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2004 DIGILAW 615 (KER)

Thulasi v. State Of Kerala

2004-12-06

J.B.KOSHY, K.P.BALACHANDRAN

body2004
Judgment :- Balachandran, J. The accused in S.C.463 of 2001 of Sessions Division, Pathanamthitta convicted by the Additional Sessions Judge, Pathanamthitta for offences under Sections 302, 307 and 324 I.P.C. and sentenced thereunder respectively for imprisonment for life; to rigorous imprisonment for five years and to rigorous imprisonment for one year vide judgment dated 13.9.2002 is the appellant. He stood charge sheeted by the Circle Inspector of Police, Adoor in Crime No.28 of 2000 of Adoor Police Station for offences punishable under Sections 302 and 307 I.P.C. on the allegation that at about 10.15 a.m. on 12.1.2000 with the intention of causing death of the now deceased Kalyani, the accused inflicted cut with a chopper on the back of her neck while in the northern courtyard of her house on account of animosity he developed towards her for having asked him to shift his residence from the said house; that the deceased succumbed to the said injury and the accused thereby committed offence punishable under Section 302 I.P.C. and further that at about the same time and place he caused cut injuries on the right and back sides of neck of Chandrika and cut injuries on the portion of both ears of Omana with the same chopper while she intervened and thereby he committed also offence punishable under Section 307 I.P.C. 2. The appellant denied the charge and was tried by the court below. After trial the court below found the appellant guilty of offences punishable under Sections 302, 307 and 324 I.P.C. convicted him thereunder and sentenced him for those offences as already stated. Hence this appeal by the aggrieved convict from jail. 3. The facts necessary for appreciation of the evidence in the case which are beyond the pale of controversy can briefly be stated thus:- PW1 Gopi and PW3 Chandrika are respectively the son and daughter of deceased Kalyani. PW2 Omana is wife of Raman another son of the deceased. The deceased was having his residence at RatheeshBhavan. Along with her were residing her son Raman with his wife Omana (PW2), her daughter Saraswathi along with her husband Sivarajan and also the accused Thulasi who is son of the younger brother of the husband of the deceased. PW5 Sobha is daughter of Paramu the brother of the deceased and Sivarajan the husband of Saraswathi is brother of PW5. Sivarajan died of electrocution on 10.1.2000. PW5 Sobha is daughter of Paramu the brother of the deceased and Sivarajan the husband of Saraswathi is brother of PW5. Sivarajan died of electrocution on 10.1.2000. On 12.1.2000 was the religious rituals in connection with death of Sivarajan. The accused who has his family house at Karunagappally was staying at the house of the deceased separated from his wife. On the fateful day (12.1.2000) the members of the family of the deceased and her relatives had assembled at her house to partake in the function. Feeding (“pattinikanji”) was also being arranged for that day. For the purpose, the deceased, PW2, PW3, PW5 and CW6 Lakshmi were dressing, cleaning and chopping jack fruit and the accused was dehusking coconut with MO1 chopper in the northern courtyard of Ratheesh Bhavan. The house of PW3 Chandrika is on the south of Ratheesh Bhavan and on the south of Ratheesh Bhavan is also a cow shed. 4. According to the prosecution, while the deceased. PW2, PW3, PW5 and CW6 were engaged in cleaning and dressing jack fruit and the deceased was dehusking coconut, the deceased told the accused that he has to go back to his family house along with his mother when she comes over for the function that day, after taking food. This was presumably for reason that it is not proper for him to stay there after death of Sivarajan when widowed Saraswathy also will be there at the house of the deceased. It is the prosecution case that the direction so given by the deceased was not liked by the accused, who however did not respond but proceeded to the southern side of the house taking the waste of jackfruit to be given to the cow. It also appears and it is in evidence also that what the deceased so said was attempted to be justified also by PW2, PW3, PW5 and CW6 who were also engaged in cutting and cleaning jackfruit, at least tacitly and no one however supported retaining of the accused at the house of the deceased. This according to the prosecution furnished motive for the accused to do away with the deceased and to attempt to cause death of PWs 2 and 3. 5. This according to the prosecution furnished motive for the accused to do away with the deceased and to attempt to cause death of PWs 2 and 3. 