Kerala High Court
Thankappan Kani @ Thanka Velu vs State Of Kerala on 10 December, 2009
Bench: K.Balakrishnan Nair, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 111 of 2006()
1. THANKAPPAN KANI @ THANKA VELU,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.M.SREEKUMAR
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/12/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl. Appeal No. 111 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 10th day of December, 2009.
JUDGMENT
Bhavadasan, J, The accused was prosecuted for the offence punishable under Section 302 Indian Penal Code and was found guilty. He was therefore sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default of payment of which he had to suffer rigorous imprisonment for a further period of three years.
2. The facts run thus:
The deceased is none other than the mother-in-law of the accused. His mother-in-law, namely, Vallikanikari had nine children, seven daughters and two sons. Her fifth daughter Chinnammakani was married to the accused. They were residing at a place called Kunnathumala. P.W.1, one of the sons of the deceased on 29.3.1999 by about 4 p.m. along Crl.Appeal. 111/2006. 2 with P.Ws.2, 3 and some other persons had gone to see a movie. After seeing the movie by about 10 p.m. they reached the house of the sister of P.W.1, Poomala. Sasidharan is the husband of Poomala. They found the accused and another person there. Thereafter P.W.1 along with his friends went to the house of P.W.2. P.W.1 says that he slept in the watch tower of one Ayyanakkali on the said day. The next day, that is, on 30.3.1999 by about 6 a.m. when he reached his house, he found that the door of the house had been kept open. He found a pair of slippers outside. When he went inside, to his horror, he found his mother lying in a pool of blood. He informed his sister who was staying nearby. When the matter was informed to P.W.3, he came to the place and told P.W.1 that on the previous night the accused had slept in his house. By about 12 in the night the accused wanted to go to his house and left the house of P.W.3 with his torch. He recognised the slippers found outside the house of the deceased as Crl.Appeal. 111/2006. 3 one belonging to the accused. P.W.1 laid Ext.P1 first information statement before Neyyardam Police Station. P.W.12, the Sub Inspector of Police attached to the said police station recorded the first information statement furnished by P.W.1 and on that basis registered Crime No. 51 of 1999 of Neyyardam Police Station for the offence punishable under Section 302 IPC as per Ext.P1(a) FIR. He informed his superior officers. Since the C.I. concerned was involved in some other function, he was asked to investigate. P.W.12 says that he went to the place of occurrence on 30.3.1999 by about 3.20 p.m. and prepared Ext.P3 inquest report. He also recovered M.O.8 series of articles, M.O.9, M.O.5 etc. from the place. Those articles which were seized during investigation were produced in court. He recorded the statements of a few witnesses. Further investigation was done by P.W.13, Circle Inspector of Police. He had the accused arrested and based on Ext.P2(a) confession statement said to have been given by the accused, Crl.Appeal. 111/2006. 4 M.O.7 knife was recovered as per Ext.P2 mahazar. He filed Ext.P9 before the court showing the details of the accused. He completed investigation and laid charge before court.
3. JFCM, Kattakada took cognizance of the offence. On appearance of the accused before the said court, the learned Magistrate complied with all the legal formalities. On finding that the offence is one exclusively triable by a court of Sessions, he committed the case to Sessions Court, Thiruvananthapuram. The said court made over the case to the Additional District and Sessions Court, (Fast Track-I) Thiruvananthapuram for trial and disposal.
5. The latter court, on receipt of records, issued summons to the accused, who entered appearance. After hearing both sides, charge was framed for the offences punishable under Section 302 IPC. Charge was read over to the accued. He pleaded not guilty and claimed to be tried. The prosecution therefore had Crl.Appeal. 111/2006. 5 P.Ws. 1 to 13 examined Exts.P1 to P9 marked. M.Os. 1 to 10 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C.. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. He claimed that for the last 7 - 8 years his relationship with the relatives of the wife has not been smooth and pleasant. His eldest daughter aged 13 years was studying in the seventh standard. A proposal was brought by the relatives of his wife to give her in marriage to one of their relatives. But he and his wife opposed. He and his wife maintained that their daughter is only aged 13 and they wanted her to complete her education. Annoyed by the said conduct of the accused and his wife, he would say that he had been falsely implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., the court below has asked him to enter on his defence. Except producing Exts.D1 and D2 the accused did not Crl.Appeal. 111/2006. 6 adduce any further evidence. On an appreciation of the materials before it, the court below came to the conclsuion that the prosecution has succeeded in establishing the case against the accused. Accordingly, he was found guilty. Conviction and sentence as already mentioned followed.
