Thulasidharan Pillai vs State Of Kerala on 27 February, 2013

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Kerala High Court

Thulasidharan Pillai vs State Of Kerala on 27 February, 2013

This appeal is filed by the accused in SC No.1098/11 of the Additional District and Sessions Judge (Adhoc) II Kollam challenging judgment dated 27/2/2013 by which he has been convicted for offences u/s 302 and 307 of the Indian Penal Code. He is sentenced to undergo rigorous imprisonment for 3 years for offence u/s 307 of the IPC and to pay a fine of `5,000/-. He is sentenced for life imprisonment for the offence u/s 302 of I.P.C. and to pay fine of `10,000/-. In default of payment of fine, he has to undergo rigorous imprisonment for 9 months. The sentence of imprisonment shall run concurrently.

2. The prosecution case was that the accused advanced `50,000/- to his daughter-in-law. She did not return the amount. He felt that she was not returning the amount on account of interference by his wife and wife's uncle Chandrasekharan Pillai. He Crl.Appeal No.535/13 -:2:- was residing in a building along with his wife and Chandrasekharan Pillai. On 2/1/2011, at 10.30 p.m, he committed murder of Chandrasekharan Pillai and attempted to commit murder of his wife. Chandrasekharan Pillai and his wife were taken to the Government Hospital, Kottarakkara and was referred to the Medical College Hospital, Thiruvananthapuram. Chandrasekharan Pillai succumbed to injuries on 2/1/2011 at 11.45 p.m. Wife of the accused suffered serious injuries. Son of Chandrasekharan Pillai gave FI statement before the police on the basis of which Crime No.12/2011 was registered and after investigation, final report was filed before the Court.

3. The case was taken on file by the Judicial First Class Magistrate Court-I Kottarakkara and the matter was remitted to the Sessions Court, Kollam and made over to the Additional Court for trial.

4. The accused was produced before Court. Legal aid was provided on his request. Charge was framed, read over and explained to the accused. He pleaded that he was not guilty. Prosecution examined PW1 to PW13 and marked Exts.P1 to P17. MOs 1 to 8 were produced and identified as material objects. Crl.Appeal No.535/13 -:3:- Exts.D1 and D2 were marked during the cross examination of PWs 2 and 3. The accused was questioned u/s 313 of the Cr.P.C. He denied the incriminating statements against him. According to him, the case was cooked up to avoid him from the house.

5. The Additional Sessions Court having considered the entire aspects of the matter found the accused guilty and accordingly sentenced him as stated above.

6. The appellant was not represented before this Court by a counsel and as per directions issued by this Court. Adv.Sylaja S.L. was appointed as the counsel to argue on behalf of the appellant.

7. Heard the learned counsel for appellant and the learned Public Prosecutor.

8. Learned counsel for the appellant argued that there is no evidence which could be relied upon to substantiate the prosecution case. There is no eyewitness to the incident of murder and the circumstantial evidence relied upon by the prosecution has not been proved to arrive at a hypothesis that the offence was committed by the appellant alone. She also placed reliance on the judgments in Sharad Birdhichand Sarda v. Crl.Appeal No.535/13 -:4:- State of Maharashtra (AIR 1984 SC 1622), Nizam and another v. State of Rajasthan (AIR 2015 SC 3430) and Yohannan @ Biju v. State of Kerala (2016 (4) KHC 881).

9. On the other hand, learned Public Prosecutor submitted that this is a case where husband of PW2 is the accused. PW2 is an occurrence witness. PW2 had clearly spoken to the fact that she had seen the accused with the weapon and the victim Chandrasekharan Pillai lying prostrate in their house. This fact is supported by other witnesses. The motive behind the murder is also proved through the evidence of PW2 and PW8. The cause of death of the deceased was on account of the injury caused by the weapon which was also recovered from the scene of occurrence. All these circumstances and the evidence of PW2 who is also an injured clearly points out to the guilt of the accused and there is no circumstances warranting a different view to be taken.

