Gabriel @ Pandi Kunjumon vs State Of Kerala on 27 February, 2019

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Kerala High Court

Gabriel @ Pandi Kunjumon vs State Of Kerala on 27 February, 2019

This appeal is preferred to challenge the verdict of 2 nd Additional Sessions Judge, Kollam in S.C.No. 679 of 2010 by which the appellant is found guilty for offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) with a default sentence of rigorous imprisonment for three months.

2. Prosecution case is as follows:

The appellant Gabriel and the deceased Thanka @ Martha were neighbours. The appellant was in inimical terms with the deceased because of her refusal to give way to his property through her property. On 16/11/2006 at 07.45 P.M., the appellant trespassed into the property of Martha with an intention to kill her and cut her neck with a chopper by shouting "will you not give me way until the case is over and if so, I will finish you of even Crl.Appeal No.67/2014 -:3:- before." The victim died on the spot.

3. To prove their case, prosecution examined PW1 to PW15, marked documents Exts.P1 to P20 and identified MO1 to MO11 material objects. Evidence appeared against him were put to him under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). He denied all of them and pleaded innocence. He further stated that after the corpse of Martha was found out between 16/11/2006 midnight or 17/11/2006 early morning, PW1 informed the matter to police and stated that he suspects the appellant because the appellant was not in his house. Following that, police arrested the appellant from Jacob's house where he was sleeping. According to him, he did not have any dispute with the deceased in connection with the pathway. He denied the prosecution allegation completely. No evidence is tendered from the side of the defence.

4. Learned counsel appearing for and on behalf of the appellant Smt.V.Shylaja argued that the appellant is innocent. Prosecution did not prove the case against the appellant beyond reasonable doubt and the Court below erred in convicting the Crl.Appeal No.67/2014 -:4:- appellant. PW2 is not a reliable witness. Motive is not proved by the prosecution. Nothing is brought in evidence to show that the appellant had any dispute regarding the pathway. Alleged recovery is fabricated. She pleaded for an acquittal.

5. In reply, learned Senior Government Pleader Sri.K.B.Udayakumar argued that the case against the appellant is proved by the prosecution beyond the shadow of reasonable doubt. Court below is justified in arriving at its conclusion. The attack on the victim was so brutal that her neck was almost severed at one single cut of the appellant using the chopper. Evidence of eyewitnesses inspires full confidence. Their version is corroborated by the medical, recovery and forensic evidence. He pleaded to dismiss the appeal.

6. The evidence available in this case are as under:

PW1 to PW3 were examined to prove the occurrence. PW4 and PW5 were examined by the prosecution to prove the circumstances that led the appellant to the commission of the offence. PW6 is the brother of PW1. PW7 is an attestor to Ext.P6 inquest report. PW8 is the Doctor who conducted the post- Crl.Appeal No.67/2014 -:5:- mortem examination of the deceased and she issued Ext.P7 certificate. PW9 and PW10 are witnesses to Ext.P8 scene mahazar and Ext.P9 recovery mahazar of dress of the deceased. PW11 is an attestor to Ext.P10 weapon recovery mahazar. PW12 is the Village Officer, Vettikavala Village who prepared Ext.P11 site plan. PW14 is the S.I. of Police who recorded Ext.P1 FIS given by PW1 and based on the same, he registered Ext.P1(a) FIR. He deputed ASI and party for scene guard. He registered a case against the appellant herein under Section 309 of IPC. PW13 is the C.I. of Police who conducted the investigation. PW15 is the C.I. of Police who submitted the charge-sheet. Exts.P16 ans P17 FSL reports were marked through him.

7. Coming to the question of identity of the deceased and the nature of death, there is no dispute that the deceased is Thanka @ Martha and that her death was a homicide. Evidence of witnesses coupled with medical evidence adduced through PW8 Doctor would show that her death was a homicide. Ext.P6 is the inquest report and Ext.P7 is the post-mortem certificate. Trial Court concluded that it was the appellant herein who caused the Crl.Appeal No.67/2014 -:6:- death of the victim by inflicting cut injuries on her neck. Our task is to see whether the conclusion arrived at by the Court below is justified in the light of available evidence.

8. The following evidence is relied on by the trial Court to conclude that it is the appellant herein who committed the offence:-

      (i)     Oral evidence of PW1 corroborated by PW3.

      (ii)    Recovery evidence

      (iii)   Motive.

      (iv)    Medical evidence.

