Sunil Munda vs State Of Kerala

C.S.Sudha, J.

This jail appeal under Section 383 Cr.P.C. has been filed by the accused in S.C.No.655/2016 on the file of the Court of Session, Palakkad Division, challenging the conviction entered and sentence passed against him for the offences punishable under Sections 449, 302 IPC and Section 5 (1)(a) r/w Section 27(1) of the Arms Act, 1959.

The prosecution case as stated in the charge sheet is as follows-Rajender Lora, the deceased, and the accused from the year 2014, were working at Andhra Pradesh and thereafter at Vellappadam, Mannarkkad. The deceased used to take commission from the wages received by the accused. Disputes arose between the two relating to the collection of commission. Pursuant to this, the accused was sent out of the place where he was residing and also sent out of his job. Due to this enmity, the accused with the intention of murdering Rajender Lora came from Jharkhand to the place of occurrence, which is the shed situated behind the residential building of PW1 bearing No.XI/373, Kumaramputhur Panchayat where Rajender Lora, PW19, PW20, the accused and Kamalesh Munda were residing and criminally trespassed into the same. The accused knew that Rajender Lora was in possession of a gun. He entered the room, took the gun, and shot Rajender Lora sleeping in the room on his right chest, resulting in his death. The incident took place on 03/10/2014 at 01:00 a.m. Hence the accused is alleged to have committed the offences punishable under the above-mentioned Sections.

Based on Ext.P1 FIS of PW1, Crime No.979/2014, i.e., Ext.P1(a) FIR of Mannarkkad police station, alleging the commission of offence punishable under Section 302 IPC was registered by PW17, the then Sub Inspector. PW22 and PW23 are the investigating officers in this case. The final report was laid before the court by PW23.

On the final report being submitted, the jurisdictional Magistrate, after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as S.C.No.655/2016. On appearance of the accused before the Court of Session, he was furnished with copies of all the prosecution records. On 03/01/2017, the trial court framed a charge for the offences punishable under Sections 449, 302 IPC and Section 5(1)(a) read with Section 27(1) of the Arms Act, which was read over and explained to the accused to which he pleaded not guilty. The prosecution examined PWs.1 to 24 and got marked Exts.P1 to P40 and MO1 to MO24 series in support of the case. After closing the prosecution evidence, A1 was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused.

On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Sections 449, 302 IPC and Section 5(1)(a) read with Section 27(1) of the Arms Act and hence he has been convicted and sentenced to imprisonment for life and to a fine of ₹1,00,000/- and in default of payment of fine, to rigorous imprisonment for two years for the offence punishable under Section 302 IPC. For the offence under Section 449 IPC, he has been sentenced to rigorous imprisonment for seven years and to a fine of ₹10,000/- and in default of payment of fine to undergo rigorous imprisonment for a term of one year. Finally, for the offence punishable under Section 5(1)(a) read with Section 27 of the Arms Act, he has been sentenced to rigorous imprisonment for three years and to a fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for six months. The entire fine amount, if realized, has been directed to be paid as compensation to the dependents of the deceased under Section 357(1)(b) Cr.P.C.

In the appeal memorandum, it is alleged that the trial court grossly erred in finding the accused guilty of the offences alleged against him. The findings arrived at are perverse, based on a misreading of the evidence. There is absolutely no legally admissible evidence against the accused to find him guilty of the offences alleged against him. No evidence has been brought in to connect MO1 weapon with the accused. As the findings are incorrect and totally perverse, they are liable to be set aside, contends the accused.

The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court is sustainable or not.

Heard Sri.Padmalayan P.P., the learned State Brief for the appellant and Sri.E.C.Bineesh, the learned Public Prosecutor for the respondent.

