Manu vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C. No.1009 of 2015 on the files of the Additional Sessions Court, Kollam who stands convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life has come up with this appeal, challenging his conviction and sentence in the said case.

The accused is none other than the son-in-law of the sister of the deceased, Rajendran. The accused was residing with the family of his wife during the period when the occurrence took place. The relationship between the accused and his wife was not cordial, and prior to the occurrence, the wife of the accused had left the company of the accused. The accusation in the case is that in the morning hours of 09.05.2015, the accused went to the house of the deceased in search of his wife alleging that his wife has been harboured there; that when the wife of the deceased required the accused to leave their house, the accused pelted a stone at the wife of the deceased and that at about 2 p.m. on the same day, when the deceased went to the house of the accused to talk to him about the incident in which the accused pelted stone at his wife, the accused struck on the head of the deceased with a chopper at the northern courtyard of his house. It is also the accusation in the case that when the deceased warded off the strike with an aluminium bucket and secured the chopper from the accused, the accused took a wooden rod from the kitchen and hit the deceased using the same multiple times; that when the deceased managed to secure the wooden rod from the accused, the accused struck on the right leg of the deceased using an iron rod, as a result of which the right leg of the deceased was fractured and he fell down. It is also the accusation in the case that the accused then struck on the head of the deceased with the aluminium bucket, thrusted on the fractured leg using the iron rod and thereafter took a coconut grater from the kitchen and threw it over the head of the deceased and fled away from the scene, as by the time, people in the locality gathered at the scene hearing the hue and cry. Though the deceased was taken initially to the Government Hospital, Kottarakara and then to Gokulam Medical College, Vengaramoodu on a reference from the Government Hospital, he passed away on the way to the Medical College.

On the same day, on the basis of the information furnished by Radhika, one of the younger sisters of the deceased, the Ezhukone Police registered a crime, arrested the accused and after investigation, laid a final report against him alleging commission of the offence punishable under Section 302 of the Indian Penal Code (IPC).

Later, on committing the accused for trial to the Court of Session, as he pleaded not guilty of the charges framed against him, the prosecution examined 21 witnesses as PWs 1 to 21 and proved through them 20 documents as Exts.P1 to P20. MOs 1 to 7 are the material objects in the case. After the prosecution evidence, when the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code), he denied the incriminating circumstances brought out in the evidence against him and stated that the deceased fell down from “Vattakkunnu Mala” while chasing to beat him and the death occurred on account of the said reason. Since the Court of Session did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon then to enter on his defence. The accused, however, chose not to adduce any evidence. The Court of Session, in the circumstances, on an appraisal of the materials on record, found the accused guilty of the offence punishable under Section 302 of the IPC and sentenced him for the said offence. The accused is aggrieved by the decision of the Court of Session and hence, this appeal.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The materials on record indicate that it is based mainly on the evidence tendered by the ocular witnesses namely PWs 1, 3 and 4 that the Court of Session convicted the accused. The essence of the arguments advanced by the learned counsel for the accused, in the circumstances, is that the evidence let in by the said witnesses is not reliable and trustworthy to base the conviction for an offence of this nature on the said evidence. Alternatively, it was also argued by the learned counsel that at any rate, even going by the evidence of the said witnesses, they are not persons who have seen the entire occurrence and the accused ought not have been convicted based on their evidence. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the evidence on record is sufficient to justify the conviction of the accused.

The point that arises for consideration is whether the conviction and sentence of the accused are sustainable in law.

The first and foremost aspect to be considered while dealing with the point is whether the death of the victim is a homicide. PW11 is the doctor who conducted the post-mortem examination on the body of the deceased and issued Ext.P6 post-mortem report. PW11 deposed that altogether 31 ante mortem injuries were noted on the body of the deceased at the time of post-mortem examination and that the death was due to the blunt injuries sustained to the head and right leg of the deceased. PW11 opined that the injuries found on the body of the deceased could be caused by MO2 iron rod, MO3 aluminium bucket and MO6 wooden rod. The attempt on the part of the counsel for the accused while cross-examining PW11 was to make out that the accused was not the sole assailant. There was no cross-examination on the evidence tendered by PW11 that the death was a homicide. We, therefore affirm the finding of the Court of Session that the death of the victim is a case of homicide.

