Kerala High Court
Unnikrishna Pillai vs State Of Kerala on 11 June, 2019
Equivalent citations: AIRONLINE 2019 KER 1221
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941
CRL.A.No. 768 of 2015
AGAINST THE ORDER/JUDGMENT IN CP 209/2009 of JUDICIAL
MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA
AGAINST THE JUDGMENT IN SC 1289/2009 of ADDITIONAL SESSIONS
COURT - VI, KOLLAM DATED 31-01-2015
CRIME NO. 724/2009 OF Kottarakkara Police Station , Kollam
APPELLANT/ACCUSED:
UNNIKRISHNA PILLAI,
AGED 45 YEARS, S/O LATE RAGHAVAN PILLAI,
UMESH BHAVAN, KULAKADA KIZHAKKE MURI,
KULAKKADA, THIRUVANANTHAPURAM.
BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR
RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE PUBLC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
682031.
BY ADV.SR. P.P.SRI.ALEX.M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.03.2019, THE COURT ON 11.06.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.768/15
-:2:-
JUDGMENT
Shaffique, J.
This appeal has been preferred by the appellant Unnikrishna Pillai challenging the verdict of the Additional Sessions Judge - VI, Kollam in S.C. No. 1289 of 2009 with C.P. No. 209 of 2009 arising out of Crime No. 724 of 2009 of Kottarakkara Police Station, by which he was found guilty for offence punishable under Sections 449 and 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for one year for offence under Section 302 of IPC and further sentenced to suffer rigorous imprisonment for five years and to pay a fine of `10,000/- (Rupees Ten Thousand only) with a default sentence of rigorous imprisonment for three months for offence under Section 449 of IPC. The fine amount, if realized, was directed to be given to the wife of the deceased (PW6) as compensation under Section Crl.Appeal No.768/15 -:3:- 357(1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.). Substantive sentences were directed to run concurrently.
2. Case of the prosecution is as under:
On 12/05/2009 at 03.30 P.M., the appellant had trespassed into the residence of his brother Vijayan Pillai bearing House No. 2/285, Manju Bhavan, Thurithiyambalam, Kulakkada Kizhakkemuri, Kulakkada Panchayath, with the intention to kill the said Vijayan Pillai and stabbed on his chest with a tapping knife and Vijayan Pillai succumbed to the injuries so sustained. Hence, the appellant thereby committed offences punishable under Sections 449 and 302 of IPC.
3. To prove the case, prosecution examined PW1 to PW16 as witnesses, marked Exts.P1 to P21 documents and identified MO1 to MO4 as relevant objects. After closure of prosecution evidence, the appellant was questioned under Section 313 of Cr.P.C. He denied all incriminating circumstances appearing against him and pleaded innocence. From the side of the defence, DW1 was examined and Ext.D1 is also marked.
4. Learned counsel appearing for and on behalf of the appellant Sri.Sasthamangalam S. Ajithkumar argued that the Crl.Appeal No.768/15 -:4:- appellant is innocent. He is falsely implicated by the police. There is no legal evidence to implicate him to the crime. Motive for the crime is not proved by the prosecution. Admittedly, the deceased is the elder brother of the appellant. The alleged recovery of weapon of offence is a planted one. It has nothing to do with the appellant. The version deposed by PW1, PW2 and PW3 is not believable. They are in inimical terms and are interested witnesses. Police made the appellant a scape goat. The evidence adduced is not sufficient to convict the appellant. Trial Court erred in convicting the appellant. He pleaded for an acquittal by extending benefit of doubt.
5. Per contra, learned Senior Public Prosecutor Sri.Alex M. Thombra argued that the trial Court is fully justified in convicting the appellant for murder and house breaking with intent to murder. Evidence of PW2 is believable and it is corroborated by the evidence of PW1, PW3 and PW5. MO1 weapon is recovered based on the disclosure statement of the appellant from his house. It corroborates the substantive evidence of the prosecution witnesses. Doctor who conducted the autopsy of the deceased deposed that injury no.1 is the fatal one. The said injury Crl.Appeal No.768/15 -:5:- is possible using MO2 tapping knife as weapon of offence. The weapon and dress of the appellant is detected with human blood belonging to group 'O' which is the blood group of the deceased. The case against the appellant is proved by the prosecution beyond reasonable doubt. He pleaded to dismiss the appeal.