The prosecution relies on the testimony of PW18 and Ext.P14 postmortem report to establish that the deceased had died due to a gun shot injury sustained on his chest. PW18, District Police Surgeon, District Hospital, Palakkad conducted the postmortem examination on the body of the deceased. He noted the following injuries seen on the body-

"B. INJURIES (ANTE-MORTEM):

Lacerated penetrating wound 2.4x1.2cm, on front of right chest, obliquely placed with upper inner end 11.5cm outer to midline and 17cm below collar bone. The lower outer end was 13.5cm outer to midline and 17.3cm below collar bone. Abrasion collar was present along the edge of the wound 0.2cm broad along the lower, inner and outer edges and 0.1cm along the upper border of the wound. The skin around the wound showed blackening and burns with singeing of hairs over an area of 7x4.5cm. The lower border of this area was roughly transverse, placed at 1cm below the lower edge of the wound. Tattooing of skin with soot burns were seen over an area of 15x7cm around upper, outer and inner borders of the area of burns. Tattooing was not seen below the lower transverse border of the area of burns. The area of burns was 13.5cm below the collar bone and 8cm outer to midline. Area of tattooing was 6cm outer to midline and 11cm below collar bone. The wound penetrated the chest wall through fifth rib at 10cm outer to midline and further penetrated the lower lobe of right lung. The wound on lung measured 3.5x1.9cm and continued as a wound track 5cm long and penetrated the diaphragm, causing a wound measuring 3x2.5cm. The wound track continued along the upper border of right lobe of liver, cleaving the upper surface of liver and measuring 6x3x4.5cm and further penetrated diaphragm to reenter chest cavity, causing a wound 3x1.5cm. The wound further penetrated the lung and then the posterior chest wall through back end of 7th rib close to spinal column and the wound track ended in the right para-spinal muscle mass. At the end of the wound track a bullet was found to be lodged, of length 3.1cm of which the metal potion was 2.6cm long and lead projecting for 0.5cm. The bullet was recovered from the depth of the wound. There was thick blood infiltration along the wound track and in the right para-spinal muscle mass where the bullet was lodged. Right chest cavity contained 700ml of blood. Right lung was partially collapsed.

Grazed like abrasions with burns over an area of 4.5x4cm on back of right forearm, just above wrist with superficial burns showing soot staining and singeing of hairs over an area of 8.5x7cm around. Tattooing of skin with spot burns were seen around the wound. The outer border on back of forearm and wrist of the burnt area measured 9cm and corresponded to the lower border of the burnt area on front of chest when the forearm is placed on chest.

Contused abrasion 1.1x0.4cm, on outer aspect of right elbow.”

According to PW18, the cause of death was due to a gunshot injury on the chest. There is no case for either side that it was a case of suicide or that the deceased had accidentally sustained the injury while he was handling a gun. Therefore, it can be concluded that it is a case of homicide.

Now the question is, has the prosecution been able to establish that it was the accused in this case who had committed the homicide. The prosecution case is that the accused who had returned home after a quarrel with the deceased had travelled all the way from Jharkhand, his home state, to the scene to commit the act. Ext.P8 is the reservation chart of Dhanbad – Allahabad express train by which train, the accused is stated to have travelled from his hometown. This was seized as per Ext. P7 seizure mahazar prepared by PW22, the investigating officer from the office of the Railway Station, Ernakulam. Page 6 of Ext.P8, i.e., Ext.P8(a) shows the name of the accused, his phone number, and the travel details. The relevant entries in Ext.P8 have been marked as Ext.P8(b). As per the entry, the accused on 29/09/2014, travelled from Ranchi to Palakkad in the aforesaid train. PW13, the then Chief Ticket Inspector, South Railway Station, identified his signature in Exts.P8(a) and P8(b), which according to him, are the certified extracts of the reservation chart. As per Ext.P8, Sunil Munda (the accused) had travelled from Ranchi to Palakkad. The train started from Dhanbad on 30/09/2014 and reached Palakkad on 02/10/2014. According to Pw13, the entries have been circled or rounded, which indicates that the passenger had in fact travelled by the aforesaid train.

The incident took place in the early hours of 03/10/2014. The prosecution relies on the testimony of PW4 and PW5 to prove the presence of the accused near the scene. PW4 stated that on 24/10/2014 the accused had purchased apples from the shop where he was working and that the shop is situated at Mannarkad. He thereafter stated that the accused had come to his shop 2 or 3 days before the murder. The police had brought the accused to his shop about 2 to 3 days after the incident in this case. PW5 deposed that the accused had come to his shop to purchase cigarettes. He does not state the date on which the accused went to his shop. He also stated that the police had brought the accused to his shop about 10 to 20 days after the incident in this case.

