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2025 DIGILAW 603 (KER)

Devadas S/o. Bhaskaran v. State of Kerala

2025-03-17

P.V.BALAKRISHNAN, RAJA VIJAYARAGHAVAN V

body2025
JUDGMENT : P.V.BALAKRISHNAN, J. This appeal is filed by the sole accused in SC No.525/2016 on the files of the Additional Sessions Court-V, Palakkad challenging his conviction and sentence imposed under Section 302 IPC by that court. 2. The prosecution case is that, on 27/12/2015 at about 5.30 pm, in the courtyard of the house bearing No. VIII/522 of Kinassery Village, Palakkad, the accused committed murder of Jayakumaran by inflicting blows upon him using wooden sticks, bricks, cement block and granite stone. Hence, the prosecution alleged that the accused has committed an offence punishable under Section 302 IPC. 3. In the trial court, from the side of the prosecution PW1 to PW18 were examined and Exts.P1 to P28 & MO1 to MO11 series were marked. Ext.D1 contradiction was also marked by the accused through the prosecution witnesses. When the accused was examined u/s 313 Cr.P.C., he denied all the incriminating circumstances appearing against him in evidence and contended that he was innocent. Even though the accused was called upon to enter his defence, no evidence was adduced. The trial court, on an appreciation of the evidence on record, found the accused guilty and convicted him under Section 302 IPC. The accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.3,00,000/- under Section 302 IPC. In case of default, the accused was ordered to undergo rigorous imprisonment for a period of two years. 4. The learned Counsel for the appellant Adv. Ramesh P contended that the prosecution evidence, even if it is accepted in toto as gospel truth, cannot warrant a conviction against the accused under Section 302 IPC. He submitted that the prosecution case hinges upon the evidence of PW3, PW4 & PW5, who have allegedly witnessed the incident and an appraisal of their evidence would show that they have not seen the incident and that they are deposing falsehood. He contended that going by the evidence of PW12, there is no chance for PW3 to PW5 witnessing the incident in the manner stated by them. He argued that the identification of MO1 to MO6 by PW4 is not convincing and both PW3 & PW5 did not identify the weapons. He contended that going by the evidence of PW12, there is no chance for PW3 to PW5 witnessing the incident in the manner stated by them. He argued that the identification of MO1 to MO6 by PW4 is not convincing and both PW3 & PW5 did not identify the weapons. He also submitted that even though the prosecution is substantially relying upon Ext.P26 & P27 reports from the FSL, it has not proved that it is the materials collected from the body of the deceased, the place of occurrence and the dresses of the accused, which have been examined in the FSL.Hence, he prayed that this appeal may be allowed. 5. Per contra, the learned Public Prosecutor Adv. Ranjith T.R contended that the prosecution has proved its case beyond reasonable doubt. He argued that the evidence of PW3 to PW5, the eye witnesses to the incident, is credible and cogent and the same can be relied upon to rope in the accused in this crime. He submitted that the scientific evidence let in, in the form of Ext.P26 also lends considerable support to the prosecution case and shows that MO1 to MO6 are the weapons used in the attack. He further submitted that Ext.P27 would reveal that the dhoti worn by the accused at the relevant time contained the blood of the deceased and no explanation is offered by the accused for the same. Hence, he prayed that this appeal may be dismissed. 6. Before evaluating the evidence, it would only be proper to discuss the material evidence let in by the prosecution. PW1 is the brother of deceased Jayakumaran, who lodged Ext.P1 FIS. He stated that, on getting information, he reached the spot at about 6.10 pm and saw his brother lying dead in a pool of blood with his skull broken. PW5 told him about the incident and the accused attacking the deceased and he told the same to the police, who recorded his statement. 7. PW3 is a neighbour of the deceased and who had witnessed a part of the incident. He deposed that at about 4.30 pm he came back to his house after work and returned immediately to purchase some articles. While returning, on the way, he saw PW5 with her child and she told him that the accused is beating her father. PW3 is a neighbour of the deceased and who had witnessed a part of the incident. He deposed that at about 4.30 pm he came back to his house after work and returned immediately to purchase some articles. While returning, on the way, he saw PW5 with her child and she told him that the accused is beating her father. When he reached in front of the gate of the deceased Jayakumaran, he saw Jayakumaran lying prone and the accused throwing a stone upon him. Since he was afraid, he went to his house and came back with others to the place of occurrence, after some time. Then he saw Jayakumaran lying in a pool of blood with skull fracture and cerebral exposure. He also stated that the accused had hurled granite stone, brick and a cement block against the deceased and inflicted the injuries. In his cross examination, he stated that the gate is situated on the southern side of Jayakumaran's house, which is facing east, and he had witnessed the incident from standing near the gate. He also stated that the accused has attacked the deceased using stones on the northern side of the house. 8. PW4 is the wife of PW3. She deposed that at about 5.30 pm, she saw the accused coming with a stick from his house and going towards the house of the deceased. Thereafter, she heard cries of both the deceased and PW5. Then she saw the accused hurling cement blocks and granite stones against the deceased. When the accused left the place, she went there and saw the deceased lying with stones nearby. She identified the stones made of cement and red brick, granite stone, hollow brick and red bricks, as MO1 to MO4 series respectively and the sticks as MO5 series & MO6. In her cross examination, she stated that the accused had beaten Jayakumaran near the kitchen of his house and the stones were taken by the accused from the backside of the house. While throwing stones, the accused was facing towards her house and the accused threw the stones by using both his hands. 