10. PW2 in her evidence had stated that the deceased was her uncle. The incident occurred on 2/1/2011 at 10.30 p.m. in their residence. She along with her husband, the accused, and her uncle, the deceased were in their house. She has two children. Crl.Appeal No.535/13 -:5:- The daughter was married and given away and was residing with her husband. Son is in Gulf and daughter-in-law is living in her house. She came back home by around 6 p.m. She gave food to the deceased and the accused. Her uncle was lying in a platform in the pooja room. The accused was sitting in the next room smoking beedi. Accused mentioned about money. She said that the amount is to be deposited in the society. He said that water will not be given and the accused inflicted a blow on her head with a stick. She cried aloud and went to call her mother who is residing nearby. Her brother and sister-in-law were residing along with her mother. They also heard sounds from her house and came back. When she entered the room of her house, she saw the accused standing with a chopper in his hand which was used for inflicting injury on the deceased. The chopper was blood stained. The accused inflicted a blow on her head with the same chopper. She suffered injury. Her uncle was lying in the pooja room soaked in blood. Accused went away with the chopper and the stick. She and the deceased were taken to the Kottarakkara Government Hospital. She was treated for seven days. She had nine stitches. Her uncle was taken to Thiruvananthapuram and on the way he Crl.Appeal No.535/13 -:6:- died. She further deposed that her son had taken a loan of `50,000/- for going to Gulf. The accused demanded the said amount and he created a problem. She and her uncle made it clear that the amount will not be paid. Daughter-in-law had sold her property and had money. He was demanding that amount. She had given a statement before the Magistrate which was marked as Ext.P2. In cross examination she stated that she did not see the accused inflicting the blow with the chopper on the deceased. She had stated to the police that she heard the cry. She deposed that she heard her uncle beating his legs on the floor and she had stated the said fact to the police and she does not know why it was not recorded. She stated that she suffered injury on the right side of her head and she had not stated to the police that the blow was on the left side. She also stated that she had informed the Doctor as to who had caused the injury and the weapon used for the same. But, she has nothing to state as to why it was not recorded. Cross examination proceeded on the basis that there was no light to enable her to see the incident. She was recalled u/s 311 of the Cr.P.C and she identified the chopper MO1, the stick MO2, the shirt deceased was wearing Crl.Appeal No.535/13 -:7:- MO3, the blanket of deceased MO4, her blouse MO5, her husband's shirt MO6, his kaili MO7 and the dhoti of uncle MO8. In cross examination she was asked as to why there is no blood in her blouse, her answer was that she had washed it.

11. Learned counsel points out that there are certain omissions and additions to the prosecution case when the evidence is seen as a whole. But, it is relevant to note that the accused, PW2 and the deceased alone were in the house. She had clearly spoken to the fact that she was beaten with a stick. She ran to her mother's house, they heard the uncle struggling and when they came back, they saw the accused with the chopper and the deceased was lying on the platform in blood. With the same chopper, she was inflicted with a blow. As far as this evidence is concerned, which is the material part of the prosecution case, there is neither any contradiction nor any omission. She also stated that after inflicting a blow on her, the accused ran away with the chopper and stick.

12. PW3 is Sindhu, who is the sister-in-law of PW2. She stated that she had seen the incident. She deposed that the incident happened on 2/1/2011 at about 10.30 to 10.45 p.m. in Crl.Appeal No.535/13 -:8:- the house of the accused. The accused, deceased and PW2 were residing in the said house. She was residing 10 feet away from the said house. She along with her son, husband and mother-in- law were in the house. Around 10.30 p.m., her husband came back from the temple. PW2 came to their house stating that her husband had beaten her with a stick (f5^K 5Om). Immediately, they heard some sound, a cry and sound of beating. Four of them ran into the house of the accused. PW2 first entered the room. Accused inflicted a blow on the head of PW2. She suffered injury and blood was oozing. When they entered the room, accused ran away from the scene with the chopper and stick. They saw their uncle lying in the platform of pooja room soaked in blood without any movement. Hearing their cry and loud noise, the neighbours came and the injured were taken to the hospital. In cross examination, the omission pointed out was regarding the light available in the room. Ext.D2 was marked wherein she had stated that Vasantha Kumari was residing on the southern side of their house. According to her, that was a mistake, it was on the northern side. She had stated to the police that she saw the accused inflicting blow on PW2. She also deposed that they heard Crl.Appeal No.535/13 -:9:- the sound of the blow being inflicted when the chopper had touched upon the platform. The evidence of PW3 in fact supports the evidence of PW2. There is no material contradiction or omission in order to reject the said evidence.

13. PW4 is a person who knew the accused PW2 and the deceased. He got information from PW3. When he reached the house, he saw the deceased lying in the platform soaked in blood. The accused was standing in the kitchen side. He moved away under fear. Accused had a chopper with him. He took the deceased and PW2 to the hospital. He also went to Thiruvananthapuram along with the deceased. Certain other persons were also there. At the time when they reached Valakom, Chandrasekhara Pillai died. In his cross examination, he had stated that there was electric light in the building and the said fact had been informed to the police also.

14. PW1 is the son of the deceased who had given FI statement to the police. He has not seen the incident. When he got information, he immediately reached the house and they were taken to hospital. The deceased died when they reached Valakom. Doctor of Mercy Hospital confirmed the death. Crl.Appeal No.535/13 -:10:- Therefore, the body was kept in the mortuary. He went to the police station and had given Ext.P1, FI statement. He stated that `50,000/- was payable to the accused and it was on the belief that deceased and PW2 were against the payment of amount that he had committed the crime. During cross examination he was asked whether he knew that the accused has mental disease for the last 10 to 25 years. He said, he does not know. He further deposed that the incident happened 200 metres away from the temple. He did not see the accused in the house.