6. The question that arises for consideration is whether, the court below was justified in entering a finding that the accused was guilty.
7. The prosecution case in brief is that due to a property dispute, the accused did away with his mother-in-law. The prosecution mainly depends upon the evidence of P.Ws. 1 to 3 and the recovery of M.O.7 to prove its case. The court below chose to accept those items of evidence.
8. Learned counsel appearing for the appellants challenge the finding of the court below on the ground that the story put forward by the prosecution is inherently improbable. The Crl.Appeal. 111/2006. 7 recovery of M.O.7 was long after the arrest and therefore no worth can be given to the recovery. The reliance placed on the pair of chappel to come to the conclusion that it was the accused who committed the act is flimsy and the evidence has not been appreciated in the proper perspective. So also, according to the learned counsel, considering the distance between the house of P.W.1 and his house and also the house of Sivanandan, from where he left in the late hours of 29.3.1999, it is virtually impossible that he could have reached the house of P.W.1 at the time of the incident as alleged by the prosecution. Also learned counsel drew the attention of this court to the fact that two hair samples collected from the body of the deceased did not match with the sample hairs taken from the body of the accused. It is also pointed out that there are material omissions and contradictions in the evidence of P.Ws. 1 to 3, which makes them untrustworthy and the court below ought not to have omitted those glaring aspects. The motive alleged by Crl.Appeal. 111/2006. 8 the prosecution is not proved. Learned counsel also stressed the point that the case is being built on circumstantial evidence. Viewed from that angle, the prosecution has miserably failed in establishing the case against the accused and at any rate he is entitled to benefit of doubt.
9. Learned Public Prosecutor did concede that there were some inconsistencies in the evidence. But according to him, they are not material or strong enough to affect the prosecution case at all. He pointed out that such contradictions, omissions and inconsistencies are bound to arise in the evidence of witnesses, who were deposing after a long time of the incident and it is unfair to expect mathematical precision in their evidence. The evidence of P.W.2 stands unchallenged. He had identified the slippers, which were found outside the house of P.W.1 on the next day. It is not correct to say that there was undue delay in the recovery of the weapon. The learned Public Prosecutor stressed that the conduct Crl.Appeal. 111/2006. 9 of the accused is by itself sufficient to show that he was the culprit and none else. Learned Public Prosecutor pointed out that if as a matter of fact as claimed by the appellant, he was totally innocent, one would expect him to take part in the death ceremonies and obsequies of the victim, for, he is none other than the son-in-law of the victim. Not only he did not participate in the ceremonies, but he also made himself scarce. He had no explanation for his conduct. There is no suggestion to any of the witnesses regarding the case set up by him at the time of questioning under Section 313 Cr.P.C. Learned Public Prosecutor pointed out that it was considering all the above facts and carefully analysing the evidence in the case that the court below had come to the conclusion that the prosecution had established its case. Learned Public Prosecutor wound up by saying that no interference is called for.
