George @ Kunju vs State Of Kerala on 21 March, 2019

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Kerala High Court

George @ Kunju vs State Of Kerala on 21 March, 2019

The accused in SC No. 304/13 on the file of Additional Sessions Judge, Pala is the appellant, who challenges the judgment in the said case by which he was convicted and sentenced to undergo imprisonment for life for offence u/s 302 of I.P.C., imprisonment for one year for offence u/s 324 of I.P.C., imprisonment for one year for offence u/s 3 r/w 25(1B)(a) of the Arms Act and to pay a fine of `5,000/-, 3 years for offence u/s 5 r/w 27(1) of the Arms Act and to pay a fine of `5,000/-. He is also imposed with a fine of `1 lakh for the offence us/ 302 of I.P.C.

2. The prosecution allege that, on 2/6/2012 at about 5 p.m, the accused committed the murder of Serjo, his neighbour's son-in-law. The offence was committed by using a gun belonging to the accused. According to the prosecution, the accused and PW1, Thomas, were neighbours. The accused had a feeling that PW1 and his family members were engaged in black magic. PW1 always thought that the accused was staring at his family members especially the females. PW1 raised the height of his Crl.Appeal No.1239/14 -:3:- kayyala (compound wall) to avoid the said situation. It is stated that, on account of the same, the accused had enmity with PW1. The daughters and sons-in-law were made known about the issue with the accused. Accordingly, the sons-in-law of PW1 questioned the accused regarding the quarrel which was disliked by the accused and he nursed a grudge against PW1's family. Accused therefore came to the gate of PW1's house with a gun and fired a shot. The bullet struck Serjo on his right shoulder and on his neck and pierced into his heart. Serjo fell down. Though he was taken to the hospital, he succumbed to the injuries. PW2, wife of PW1 also sustained bullet injuries.

3. On the basis of the information given by PW1, PW23 Sub Inspector of Police, Pala registered FIR. After conducting investigation, final report was filed before the Judicial First Class Magistrate Court, Pala. The case was committed to the Sessions Court, Kottayam. The accused denied the charges levelled against him. Prosecution examined PW1 to PW27, relied upon Exts.P1 to P28 and produced and identified MO1 to MO14. After complying with the procedural formalities, the accused was convicted as stated above.

4. Learned counsel for the appellant Sri.V.Sajith Kumar Crl.Appeal No.1239/14 -:4:- argued that there is absolutely no evidence against the accused. His contention is that PW1 has summoned his two sons-in-law and attacked the appellant at his house and took away the gun. According to him, the gun went off accidentally as he was trying to take back the gun from the hands of the victim. Further, according to him, the description of the gun and its measurement as per report of PW15 was different from the actual weapon MO1. The inconsistency in the actual measurement by itself would render the prosecution case unbelievable. It is pointed out that there is no evidence to prove that the accused had fired the gun and the witnesses statement are totally tutored. He had no motive to commit the murder of deceased at all.

5. On the other hand, learned Public Prosecutor Sri.S.U.Nazar while supporting the judgment of the Court below submitted that it is a clear case where the accused had trespassed into the house of PW1 and shot the inhabitants. Serjo suffered major injuries and he succumbed to the same. Prosecution had produced sufficient material in the form of oral testimony of the inhabitants of the house, recovery of the weapon and the scientific evidence to prove the crime. The weapon was originally licensed in the name of the accused Crl.Appeal No.1239/14 -:5:- himself and his contention that it was an accidental firing cannot be believed.

6. In order to analyse the respective contentions argued by either side, it will be useful to analyse the testimony of witnesses.

7. There cannot be any dispute about the fact that Serjo died on account of the injury sustained by him. PW1 is his father in law. PW2 is his mother in law. PW3 is his co-brother. All of them deposed that they were sitting in the sit out of their house. The accused came and suddenly fired into the sit out. On sustaining injuries on account of the bullet injury, Serjo collapsed to the ground and he was taken to the local hospital and thereafter to Medical College Hospital where he was pronounced dead. PW4 is the daughter of PW1 and PW2 who supported the evidence of PW1 to PW3. PW2 also sustained injuries in the very same incident. Ext.P2 is the inquest report and PW10 is an attestor to it. PW20 conducted postmortem and he stated that the deceased suffered three injuries which are detailed hereunder:-

"1. Multiple punctured lacerated wound 22 in number on the outer aspect of right arm, top of shoulder, right side and back of neck and back of shoulder. Out of these 4 on the outer aspect of right arm (0.5x0.5cm), 3 cm on the Crl.Appeal No.1239/14 -:6:- right side of neck (0.5x0.5 cm) and 4 on the top of shoulder (0.5x0.5cm) were entrance wounds. They punctured skin and subcutaneous tissues and superficial muscles and made corresponding exit wounds, 4 on the front of right arm (0.7x0.7 cm), 3 on the right side of back of neck (0.8x0.7 cm) and 4 on the back of shoulder (1x0.8 cm). They were spread over an area 30x22 cm.