15. PW6 is the Doctor who conducted post mortem. Ext.P6 is the post mortem certificate. The following were the ante mortem injuries noticed:-

"1. Incised wound 4.3x0.8x0.8cm oblique on left side of face with upper inner end 5cm outer to midline and 8.5cm above jaw border. Its margins were contused for a breadth of 0.2 to 0.3cm. There was an abrasion 1.2x0.8cm involving its lower margin 0.5cm below its upper inner end. Another abrasion 2.8x1.5cm was present on the left side of face extending downwards from the lower outer end of the above described incised wound. The left upper jaw bone beneath the wound was fractured and fragmented.

2. Multiple small abrasions over an area 3.3x0.2 to Crl.Appeal No.535/13 -:11:- 0.5cm (with sizes varying from 0.5x0.1cm to 0.5x0.5cm in an oblique plane on the left side of face with the lower outer end 4cm in front of the outer border of tragus of ear.

3. Incised wound 2.5x0.4x0.4cm oblique on left side of forehead with the upper inner end 6cm outer to midline and 2cm above eyebrow. Its margins showed contusion for a breadth of 0.1 to 0.2cm. Underneath the scalp showed contusion 3x2x0.5cm extending to the front portion of the temporalis muscle. Beneath, the upper outer wall of the orbit was fractured.

4. Abrasion 0.8x0.3cm on left side of face 0.5cm in front of and 0.6cm below the lower attachment of root of ear.

5. Incised wound 7x1x0.8cm horizontal on pinna of left ear and adjoining part of face. Its inner end was curved downwards for a length of 1.5cm, being placed 5cm above the lower jaw border 14cm outer to midline. Full thickness of the cartilage of the pinna found severed underneath.

The floor of anterior cranial fossa and left half of middle cranial fossa showed fracture fragmentation.

6. Abraded contusion 4.5x3x0.5cm on under chin just below the jaw border across midline with the left extent 3.5cm outer to midline.

7. Contusion 9x7x0.3cm on left side of neck 3cm outer to midline and 5cm above collar bone.

8. Contusion 4x3.5x0.8cm on left side of back of chest (on dissection) with fracture of II rib Crl.Appeal No.535/13 -:12:- underneath. The III and IV ribs were fractured at their outer aspect. Left chest cavity was smeared with blood.

9. Fracture of VIII to XI ribs were fractured at their outer aspect.

The spleen was pulverised. Peritoneal cavity contained 1000ml of fluid blood and one handful of blood clots. Infiltration of blood was present into the perirenal pad of fat on the back aspect of left kidney.

Air passages were pale and smeared with blood. Lungs were pale. Right lung seen adherent to chest wall and diaphragm. Heart showed fibrosis 7x4x0.5cm and 3x2x0.4cm on the left ventricular wall and interventricular septum respectively. Left coronary showed calcified atheromatous plaque and right coronary showed atheromatous thickening of wall with 50% narrowing of lumen at 1cm below origin. Stomach contained two handsful of soft rice, pieces of chilly and other unidentifiable food particles in viscid mucoid fluid medium having no unusual smell, mucosa was pale. Urinary bladder was empty. Inguinal hernia was seen on right side. Other internal organs found pale otherwise appeared normal.

The blood grouping was done at blood Bank attached to Medical College Hospital, Thiruvananthapuram and was found to be 'A' Rh positive.

Viscera and blood were preserved and sent for chemical analysis."

Crl.Appeal No.535/13 -:13:-

The Doctor opined that death was due to the injury behind the head and abdomen. Injury Nos.1, 3 and 5 can be caused by the sharp end of the weapon. Injury Nos.2 and 4 can be caused by the blunt portion of the weapon or similar weapon. Injury Nos.6 and 7 are possible by the blunt part of the weapon. Injury Nos.1 to 5 in combination can cause death. Injury Nos.8 and 9 can also be caused by the blunt weapon.

16. PW7 is another neighbour who also came to the house after hearing the loud cry. He is the person who called the auto and taken them to hospital.

17. PW8 is the daughter-in-law of the accused who had stated that PW2 had assigned 20 cents of land in her favour since the marriage of her husband's sister was conducted with the money given by her parents. Out of the 20 cents, she sold 12 cents one week before the incident. She had taken a loan for her husband to go abroad. The accused demanded `50,000/- from the consideration received by sale of property. PW2 informed her that the money should not be paid and asked her to pay the loan. Deceased also told her accordingly. On account of the aforesaid incident, there was quarrel in the house.