Crl.Appeal. 111/2006. 10
10. The court below seems to have relied on the evidence of P.Ws.1 to 3 to a considerable extent. P.W.1 is none other than the son of the victim and the accused is his brother-in- law. He would say that his mother was killed in the night of 29.3.1999. He says about the number of children his mother had and their details. At the time of the incident, his mother was staying along with him. His sister Chinnamma was staying at Kunnathumala and the accused was her husband. He says that on 29.3.1999 he along with P.Ws. 2 and 3 and Ayyankani had gone to see a movie at Poochamukku near Amburi. After seeing the movie they went to the house of P.W.3. They found the accused and one Shaji there. Sasidharan, the father of P.W.3 was in the watch tower. After dropping P.W.3 at his residence, P.W.1 says that he along with others went to the house of P.W.2, P.W.1 claims that at that time the accused asked him whether he was coming to his house. P.W.1 replied that he prefers to sleep in the watch tower of Crl.Appeal. 111/2006. 11 Ayyankani and return the next day. Thereafter he along with two others went to the house of P.W.2. P.W.1 says that after taking supper from the house of P.W.2 he went to sleep in the watch tower of P.W.2. The next day by 6 a.m. he left for his house. He got inside the house through the rear door through the kitchen. He then found a pair of chappals lying outside the room. When he entered inside the house, he saw his mother lying in a pool of blood. She was no more. She had a deep wound on her neck and several other wounds on her body. There were nobody in that home. He said that the set of slippers found was not used either by him or his mother. He goes on to say that when P.W.3 reached the place hearing about the incident, he identified the slippers as one belonging to the accused. Sivanandan says that on the previous day when the accused left from the house of Sivanandan, he had handed over the slippers to him. He would say that his mother had given about 50 cents to his sister, who was married to the accused. Crl.Appeal. 111/2006. 12 The accused wanted to sell that property. Coming to know about the same, mother objected the sale and that had considerably annoyed the accused.
11. P.W.2 is the husband of Omanakani, who is also a daughter of the deceased. He also says about P.W.1 and himself going along with others for seeing a movie. Rest of his evidence is similar to that of P.W.1. Next day he came to know about the incident at 7.30 - 8 a.m. and when he went to the house of P.W.1 he found his mother-in-law lying dead in the kitchen. She had a severe wound on her neck. He would depose that he too noticed a pair of slippers lying outside the kitchen. His evidence also shows that when P.W.3 reached the place they were given to understand that the chappals found outside the kitchen were the ones belonging to the accused.
12. P.W.3 is the grandson of the deceased. He is the son of Poomala, the daughter of the deceased and C.W.6 is his Crl.Appeal. 111/2006. 13 father. His version about the incident is similar to the one given by P.Ws. 1 and 2. He says that when he returned after seeing the movie, Shaji and the accused were in his house. He also says that initially the accused wanted to stay overnight in his house. But at about 12'o clock the accused woke him up and told him that he wanted to go home. He also complained that he was unable to locate his slippers and P.W.3 may search it out. When P.W.3 lit the torch, he found that they were lying in the courtyard. He would say that coming to know of the death of his grandmother when he reached the house of P.W.1 he found that the slippers found outside the kitchen were those which he had seen the previous day and which were worn by the accused.
13. It is significant to notice that all the above three witnesses, namely P.Ws. 1 to 3, would say that the accused had not participated in any of the death ceremonies of Vallikanikari. Crl.Appeal. 111/2006. 14
14. P.W.4 is Shaji, who was found in the house of Sivanandan, when P.W.1 and others returned after the movie. He deposed that on the day previous to the date of the incident, he had gone to the house of P.W.3 and the accused had accompanied him. On 29.3.1999 night they slept in the house of P.W3. Even though the accused had told him that they would go together on the next day morning, when he woke up in the next day morning, he did not find the accused. He also says that on 29.3.1999 earlier in the day he and the accused had bought sacks of cement and that the accused wanted to purchase a pair of slippers and he had purchased the same. But he was not able to positively say that it was M.O.7.
15. It is true that there are some inconsistencies and contradictions in the evidence of P.Ws. 1 to 4. The defence has been able to bring out some omissions in the evidence of P.Ws. 1 to 4. It is also true that P.W.3 had stated that he had located the Crl.Appeal. 111/2006. 15 slippers, namely M.O.7 and handed it over to the accused in the light of his torch, however, his earlier statement shows that he had seen the slippers in the light furnished by his lamp. This according to the learned counsel is very material and affects the prosecution case.
16. It is difficult to accept the above contention. The mere fact that there is a difference regarding the light under which the slippers were located by P.W.3 in the previous night and handed it over to the accused does not have much significance. The question is whether the claim of P.W.3 regarding the identification of M.O.7 itself is acceptable. One must at once notice that the evidence of P.W.4 shows that the accused did buy a pair of chappals on 29.3.1999. Of course, P.W.3 at the time of evidence stated that he was able to identify the pair of chappals because even on the previous day, he had seen a leaf stuck in the slippers. This was clearly absent in his previous statement. This Crl.Appeal. 111/2006. 16 was also highlighted by the learned counsel for the appellant as an embellishment deliberately made to suit the prosecution case. As already stated, all these facts are insignificant, since the evidence of P.W.4 does show that a pair of chappals was bought by the accused and the evidence of P.W.3 shows that the slippers were the ones which he had located on the request of the accused on the previous day when in the midnight the accused contrary to his earlier intention wanted to leave to his house very late in the night.
