Suresh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 13TH DAY OF JANUARY 2012/23RD POUSHA 1933 CRA.No. 239 of 2011 (D) ----------------------SC.419/2009 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-II, KOTTAYAM APPELLANT/ACCUSED(S): --------------------- SURESH,C.NO.3800, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV.SMT.NEEMA T.V.[STATE BRIEF] RESPONDENT/COMPLAINANT: ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. By PUBLIC PROSECUTOR SMT.LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 239 of 2011** **----------------------------------------** Dated this the 13[th] day of January, 2012 ## **J U D G M E N T** This jail appeal is preferred by the sole accused in S.C.No.419 of 2009, who is undergoing imprisonment in pursuance of the judgment dated 30.11.2010 of the Court of Sessions, Kottayam in the above sessions case. 2. The prosecution case is that out of sheer enmity of the accused towards PW1 with the intention to commit murder of him and knowing that by his act death of PW1 would likely to cause on 1.12.2005 at 1.30 p.m. at the southern portion of the property of PW1, which is situated near to Mathamba Forest at Kombukuthy in Erumely North Village, the accused fired at PW1 with a country gun possessed by him without having any licence or authority and thereby the accused had committed the offences punishable under Section 307 of I.P.C., Section 3 read with Section 25(1-B)(a) and Section 5 read with Section 27(1) of the Arms Act, 1959. With the above ## **Crl.A.No.239 of 2011** ## **:-2-:** allegation, crime No.370 of 2005 was registered in the Mundakayam Police Station for the said offences. On completing the investigation, a report was filed in the Judicial First Class Magistrate Court-II, Kanjirappally, wherein C.P.No.33 of 2009 was instituted and the learned Magistrate by his order dated 16.11.2009 in the above proceedings committed the case, based upon which S.C.No.419 of 2009 is instituted in the Sessions Court and thereafter, the same is made over to the trial court for trial. After hearing the prosecution as well as the accused, a formal charge was framed for the above offences and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Resultantly, the prosecution adduced its evidence consisting of the testimony of PWs.1 to 10 and Exts.P1 to P14 documents. The country made gun is identified and marked as MO1. No evidence either oral or documentary was adduced from the side of the defence. During the examination of accused under Section 313, he had denied the ## **Crl.A.No.239 of 2011** ## **:-3-:** incriminating circumstances and evidence which put to him and he maintained the stand of innocence. The trial court has finally found that in the present case, the circumstances show that the relationship between the accused and PW1 are strained and when the accused fired, it hit on a coconut tree stood in between the accused and PW1. According to the court, if it was hit on PW1, his death would have occurred and according to the learned Judge of the trial court, the accused has intended to murder PW1 and thus, it is found by the learned Judge that the prosecution has succeeded to prove beyond all reasonable doubt that the accused had possessed firearm without having licence and by using the same, attempted to commit murder of PW1 and thus, the accused is found guilty of the offences punishable under Section 307 of I.P.C., Section 3 read with Section 25(1-B)(a) and Section 5 read with Section 27(1) of the Arms Act, 1959 and accordingly, he is convicted thereunder and after considering the seriousness of the crime and all other facts and circumstances ## **Crl.A.No.239 of 2011** ## **:-4-:** involved in the case, the learned Judge of the trial court sentenced the accused to undergo rigorous imprisonment for five years and to pay fine of `.10,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 307 of I.P.C. He is also sentenced to undergo rigorous imprisonment for one year and to pay fine of `.5000/-, in default to undergo rigorous imprisonment for six months for the offence punishable under Section 5 read with Section 27(1-B)(a) of the Arms Act and he is also sentenced to undergo rigorous imprisonment for three years and to pay fine of `.5000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 5 read with Section 27(1) of the Arms Act. The substantive term of imprisonment shall run concurrently and set off is alleged under Section 428 of the Cr.P.C. It is the above findings and order of conviction and sentence challenged in this appeal. 3. As I indicated earlier, as the appellant is undergoing imprisonment in pursuance of the impugned judgment, he preferred ## **Crl.A.No.239 of 2011** ## **:-5-:** this appeal from the jail and on receiving the same, as directed by this Court, the Registry has appointed Smt.T.V.Neema, counsel from the panel of State Brief to defend the appeal. Thus, I have heard Advocate Smt.Neema.T.V., counsel for the appellant and Smt.Laliza.T.Y., learned Public Prosecutor for the State. 