2. Lacerated penetrating wound 0.5x0.5 cm, on the rights sidie of front of neck, 9 cm outer to midline and 5 cm above the collar bone. It entered the left chest cavity by puncturing the mediastinum and pericardium and ended by penetrating the right atrium of the heart. The track of the wound was directed downwards and to the left. Pericardial cavity contained 1700 ml of blood with clots. The distorted led pellet was recovered from the right artrium (measuring 0.5x0.4 cm).

3. Superficial punctured lacerated wound 0.5x0.5x0.1 cm on the right side of front of abdomen 10 cm outer to midline and 7 cm above the groin."

He opined that the death was due to the fire arm injury sustained to the heart and it could be caused by MO1 gun which is a dangerous weapon.

8. From the aforesaid evidence, there cannot be any dispute regarding the fact that Serjo died on account of the injuries caused by the firing of the gun. Even according to the accused in the 313 statement, he stated that there was a scuffle for the gun and in the process, the gun went off accidentally. Therefore, the fact that the deceased succumbed to the injuries Crl.Appeal No.1239/14 -:7:- on account of the bullet injury from the gun is not in dispute.

9. The question is whether the gun went off accidentally or whether it was a deliberate act on the part of the accused. As already mentioned, PW1 has given FI statement Ext.P1. He deposed before Court regarding the bullet injury sustained by Serjo. His deposition is that he is residing in the building owned by him with his wife and younger daughter. The deceased Serjo was the husband of his daughter Sali. The incident occurred at about 5 pm on 2/6/2012. The accused is his neighbour. At 7.30 a.m, on the date of incident, there was another incident by which accused pushed him, but he did not fall down as he caught hold of the hands of the accused. He informed the incident to his wife PW2 and also to his younger daughter Sali, which was communicated to the other daughters. The daughters appear to have informed the matter to their husbands and they came to their house at about 4.45 p.m. The deceased and PW3 went to the house of accused. After a few minutes, they came back and stated that the matter is settled and they are going back to their house. After sometime, PW1 along with PW2, their younger daughter and sons-in-law were sitting in the sit out of the house. Sit out is closed with iron grill. The accused came to the road with Crl.Appeal No.1239/14 -:8:- a gun and fired into the sit out. The bullet struck Serjo on his neck and chest. PW2 also sustained injuries. Bullet also struck on the grill and wall of the sit out. Serjo collapsed. The neighbours came around. Accused went back to his house. Serjo was taken to Marygiri hospital from where he was referred to Medical College Hospital. While he was taken in an ambulance to Medical College Hospital, the nurse in the ambulance told them that Serjo had died. Doctors at Medical College Hospital confirmed the death. He also identified MO1 gun used by the accused, MO2 shirt of Serjo and MO3 banyan. He also narrated about the reason for the enmity and that is, he raised the height of the kayyala on the back side of their house as he wanted to avoid the accused staring at the female members of the family. The FIS was given at 9 p.m. During cross-examination, he confirmed that at the time of incident, he along with wife, daughter Siby and Serjo were sitting in the sit out. PW2 PW3 and PW4 supported the version of PW1.

10. PW5 is a neighbour of PW1. She deposed that she saw sons-in-law of PW1 going to the house of the accused and after some time, they came back. Accused came out of his house with a gun. Though the wife of accused tried to obstruct him, he pushed her away and went to the house of PW1. He was shouting Crl.Appeal No.1239/14 -:9:- some words and thereafter she heard a firing sound. The accused came back with a gun and went inside the house. Then she went to the house of PW1, She found Serjo with injuries. PW2 also sustained injuries. She hired an autorickshaw and took PW2 to hospital.

11. PW6 is another neighbour of the accused and PW1. She also deposed having heard the firing sound and the accused coming back to his house with a gun. He identified MO1 gun.

12. PW7 is the wife of deceased. She also deposed that her husband and her sister's husband had gone to PW1's house to enquire about the incident which happened that day morning with the accused. She knew about the incident when she telephoned PW1's house.

13. PW8 is the Secretary of Drinking Water Supply Unit. He deposed that there was dispute between accused and PW1 for taking water from the tap.

14. PW9 is a Panchayat member who deposed that, on 2/6/2012, the accused called him over telephone and he met the accused at his residence. He pacified the accused and sent him away. At about 5.30 pm, the accused again called and he was told that he fired the gun and the accused asked him what he should Crl.Appeal No.1239/14 -:10:- do. Accused replied that they had come to his house and created a scene and then he followed them and fired at them. PW10 is an attestor to Ext.P2 inquest report.

15. PW11 is an attestor to Ext.P3 scene mahazar. PW12 is an attestor to Ext.P4 mahazar for seizure of the pellets from the body of PW2. He identified MO4 series.

16. PW13 is a neighbour of the accused. On the date of incident, she heard a firing sound and the cry of PW2. She went there and found the deceased lying with bullet injuries. She also saw the accused going to his house with MO1 gun. The accused went to his house, changed the dress and went through the back courtyard of Denny, who is a neighbour.

17. PW14 is the wife of accused. She deposed that while she was lying in the room, she heard a sound and came out of the house. She saw the deceased Serjo getting hold of her husband by the neck. She requested Serjo to leave her husband. Serjo forcibly made her husband to sit down and took away the gun from the house. She was declared hostile by the prosecution. However she stated that MO1 gun belonged to her husband.