5. The occurrence witnesses examined by the prosecution are PWs 2, 3 and 5 as PW1 the son of the deceased who has set the law in motion by giving Ext.P1 first information statement is not an occurrence witness PWs 2, 3, and 5 have given evidence on all the factual background narrated in the preceding paragraphs which are not assailed before us except in that motive does not stand established convincingly. Motive is a matter that has to be inferred from the attendant circumstances stated by the witnesses as no one can probe into the mind of another Apex Court in State of H.P. v. Jeet Singh (1999)4 SCC 370) held that prosecution can only prove the possible mental element which could have been the cause of murder. In George v. State of Kerala (AIR 1998 SC 1376) the Apex Court held that when there is clear evidence that accused committed the offence, proof of motive –pales into insignificance. In this case the attendant circumstances established on evidence show that the accused did not like the deceased’s decision to discharge him from her house which decision by words of silence was supported by the others who were engaged in cleaning jackfruit. 6. PW2 the daughter-in-law of the deceased who is also an injured in the occurrence involved in the case has given evidence that the accused was staying at their house for the last one year for reason of family problems in his house and that he was also not on cordial terms with his wife. According to her the accused who went to the cow shed on the southern side of the house and close to the house of PW3 taking also the waste of jackfruit to be given to the cow, came back to the northern courtyard and inflicted cut on the neck of the deceased with MO1 chopper held in his hand, that she immediately fell down to the ground with her face downwards and when she (PW2) intervened the accused inflicted cuts on her face and back side of both ear and she also fell down to the ground unconscious near to the deceased. According to her she regained consciousness only at the Medical College Hospital, Kottayam and then she knew that PW3 is corroborated on all material aspects by PW5 in a convincing manner and nothing has been brought out in cross examination of PW2 or PW5 to discredit their testimony or to belie the prosecution case deposed to by them. It has come-out from the evidence of both PWs 2 and 5 that cutting and cleaning of jack fruit was over and it is thereafter that the occurrence has taken place. PW2 has deposed that after cutting and cleaning jackfruit PW3 went to her house to wash her hand using kerosene but she did not come back and CW6 went in search of her. According to PW3 before she entered into her house, the accused dragged her holding by her cluster of hair and dealt cut on the right side of her neck with MO1 chopper and she fell unconscious and some one took her to hospital. The result is that PW3 did not know of assault made by the accused on the deceased and PW2 and PWs 2 and 5 did not know of assault made on PW3. However from the testimony of PW5 that the accused was coming back to the northern courtyard with blood stained chopper it can be understood that the first assault was being made by the accused on PW3 and it is thereafter coming back to the northern courtyard that the accused attacked the deceased and PW2. Nothing is brought out in cross examination of PWs 3 and 5 either, to discredit their testimony. Thus the prosecution case of the accused having inflicted cut injuries on the neck of the deceased and on PWs 2 and 3 stands established beyond all reasonable doubts by the testimony of PWs 2,3 and 5. They are material witnesses also. There is no reason at all for PWs 2 and 3 who also are injured in the occurrence involved in this case to give evidence implicating the accused in the commission of the crime and it is not even suggested in their cross examination that they have got any axe to grind against the accused. They are material witnesses also. There is no reason at all for PWs 2 and 3 who also are injured in the occurrence involved in this case to give evidence implicating the accused in the commission of the crime and it is not even suggested in their cross examination that they have got any axe to grind against the accused. In a case where the accused is convicted for offence under Sections 302, 307 and 324 I.P.C. and the witnesses to the occurrence are the injured themselves, the contention that their evidence has to be further corroborated by independent witnesses is not consistent with the law higherto laid down by the various decisions of the apex Court. Sanctity can be attacked to and trust can be reposed in the testimony of those witnesses for the sole reason that they have no intention to secure a conviction of the accused giving room for the real culprit to escape punishment. This can be accepted as a general rule except in cases where either there is evidence of influence from external sources as seen often in cases of political crimes or in cases where there are telling circumstances which render the testimony of the injured witnesses so unbreliable that their testimony cannot inspire confidence in the judicial mind. (See Mer Dhan Asidia v. State of Gujarat, AIR 1985 SC 386 and Jangir Singh v. State of Punjab ((2000) 10 SCC 261). The injuries sustained to PWs 2 and 3 are evidenced respectively by Exts. P3 and P4 would certificates proved by PW4 the doctor. The cause of death of the deceased stands established by the testimony of PW4 who conducted postmortem examination on the body of the deceased and has issued Ext.P2 postmortem certificate. 