9. PW1 gave Ext.P1 FIS to police on 16/11/2006 at about 10-11 P.M. He identified the appellant in the dock. He deposed that the incident was on 16/11/2006 at 07.45 P.M. Two days prior to the date of incident and also on the date of incident, there was a work in connection with constructing a 'thidil' at the northern side of the house of his aunty Thanka @ Martha, who is the deceased herein. The work was carried out by him. On 16 th November, after sending back the workers in the evening by 5.00, he went to his house, half a kilometre away from the place Crl.Appeal No.67/2014 -:7:- of occurrence. After taking bath, he came back to the house of Martha. It was his usual practice. His Kunjamma (deceased herein) was aged 77 years and she was residing alone. Her husband deserted her 40 years back. It was PW1 who was looking after the deceased. It is his version that the deceased told him that the appellant had quarrelled with her demanding that she should give way to his property through her property. PW1 consoled her by stating that it was not a serious thing and started walking to his home. As he reached vazhithadam, he heard from behind a sound saying "Don't you give me the way, then I will manage to have the pathway, but before that I will finish you of." As PW1 turned around and looked back, he saw the appellant cutting at the back of the neck of the victim using a kathiyal (a type of sharp cutting chopper). At that time, the victim was near the hen-coop for closing its door which was situated on the western side of the house. Seeing the incident, he ran towards the appellant by naming him. By that time, the appellant ran towards his house which was situated in the northern side with the said weapon of offence. He saw his kunjamma lying near the Crl.Appeal No.67/2014 -:8:- hen-coop with her head severed, in a pool of blood. There was electric light on the south-western corner of the house. According to him, with the help of that light he witnessed the incident. At the time of incident, one Samuel who came in search of PW1 also rushed to the spot. So also Omana @ Panchami, a neighbour. Many neighbours gathered there. Later police reached the spot. He identified the appellant as the aggressor. He later identified the kathal used for the commission of the offence. The said kathal was used by the appellant.

10. As far as the evidence of PW1 is concerned, the cross examination went on primarily focusing on the difference in the narration of overt act committed by the appellant. In Ext.P1 he had given a statement that he saw the appellant cutting at the neck of the victim by bending her by holding on her neck. That discrepancy was pointed out to the witness by the defence counsel and the witness stated that it was a misunderstanding on his part at the first sight. He was standing at a distance of 40 yards. He saw the incident with the help of light from the electric bulb of the roof of temporary kitchen. Regarding motive for the Crl.Appeal No.67/2014 -:9:- crime, he stated that there was neither civil dispute nor any incident of preventing the eight neighbouring families including that of the appellant in walking through the property of the victim. They were in the habit of walking over the thidal. The appellant and other families demanded to give a separate way for them. That particular demand was not rejected by Martha. She sought for some time only. At the time of infliction of injury, Martha was closing the door of hen-coop. To a question whether Martha had looked back hearing the loud verbose of the appellant, he replied that the victim had poor hearing capacity and he had not seen the appellant so looking back. Both the appellant and the deceased were very near to each other by the time he witnessed the incident. He looked so hearing the sound. He reiterated that it was a mistake on his part in stating to police that he had seen the appellant catching hold of Martha and cutting her. A chicken was found dead inside the cage. He denied the suggestion that he had not seen the incident. He also denied that he is falsely implicating the appellant herein as the appellant was not found there when police and locals were enquiring after Crl.Appeal No.67/2014 -:10:- dead body of Martha was seen. In re-examination, he stated that he corrected the mistake crept in the FIS the very next day by giving statement as deposed in Court. The dispute with the appellant started as he sought pathway directly to the north through southern side of the house. He was also cross examined on the point of delay in lodging FIS. FIS is seen to be lodged after 2 hours and 45 minutes after the incident. He stated that he was in a difficult mindset at that time. He also admitted that police had reached the spot before lodging FIR and had done necessary things.

11. PW2 is a cashew factory worker and neighbour of the deceased and the appellant. She was examined to prove occurrence. She identified the appellant in Court. She was declared hostile to the prosecution as she did not depose to the overt act committed by the appellant as alleged by the prosecution. But she stated that work was going on in the compound of the deceased on the date of incident. She also stated that the appellant was admitted in hospital following poisoning. Exts.P2, P2(a) and P2(b) are marked through her. She Crl.Appeal No.67/2014 -:11:- further stated that she had seen the deceased lying with injuries on the compound. She deposed that there was sufficient light available in the spot and that is why she could identify the injured as Martha. According to her, there was bulb light from the western corner of the house and also from the open door of the house.

12. PW3 Samuel turned hostile to the prosecution regarding the overt acts alleged upon the appellant. He stated during chief examination that he had seen the appellant cutting at the neck of the deceased using a kathal. But during cross examination, he stated that he did not see the appellant inflicting cut injuries on the victim. According to him, he heard a call from PW1 "catch him" and as he looked over there, he had seen the appellant running with the kathal towards north. He had seen the victim lying there with cut injury. He also stated that he had seen PW2 Omana running with a carry bag in her hands crying aloud. He also stated that the victim had told him that the appellant was causing trouble for her in connection with the pathway. He identified MO1 as the kathal used by the appellant to commit the Crl.Appeal No.67/2014 -:12:- offence. He identified the assailant as the appellant standing at the dock.

13. PW6, Bovas, deposed that the appellant had met him on the previous day of the incident i.e., on 15/11/2006 and told that Martha was planning to build a kaiyala in her compound and if she do so, he would lose the pathway. He also asked him to tell the same to Martha and prevent her from proceeding with the construction of kaiyala.