PW1, PW19, PW20 and PW3 speak of the sequence of events that took place on 03/10/2014. PW1 is the employer of the farm in which the deceased as well as the accused were working. He is also the informant who gave Ext.P1 FIS. In Ext. P1, PW1 says that Rajender, aged 23 years hailing from Jharkhand, his worker has been stabbed to death. He is running a dairy farm, which is adjoining his residence. Rajender has been working on his farm for the last 10 months. Rajender’s job was to cut fodder for the cattle, which job he does till 08:00 a.m. in the morning and after 05:00 p.m., for which he pays the latter. The rest of the time Rajender goes out for other work. Three others residing with Rajender also go outside for work. In addition to the said 3 persons, Rajender had brought 4 other persons also from his home state. The said persons are residing on rent nearby. At 01:00 a.m. he heard a loud knock on the door of the room situated by the side of the farm where Rajender and his friends are residing. When he went and looked, he saw Rajender lying in a pool of blood. When he lifted the shirt of Rajender, he saw a bleeding wound below the right chest of the latter. Immediately, his son Muhammed Nishad called the autorickshaw of Ibrahim (PW3), who is residing nearby. He along with Kiran (PW19) and Sandeep (PW20) took Rajender in the auto to Mother Care hospital at Vattambalam. The doctor examined Rajender and declared him dead. According to PW1, Rajender had been stabbed to death by someone who was in inimical terms with him.

PW1, when examined stands by the case narrated by him in Ext.P1 FIS. According to PW1, about a year back, the deceased, Rajender Lora and the accused had come together in search of work. It was Rajender Lora who had brought the other workers along with him. At the time of the incident, Kiran Lora (PW19), Sandeep Lora (PW20), Kamalesh Munda (CW5) and another person were in the room. Two months before the incident, the accused had left his job. Earlier the accused used to bring fodder to his farm in the auto-rickshaw owned by him. While so the auto-rickshaw was damaged, pursuant to which PW1 got it repaired. After the repairs were done, he asked the accused not to use the vehicle. Rajender Lora also asked the accused not to do so. The accused then left in a huff. He had heard that the deceased used to collect commission at the rate of ₹50/-from the wages of the workers. He later came to know that Rajender Lora had been shot to death using a gun.

PW19, Kiran Lora hailing from Jharkhand, is a roommate of the deceased. According to PW19, he along with Sandeep (PW20), Kamalesh, Sunil (accused) and Rajender (deceased) were working in the farm of PW1. Earlier the accused and the deceased were staying together. Sunil worked for about one month and then returned home. There was a quarrel between Sunil and Rajender. Rajender asked Sunil not to drive the auto rickshaw of PW1, as the latter did not know driving. Sunil then said that he wanted to return home and demanded money from Rajender. Rajender is the person who receives all their wages. All of them were in the same room on the date of the incident. Himself, Kiran, Sandeep, and Suresh were sleeping on the floor and Rajender on a table. On the said day between 12 midnight and 1 a.m., they were awakened by a loud noise. He saw the accused quickly opening the door and running away with a gun. Rajender who was sleeping on a table, was lying on the floor. Though the room inside was dark, there was light outside the room. The cattle shed is situated outside the room in which they are sleeping. He saw the gun in the light available outside. Blood was oozing from the body of Rajender. They called out to PW1. He along with PW1 and Sandeep took Rajender to the hospital, where Rajender was declared death. It was not possible to close the door of the room and hence on the said day, they had not closed the door. He identified MO8 and MO9, the dress worn by Rajender on the date of the incident. PW19 also identified MO1 as the gun with which the accused had run away. In the cross examination PW19 admitted that while taking Rajender to the hospital, he had never disclosed to anybody that he had seen the accused running away with the gun. According to him, their immediate concern then was to somehow save Rajender and as he was tensed, these facts were not disclosed to anybody. PW19 also deposed that he had not seen the accused after the incident. PW20, another roommate of the deceased also supports the prosecution case as deposed by PW19.