17. Learned counsel appearing for the accused has pointed out that the distance to be covered by the accused is so much that the prosecution story is inherently improbable.
18. It can be seen from the evidence of P.W.1 and the FIS given by him that from the place where he stayed overnight, he could reach his home within a very short span of time. In fact according to P.W.1 after staying in the watch tower of P.W.2, the next day morning he left for his house at 6 a.m. He was able to Crl.Appeal. 111/2006. 17 reach his house by 6.30 a.m., where he found his mother lying dead. So also the evidence of P.W.3, the son of Poomala, one of the sisters of P.W.1, who was informed about the mishap after P.W.1 had reached home, was able to reach the house of P.W.1 by about 7 a.m. In the light of these facts, the time mentioned by the various witnesses to cover the distance would show that they had no idea about the same. Therefore, it is quite unsafe to rely on those unintended statements to come to the conclusion that the prosecution story is false.
19. It is also pointed out that the place of occurrence, going by the prosecution evidence is the kitchen of the house belonging to P.W.1. It was pointed out that it is a very small room and there were utensils kept in the shelf of the room. The contention is that if as a matter of fact as alleged by the prosecution the incident took place in the kitchen, normally the victim would have struggled and in that process the utensils would have been Crl.Appeal. 111/2006. 18 thrown around. Since there is no such case for the prosecution, the prosecution case cannot be accepted.
20. One fails to understand the above argument. Merely because the utensils were found to be in place, to come to the conclusion that there was no offence committed is uncalled for. One is not in a position to say as to how the incident had occurred except that the victim died due to inflicted injuries. How the injuries were inflicted and what were the relative positions of the victim and the accused are not very clear. The fact however remains that the victim had a deep wound on her neck and several other injuries on her body. The evidence also shows that the victim died due to the injury inflicted on her neck. One may now refer to the evidence of P.W.7, who conducted autopsy over the body of the victim. He would say that Ext.P4 is the certificate issued by him. According to him, the cause of injury was injury No.1, which was on the neck of the victim. He had also deposed Crl.Appeal. 111/2006. 19 that the said injury could be caused by the use of a weapon like M.O.7. At any rate, there can be no doubt that the death of Vallikanikari is homicidal.
21. The objection taken to the recovery is that it is highly belated and no sanctity can be attached to the said recovery. Elaborating on the point, learned counsel for the defence pointed out that the accused was arrested on 14.6.1999 and his confession statement is said to have been recorded on the very same day. Ext.P2, the relevant mahazar shows that the weapon was recovered only on 7.7.1999, that is almost two weeks after the arrest. Viewed in isolation that may look fatal. But a perusal of the records would show that on the date of production of the accused before the learned Magistrate itself, that is, on 14.6.1999 the investigating officer had sought for the custody of the accused for further investigation. Strangely enough the court below passed the order only on 7.7.1999. Ofcourse there is a contention taken by the Crl.Appeal. 111/2006. 20 learned counsel that the police custody of the accused can be given only during the first fifteen days and since the custody in this case was given only on 7.7.1999, the act of giving custody itself was illegal. In support of his contention, he relied on the decision reported in C.B.I. Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni (AIR 1992 SC 1768). In paragraph 13 it is seen observed as follows:
"Whenever any person is arrested under Section 57, Cr.P.C. he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the Judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise th detention of the accused in such custody i.e. Either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Crl.Appeal. 111/2006. 21 Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week of the number of days of detention ordered by the Executive Magistrate may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this Crl.Appeal. 111/2006. 22 bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of he earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody s mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days, then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest of the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody."