14. Appreciation of evidence of these witnesses would show that the appellant had an immediate provocation to nurse a grudge against the victim as there was work of kaiyala going on in the compound of the victim which the appellant feared, would prevent him from realizing his plan of getting a pathway through the compound of the victim. Nothing is brought out in evidence to discard the statement of PW6 and PW1 to that point. Even otherwise, this is a case in which there is evidence on record from eyewitnesses. Motive assumes no relevance as such. PW1 deposed that he had seen the appellant inflicting cut injuries on the neck of the victim using MO1 kathiyal which resulted in her Crl.Appeal No.67/2014 -:13:- instantaneous death. He stated that he had seen the appellant running towards his house with MO1 after the aggression. The said portion of evidence of PW1 is well corroborated by the evidence of PW3.

15. Learned counsel for the appellant argued that FIR in this case is a fabricated one and is the result of an afterthought. She vehemently argued that FIR is registered after 2 hours and 45 minutes after the incident. She also pointed out that PW1 departed from his version in the signed statement while deposing in Court regarding the overt act committed by the appellant. He gave a description in FIR and deposed an entirely different version during examination in Court. That itself is evidence to prove that PW1 had not witnessed the incident. So also the version of PW3 is full of omissions and embellishments.

16. But we do not think the said arguments can be appreciated under the facts and circumstances of the present case. Delay in lodging FIR is clearly explained by PW1. According to him, he had witnessed the beheading of his kunjamma. Seeing that horrific incident, he was disturbed and only because of that, Crl.Appeal No.67/2014 -:14:- some delay occurred in giving FIS. As far as the difference in deposition in Court and in FIS regarding the overt act is concerned, it can be seen that the identity of the appellant is clearly spoken to. It is also stated that the injury was inflicted at the back of the neck. The discrepancy is regarding the position at which the fatal injury was inflicted - whether the appellant had caught hold of the victim or that the appellant was inflicting the cut without holding her. His evidence before Court is that as he reached vazhithadam, he heard from behind a sound saying "Don't you give me the way, then I will manage to have the pathway but before that I will finish you of." As PW1 turned around and looked back, he saw the appellant cutting at the back of the neck of the victim using a kathiyal. At that time the victim was near the hen-coop for closing its door which was situated on the western side of the house. Seeing the incident, he ran towards the appellant by naming him. By that time, the appellant ran towards his house which was situated on the northern side with the said weapon of offence. He saw his kunjamma lying near the hen-coop with her head severed, and profusely bleeding. Of Crl.Appeal No.67/2014 -:15:- course, the said deposition has some difference from the FIS version. But it is not so material. PW1 clarified the said discrepancy clearly during his examination-in-chief. According to him, he clarified the same on the very next day by giving statement to the police rectifying the minor discrepancy in his FIS given on the previous day. PW1 is a teacher by profession. He deposed the overt act of the appellant in clear terms. Nothing is brought out in evidence to discredit his version apart from the aforementioned points. We do not find any reason to disbelieve his version on these flimsy grounds. He is a probable witness. It can also be seen that PW3 corroborated his version as to the running away of the appellant with MO1 after committing the offence. PW2 though turned hostile stated that there was sufficient light available there.

17. Coming to the medical evidence, PW8 conducted the autopsy of the victim and issued Ext.P7 certificate. She deposed that she had noted the following ante-mortem injuries on the dead body of the victim:-

"Incised wound 11x8 cm on the neck, obliquely placed with its upper back extent 3.5 cm below hairline (9.5 cm Crl.Appeal No.67/2014 -:16:- below occiput) and lower front extent 8 cm below chin, involving the whole thickness except for a band of skin 8 cm wide on the right side of front of neck. All structures of the neck were seen cleanly cut and the cut edges of the muscles showed crushing. The wound passed through the intervertebral disc between the 6th and 7th cervical vertebrae and the 4th tracheal ring and was directed downwards and forwards."

According to her, the cause of death was incised injury sustained to the neck of the victim. The said injury could be caused by using MO1. Evidence of PW1 is corroborated by the opinion evidence of PW8 also.

18. As far as recovery is concerned, MO1 weapon is recovered at the instance of the appellant based on his disclosure statement Ext.P10(a) through Ext.P10 mahazar. PW11 and PW13 proved the same. Forensic evidence is to the effect that the weapon is found to be stained with human blood belonging to 'O' group. Ext.P16 is the FSL report. The blood group of the victim is also proved to be 'O'. Item Nos. 9 and 10 in Ext.P16 are the shirt and dhoti of the appellant. They contained blood. Under these circumstances, we are of the view that the learned trial Judge is justified in arriving at his conclusion that it is the appellant herein Crl.Appeal No.67/2014 -:17:- who had committed the murder of the victim, a woman of 77 years.

19. This is a case in which a hapless woman was brutally butchered by the appellant by trespassing into her property. The injury was so fatal and barbaric that death happened instantaneously. MO1 is a heavy cutting sharp weapon. Offence under Section 302 of I.P.C. is clearly established.

In the result, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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