PW3, driver of an auto-rickshaw and neighbor of PW1, supports the case of PW1, that Rajender Lora had been taken to the hospital in his vehicle.

PW14, Assistant Engineer, KSEB, Puthoor, Kumaram, was examined to prove that there was no power-cut or power failure during the early hours of 03/10/2014 in the area where the house of PW1 is situated.

PW17, the then S.I., Mannarkkad Police Station, recorded Ext.P1 FIS of PW1, based on which Ext.P1(a) FIR was registered. According to PW17, the investigation of the case was conducted by the Circle Inspector of Police (PW22).

PW22, the then C.I., Mannarkkad on 03/10/2014 had taken over the investigation of the case. He prepared Ext.P4 inquest report, questioned the witnesses, and had prepared Ext.P2 scene mahazar. With the assistance of PW8, samples were collected from the scene of occurrence, which were seized as per Ext.P16 scene mahazar. MO10 flag seen at the scene of occurrence was seized as per Ext.P2 scene mahazar. On his directions, PW9 had taken MO6 series photographs of the dead body, which photographs were seized as per Ext.P17 seizure mahazar. The samples that were collected from the body of the deceased, were seized as per Ext.P18 seizure mahazar. On examination of the said samples, the Scientific Assistant issued Ext.P15 certificate. During postmortem, MO1 bullet removed by PW18 from the body of the deceased, along with other samples taken, were seized as per Ext.P6 mahazar. The other samples collected from the body of the deceased, namely, skin particles, tattooed and burnt skin contained, nail clippings, scalp hair with root, swab from around the chest-wound, swab from skin around the forearm wound, swab from skin, in the back of right and left hands, swab of upper aspect of right foot and left foot and swab from the depth of chest-wound, are MOs.12 to 22 respectively. Ext.P19 is the forwarding note submitted before the court requesting forwarding of the material objects for forensic examination. As informed by PW6, he had seized MO1 gun as per Ext.P3 mahazar. At his request, MO1 was examined by PW11. MO1(a) is the empty case of the bullet taken from the chamber of the gun by PW11. Ext.P5 is the report given by PW11 after testing the gun. Ext.P21 is the forwarding note submitted to the court requesting the forwarding of the gun and the empty case for forensic examination. On 18/10/2014 he along with his team proceeded to Jharkhand and took the accused into custody. On questioning, the accused confessed to the crime and therefore on 20/10/2014 at 21:00 hours, he arrested the accused. Exts.P28, P29 and P30 are the arrest memo, inspection memo and the remand order respectively. Ext.P32 is the medical examination report relating to the accused. Based on the confession statement given by the accused, he seized Ext.P8 series documents. Ext.P34 is the report relating to the name and other details of the accused. His investigation revealed the commission of the offence under Section 449 IPC also. Hence, he submitted Ext.P35 report regarding the same. Ext.P36 series are the mahazars prepared relating to the material objects involved in this case. PW22 admitted in the cross examination that neither PW19 nor PW20 had stated to him that they had seen the accused running away with MO1 gun immediately after the incident. His investigation revealed that MO1 gun had been brought from Jharkhand by the accused and the deceased.

PW23, C.I. Mannarkkad, submitted Ext.P37 report for incorporating the relevant Section under the Arms Act in the FIR. Ext.P13 is the report of the District Collector to the effect that the accused did not possess any arms license. Ext.P39 is the report relating to the chemical examination of the viscera of the deceased and Ext. P40 is the report of the examination of the blood of the deceased received from FSL, Trivandrum. He completed the investigation and submitted the charge sheet before the court.

The scene of occurrence is proved through PW2 an attestor to Ext.P2 scene mahazar prepared by PW22. Ext.P10 issued by PW15, Assistant Secretary, Kumaram Puthoor Grama Panchayath, shows that the house bearing No.2/373, Puthoor Grama Panchayath belongs to PW1. PW16, the then Village Officer in charge, Payyanidam, has prepared Ext.P11 site plan. PW8, Scientific Assistant, Regional Forensic Science Laboratory, Thrissur as requested by the investigating officer, on 03/10/2014, had examined the scene of occurrence in the presence of the investigating officer and collected blood stains seen on the floor and the wall of the room, in cotton swabs marked as MO3 to MO5. PW9, photographer, had taken MO6 series photographs of the dead body. PW10, is an attestor to Ext.P4 inquest report.

