BALASUBRAMANIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT was tried for the offences under Section 449, 511 of Section 376, 302, 324 and 506(i) of Indian Penal Code by Additional Sessions Court, (Adhoc-I), Manjeri in S.C.91 of 2009. He was convicted and sentenced to imprisonment for life and a fine of Rs.10,000/- for the offence under Section 302 of Indian Penal Code, rigorous imprisonment for five years and a fine of Rs.5000/- and in default, rigorous imprisonment for one year for the offence under Section 449 of Indian Penal Code, rigorous imprisonment for one year and a fine of Rs.2000/- and in default, rigorous imprisonment for two months for the offence under Section 506 (i) of Indian Penal Code. All the sentences were directed to be run concurrently. He was acquitted of the offence under Section 511 read with 326 and 324 of Indian Penal Code. Prosecution case is that PW1 Saraswathy and PW19, Chandramathi and deceased Thankam, the sisters were residing in House No.6/305 of Valavannoor Grama Panchayat and their mother died earlier. Though PW1 was married, her husband is no more. Similarly, PW19 though married, the marriage was dissolved. Though she was employed, later due to illness, her right side was paralysed and she was not in a position to walk of her own. On the morning of 20.10.2007, PW1 had gone out of the house and only PW19 and the deceased were in the house. It is alleged that PW19 was lying on the side room and the deceased was making ready food in the kitchen. Appellant trespassed into the house with the intention to commit rape and in the attempt, when the deceased resisted it, appellant hit on her head with Mo7 handle of an axe and caused her death. On hearing the sound when PW19 crawled from that room and reached the passage leading to the kitchen and witnessed the incident, appellant with Mo7 handle of the axe, hit on her left wrist and threatened her not to disclose the incident and kept Mo7 in the store room attached to the kitchen and left the house. Hearing the cry of PW19, PW2, the brother of appellant, who was passing along the way near to the house reached the house and found the body of deceased Thankam lying in the kitchen half naked and also found PW19 crying on the passage to the kitchen. PW2 informed the incident to PW9, a retired Sub Inspector who informed it to the police over phone. PW18, S.I getting the phone message, reached the house. By that time, PW1 had returned to the house. PW1 saw PW19 crying and the body of deceased lying on the floor of the kitchen, having sustained head injury and people gathered everywhere. PW1 asked PW19, what happened. Due to paralytic stroke, PW19 was not in a position to speak and she used to communicate with PW1 by writing in Ext.P3 note book which was kept with her. PW19 conveyed what happened there by writing in Ext.P2 piece of paper. PW1 furnished Ext.P1 First Information to PW18, who recorded it. PW1 also produced Ext.P2 letter written by PW19. Based on Ext.P1, PW18 registered the crime after preparing Ext.P1(a) FIR. PW20, Circle Inspector of Police took over the investigation. He prepared Ext.P5 inquest report and seized Mos 1 to 4 and 7 from the scene. Mo7 was seized from the adjoining store room. With the assistance of the scientific assistant, the scene of occurrence was got examined and the blood stains and hairs found were collected and later produced before the court and sent to the Forensic Science Laboratory. The body was sent for autopsy. PW12, the Professor of Forensic Medicine conducted the autopsy and prepared Ext.P13 post mortem certificate. PW12 found that the death was caused due to the head injury. PW19 was examined by PW10, the Doctor who prepared Ext.P11 wound certificate. PW17, ASI took the appellant into custody on that after noon and produced him before PW20, who recorded his arrest and sent him for potency test before PW11, who issued Ext.P12 potency certificate. After completing the investigation, charge was laid before the Magistrate who committed it to the Sessions Court. When the case was made over to Additional Sessions Court and charge for the offence was framed and read over, appellant pleaded not guilty. Prosecution examined 20 witnesses and marked 27 exhibits and identified 16 material objects. At the time of cross examination of the prosecution witnesses, Ext.D1 to D5 portions of the statements of Pws 1,2,5,6 and 16 recorded under Section 161 of Code of Criminal Procedure were confronted and marked. Though appellant was questioned under Section 313 of Code of Criminal Procedure, he only denied the evidence tendered against him and did not explain any circumstance or give his version of the incident. Finding that it is not a case for acquittal under Section 232 of Code of Criminal Procedure, learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence. Appellant did not adduce any evidence. Learned Sessions Judge, on the evidence, found him guilty, convicted and sentenced him as stated earlier. It is challenged in this appeal.

(2.) LEARNED counsel appearing for the appellant and learned Public Prosecutor were heard. The argument of learned counsel appearing for appellant is that the only eye witness to the incident is PW19 and the learned Sessions Judge should not have relied on her evidence. The argument of the learned counsel is that PW19, due to paralytic stroke could not speak, the prosecution would contend that she could convey messages by writing and though PW1 deposed that in Ext.P2, PW19 had conveyed what happened in the house on the fateful day resulting in the death of Thankam, Ext.P2 does not disclose the details and based on Ext.P2, the evidence of PW19 cannot be accepted. The learned counsel argued that according to the prosecution, Ext.P3(a) and Ext.P3(b) writings were written by PW19 later and her statement was recorded by the Magistrate under Section 164 of Code of Criminal Procedure, though it is not marked and at the time of evidence when she was examined in court, she had given a detailed version of the incident which is the result of tutoring. Learned counsel argued that as is clear from the evidence of PW1, PW19 cannot move of her own and as she was lying inside the room and the incident occurred at the kitchen, she had no occasion to witness the incident and her evidence that she crawled from that room and reached the passage leading to the kitchen and witnessed the incident cannot be believed. Learned counsel would argue that if the evidence of PW19 is disbelieved, there is no evidence connecting the appellant with the incident. It was pointed out that though Mo5 and Mo6 dresses were recovered, allegedly based on the confession made by the appellant, and as lead by him, Ext.P27 report of the Forensic Science Laboratory does not show that the dresses of the appellant contained blood of the same group of the deceased so as to connect the appellant with the incident and there was no blood stains in the shirt at all. It was also argued that the evidence of the other witnesses, even if believed, will not connect the appellant with the incident and therefore the conviction is unsustainable.

(3.) THE only question is whether the said injury was inflicted by the appellant. The evidence of PW1 and PW19 that they were living along with the deceased and PW19 and the deceased alone were there in the house, when PW1 left the house on the morning of 20.10.2007 is not disputed. The evidence of PW1 is that when she was walking from the house, she met the appellant on the way and appellant asked her where she is going and she revealed him that she is going to the market to purchase vegetables and at that time appellant was wearing Mo5 and Mo6 dresses. This aspect was not challenged in cross examination. The evidence of PW1 therefore establishes that when she left, only deceased and PW19 were there in the house. The evidence of PW2 who is none other than the brother of the appellant establishes that between 12 and 1 pm, while he was walking along the side of the house of PW1, as usual, he called the name of PW19. As there was no response, thinking what happened, he went towards the house. His evidence is that he heard a cry from inside the house and on entering the house, he found PW19 sitting on the passage leading to the kitchen, crying and looking into the kitchen where the deceased was lying half naked with bleeding injury. It is the evidence of PW2 that he immediately went to the house of PW9, a retired S.I, who informed the police over phone and along with PW9 he came back to the house. The evidence of PW2 and PW9 establish that PW1 reached there later and by that time, police has also arrived. The evidence conclusively establish that when PW2 saw the deceased, only PW19 was there in the house apart from the deceased Thankam. It is therefore clear that only PW19 could convey what transpired there on that day.