TONY Vs. STATE OF KERALA

JUDGEMENT

(1.) An aged agriculturist living alone, who had a predilection for gold ornaments, which he casually flaunted on his body, was murdered and robbed of those ornaments, by his own nephew. A crime for gain, is the case of the prosecution, while the defence is of mistaken identity. To the detriment of the accused, his accomplice turned approver.

(2.) Before Court, 29 witnesses were paraded, who marked Exts.P1 to P87 documents and 22 MOs were also marked as MO1 to MO20(a). The trial Court found the accused guilty under Ss.450, 394 and 302 of the Indian Penal Code. On sentence, considering the fact that the accused was an earlier convict under S.302, imprisonment for life was imposed with the condition that the accused shall not be released for a period of 20 years, relying on Swamy Shraddananda v. State of Karnataka [AIR 2008 SC 3040 = (2008) 13 SCC 767]. A sentence of fine of Rupees One lakh was also imposed under S.302 with default R.I. for one year. Under Ss.450 and 394, a further sentence each of R.I. for ten years and fine of Rupees Fifty thousand each were imposed again with default sentence.

(3.) Sri.P.Vijayabhanu, the learned Senior Counsel, appeared for the accused assisted by Smt.Pooja Pankaj. It was argued that the approver cannot be believed and it is very clear that he was tutored. The approver obviously is not an accomplice as he does not inculpate himself in the narration. He was only a mere spectator, who cannot be called an approver and to that end the learned Senior Counsel relied on Bhiva Doulu Patil v. State of Maharashtra [AIR 1963 SC 599], Chandan v. State of Rajasthan [(1988) 1 SCC 696] and an unreported decision of this Court in Crl.Appeal No.680 of 2012 dtd. 13/4/2018 [Abdulla Kunji @ Nadubail Abdulla v. Central Bureau of Investigation]. It is the allegation that the accused had pre-meditation; as the accusation levelled is that he purchased a chopper, prior to the alleged murder, on the same day. It is incredulous that the accused summoned another person, who was not at all an accomplice, to witness the incident. Though the call details of the mobiles used by the accused and the approver were produced, there is no evidence as to the location of the two persons or calls having been made between them. The accused had suffered a fracture to the right clavicle, for which he was treated as an inpatient and discharged on 15/11/2011. It was impossible that the murder could have been committed by him as spoken of by PW2, the approver, since his right hand was incapacitated. The accused, after discharge, is said to have summoned the approver and had visited many places before they retired for the night in the house of the deceased. None of these persons, who met the accused and the approver together were examined to atleast prove that they were together on that day.