Crl.Appeal. 111/2006. 23
22. There can be no quarrel regarding the proposition that police custody can be given only within the first fifteen days of the order of remand. But it may be noticed that in this case, the application was filed soon after the remand order was made by the court concerned. For no fault of the investigating officer, the custody was given only on 7.7.1999. It is not as if there has been any wilful motive or negligence on the part of the investigating officer. It is not discernible from the records as to why the learned Magistrate had kept the petition pending till 7.7.1999. It was only after the custody was obtained, the recovery could be effected. It may at once be noticed that as soon as the custody was obtained on 7.7.1999, the recovery was also made. Therefore, it could not be said that there was any undue delay in making the recovery of M.O.7.
23. Ext.P2(a), which is the portion of the confession Crl.Appeal. 111/2006. 24 statement, which led to the recovery of M.O.7 satisfies all the requirements of Section 27 of the Indian Evidence Act. It discloses the authorship of concealment and the evidence of P.W.13 clearly shows that M.O.7 was recovered at the behest of the accused. Therefore, the contention based on the recovery of the weapons is of no avail.
24. It is contended that the motive alleged by the prosecution cannot be true. According to the learned counsel for the defence, the property of the people of the community, to which the accused as well as P.Ws.1 to 4 belong, could not be assigned in law. Therefore, the claim of the prosecution that since the deceased had stood in the way of assignment of the property of her daughter, who was married to the accused cannot be true and this should prove fatal to the prosecution case.
25. May be that an assignment as such may not be Crl.Appeal. 111/2006. 25 possible. But certainly possession can be transferred. There is nothing wrong in doing so. Anyway there is no evidence in that regard to doubt the prosecution version of the incident. Here one has to notice the explanation offered by the accused. According to him, P.W.1 and others were annoyed with him and his wife for not consenting to give their daughter in marriage to one of the relatives of P.W.1. The accused would say that his daughter was only aged 13 years and he and his wife wanted their daughter to complete her studies. It is significant to notice that there is no such suggestion to P.W.1 at all. It can thus be seen that the reason given is an after thought. The conspiracy alleged by the accused is not even suggested to P.W.1 and the accused had not cared to adduce any evidence in that regard.
26. Considerable reliance was placed on Ext.P6, which is the report of analysis of hairs and it was contended that that is sufficient to show that the accused was not involved in the case. Crl.Appeal. 111/2006. 26 The said report shows that item No.3 is a black hair, which was collected from the middle finger of the left hand of the victim and item No.4 is a black hair smeared with blood collected from the chest of the victim. The report also makes mention of various other samples of hairs collected from other parts of the body. The report shows that it is not possible to give any opinion regarding the similarity of scalp hair in item Nos. 3 and 4. May be so. But that by itself is not sufficient to hold that the accused is innocent. It has always been held that hair analysis report is not conclusive and it is not an exact science.
27. Two facts need to be noticed here. M.O.7 weapon was recovered at the instance of the accused based on his confession statement, which has already been referred to. The weapon was seen containing blood which belong to B group, which was the blood group of the deceased also. Then the conduct of the accused is very relevant. One may recall his conduct on Crl.Appeal. 111/2006. 27 29.3.1999. Initially he gives the impression to P.W.1 etc. that he wishes to stay in the house of Sivanandan during the night and go to his house the next day morning. In fact that was the impression given to P.W.4 by the accused. He had come to know from P.W.1 that P.W.1 will not be going to his house in the night of 29.3.1999. All of a sudden in the middle of the night he gets up and expressed his desire to go home. He wakes up P.W.3, gets his chappals located and left the place. His chappals are found in the scene of occurrence. Then again, his conduct after the death of Vallikanikari was unusual. One fails to understand as to why he did not participate in the death ceremonies and obsequies of his mother-in-law. He was found absconding also. He had no explanation for such conduct and it cannot be viewed lightly.
28. It was the above facts and circumstances which led the court below to come to the conclusion that it was the accused who had committed the gruesome act. The court below has Crl.Appeal. 111/2006. 28 meticulously analysed the evidence in detail and has considered each and every aspect put forward by the defence and found them untenable. The court below has come to a definite conclusion that it was the accused and the accused alone who had inflicted the fatal injury and that seems to be fully justified going by the available evidence in the case. No interference is called for with the said finding of the court below. The result is that this appeal is without merits and it only to be dismissed. We do so confirming the conviction and sentence passed by the court below.
K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb.
Crl.Appeal. 111/2006. 29
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl. Appeal No. 111 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
JUDGMENT 10.12.2009.