9. PW5 is the daughter of the deceased. She deposed that the accused came to her house with a stick and entered the premises through the gate. Thereafter, the accused beat her father and he fell down. While throwing stones, the accused was facing towards her house and the accused threw the stones by using both his hands. 9. PW5 is the daughter of the deceased. She deposed that the accused came to her house with a stick and entered the premises through the gate. Thereafter, the accused beat her father and he fell down. She cried for help and took her child and went to the house of CW15 . After collecting Rs.20/- from CW15, she went near the water tank situated in the backside of CW15’s house. From there she saw the accused hurling stones against her father. Thereafter, she went to PW1's house and on the way met PW3 and told him about the incident. When she came back, she saw her father lying on the northern side of the house with a skull fracture. During cross examination, she stated that her father was sitting in a chair in the courtyard of her house which is facing east wards and the accused came with a stick and beat him. When she saw the accused beating her father, she went to CW15's house. On getting beatings, her father fell down and the accused dragged him towards the northern side and hit him on his head using a granite stone, inflicting injuries. She further stated that she had not told the police about the accused beating the deceased using the stick. 10. PW6 is the doctor who conducted the postmortem examination of Jayakumaran and issued Ext.P3 certificate. She noted 36 ante mortem injuries on the body of the deceased and stated that death was due to head injury. She also stated that injury Nos. 1 to 4 are fatal injuries and are suggestive of the repeated attempts made by the assailant to cause the death of the victim. 11. PW12 is the village officer, who prepared Ext.P8 scene plan. In his cross examination, he stated that one cannot see the southern part of the deceased house from the house of Kanakadas and the place of occurrence from the house of CW15. He also stated that one cannot see the place of occurrence from the gate of the house. In his re-examination, he stated that the afore inferences were made by him by looking into the plan. 12. PW15 is the investigating officer, who conducted a part of the investigation. He also stated that one cannot see the place of occurrence from the gate of the house. In his re-examination, he stated that the afore inferences were made by him by looking into the plan. 12. PW15 is the investigating officer, who conducted a part of the investigation. He prepared Ext.P2 inquest report and Ext.P4 scene mahazar. He also recovered MO1, MO2, MO3, MO4 series, MO5 series, MO6 and MO7 from the place of occurrence while preparing Ext.P4. On 28/12/2015, he seized the articles collected by the scientific assistant after preparing Ext.P11 mahazar. He also arrested the accused after preparing Exts.P12 to P14 documents and produced him before the doctor and collected samples handed over by him after examining the accused, as per Ext.P7 mahazar. Thereafter, he seized MO8 and MO9 dresses of the accused as per Ext.P6 mahazar, the blood samples, nail clippings and scalp hair of the deceased as per Ext.P5 mahazar and filed Ext.P15 report. Thereafter, he produced all the seized articles before the court as per Ext.P17 to P22 property lists. 13. PW16 is a police officer who recorded Ext.P23 FIR on the basis of Ext.P1 FIS. 14. PW18 is the investigating officer who completed the investigation and laid the charge. He deposed that he collected Ext.P10 ownership certificate, prepared Exts.P24 & 25 forwarding notes and received Ext.P26 & P27 FSL reports. Thereafter, he collected Ext.P8 scene plan and after completing the investigation, filed the charge. 15. In the present case there is no much dispute regarding the fact that the cause of death of Jayakumaran is homicidal. In fact, the evidence of PW6, the doctor, who conducted the post mortem examination and issued Ext.P3, confirms the same. The evidence of PW6 coupled with Ext.P3 would go to show that Jayakumar had sustained 36 ante mortem injuries, out of which injury Nos. 1 to 4 are deep injuries caused in the skull. It shows that he had suffered comminuted fracture of skull, maxilla and zygoma and the brain matter was protruding out. PW6 has categorically opined that the death was due to head injury and injury Nos.1 to 4 are fatal injuries, which can be caused by MO1 to MO4. 16. Now the next question to be considered is whether it is the accused, who had committed the homicide of Jayakumaran. PW6 has categorically opined that the death was due to head injury and injury Nos.1 to 4 are fatal injuries, which can be caused by MO1 to MO4. 16. Now the next question to be considered is whether it is the accused, who had committed the homicide of Jayakumaran. The materials on record go to show that the prosecution is heavily relying upon the testimonies of PW3 to PW5, who are the alleged eye witnesses to the incident and also the scientific evidence let in by it, to prove the guilt of the accused. An appraisal of the evidence of these witnesses would go to show that they have witnessed the accused attacking the deceased from various places nearby. The evidence of PW3 is to the effect that, while he was coming back to his home and when he reached in front of the gate of the deceased's house, he had seen the deceased lying prone and the accused throwing stones against him. It shows that when he returned to the place after some time with others, he saw the deceased lying dead with fracture on his skull and brain protruding out. It is also discernible from his evidence that the accused