7. The ante mortem injuries found on the body of the deceased and recorded by PW4 in Ext.P2 postmortem certificate shows that the spinal cord and vertebral columns were cut off with the tip of brain stem exposed and PW4 has opined that the death was occasioned due to torn off spinal cord and blood vessels; that the death will be instantaneous on sustaining of injuries noted in Ext.P2 and that the said injury is possible to be cause with a weapon of the nature of MO1. He has also opined that the injuries noted in Exts.P3 and P4 are also possible to be caused with MO1 chopper. He has also opined that the injuries noted in Exts.P3 and P4 are also possible to be caused with MO1 chopper. The expert evidence tendered by PW4 are also possible to be caused with Mo1 chopper. The expert evidence tendered by PW4 is not seriously assailed in cross examination. 8. It is worthy to note that the accused when questioned under Section 313 Crl.P.C. has given answers admitting the infliction of injuries on the body of the deceased and PWs 2 and 3. It is rightly contended by the counsel for the appellant that the statements of the accused given when questioned under Section 313 Crl.P.C. cannot be made the basis for conviction of the accused. But in the instant case the accused has admitted when questioned the correctness of the incriminating evidence given by PWs.2, 3 and 5. That admission lends assurance to the correctness of the testimony of PWs 2, 3 and 5. the apex court has in Mohan Singh v. Prem Singh ((2001) 10 SCC 236) held as follows:- “30. the statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.P.C cannot be made the sole basis of his conviction”. In the instant case the admissions of the accused when questioned under Section 312 Cr.l.P.C. which are inculpatory can be taken aid of to lend assurance to the evidence tendered by PWs 2, 3 and 5 and to clear all doubts lingering in the judicial mind if any, as regards the truth of the testimony of the prosecution witnesses. 9. In the instant case the admissions of the accused when questioned under Section 312 Cr.l.P.C. which are inculpatory can be taken aid of to lend assurance to the evidence tendered by PWs 2, 3 and 5 and to clear all doubts lingering in the judicial mind if any, as regards the truth of the testimony of the prosecution witnesses. 9. The contention advanced by the defence that some of the witnesses cited by the prosecution are not examined and that casts a spell of doubt on the prosecution case is bereft of any merit is the circumstances of this case. A discretion vests in the Prosecutor to examine all or a few only of the witnesses cited in the final report by the investigating agency. If the Public Prosecutor is of the view that the prosecution will be able to establish their case examining only a few of the witnesses, he is at liberty to do so as has been done in the instant case. In State of Madhya Pradesh v. Darkale alias Govind Singh (2004 AIR SCW 6241 at para 14) the Apex Court observed as follows:- “Non examination of some persons per se does not corrode vitality of prosecution version, particularly when the witnesses examined have withstood incisive cross examination and pointed to the respondents as the perpetrators of the crime”. If at all the defence was of the view that had the witnesses given up by the prosecution been also examined, that would have brought to light true state of affairs which according to them is not what is brought out in evidence by examination of a few only of the witnesses and that would have helped the defence, they could have very well cited and examined those witnesses in defence. Having not done so it cannot be heard from the defence that the prosecution has suppressed material evidence by non-examination of all witnesses cited in the final report. 10. In view of what we have discussed above we are of opinion that the court below has unerringly come to the conclusion that the prosecution has been able to prove the guilt of the accused as alleged by the prosecution beyond all reasonable doubts. 10. In view of what we have discussed above we are of opinion that the court below has unerringly come to the conclusion that the prosecution has been able to prove the guilt of the accused as alleged by the prosecution beyond all reasonable doubts. Going by the injuries sustained by PW3 as evidenced by Ext.P4 wound certificate the court below was of the view that in relation to PW3, the offence committed is punishable only under Section 234 I.P.C. and hence conviction for that lessor offence. Conviction for offence under Section 307 I.P.C. is only in relation to the grievous injuries sustained to PW2 as evidenced by Ext.P3 would certificate. Conviction for offence under Section 324 I.P.C. without a separate charge is legal as it is a lessor offence to the offence charged. Thus conviction of the appellant for offence under Sections 302, 307 and 324 I.P.C. is correct and sustainable. The sentence awarded also is moderate and legal and no interference is warranted in appeal. The appeal is thus devoid of merit. In the result we confirm the conviction and sentence passed by the court below against the appellant and dismiss this Criminal Appeal.