Crl.Appeal No.535/13 -:14:-

18. PW9 is an attestor to the mahazar for recovery of the chopper.

19. PW10 is the Village Officer who prepared Ext.P9 site plan.

20. PW11 was the Sub Inspector of Police during the relevant time who recorded Ext.P1, FI statement and registered First Information Report as Crime No.12/2011 which is marked as Ext.P10. PW12 was the Circle Inspector of Police during the relevant time. He conducted investigation. PW13 was the Circle Inspector of Police who completed the investigation and submitted the final report before the Magistrate.

21. From the evidence of these witnesses, it is rather clear that the prosecution had established the fact that the deceased and PW2 suffered injuries with MO1 chopper and MO2 stick. The deceased died on account of the injuries sustained by him as spoken to by PW6, the Doctor who conducted postmortem and Ext.P6 report. The injury on PW2 was also caused by the very same weapon as spoken to by PW5, the Doctor who treated PW2. In Exts.P4 and P5 which are the wound certificates of the deceased and PW2, it is recorded that the assault was by know Crl.Appeal No.535/13 -:15:- person at residence at 10.30 p.m. Ext.P7 is the scene mahazar which has been proved by PW7. Ext.P8 is the seizure mahazar for seizure of chopper which is seized based on the statement of the accused. Ext.P8(a) is the statement. It is recorded that when the accused was questioned on 3/1/2011 at 5.00 p.m, after his arrest, he stated that he had kept the chopper in a place and if he is taken to that place, he would show the place where the chopper is hidden. On that basis, the chopper was recovered from the courtyard of the house of the accused, hidden by the side of a bush. The chopper has a length of 41.5 cms and the sharp edge of the knife was having a length of 19 cms and handle portion 23 cms. The front portion of the knife was having a width of 6.5 metres and the bottom 4 cms. Seizure mahazar is proved by PW9. The Investigating officer has proved Exts.P11 to P17, viz., the inquest report, the address report, remand report, residence certificate, mahazar of dress materials, FSL report, its forwarding note etc. The materials placed on record apparently prove that the death was caused in the house of the accused, PW2 and the deceased and PW2 was injured in the very same house.

22. The main argument for the learned counsel for the Crl.Appeal No.535/13 -:16:- appellant is that there is no reason for the accused to commit the crime and the motive alleged is so feeble that none would attempt to do away with wife's uncle without any provocation at all. But the evidence of PW8 virtually proves that there was some quarrel between the parties in relation to an amount of `50,000/-. The evidence shows that the accused had demanded the said amount when he found that PW8 had sold portion of her property, and deceased and PW2 opposed or did not agree with the said demand. Therefore, the motive behind commission of the crime is virtually proved by the evidence of PW2 and PW8.

23. Yet another argument raised was that PW1, PW2 and PW3 were all members of the same family and their intention was some or how to ensure that the accused is driven away from the residential home. But, a perusal of deposition of PW2 does not give us any impression that she was deposing a false case. There is no reason for her to give false evidence before Court. There is no previous conflict or quarrel between the couple in order to enable her to give false evidence and that too in a case of murder. She had clearly spoken to the fact that she was beaten by the accused with a stick. She went out calling her mother who Crl.Appeal No.535/13 -:17:- was residing nearby. They heard a hue and cry and some sounds. They came back and saw the accused standing by the side of deceased with a blood stained chopper in his hands and with that chopper, he inflicted a blow on PW2 also. There is absolutely no infirmity, omission or contradiction in the evidence of PW2. This version is supported by PW3. The only contradiction brought out by way of Ext.D2 was with reference to the location of her house. In the 161 statement, she had stated that their house is on the immediate south of PW2's house whereas in evidence she had given a statement to the police stating that what she mentioned was that the house was on the north. This discrepancy is only a minor discrepancy which cannot be considered as a reason to arrive at a finding that the prosecution case cannot be believed.

24. It is true that none has seen the accused inflicting injury on the deceased. But, the presence of the deceased in the house with a blood stained chopper in his hand, the time factor between PW2 leaving the house and coming back and then seeing the deceased lying there blood soaked clearly proves the fact that accused alone has committed the crime. The accused does not have a case that any one else was present in the house during the Crl.Appeal No.535/13 -:18:- relevant time. His presence in the house at the relevant time has been proved by the oral testimony of PW2, PW3 and PW4. It is for him to explain under what circumstances the deceased suffered the injuries. While being questioned u/s 313, no explanation was offered by the accused.

25. Under such circumstances, we do not find any error in the judgment warranting interference. Judgments relied upon by the learned counsel of course lays down the principle of law but does not enure to the advantage of the appellant.

26. Hence, we are of the view that the finding of conviction cannot be interfered. The sentence given to the accused is reasonable under the circumstances, which does not require any interference.

Appeal is therefore dismissed.

Sd/-

A.M. SHAFFIQUE, JUDGE Sd/-

P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge

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