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2014 DIGILAW 636 (KER)

CHINNAPPAN @ MOHANAN v. STATE OF KERALA

2014-08-08

A.K.JAYASANKARAN NAMBIAR, P.N.RAVINDRAN

body2014
JUDGMENT : P.N. RAVINDRAN, J. 1. The appellant is the sole accused in Sessions Case No. 449 of 2009 on the file of the Court of the Additional Sessions Judge, Palakkad. He was prosecuted for the offences punishable under sections 302 and 326 IPC. By judgment delivered on 26.5.2010, the court below convicted the accused finding him guilty of the offence punishable under section 302 IPC and sentenced him to undergo imprisonment for life. He was found not guilty of the offence punishable under section 326 IPC and was acquitted of that offence. The accused has, aggrieved thereby, filed this appeal. The brief facts of the case are as follows. 2. The appellant was prosecuted for the aforesaid offences on the allegation that at about 9 AM on 23.2.2008 on account of enmity and with the intention of causing her death, he inflicted injuries on the head of his mother Saraswathy Amma, that she died of the injuries caused by him and thereby he committed the offences punishable under sections 302 and 326 IPC. The appellant was arrested on the day of the incident namely, 23.2.2008. The investigation of the crime was initially conducted by the Circle Inspector of Police, Vadakara who was holding charge of the Circle Inspector of Police, Alathur. Later, PW-12 conducted the investigation from 2.3.2008 onwards. The investigation was completed by PW-10, Circle Inspector of Alathur who filed the final report in the Court of the Judicial Magistrate of First Class, Alathur, where it was taken on file and numbered as C.P. No. 82 of 2009. The case was thereafter committed to the Court of Sessions, Palakkad and made over for trial to the Court of the Additional Sessions Judge, Palakkad, Adhoc-III. Charges were framed against the accused on 17.2.2010 and read over and explained to him. The accused pleaded not guilty of the charges. In support of the prosecution case, the prosecution examined PWs. 1 to 12 and produced and marked exhibits P1 to P18 as also the material objects marked as MO1 to MO5. The trial came to an end on 18.4.2010. Thereupon, the accused was examined under section 313 of the Code of Criminal Procedure on 8.4.2010 and the case was adjourned to 17.4.2010 for defence evidence. On 17.4.2010 as it was reported that the accused has no evidence to adduce, the case was adjourned to 28.4.2010 for hearing and later to 6.5.2010. The trial came to an end on 18.4.2010. Thereupon, the accused was examined under section 313 of the Code of Criminal Procedure on 8.4.2010 and the case was adjourned to 17.4.2010 for defence evidence. On 17.4.2010 as it was reported that the accused has no evidence to adduce, the case was adjourned to 28.4.2010 for hearing and later to 6.5.2010. Arguments were heard on 6.5.2010, later on 13.5.2010 and still later on 20.5.2010. On that day, the hearing was concluded and the case posted for judgment to 26.5.2010. By judgment delivered on 26.5.2010, the accused was convicted for the offence punishable under section 302 IPC and sentenced to undergo imprisonment for life. 3. The trial court relied mainly on the testimony tendered by PW-1 (son of the victim's elder sister), an eye witness to the incident who had given Ext.P1 first information statement at 10.30 AM on 23.2.2008 at Alathur Police Station and PW-2, a neighbouring resident, who was also an eye witness to the incident, to find the accused guilty of murder. The trial court held that the testimony tendered by the eye witnesses examined as PWs. 1 and 2 and PW-4, the doctor who conducted the postmortem examination, Ext.P17 report of the Forensic Science Laboratory and Ext.P16 chemical analysis report, prove that MO1 chopper was used by the accused to inflict injuries on the body of the deceased. The trial court also held that the accused had abandoned MO1 chopper after committing the crime and left the place. 4. We heard Smt. Bindu Sreekumar, learned counsel appearing for the appellant and Sri. Abdul Khadir, learned Public Prosecutor appearing for the State of Kerala. Learned counsel appearing for the appellant contended that the testimony tendered by PWs. 1 and 2, who are stated to be eye witnesses to the incident, are conflicting and contradictionary and therefore, no reliance can be placed on their testimony to find the accused guilty of the charges levelled against him. Learned counsel contended that MO1 chopper which is said to be the weapon used to commit the offence was not recovered as per a seizure mahazar but its recovery is mentioned only in the scene mahazar and therefore, it could not have been introduced into evidence. Learned counsel contended that MO1 chopper which is said to be the weapon used to commit the offence was not recovered as per a seizure mahazar but its recovery is mentioned only in the scene mahazar and therefore, it could not have been introduced into evidence. It was contended that as the weapon alleged to have been used to commit the crime was not recovered from the crime scene as per a seizure mahazar, it could not have been used as a piece of evidence to find the accused guilty of the charges levelled against him. Learned counsel appearing for the accused contended that the testimony tendered by PW-1 is that he went out of his house on hearing a commotion and found the appellant inflicting injuries on the head of the