6. Having heard both counsel in detail and on perusing evidence on record, we have to decide whether the trial Judge is justified in convicting the appellant for offence under Section 449 and 302 of I.P.C. Three questions are before us which need to be addressed: (1) Whether the death of Vijayan Pillai was a homicide. (2) Whether the appellant committed house trespass in order to commit an offence punishable with death. (3) Whether the appellant caused injuries on the body of the victim which resulted in his death with the intent to commit murder.
7. Evidence adduced in this case, in short, are as follows:
PW1 is the son of PW2 who is the sister of the appellant and the deceased. He gave Ext.P1 F.I. Statement on 12/05/2009 at 06.30 P.M. to PW15.
8. PW2 is the star witness to the prosecution who saw the appellant going into the house of the deceased and heard the cry Crl.Appeal No.768/15 -:6:- of the deceased and on reaching the spot, had seen the appellant dragging the injured to the kitchen from the T.V. room with MO2 tapping knife in his hands.
9. PW3 is the mother of the appellant and the deceased. She also supported the prosecution case. PW4 is an attestor to Ext.P2 inquest report. PW5 is a neighbour and political worker who attested Ext.P2 inquest report and Ext.P3 recovery mahazar for weapon of offence and dress of the appellant from his house. PW6 Sobhanakumari is the wife of the deceased. PW7 Maniamma is the wife of the appellant. She turned hostile to the prosecution. PW8 is an attestor to Ext.P4 scene mahazar. PW9 is the Doctor at Taluk Hospital, Kottarakkara who issued Ext.P5 wound certificate of the victim. PW10 is the Scientific Assistant who collected material objects from the crime scene. Ext.P6 is marked through her. PW11 is the then Village Officer, Kulakkada who issued Ext.P7 scene plan on the request of the investigating officer after inspecting the scene of crime. Ext.P8 is the possession and ownership certificate proved by PW11. PW12 is the Judicial Magistrate who recorded 164 statements of witnesses. PW13 is the then Assistant Director, Serology Division of Forensic Crl.Appeal No.768/15 -:7:- Department. Ext.P9 is the FSL report bearing his signature and seal. According to him, Item Nos. 1, 2, 4 and 5 contain human blood belonging to group 'O'. PW14 Dr. Balaram conducted the autopsy of the deceased and issued Ext.P10 post-mortem certificate. Injury no.1 is the fatal one according to him. Cause of death is penetrating injury sustained to the chest. PW15 is the then S.I. of Police, Kottarakkara who registered Ext.P11 FIR based on Ext.P1 FIS given by PW1 on 12/05/2009 at 06.30 P.M. PW16 is the then Circle Inspector of Police, Kottarakkara who conducted the investigation. He arrested the appellant, effected recoveries, seized material objects, conducted inquest, prepared mahazars including scene mahazar. After completing investigation, he laid the charge-sheet before Court.
10. PW14 Dr. Balaram who was the Assistant Professor in Forensic Medicine and Deputy Police Surgeon, MCH, Thiruvananthapuram conducted autopsy of the victim on 13/05/2009. Ext.P10 is the post-mortem certificate issued by him. He deposed that he had noted the following ante-mortem injuries on the corpse of the victim:
"1. Incised penetrating wound 4.3x1.5 '[' shaped, obliquely Crl.Appeal No.768/15 -:8:- placed on front of chest across midline, its inner lower end 1 cm to right of midline and 20 cm below upper end of breast bone (its long limb was 4.3cm long) its short horizontal limbs were 0.5cm each in length and 0.5cm in width and were directed downwards and to the left from the long limb. The wound entered the left chest cavity by cutting the cartilages of 5, 6 and 7 th ribs on left side. It entered the pericardial cavity through a cut 2.5cm long, and terminated in the right ventricle through a cut 1.5cm in length, 4.5cm above apex. The left lung collapsed. The pericardial cavity contained 300 gms of clot. The wound was directed backwards, upwards and to the left and had a total minimum depth of 3cm.
2. Lacerated wound 1.8x0.1x0.4cm obliquely placed on right side of forehead, inner lower end 6.5cm outer to midline and just above eyebrow.