The next question is whether the prosecution has established beyond reasonable doubt that it is the accused who caused injuries resulting in the death of the victim. Let us now examine the evidence tendered by the prosecution in this regard. PW1 is the younger sister of the deceased who gave the First Information Statement in the case. PW1 deposed that on 09.05.2015, she went to the house of her elder sister, Ragini to enquire about the health condition of Maniyan, the husband of Ragini who was attacked by the accused a few days earlier, as a result of which he sustained a fracture on his hand and was admitted in the hospital. PW1 deposed that while she was proceeding to the house of Ragini through the ridges of the paddy field, she saw the accused beating the deceased in the northern courtyard of his house with a wooden rod first and then with an iron rod throughout his body; that the accused then beat on the right leg of the deceased with the wooden rod and broke his leg; that after sometime, he brought a coconut grater from the kitchen and threw it over the deceased and fled away from the scene, as by the time, the people in the neighbourhood had gathered there. PW1 also deposed that she was told by the people gathered there that before she reached the scene, the accused attacked the deceased with a chopper and the said attack was warded off by him with an aluminium bucket. PW1 also deposed that on 06.05.2015, the accused beat his wife and consequently, she left that house with their children and on the evening of the same day, the accused beat the father of his wife namely, Mani also and it is in that occurrence, Mani suffered a fracture on his hand. PW1 also deposed that on the morning hours of the date of occurrence, the accused went to the house of the deceased in search of his wife alleging that she is harboured there and threw a stone at the wife of the deceased and the deceased went to the house of the accused on the afternoon of the same day to confront the accused on the said incident. PW1 identified MO1 chopper, MO2 iron rod, MO3 aluminium bucket and MO4 coconut grater used by the accused to inflict injuries on the deceased. As noted, PW1 has not seen the occurrence in full. PW1 has only seen the accused beating the deceased throughout his body using a wooden rod as also an iron rod and thereafter throwing a coconut grater on him. Even through PW1 was cross-examined thoroughly by the counsel for the accused, according to us, the evidence tendered by her as regards that part of the occurrence which she saw has not been discredited in any manner and the evidence tendered by PW1 as regards the occurrence is consistent with Ext.P1 First Information Statement given by her. That apart, on a close scrutiny of the evidence of PW1, we find that she was giving a very natural narration of the background of the occurrence as also the occurrence which she saw.

