with JK Financiers and entrusted the money with

PW28 and it was PW28 who purchased clothes, a watch, ring,

bracelet etc. for him and retained the balance with her. As

evident from the aforesaid stand of the accused, it is clear that

the accused admits having committed theft of MO1 gold chain

from the house of the deceased, but he denies the case of the

prosecution that he inflicted fatal injuries on the deceased and

committed robbery of MO1 gold chain. We have examined

closely the materials on record and we find that the stand

taken by the accused that he committed theft of MO1 chain on

the day prior to the date of occurrence, cannot be believed.

What is stated by the accused is that he entered inside the

house of the deceased after the work for which he was

engaged. The evidence tendered by PWs 2, 3, 5 and 6 do not

indicate that the accused had any opportunity to go inside the

house of the deceased. On the other hand, the categoric

evidence given by PWs 5 and 6 is to the effect that the accused

left the house of the deceased along with them after the work.

There is no material whatsoever to indicate that the accused

had any opportunity at any point of time to enter inside the

house of the deceased. In other words, it can certainly be

inferred that the accused obtained MO1 gold chain otherwise

than in a manner spoken to by him while questioning under

Section 313 of the Code.

25. Be that as it may, PW1 stated that MO3 shirt

recovered based on a disclosure statement of the accused is

the shirt worn by the person who was found running away from

the courtyard of the house of the deceased immediately after

the occurrence. PWs 5 and 6 have identified MO3 as the shirt of

the accused. The evidence of PW23 would show that the blood

found in MO3 shirt belongs to 'Group O' which is the blood

group of the deceased as well. There is no explanation from the

accused as to how the blood belonging to 'O Group' happened

to be on MO3 shirt. The evidence tendered by PW25 would

show that the chance finger prints collected from the door

frames of the house of the deceased were found identical to

the right thumb impression and the right ring impression of the

accused. There is also no explanation from the accused as to

how his finger print appeared in the door frames of the house

of the deceased, if he had not entered inside the house. In

Pappu v. State of U.P., (2022) 10 SCC 321, it has been held

by the Apex Court that false explanation would lend an

assurance to the court as to the guilt of the accused and would

therefore be an additional link to complete the chain of

circumstances, in cases where the prosecution relies on the

circumstances to prove the guilt of the accused, if (1) various

links in the chain of evidence led by the prosecution have been

satisfactorily proved, (2) the said circumstance points to the

guilt of the accused with reasonable definiteness and (3) the

circumstance is in proximity to the time and situation.

According to us, the circumstances proved in this case by the

prosecution as referred to in the preceding paragraphs coupled

with the fact that the explanation offered by the accused is

found to be false, would establish beyond doubt that it is the

accused who has inflicted fatal injuries on the head of the

deceased and the prosecution has thus proved beyond

reasonable doubt, the guilt of the accused.

26. Before parting with this case, it is necessary to

point out that the place of occurrence, going by the prosecution

case, is the eastern courtyard of the house of the deceased

near the well. If one peruses meticulously the evidence

tendered by PW1, it could be seen that PW1 who is residing in

the immediate eastern house had rushed to the house of the

deceased hearing the noise from the courtyard of the house of

the deceased, and by the time she peeped into the courtyard

of the house of the deceased, the assailant had fled away from

the scene and she could see only the back side of the assailant.

This version of PW1 is in conformity with Ext.P1 First

Information Statement given by her a few hours after the

occurrence. PW1 categorically stated that there is a road in

between her house and the house of the deceased and that the

distance between the houses would be 10 meters. Needless to

say, if what is stated by PW1 is correct, there is a doubt as to

the place of occurrence since MO5 chopper used for inflicting

injuries on the deceased was not found in the courtyard of the

house of the deceased but inside the house of the deceased in

her drawing room and there could have been hardly any time

for the assailant to go inside the house of the deceased after

the robbery to throw the weapon inside the house. That apart,

there is no reason also for the assailant to throw the weapon

inside the house after committing robbery outside the house

for, under normal circumstances, the attempt of such persons

would be to flee away from the scene at the earliest. The

aforesaid circumstances create a doubt in our minds as to the

place of occurrence. There should have been a deeper

investigation into that aspect. As we found that the evidence

let in by the prosecution is reliable and that the lapse in the

investigation has not affected in any manner our endeavour to

find out the truth, we are ignoring the said lapse in the

investigation, for it is well settled that the defect in the

investigation by itself is not a ground for acquittal [See

C.Muniappan v. State of T.N., (2010) 9 SCC 567].

In the light of the discussion aforesaid, the appeal is

without merits and the same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

ds 15.06.2023