deceased with a chopper, but the testimony tendered by PW-2 is that he heard a cry and not commotion and therefore, as it is crystal clear that there is inconsistency and contradiction in the versions spoken to by PWs. 1 and 2, no reliance can be placed on their testimony. Per contra, Sri. Abdul Khadir, learned Public Prosecutor appearing for the State of Kerala submitted that there is no inconsistency whatsoever in the testimony tendered by the eye witnesses who were examined as PWs. 1 and 2, that it is not the law that the weapon used to commit the crime cannot be recovered and seized under a scene mahazar or that the seizure of the weapon during the course of investigation otherwise than under section 27 of the Evidence Act should be evidenced by a separate seizure mahazar, that a mahazar by itself is not a piece of evidence, that the facts referred to in the mahazar will have to be proved independently, that in the case on hand, the fact that the weapon used to commit the offence was recovered from the crime scene is spoken to by PW-9, the Circle Inspector of Police, who conducted the investigation and also prepared Ext.P4 scene mahazar, that the factum of recovery is also spoken to by PW-5, an attesting witness to Ext.P4 scene mahazar, as also by PWs. 1 and 2, who are eye witnesses to the incident and therefore, it cannot be said that there is no evidence to prove that MO1 is the weapon used to commit the offence. 5. 1 and 2, who are eye witnesses to the incident and therefore, it cannot be said that there is no evidence to prove that MO1 is the weapon used to commit the offence. 5. We have considered the submissions made at the Bar by the learned counsel on either side. We have also gone through the materials on record. We shall first consider whether there is any inconsistency in the testimony tendered by the eye witnesses examined as PWs. 1 and 2. It is not in dispute that PW-1 is the son of the victim's elder sister and is residing immediately to the south of the residence where the deceased was residing along with the accused. PW-1 has deposed that on 23.2.2008 at about 9 AM when he heard the deceased and the accused quarrelling, he went out of his house and witnessed the crime being committed while he was standing at the western boundary of his house compound. He had also deposed that he saw the accused hacking the head of the deceased with a chopper and when the deceased fell down, the accused inflicted injuries on her leg and thereafter threw away the chopper and ran away from the scene. PW-1 has also deposed that thereafter he went near the deceased and found her brain matter lying scattered and reported the incident to the Police. He had also deposed that Shanmughan who was examined as PW-2 and Shanmughan's father Kuttan had also witnessed the incident. Though he was cross-examined at length, nothing was brought out to discredit his testimony. PW-1 had, when cross-examined, maintained his version in the chief examination that the incident was witnessed by Shanmughan and Kuttan. Shanmughan was examined as PW-2. Though the learned counsel appearing for the accused contended that PW-2 had deposed in cross-examination that he heard the cry of the deceased first and such a case is not spoken to by PW-1, we are of the opinion that nothing turns on the fact that PW-2 first heard a cry. PW-2 has not stated that he did not hear the quarrel between the deceased and the accused. He had in his chief examination deposed that he heard the quarrel between the deceased and the accused. All that he had stated in the cross-examination is that he first heard the deceased crying. PW-2 has not stated that he did not hear the quarrel between the deceased and the accused. He had in his chief examination deposed that he heard the quarrel between the deceased and the accused. All that he had stated in the cross-examination is that he first heard the deceased crying. That by itself does not mean that he was not present in his house or that he had not witnessed the commission of the crime. PW-2 had deposed that on hearing the cry of the deceased he went out of his house and saw the accused chopping his mother on her head with a chopper. Read as a whole, there is no conflict in the testimony tendered by the eye witnesses examined as PW-1 and PW-2. The fact that PW-1 had not spoken about the deceased crying first does not by itself constitute a reason to hold that neither PW-1 nor PW-2 had witnessed the commission of the crime. We therefore find no grounds to hold that no reliance can be placed on the testimony tendered by PWs. 1 and 2 to find the accused guilty of murder. The evidence tendered by PWs. 1 and 2 unmistakably establishes the fact that they they had witnessed the commission of the offence by the appellant. 