has used granite stone, cement block and bricks to attack the deceased at the relevant time. Similarly, the evidence of PW4 reveals that while she was standing in her house, she had seen the accused going into the house of the deceased and thereafter beating him using a stick and hurling granite stone and cement block against him. At that time, the deceased was facing towards her house and the accused was standing nearby facing him. PW4 also identified the stones and sticks used in the attack as MO1 to MO6. The evidence of PW5 also shows that she had seen the accused going to the house of the deceased with a stick and beating him. When the deceased fell down, the accused dragged him towards the northern side of the house and thereafter, hit him on his head using a stone. It is discernible from her evidence that she had witnessed the accused attacking her father using the stone from near a water tank situated in the house of CW15, where she had gone seeking help. It is discernible from her evidence that she had witnessed the accused attacking her father using the stone from near a water tank situated in the house of CW15, where she had gone seeking help. It is thus perspicuous from the evidence of PW3, PW4 and PW5 that the accused had, after entering into the courtyard of the house of the deceased, attacked him using sticks and stones of different nature and had inflicted serious injuries on his head, resulting in his death. It is to be seen that even though these witnesses have been cross examined in extenso, nothing has been brought out in material to discredit their testimonies regarding the core of the events. It is true that the prosecution has failed to get the weapons identified used in the attack through PW3 and PW5. But, as stated earlier, they have specifically stated about the weapons used by the accused and PW4 has positively identified them. It is also true that a few omissions have been brought out in the cross examination of PW4 and PW5, including an omission on the part of PW5 in stating about the use of the stick by the accused to attack the deceased. As far as the omission brought out in the evidence of PW5 regarding use of stick by the accused to attack the deceased is concerned, the same is not fatal, since the evidence of PW4 on this aspect is credible and cogent. As far as the other omissions are concerned, we are of the view that they are only minor ones and do not in any manner affect the credibility of the evidence of these witnesses. 17. The contention of the learned counsel for the appellant, by relying upon the evidence of PW12, that the evidence of PW3 to PW5 are not believable, since they could not have witnessed the incident from their respective locations, has no legs to stand. First of all, it is to be seen that there is absolutely no challenge from the side of the accused regarding the testimony of these witnesses, witnessing the incident from their respective locations. Secondly, it is to be seen that all these witnesses have seen the incident from close quarters and the accused is their neighbour, who is well known to them. Secondly, it is to be seen that all these witnesses have seen the incident from close quarters and the accused is their neighbour, who is well known to them. Thirdly, as rightly found by the trial court, no reliance can be placed upon the evidence of PW12 since his opinion is entirely based as per the noting in the plan. 18. Moving further, it is to be seen that the evidence of PW3 to PW5 regarding the manner in which the accused committed the crime, gets considerable support from the scientific evidence let in by the prosecution. The evidence of PW15 would go to show that on the next day, when he prepared Ext.P4 scene mahazar, he had seized MO1 to MO6 with blood stains on them from the place of occurrence. The evidence of PW7 reveals that he had also, on the same day, visited the scene and has collected samples including blood from the afore material objects and other items. These articles were forwarded to the FSL for examination as per Ext.P24 forwarding note. Ext.P26 chemical analysis report shows that blood and hair of the deceased were found in the rock piece, cement block, brick and the blood of the deceased in the stick, thus examined by the expert. The afore evidence also thus lends much credence to the evidence of PW3 to PW5 that the deceased was attacked and killed using these weapons. 19. It is true that the prosecution is also relying upon Ext.P27 report to contend that the blood of the deceased was found in the dhoti worn by the accused at the relevant time. But, it is to be seen that the prosecution has not adduced any substantive evidence to prove the identity of the dhoti worn by the accused at that time. Even though PW15 would say that he had seized the dhoti worn by the accused along with the MO8 & MO9 at the time of his arrest, the same was neither produced before the court nor identified. If so, it cannot be stated for sure that item No.2 dhoti mentioned in Ext.P27 is the one worn by the accused at the relevant time. If so, it cannot be stated for sure that item No.2 dhoti mentioned in Ext.P27 is the one worn by the accused at the relevant time. Even if the matter stands thus, we are of the view that the said factor alone is not sufficient to defenestrate the prosecution case as such, since the other evidence, as discussed afore, are credible and cogent and clinches the case against the accused. 20. The upshot of the afore discussions on evidence is that the prosecution has proved convincingly that the appellant/accused has committed murder of deceased Jayakumaran by hitting him using sticks, granite stone, cement block and brick. The trial court has properly appreciated the evidence on record and has arrived at a correct conclusion of guilt against the accused. The appellant could not bring out any material which would enable this Court to interfere with the said conclusion. Therefore, we find that this appeal lacks merit and the same is only to be dismissed. In the result, this appeal is dismissed.