18. PW15 is the Armour Sub Inspector attached to AR Camp, Kottayam. He inspected MO1 gun. It was a 12 bore SBBL Crl.Appeal No.1239/14 -:11:- (Single Barrel Breach Loading) gun. The empty cartridge is identified as MO6. He deposed that the gun was recently fired. It has an effective range of 300 yards. His deposition is that a cartridge will have several pellets. The pellets from the cartridge would spread on it being fired. The area spread will increase as the distance of fire increases. Usually a cartridge will have 50 pellets. The number of pellets in a cartridge will vary depending upon the size of the pellet.

19. PW16 is the Civil Police Officer who was on scene guard duty. PW17 has taken the photographs of the scene of crime Ext.P5 are the series of photographs. PW18 is the Village Officer who prepared Ext.P6 site plan. PW19 is an attestor to Ext.P8 search list. The police had searched the house of accused and seized MO1 gun. PW21 is the Property Clerk of Judicial First Class Magistrate Court, Pala who forwarded the property for expert examination. PW22 is the Sub Inspector of Police who seized MO4 series pellets which were taken from the body of PW2. PW23 recorded the FI statement and registered Ext.P10 FIR. PW24 conducted investigation. He prepared Ext.P2 inquest report. He had examined the scene of occurrence. The Scientific Assistant had collected MO8 metallic flakes. The house of Crl.Appeal No.1239/14 -:12:- accused was searched. Ext.P11 is the search memorandum and Ext.P8 is the search list. MO1 gun was seized from the house of accused. MO9 is the pull through, MO10 is the cleaning rod, MO11 is the cleaning brush, MO12 is the hook and MO13 is the cleaning cloth.

20. The accused surrendered before the Judicial First Class Magistrate Court, Ernakulam. The FSL reports are Exts.P20 and P21. Ext.P22 is the report filed by the District Collector stating that the accused did not have valid gun licence. Exts.P23 and P24 are the wound certificates of deceased and PW2. Ext.P25 is the treatment certificate of PW2. PW28 is the report filed by the Scientific Assistant. PW27 is the Assistant Director of Forensic Science. She deposed that she had inspected the scene of crime. Ext.P28 is the report. She noticed 20 hit marks over an area of 19x19 cms on the grill wall of the sit out of the house. The dimension of hit marks ranges from 10.26 mm to 9.05 mm. She further deposed that the line of the fire measured 10.08 metres and directed slightly upwards. The angle with which the barrel of the firearm makes with the horizontal is calculated from the measured data and it is approximately 2 o. Exts.P20 and P21 are the reports. She further deposed that the bullet marks noticed Crl.Appeal No.1239/14 -:13:- cannot happen if the gun was fired accidentally in a scuffle for the weapon. If the gun goes out in a scuffle, there will not be any scattering of the pellets, in which event, there will only be one or two marks.

21. This is a case in which there is enough and more evidence to prove the involvement of the accused to the crime. First of all, the accused had admitted his presence. His defence was that the gun got fired accidentally when there was a scuffle to take back the gun from the deceased. There is no evidence to prove the said allegation. That apart, from the evidence of PW9, it is rather clear that the accused had given an extra-judicial confession. PW9 deposed that the accused had called him during noon and asked him whether he would be at his place of residence. He said he had some issues with PW1 in the road and he wanted to have a word with PW9. Accused came to his house and talked to him for about 2½ hours. His view was that PW1 was conducting black magic which is causing difficulties to him. PW9 told him that it is not correct and he was pacified and sent back. At 5.30, he got a call which he attended. The caller said that he is George (the accused) and that he had fired a shot. When the accused asked him why he had done so, his answer was that Crl.Appeal No.1239/14 -:14:- "they had come to his house and created a quarrel. He went behind and shot them. It all happened". Then he disconnected the phone. PW9 also said that the accused asked him for help. The omission pointed out was regarding the discussion the accused had with PW9 for 2½ hours and that he had pacified him. But it could be seen that the fact that the accused had fired a shot has been informed to PW9 at 5.30 p.m. There is absolutely no reason for PW9 to state any falsehood. There is no dispute about the fact that the gun belongs to the accused. He had a licence which got expired. Evidence of the scientific expert PW27 further proves the fact that the scattering of the pellets, the angle at which gun was shot and the hit marks clearly proves that it was not a case where the gun was fired during a scuffle.

22. From the aforesaid materials which had been placed on record and the overwhelming evidence, there cannot be any doubt regarding the fact that the accused had deliberately fired the shot with MO1 gun. Under such circumstances, when a person died and PW2 got injured, the trial Court was justified in finding the accused guilty of the offences charged and sentencing him to undergo the sentence.

23. Despite the earnest efforts made by the learned Crl.Appeal No.1239/14 -:15:- counsel for appellant to unsettle the findings of the Court below, we do not find any ground to interfere with the judgment. We sustain the conviction and the sentence imposed by the trial Court.

Appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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