PW12, a Grade S.I., Office of the C.I., Mannarkkad, is an attestor to Ext.P6 seizure mahazar prepared by the investigating officer relating to the bottle of samples collected from the body of the deceased by PW18, the Police Surgeon who conducted the postmortem examination.

PW21, Scientific Assistant, DCRB Ernakulam, had taken material samples from the body of the victim at the mortuary in the presence of the investigating officer. The details of the items collected are mentioned in Ext.P14 letter. According to PW4, she is familiar with the signature of Dr.Simi, Scientific Assistant of Physics and Ballistics, Forensic Laboratory, Trivandrum who had worked in the said capacity during the period from 2010 to 2012. She identified the signature of Dr.Simi in Ext.P12, which relates to the samples collected at the time of the postmortem examination. PW24, the Assistant Director, Physics, FSL, Trivandrum who was holding additional charge of the Assistant Director (Ballistics), also identified the signature of Dr.Simi in Ext.P12 prepared by the latter.

Now coming to MO1 gun, alleged to have been used by the accused to shoot Rajender. PW6, is a person residing about 1½ kilometres from the place of occurrence. One day when he was trying to break branches of a tree (ശശീമകകക്കൊന) standing in his property for feeding his calf, he noticed a gun kept between the branches of the tree. He informed the police who took the same into custody. PW6 identified MO1 gun. PW7, a neighbour of PW6 is an attestor to Ext.P3 mahazar prepared when police seized MO1 gun. PW7 also identified MO1. According to PW7, the police had seized the gun about three days after the incident in this case.

PW11, Armour ASI, AR Camp, Palakkad, on the instructions of the investigating officer had examined MO1 and issued Ext.P5 report. According to PW11, MO1 is a country made gun and MO1(a) is an empty case taken from the gun.

PW24, the Assistant Director, Physics, FSL, Trivandrum holding additional charge of the Assistant Director (Ballistics), identified the signature of Dr.Simi in Ext.P13 prepared by the latter. The details of the examination in Ext.P13 are-

“The material objects in this case were examined in the laboratory using scientific aids.

Barrel washings were collected from the weapon contained in Item No.1 and tested for the presence of firearm discharge residues. Presence of the metal lead and the compound nitrite were detected. On examinations the action mechanism of the weapon was found in order. Presence of the compound 'nitrite' was detected from the sample taken from the empty cartridge case contained in Item No.2. Due to the unavailability of the standard 8 mm revolver cartridge the weapon contained in Item No.1 could not be test-fired in the laboratory. Hence further examination such as comparison of firing pin impression mark on the cartridge case contained in Item No.2 could not be carried out.

Result of examination

The weapon contained in this case is a country made SBBL firearm and serviceable in the present condition. Signs of firing detected on its barrel.

Firearm discharge residues were detected in the cartridge case contained in Item No.2.

It is not possible say whether the catridge case contained in item No.2 is used for firing through the weapon contained in Item No.1 or not.

The catridge case contained in Item No.2 could be a part of the bullet contained in B1-9681/FSL/2014(Cr.No.979/14 of Mannarkkad P S).”

According to PW24, test firing of MO1 gun could not be done for the purpose of comparison as similar bullet with the same cartridge was not available in the laboratory and a similar one could not be procured and made available to them by the investigating officer, despite repeated requests. She opined that the cartridge and MO11 bullet shown to her could have been used in MO1 gun. In the cross examination she was asked whether MO1 gun was in working condition and whether MO11 bullet had been fired from the said gun, to which she answered that test fire had not been conducted.