4. At the outset, let me state the evidence and materials on record. PW1 is the de facto complainant, who gave Ext.P1 F.I.statement before PW7. According to PW1, he is residing at Kombukuthy, Mundakkayam along with his family and he is an agriculturist. The accused is his neighbour. According to PW1, on 1.12.2005 at about 1 p.m., after his work in the property, he along with his wife and son reached in his house for having lunch and while he was sitting in the veranda of the house, he heard the accused uttering to come out and thus, when he came out, he saw the accused standing in his property on the south of the house with a gun. According to PW1, afraid by the above conduct of the accused, he ## **Crl.A.No.239 of 2011** ## **:-6-:** asked his son to call someone and accordingly, his son, who is examined in this case as PW2 came with his neighbour who is examined herein as PW5. According to PW1, PW5 advised him to give a complaint in the Police Station and thereafter, he left the place and the accused also went to his house which is situated in the south of the property of PW1. It is the further case of PW1 that after washing his hands and legs in the water kept in a vessel on the south of his house, he came before the front door of his house to wear chappal. While he was standing there and when looked towards the south of his house, he found the accused standing there pointing the gun towards him and the accused said 'ന�ന� ഇന� വ�ട�ട� ക�ര�മ�ല.' According to PW1, he hid behind the half wall of the house, being afraid of the firing and at the same time, the accused fired at him. According to PW1, on hearing the firing sound, his wife and son came there and at the time, the accused descended from there towards his house. According to PW1, the accused shot him with the intention to ## **Crl.A.No.239 of 2011** ## **:-7-:** murder him. He had also deposed that in terms of the above allegation, he had preferred Ext.P1. According to PW1, he had found bullet mark on the coconut tree which stood in the east of his house. He had also deposed that when the Police came, they cut and had taken that portion into custody. He had also identified MO1 as the gun used by the accused to fire at him. According to PW1, the accused is inimical towards him since PW1 purchased the property situated on the south of the house of the accused and planted rubber tree there. It is the further case of PW1 that when the accused destroyed his three tender rubber plants, PW1 made complaint to the Panchayat member and at the intervention of the Panchayat member, the brother of the accused had purchased and given him the rubber plants. Because of the above incident, the accused is in inimical terms towards PW1. 5. When PW2 was examined, he had also spoken to in par with the deposition of PW1 and supporting the entire prosecution ## **Crl.A.No.239 of 2011** ## **:-8-:** case. PW2 deposed that as requested by his father, he approached PW5-Udayakumar and when Udayakumar came, the accused was seen standing there uttering obscene words and PW5 advised them to give complaint to the Police and thereafter, he left the place and the accused had also descended from the place. PW2 further deposed that at about 1.30 p.m. while himself and his mother were inside the room, his father/PW1 was in the veranda and on hearing a firing sound, when PW2 and his mother came outside, PW2 found his father hiding behind the half wall and the accused standing there, pointing the gun. According to PW2, on seeing them, the accused descended there uttering filthy words. PW2 has also identified MO1 as the gun used by the accused to shoot PW1. Though PW3 was examined as an occurrence witness, he turned hostile and did not support the prosecution. PW4 is the then Village Officer who had visited the place of occurrence and prepared Ext.P2 scene plan which is marked through him. PW5, as I indicated earlier, the neighbour of PW1, who ## **Crl.A.No.239 of 2011** ## **:-9-:** was brought by PW2 as requested by PW1, on seeing the accused with the gun. While PW5 was examined, he had deposed that on 1.12.2005 at about noon, PW2 came to his house and called him to their house and thus he proceeded and they reached at the house of PWs.1 and 2. PW5 has also deposed that at that time, the accused had a gun with him. According to PW5, he advised Pws.1 and 2 to lodge a complaint before the Police and he left the place. After half an hour, he heard the firing sound. He had also deposed that on the next day, the Police came there and prepared mahazar and he put his signature therein as a witness. Ext.P3 is the scene mahazar in which PW5 is an attestor. PW6 is an attestor to Ext.P4 mahazar by which MO1 was seized by PW9 on the basis of the confession statement of the accused. 