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