PW3 is a neighbour of the accused. She resides in a property situated on the western side of a vacant land belonging to one Paru, which is situated on the immediate west of the residential property of the accused where the occurrence took place. There exists a plastic sheet fencing on the boundary of the residential property of the accused. She deposed that on the date of the occurrence, at about 2.00 p.m., while she was sitting on the ridge near his house along with her mother and sister, she saw the deceased going to the house of the accused. She deposed that on hearing verbal altercation as also hue and cry from the house of the accused, she peeped through a gap in the plastic sheet to the house of the accused and saw the accused physically assaulting the deceased with a chopper, a wooden stick and also an iron rod. She deposed that her mother then ran out of her house to inform the neighbours about the occurrence. She deposed that nobody could attempt to save the deceased from the attacks of the accused as the accused was in a bad temper and when people gathered at the scene, he fled away from the scene after throwing the coconut grater at the deceased. She deposed that she then went near the deceased and gave him water. She deposed that when she gave water to the deceased, she wanted to rub his chest and when she kept her hand on his head for the said purpose, she felt a deep wound on his head. PW3 identified MO6 wooden rod used by the accused to beat the deceased. As in the case of PW1, PW3 was also cross-examined thoroughly by the counsel for the accused. The attempt of the counsel while cross-examining PW3 was to elicit from her that it was not possible for her to witness the occurrence on account of the plastic sheet fencing on the boundary of the residential property of the accused. It has come out in the cross-examination of PW3 that it is ordinarily not possible to see what is happening in the courtyard of the house of the accused from the house of PW3. Though she stated in cross-examination that she disclosed to the police that she witnessed the occurrence through the gap in the plastic sheet, the investigating officer deposed that such a statement was not made by her. PW3 also deposed in cross-examination that the accused being a person who is a perennial nuisance in the locality, she was irritated at him. PW4 is the mother of PW3. She too deposed that the accused was a perennial nuisance in the locality and on the date of occurrence, she saw the deceased going to the house of the accused and that when she peeped into the courtyard of the house of the accused through the gap in the plastic sheet on the fence hearing the hue and cry, she saw the accused beating the deceased using a wooden rod. A close scrutiny of the evidence tendered by PWs 3 and 4 would show that as in the case of PW1, these witnesses also have not seen the entire occurrence. As stated by PW3, she was sitting along with PW4 and her sister on a ridge in front of their house and they rushed towards the house of the accused only upon hearing the hue and cry and what they deposed before court is that they saw the incident through the gap in the plastic sheet fencing, for nobody would dare to go near the scene whilst an occurrence of this nature is taking place. We do not find any reason to disbelieve PWs 3 and 4 merely for the reason that they did not disclose to the police that they witnessed the occurrence through the gap in the plastic sheet, for we do not find that the same is a significant omission amounting to contradiction in the background of the facts of this case.

PW5 is none other than the mother-in-law of the accused and the sister of the deceased. She is not an eyewitness to the occurrence. She deposed that the accused belongs to a place called Kochuveli; that her daughter, who is the wife of the accused was residing for sometime in the house of the accused after their marriage; that as her daughter could not withstand the harassment of the accused, she left the company of the accused and came back to their house and that after sometime, the accused also started residing in the house. PW5 narrated in her evidence the occurrence in which the accused broke the hand of her husband as also the occurrence that took place on the morning hours of the date of occurrence in which the accused threw a stone at the wife of the deceased. PW5 deposed that the deceased had come to her house to confront the accused about the occurrence that took place on the same day. PW5 deposed that the wife of the deceased told her over telephone that the deceased contacted his wife and informed her that the accused attacked him and broke his leg. PW5 deposed that she immediately rushed to her house and by the time she reached the house, the deceased was lying on the floor after the incident. PW5 deposed that she accompanied the deceased to the hospital along with PW6, the mother of the deceased, who also came to the scene on receiving information about the occurrence.

PW7 is a neighbour of the accused who deposed that when he along with his wife reached the scene of occurrence on receiving information about the occurrence, the deceased was lying on the floor and the accused was standing there with a wooden rod and when after some time, he fled away from the scene towards west. PW8 is another neighbour of the accused. PW8 also gave evidence more or less on the same lines with the evidence tendered by PW7. In addition, PW8 deposed that he saw the accused beating the deceased with a coconut grater and thereafter thrusted on the broken leg with iron rod. Even though PWs 7 and 8 were cross-examined by the counsel for the accused, their evidence is not seen discredited in any manner.

PW9 is the attestor to Ext.P3 scene mahazar, in terms of which the weapons used by the accused for inflicting injuries on the accused were seized by the police. PW10 is the doctor who treated the husband of PW5 who suffered fracture on his hand at the hands of the accused. Ext.P4 is the wound certificate issued by PW10. PW10 deposed that the husband of PW5 was brought to her with a history “മന ആകമ ചത   വ റകകഷ  കക ണ  വ ട   വച 06.05.2015 ഏകദ ശ  7.30 p.m. ന ”” . PW14 is the husband of PW5 and the father-in-law of the accused. PW14 narrated that the occurrence took place on 06.05.2015. PW15 is the wife of the accused. PW15 gave evidence more or less on the same lines of the evidence tendered by PWs 5 and 14. PW16 is the wife of the deceased. PW16 narrated the occurrence that took place in her house on the morning of the same day in which the accused pelted a stone at her.