3. Superficial lacerated wound 0.5x0.2cm on front of chin, vertical, 2cm outer to midline, 1cm above jaw margin.
4. Abrasion 0.5x0.5cm on right angle of jaw.
5. Abrasion 2.5x1.5cm on back of left forearm 7cm below elbow.
6. Abrasion 1.7x0.5cm at back of left wrist.
7. Abrasion 0.8x0.6cm at back of left writ 1cm below injury No.(7)
8. Sutured wound 2.9cm long, 1cm deep vertically placed on the left medial malleotus. Its edges were smooth.
9. Contusion 2.5x3x0.5cm on left side of top of head, 15cm above root of left ear."
There were 10 injuries. According to him, the death was due to injury no.1 which is a penetrating injury sustained to the chest of Crl.Appeal No.768/15 -:9:- the victim. The said injury could be caused with MO2 weapon. The blood group of the victim is found to be 'O' Rh positive. Ext.P2 is the inquest report prepared by PW16. In the light of these evidence, when read with the deposition of PW1, PW2, PW3 and PW6 who are close relatives of the deceased, it can be concluded that the death of Vijayan Pillai was a homicide.
11. To address next two questions mentioned above, it is necessary to look into and re-appreciate the evidence of witnesses especially those of material witnesses of the prosecution.
12. PW1 Anilkumar K. is the son of PW2 who is the sister of the appellant and the deceased. He deposed that he gave Ext.P1 FIS to police on 12/05/2009 at 06.30 P.M. to PW15. He is a recognized sand dredging worker and also an auto driver. On 12/05/2009 at 03.00 P.M., he came to his house and was having his lunch. His mother (PW2) and grand-mother (PW3) were standing in the tharavad house conversing to each other. At that time, he heard the loud cry of PW2 and PW3 saying "ഇതത വവിജയനനെ ഉണവി നവടവിനകതല്ലുനന". He ran to the tharavad house and Crl.Appeal No.768/15 -:10:- saw the appellant standing in the house of the victim with a blood-stained knife in his hand. He was standing there without allowing anyone to enter into the house. People from the locality gathered there. Then, the appellant walked away with the knife. PW2 entered into the house through the door of the kitchen and saw Vijayan Pillai lying in a pool of blood. Himself, Vinod and Raghavan took Vijayan Pillai to Taluk hospital in his autorickshaw. From there, Doctor referred the patient to Medical College Hospital. The patient was taken to MCH by Radhakrishna Pillai in an ambulance. Later, he came to know that Vijayan Pillai is no more. He also deposed that there was dispute between the appellant and the victim regarding pathway. He identified the appellant as the aggressor. He also identified MO1 as the kaili worn by the appellant and MO2 as the weapon found in appellant's hands. He further identified MO3 kaili as the dress worn by the deceased at the time of incident. The houses of himself and the appellant and the tharavad house are nearby. His autorickshaw is named 'Ammus'. During cross-examination, he stated that the distance between his house and the house of the deceased is only 100 metres. The tharavad house is at an Crl.Appeal No.768/15 -:11:- elevation of 6 feet. It is on the next layer and the appellant and the deceased were staying in two different houses. The kitchen of Vijayan Pillai is towards the northern side. The appellant was residing just north of the 'thadam' (contour). The appellant could enter into his house directly from the thadam. But that was not the allotted way to the appellant. He stated that he had not disclosed the details of the incident to the Doctor at Taluk hospital. He is the first one who reached the spot hearing the cry of PW2 and PW3. PW3 was taking rest after treatment. She was able to walk using a walking stick. PW2 and PW3 were present at the spot at the relevant time. He reached the spot hearing their cry. He denied the suggestion that he is deposing falsehood before Court.