As stated earlier, PW19 and PW20 in the chief examination have a case that they had seen the accused running away after the incident with MO1 gun. In the cross examination they asserted that they had stated so to the police also. However, PW22, the investigating officer in the cross examination admitted that no such statement had been given by the aforesaid witnesses to him. It is true that the procedure to be followed to prove an omission has not been properly complied with. A reading of Explanation to Section 162 Cr.PC. would reveal that if a significant omission is made in the statement of a witness recorded under S.161 Cr.P.C, the same may amount to a contradiction and that whether it so amounts is a question of fact in each case. A Division Bench of this Court in State of Kerala v. Thomas, 2005 KHC 1823 has explained by giving an example the manner or procedure to be followed to prove an omission. Before the police a witness may state that A and B committed the murder. But in court he may state that A, B and C took part in the commission of the offence. That omission is in the form of a positive contradiction. If the witness admits that he did not state the name of C before the police officer that admission proves the omission. But if the witness asserts that he had stated the name of C also to the police officer that omission is to be proved by putting that omission to that officer during his examination. He must be asked whether the statement was made by the witness before him. The records must show that the statement of the witness recorded under S.161 Cr.P.C. had been read out to him and his attention was drawn to the non existence of that statement therein. In the case on hand, the last part of the procedure, that is, reading out the 161statement and drawing the attention of the witnesses to the non-existence of the statement they made for the first time in the box and seeking their explanation, if any, for the same is not seen complied with. The ocular evidence regarding the events immediately succeeding the actual incident, rest exclusively on the statements of PWs.1, 19 and 20. If as a matter of fact, the involvement of the accused was there and PW19 and PW20 had actually seen the accused running away with the gun immediately after the incident, in the normal course, they would certainly have stated so to the police. But such a statement is conspicuously absent in their 161 statements to PW22, which fact has been established through the testimony of PW22. Not only did they not state so to the police, but they also admit that they had not stated so to even PW1, their employer who was the first person to reach the scene on their beckoning or to PW3, the auto driver in whose vehicle Rajender had been taken to the hospital or for that matter to anybody else. PW1 also has no case that PW19 or PW20 had told him that they had seen the accused. In fact, PW1 in Ext.P1 FIS has no case that the deceased had sustained a gun shot injury. On the other hand his version is that someone in inimical terms with the deceased had stabbed him to death. PW1 neither in Ext.P1 nor in the box has a case that he had asked PW19 or 20 or CW5 or the fourth person present in the room as to what had happened. In the ordinary course, that would have been his normal reaction and the first thing he would asked on reaching the scene is how the incident had happened. However, PW1 never seems to have asked the inmates of the room who had shared the room with the deceased about this. On the other hand he seems to have gone to their room on hearing the noise, saw the deceased lying in a pool of blood, lifted the shirt worn by the deceased and concluded that it was a stab injury and informed so to the police. PW1, PW19 and PW20 seem to have developed a new case in the box that they had seen the accused running away with MO1 gun. The glaring omission made by them is writ large in their testimony. Therefore their testimony alone cannot be made the basis to find the accused guilty.

Apart from the testimony of PW19 and PW20, there is absolutely no evidence to connect the accused with the crime. Ext.P8 and P8 series at best would show the arrival of the accused in Palakkad on 02/10/2014. The testimony of PW4 and PW5, if at all believed would only show the presence of the accused in the area after the crime and not before the crime. But the case of the prosecution is that the accused after the incident had left for his home state from where he had been apprehended. MO1 gun has not been recovered at the instance of the accused. There is no material to connect the accused with the weapon. The testimony of PW24 shows that MO1 gun could not be test fired and so he cannot say whether MO11 bullet removed from the body of the deceased by PW18 during the postmortem examination was actually fired from MO1. The evidence on record can in no way be held to be sufficient to find the accused guilty of the offences alleged against him or for that matter, even connect the accused with the crime. In such circumstances, it can only be concluded that the trial court erred in relying on the aforesaid evidence to conclude regarding the guilt of the accused. The impugned judgment requires to be interfered with and hence we do so.

In the result, the appeal is allowed. The conviction and sentence passed against the appellant/accused by the impugned judgment for the offences punishable under Sections 449, 302 IPC and Section 5(1)(a) r/w Section 27(1) of the Arms Act is set aside and the accused is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith, if not required in any other case. Registry shall forthwith send the judgment to the Superintendent of the jail concerned, where the appellant/accused is now detained.

Interlocutory applications, if any pending, shall stand closed.