6. As I indicated earlier, it was PW7, the then Head Constable attached to the Mundakkayam Police Station, who recorded Ext.P1 statement of PW1 and registered Ext.P5 F.I.R. in ## **Crl.A.No.239 of 2011** ## **:-10-:** Crime No.370 of 2005 for the said offences. PW8 is the then C.I.of Police, Kanjirappally, who investigated the case and interrogated the witnesses and filed Ext.P6 report for making alteration of section of offence shown in the F.I.R. Ext.P7 FSL report regarding the examination of the gun is also marked through PW8. PW9 is the then C.I. who undertook the preliminary investigation. As per his evidence, he visited the place of occurrence on 2.12.2005 and prepared Ext.P3 scene mahazar. He had also collected bark of the coconut tree where the bullet hit and produced the same with Ext.P8 property list. It was also proved through PW9 that he then filed Ext.P9 forwarding note to send the same to the Forensic Science Laboratory for examination. According to PW9, he had arrested the accused on 3.7.2006 from the premises of the Government Hospital, Kanjirappally and the accused made Ext.P4(a) confession statement on 4.7.2006 and consequently, PW9 has recovered MO1 as per Ext.P4 mahazar. MO1 has been produced as per Ext.P12 property list. PW9 has also filed Ext.P13 ## **Crl.A.No.239 of 2011** ## **:-11-:** forwarding note to send the same to the Forensic Science Laboratory for examination. PW9 has also identified MO1 can before the court. PW10 is the investigating officer who had completed the investigation and laid the chargesheet. Ext.P14 report from the Forensic Science Laboratory regarding the examination of the bark of the coconut tree is marked through PW10. These are the evidence and materials referred to by the trial court in support of the finding and conviction of the appellant. 7. Smt.T.V.Neema, learned counsel appearing for the appellant after taking me through the deposition of PWs.1,2 and 5 submitted that they are highly interested witnesses and in the absence of any independent evidence, corroborating the evidence of those witnesses, their evidence cannot be acted upon. According to the learned counsel, the trial court ignoring the above aspect, simply accepted and acted upon the evidence of PWs.1,2 and 5. Therefore, the finding of the court below according to the learned counsel, are ## **Crl.A.No.239 of 2011** ## **:-12-:** legally unsustainable and incorrect. It is the further submission of the learned counsel that if the interested version of PWs.1,2 and 5 is excluded, absolutely there is no evidence to connect the appellant with the alleged crime. Learned counsel has pointed out that besides the evidence of PWs.1,2 and 5, the prosecution has produced Ext.P4 seizure mahazar with the support of PW6. According to the learned counsel, when PW6 was examined, he had categorically stated that he had not seen the accused taking MO1 and handing over the same to the Police. Therefore, the evidence of PW6 and Ext.P4 seizure mahazar cannot be acted upon. Thus, according to the learned counsel, ignoring the above vital defect of the prosecution, the learned Judge of the trial court opted to accept the above evidence of the prosecution and came to a conclusion and convicted the appellant. Therefore, the finding and the conviction recorded by the court below is liable to be set aside. 8. On the other hand, the learned Public Prosecutor ## **Crl.A.No.239 of 2011** ## **:-13-:** strenuously submitted that though PWs.1 and 2 are relatives and PW5 is a neighbour of PW1, there is no legal impediment in accepting their evidence and entering into a conclusion and conviction on the basis of such evidence. Learned Public Prosecutor has pointed out that the evidence of PWs.1,2 and 5 are consistent with the prosecution case and there are no infirmities or directions to doubt the veracity of those witnesses. On the strength of the decision of the Honourable Apex Court reported in **Balraje @ Trimbak** v. **State of Maharashtra** [2010(6)SCC 673], the learned Public Prosecutor submitted that the learned Judge of the trial court is fully justified in accepting and acting upon the evidence of PWs.1,2 and 5. It is the further submission of the learned Public Prosecutor that there is no serious challenge against Ext.P4(a) confession of the appellant on the basis of which MO1 can was recovered by PW9 as per Ext.P4 seizure mahazar. PWs.1,2 and 5 and PW9 have also identified MO1 as the one which was used by the accused for committing the offence. Thus, ## **Crl.A.No.239 of 2011** ## **:-14-:** according to the learned Public Prosecutor, the findings of the court below and conviction of the appellant are purely based upon the evidence and no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court as well as the deposition of the witnesses and the materials. In the light of the rival pleadings and in the light of the evidence indicated above, the question to be considered is whether the trial court is justified in its finding and convicting the appellant/accused. I have already referred to the evidence of PWs.1,2 and 5 who are ocular witnesses. When they were deposed, they had