PW21 is the officer who investigated the crime. He deposed that he seized the weapons used by the accused which were marked in the proceedings as material objects from the scene of occurrence. One of the documents proved by PW21 is Ext.P20 report of the Forensic Science Laboratory. Item No.10(c) is the hairs of the deceased collected at the time of the post-mortem examination. Item No.16 is MO6 wooden rod. It is recited in Ext.P20 that the hairs in item No.10(c) and in item No.16 are identical and belongs to one and the same male person. Similarly, item No.11 is the blue coloured jeans worn by the accused at the time of occurrence. It is recited in Ext.P20 that human blood belonging to group 'B' was found in item No.11 which is the blood group of the deceased as stated in Ext.P6 post-mortem certificate. PW21 identified the material objects which have been seized by him from the scene of occurrence.

The question to be examined now, is whether the evidence aforesaid is sufficient to establish the charge that it is the accused who caused the death of the victim, beyond reasonable doubt. It is seen that the prosecution relies on the evidence of PWs 1, 3, 4, 7 and 8 to establish the occurrence. It relies on the remaining evidence only to corroborate the oral evidence. As already noticed, all the aforesaid witnesses have not seen the entire occurrence. PW1 has not seen the occurrence from the very beginning. She could see only the accused beating the deceased using the iron rod and also the wooden rod multiple times throughout the body of the deceased. Even PWs 3 and 4 could only see the said part of the occurrence. As far as PW7 is concerned, by the time he reached the scene, he could see only the accused standing in the courtyard of his house with a wooden rod. As far as PW8 is concerned, he could see the accused giving a blow on the head of the deceased using a coconut grater and when the coconut grater slipped away from his hand, the accused thrusted on the broken leg of the deceased using the iron rod. The evidence tendered by PWs 1, 3, 4, 7 and 8 are fully corroborated by the evidence tendered by the remaining witnesses, including the evidence tendered by PW11, the doctor who conducted the post-mortem examination and Ext.P20 report of the Forensic Science Laboratory.

Section 6 of the Indian Evidence Act provides that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Section 6 recognizes the principle of res gestae which enables the court to admit facts, which are otherwise not admissible. The rationale in making such facts admissible in evidence is on account of the spontaneity and immediacy of those facts in relation to the fact in issue. In other words, it is necessary that such facts must be part of the same transaction, and if those facts are in relation to a statement, the same must have been made contemporaneous with the transaction or at least immediately thereafter. In this context, it is relevant to point out that PW1 has also pointed out in her evidence that when she reached the scene, she was informed that before she reached the scene, the accused hacked the deceased using a chopper and that the said attack was warded off by the deceased using an aluminium bucket. The relevant portion of her deposition reads thus:

“എന ട  ച രവ എടത  എറ ഞ ട  ഓട  അത നമ പ  മന കത ക(ടത അണകന കവട ക+ന  അണ  കത ട  എടത കവട തടഞ എന  കവട  അതയ  കത ട +   കക ണ എന  പറഞ.അത  ഞ   എതനത ന മ പ + രന.”

PW1 has not disclosed in her evidence as to who informed her about the attack made by the accused on the deceased before her arrival at the scene. She conceded that she has not seen the said part of the occurrence. But her evidence as to the particulars of the said part of the occurrence remains unchallenged. According to us, inasmuch as the said evidence tendered by PW1 pertains to the statements made by others contemporaneous with the transaction, namely the occurrence or at least immediately thereafter, who have witnessed the occurrence, the said evidence is admissible and if that be so, it could be said that the prosecution has established its case beyond reasonable doubt. Needless to say, the argument advanced by the learned counsel for the accused that the prosecution witnesses have not given evidence on the entire occurrence and the accused therefore, cannot be convicted, is only to be rejected and we do so.

In the light of the discussion aforesaid, we do not find any merit in the appeal and the same is, accordingly, dismissed.