13. PW2 Ponnamma is the sister of the appellant and the deceased. She is the mother of PW1 as well. She stated that there was a property dispute and pathway dispute between the appellant and the deceased. The incident happened on 12/05/2009 at 03.30 P.M. Herself and her mother (PW3) were conversing each other at the western side of the tharavad house. At that time, she had seen Unni (the appellant herein) going into Crl.Appeal No.768/15 -:12:- the house of Vijayan (the deceased herein). Then she heard Vijayan Pillai crying "എനന കുത്തുനന ". She rushed to the spot and had seen the appellant bringing the injured Vijayan Pillai from the room in which T.V. was situated to the kitchen. Blood was there in the room. She saw tapping knife in the hands of the appellant. Blood was flowing as droplets from the said knife. As the appellant realized that PW2 had seen it, he hurled abusive words at her. He also pushed her and she fell down in the tharavad house. People gathered there. PW1 reached there firstly. PW3 also entered into the victim's house. As the people gathered, the appellant went out through the northern side. The deceased was taken to hospital in PW1's autorickshaw. According to her, the reason for the crime is property dispute and pathway dispute between the appellant and the deceased. She stated that she had given statement to Magistrate. She identified MO1 to MO3. She also stated that their houses are nearby. She also stated that the appellant caused injuries to his wife's (PW7) eyes and the sight of her one eye is lost. In cross-examination, she stated that the house of the appellant and the deceased are close to each other. Crl.Appeal No.768/15 -:13:- The said houses are above 10 feet from the tharavad house. She reached the spot first hearing the cry. The room in which T.V. was placed was on the eastern side. She reiterated that the appellant had pushed her and she fell in the tharavad house and sustained injuries. People gathered there and tied the appellant then and there. At that time, MO2 weapon was in appellant's hands. Police also reached there. Along with the weapon, police took him. It was at the time when the appellant was standing in his house that the people caught him and tied him. People attacked the appellant. During re-examination, she clarified that after the incident, she had seen the weapon and the dress in the police station. She has no enmity towards the appellant as he is her brother. Police questioned her and recorded her statement for the first time on the next day of the incident. People tied the appellant after half an hour of the incident. She stated that she had not gone to the place where the appellant was tied up. She pleaded ignorance as to the fact whether MO2 was with the appellant at the time when he was tied up by the people.
14. PW3 Janaki Amma is the mother of the appellant and the deceased. She deposed that on 12/05/2009 at 03.30 P.M., the Crl.Appeal No.768/15 -:14:- incident happened. Herself and PW2 were conversing in front of tharavad house. At that time, she saw the appellant going into the house of the victim. Then she heard a cry of Vijayan Pillai stating "എനന കുത്തുനന". PW2 went inside the house of the deceased. Then the appellant threw PW2 out and she fell down. The appellant tried to stab her with tapping knife which was blood-stained. PW1 came there. The appellant ran away at that time. The injured was taken to the hospital in the autorickshaw of PW1. The reason for the crime is the property dispute. She identified MO1 to MO3. During cross-examination, she stated that PW1 reached the spot hearing the commotion. Within one minute, people gathered there and the appellant was tied up. At that time, weapon was not seen. She did not see the appellant stabbing the deceased. Both hands and legs of the appellant were tied. Police came and went taking the appellant and the knife with them. She was able to move using walking stick.
15. PW5 Vinod Kumar is a political worker of the locality. He deposed that on 12/05/2009 at about 03.30 P.M., as he was sitting at his house, he heard commotion from the eastern side of Crl.Appeal No.768/15 -:15:- his house. He started to go to the place and saw Santhamma came running and on enquiry she told him that Vijayan Pillai was stabbed. He went to the house of Vijayan Pillai and saw Pillai in a pool of blood. Himself and PW1 took the injured in PW1's autorickshaw to Taluk Hospital, Kottarakkara and from there the injured was taken to MCH, Thiruvananthapuram. According to him, there was property dispute between the appellant and the deceased. PW5 had attempted to solve the problem as a mediator. The appellant wanted to get pathway through the property of Viijayan Pillai which Vijayan Pillai did not concede. He is an attestor to Ext.P2 inquest report of the deceased. He is an attestor to Ext.P3 recovery mahazar of MO2 weapon and MO1 kaili of the appellant. It is his version that on 14/05/2009 at 08.30 A.M., he heard that the appellant was brought to his house by PW16 and PW15. So, he went there. He saw the appellant opening with a key and getting into the room and from inside the wood logs placed on a desk, taking a tapping knife and handing it over to the C.I. of Police. The handle of it was a little broken. From western side of the said room, from among the clothes, the appellant took MO1 kaili as well and handed it over to the officer. Crl.Appeal No.768/15 -:16:- MO3 is also identified by him. He deposed that he had given statement before Magistrate also. During cross-examination, he stated that he is the Kottarakkara Mandalam Committee Secretary of AIYF, a left wing youth association. He denied the suggestion that he was summoned by the Women's Commission for attempting to oust the appellant and his family from their house. He stated that the appellant had threatened to kill him if he testify against him. He further stated that he saw the appellant opening the door of his house using a key. He had not seen from where the appellant got the key. He reiterated that he had involved in the settlement talks on the issue of the appellant demanding pathway through the property of the deceased. He denied the suggestion that he is lying before Court by suppressing truth.