6. That takes us to the question whether in view of the fact that MO1 chopper was not recovered under a separate seizure mahazar, it cannot be used in evidence against the accused. It is settled law that the contents of a scene mahazar do not constitute evidence. The mere marking of a scene mahazar will not prove the existence or the truth of the facts stated therein. The facts disclosed will have to be proved in accordance with law by adducing evidence which is admissible in terms of section 3 of the Evidence Act. In the instant case, PWs. 1 and 2 who are eye witnesses to the incident, have stated that after inflicting injuries on the deceased, the accused threw the weapon and went away. The only difference in the versions spoken to by PWs. 1 and 2 is that while PW-1 states that the accused threw away the weapon and left the scene, the version of PW-2 is that the accused left the scene after dropping the weapon. The only difference in the versions spoken to by PWs. 1 and 2 is that while PW-1 states that the accused threw away the weapon and left the scene, the version of PW-2 is that the accused left the scene after dropping the weapon. MO1 chopper was recovered from a spot close to the place where the body of the victim was lying. Ext.P4 scene mahazar, the contents of which have been spoken to by PW-9 who prepared the scene mahazar as also by PW-5, one of the attesting witness to the scene mahazar, proves the said fact. PW-5, who is an attesting witnesses to Ext.P4 scene mahazar has deposed that he saw the Police recovering the chopper from the crime scene. He also identified it as MO1 chopper. When cross-examined, he deposed that PW-1 pointed out the chopper to the Police and that it was lying adjacent to a plantain standing close to the oven where the crime was conducted. PW-9, the Circle Inspector of Police, who prepared the scene mahazar, has spoken to the fact that from the scene of occurrence, a chopper was seized and he identified it as MO1 chopper. PWs. 1 and 2 have also spoken about the recovery of MO1 chopper by PW-9. The evidence on record thus conclusively establishes the fact that MO1 chopper was recovered from the scene of the crime. 7. Then the only other question is whether the omission to prepare a seizure mahazar evidencing the seizure of MO1 chopper prevents the prosecution from introducing MO1 chopper into evidence. The relevant portion of Ext.P4 scene mahazar as per which MO1 chopper was recovered, reads as follows: 8. The aforesaid fact is spoken to by PW-5, the attesting witness to Ext.P4 scene mahazar. Even if a separate seizure mahazar had been prepared, nothing more could have been stated regarding the recovery of the weapon allegedly used to commit the crime. As stated earlier, a mahazar is not evidence by itself and the statements therein will have to be proved by admissible evidence. In the instant case, the testimony tendered by PWs. 1 and 2 who are eye witnesses to the incident and PW-5, the attesting witness to Ext.P4 scene mahazar, establishes the fact that MO1 chopper was recovered from the crime scene. In the instant case, the testimony tendered by PWs. 1 and 2 who are eye witnesses to the incident and PW-5, the attesting witness to Ext.P4 scene mahazar, establishes the fact that MO1 chopper was recovered from the crime scene. We therefore find no merit or force in the contention raised by the learned counsel appearing for the appellant that on account of failure of the prosecution to prepare a seizure mahazar evidencing the seizure of MO1 chopper, it cannot be introduced into evidence. 9. From the evidence on record, we are satisfied that PWs. 1 and 2 had witnessed the accused inflicting fatal injuries on the head of the deceased using MO1 chopper. Both the witnesses had also deposed that the accused had after committing the crime, left the scene leaving the weapon. It cannot therefore be said that there is inconsistency in their evidence or that the evidence in the case on hand does not prove the recovery of MO1 chopper from the crime scene. Ext.P4 scene mahazar discloses that there were blood stains on MO1 chopper. Ext.P16 chemical analysis report discloses that there were bloodstains on MO2 to MO4 clothes which were worn by the accused and produced by him before PW-9 Circle Inspector at about 6 PM on 23.2.2008. PW-4, the Doctor who prepared Ext.P3 post mortem certificate has stated that the injuries noted in Ext.P3 certificate are sufficient in the ordinary course to cause death. He has also deposed that the injuries could have been caused by a heavy chopper or a sharp edged weapon. He had further deposed that having regard to the position of the injuries on the body of the victim, the injuries could have been inflicted if the victim was in a semi-erect or sitting position. The evidence in the case on hand is to the effect that the victim was lighting the oven when the accused inflicted injuries on her. The evidence in the case on hand conclusively establishes the fact that the accused had inflicted injuries on the head of the deceased with MO1 chopper and thereby caused her death. Though the learned counsel appearing for the accused contended that the prosecution has not proved the motive for the murder, we find no merit or force in the said submission. Though the learned counsel appearing for the accused contended that the prosecution has not proved the motive for the murder, we find no merit or force in the said submission. When the evidence of the eye witnesses is credit worthy and reliable and it is established beyond doubt that the accused had committed the crime, for which he is prosecuted, the motive becomes irrelevant. 10. We accordingly uphold the judgment of conviction entered by the court below. Though the learned counsel appearing for the accused submitted that leniency may be shown and the sentence may be reduced, having regard to the gravity of the crime and the nature of the injuries inflicted on the victim, we find no good grounds to interfere with the sentence imposed by the trial court. 11. For the reasons stated above, we hold that there is no merit in the instant appeal. It fails and is accordingly dismissed.