Vinu v. State of Kerala

## **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 27[TH] 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 27[th] day of June, 2023** ## **J U D G M E N T** ## **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 Crl. Appeal No.817 of 2022 3 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 Crl. Appeal No.817 of 2022 4 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 Crl. Appeal No.817 of 2022 5 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 Crl. Appeal No.817 of 2022 6 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 Crl. Appeal No.817 of 2022 7 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 Crl. Appeal No.817 of 2022 8 Surgeon who conducted the autopsy and Ext.P14 is the autopsy certificate issued by him. PW22 deposed that the following antimortem 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 Crl. Appeal No.817 of 2022 9 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 Crl. Appeal No.817 of 2022 10 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 Crl. Appeal No.817 of 2022 11 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 Crl. Appeal No.817 of 2022 12 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 Crl. Appeal No.817 of 2022 13 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 Crl. Appeal No.817 of 2022 14 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 Crl. Appeal No.817 of 2022 15 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 Crl. Appeal No.817 of 2022 16 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 Crl. Appeal No.817 of 2022 17 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. Crl. Appeal No.817 of 2022 18 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 Crl. Appeal No.817 of 2022 19 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 Crl. Appeal No.817 of 2022 20 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 Crl. Appeal No.817 of 2022 21 **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 Crl. Appeal No.817 of 2022 22 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 Crl. Appeal No.817 of 2022 23 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