deposed fully supporting the prosecution allegation against the appellant. It is true that PWs.2 and 5 have no claim that they have witnessed the fact that the accused fired PW1. Thus the overt act of the appellant/accused is proved through the evidence of PW1 since he was the target of the accused. Though PW1 ## **Crl.A.No.239 of 2011** ## **:-15-:** was subjected to lengthy cross-examination, nothing was brought on record to discredit his version. Because of the fact that on seeing the accused, he had hidden himself behind the half wall, the bullet from MO1 gun missed him. PW1 has identified the accused and MO1 and his deposition before the court is in par with Ext.P1; timely complaint preferred before the Police. PW1 has also stated about the animosity maintained by the accused against him is the reason for the attack against him. PW2 has also deposed and proved the presence of the accused and he had also seen the accused with MO1 gun. The above evidence of PW2 fully supported the evidence of PW1. When PW5 was examined, he had also deposed strictly in terms of the prosecution allegation and he had deposed about the presence of the accused at the place of occurrence and before the firing sound. A conjoint reading of the evidence of PWs.1,2 and 5, positively proved the prosecution allegation against the accused. The evidence of PWs.1 and 2 further show the circumstances under which the accused fired at PW1 and his ## **Crl.A.No.239 of 2011** ## **:-16-:** enmity against PW1. As rightly pointed out by the learned Public Prosecutor, in the absence of any infirmities or contradictions, there is no legal impediment in accepting and acting upon the evidence of PWs.1,2 and 5, especially in the light of the decision cited supra. The requirement of corroboration of independent evidence arises only when the evidence of related witnesses became doubtful or have any other infirmities or contradictions. In the present case, as I indicated earlier, the evidence of PWs.1,2 and 5 are intact and nothing brought out to discredit their version. Therefore, the contention raised by the appellant against the acceptance of the evidence of PWs.1,2 and 5 are liable to be rejected and I do so. 10. Another contention raised by the counsel for the appellant is that on examination of evidence of PWs.1,2 and 5, there is nothing to connect the accused with the crime. On a scrutiny of the evidence of PW9, it can be seen that there is no serious challenge against his evidence particularly with respect to Ext.P4(a) confession ## **Crl.A.No.239 of 2011** ## **:-17-:** statement of the appellant. It is further relevant to note that pursuant to Ext.P4(a) confession statement, MO1 was recovered by PW9 as per Ext.P4 seizure mahazar. It is true that PW6 did not fully support the prosecution case and he had deposed that he did not witness that the accused produced MO1 from the bottom of the rock. But, it is relevant to note that when PW6 was examined, he had deposed that when the Police went to the place from where MO1 was recovered, their hands were free and MO1 was not with them. He had also deposed that when they returned, they were in possession of MO1. It is also relevant to note that PWs.1,2,5 and 9 had identified MO1 which was seen possessed by the accused at the time of the incident. So, merely because PW6 had deposed before the court that he had not seen about the production of MO1 by the accused, the entire case of the prosecution cannot be rejected, especially when the other evidence are intact and positively proves the involvement of the appellant in the commission of offence. PW6 had purposely made such statement ## **Crl.A.No.239 of 2011** ## **:-18-:** only to help the appellant. 11. In the light of the above discussion, the facts and circumstances and the evidence and materials referred to above, I am of the view that the learned Judge of the trial court is fully justified in his finding and convicting the appellant for the charges levelled against him and thus, conviction recorded by the trial court is confirmed against the appellant. 12. Counsel for the appellant submitted that the sentence imposed against the appellant is exorbitant and therefore, a lenient view may be taken with respect to the sentence. Having regard to the facts and circumstances involved in the cases and especially in the absence of any mitigating circumstances and particularly, considering the seriousness of the crime committed by the appellant, I do not find any reason to interfere with the sentence awarded by the court below against the appellant and accordingly, the sentence imposed against the appellant is also confirmed. ## **Crl.A.No.239 of 2011** **:-19-:** In the result, this appeal is dismissed confirming the conviction and sentence imposed against the appellant. **V.K.MOHANAN, Judge** MBS/ ## **Crl.A.No.239 of 2011** **:-20-:** ## **V.K.MOHANAN, J** . CRL.A.No. 239 OF 2011 **JUDGMENT** Dated:13.01.2011 ## **Crl.A.No.239 of 2011** **:-21-:**