16. From the above evidence, the following facts stand proved beyond reasonable doubt, either by direct evidence or by necessary implication on the basis of evidence on record:
i. The appellant and the deceased were brothers and were residing adjacent to each other and there was a dispute relating to property as well as pathway between them as Crl.Appeal No.768/15 -:17:- the appellant was demanding pathway through the property of his elder brother. The said dispute was existing at the time of incident. It is the motive for the crime. ii. On 12/05/2009 at 03.30 P.M., PW2 the sister of the appellant and PW3 the mother of the appellant had seen the appellant going into the house of Vijayan Pillai. iii. Soon after the same, they heard a cry of Vijayan Pillai saying "എനന കുത്തുനന" (I am stabbed). This is admissible as res gestae under Section 6 of the Indian Evidence Act, 1872.
iv. PW2 rushed to the spot and had seen the appellant taking Vijayan Pillai from the room in which T.V. was working to the kitchen. MO2 blood-stained tapping knife was also in his hands. Vijayan Pillai was found with injuries and blood all over. Seeing PW2, the appellant abused her verbally and pushed her out and as a result of which she fell down at the tharavad house causing injury to her.
v. PW2 and PW3 uttered " ഇതത വവിജയനനെ ഉണവി നവടവിനകതല്ലുനന"
(Unni is stabbing and killing Vijayan). Hearing the same, Crl.Appeal No.768/15 -:18:- PW1 reached the spot. At that time, the appellant was standing there with MO2 knife without allowing anyone to enter into the house. Seeing PW1, the appellant left the place with knife.
vi. PW1 entered the house through kitchen door and saw Vijayan Pillai lying in a pool of blood. PW1, PW5 and Raghavan took the injured to Taluk Hospital, Kottarakkara in PW1's autorickshaw. From there, the injured was referred to Medical College Hospital, Thiruvananthapuram. He was declared dead later.
vii. PW14 who issued Ext.P10 post-mortem certificate deposed that injury no.1 is the cause of death which could be caused by MO2 as weapon of offence. Injury no.1 is a penetrating injury sustained to the chest of the victim. The wound entered into the left chest cavity by cutting the cartilages of 5th, 6th and 7th ribs on left side. It entered the pericardial cavity through a cut 2.5 cm long and terminated in the right ventricle through a cut 1.5 cm in length, 4.5 cm above apex. The left lung collapsed.
viii. MO2 tapping knife which is the weapon of offence was Crl.Appeal No.768/15 -:19:- recovered based on Ext.P3(a) disclosure statement of the appellant from his locked room. MO1 kaili of the appellant was also recovered based on his disclosure statement. ix. PW13 who issued Ext.P9 FSL report in this case deposed that MO1 and MO2 mentioned above contained human blood belonging to group 'O'. PW14 deposed that the blood group of the deceased was 'O' Rh positive.
17. From the above discussion, it is rather clear that the appellant herein is the one who committed the offence. He is proved to have trespassed into the house of the victim with MO2 weapon and he inflicted the stab injuries on the deceased. Motive is clearly spoken to by PW2 and PW3 who are his sister and mother respectively. The utterances of the victim, PW2 and PW3 are forming part of the same transaction and are admissible as res gestae. Weapon is recovered based on his disclosure statement which is found to be stained with 'O' group blood which is the blood group of the deceased. All the evidence detailed above unerringly points to the guilt of the appellant alone. Both offences are proved beyond reasonable doubt. The purpose of house trespass become evident from his subsequent conduct. Crl.Appeal No.768/15 -:20:- The guilt is proved beyond reasonable doubt. Learned Sessions Judge is fully justified in convicting the appellant who killed his own brother. No interference is called for.
In the result, the appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge