SUNU FRANCIS @ SUNU S/O. FRANCIS, UPPACHERRIL VEEDU, ANDOOR KARA ELACKADU VILLAGE Vs. STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) THE appellant was convicted and sentenced to imprisonment for life and a fine of Rs. 20,000/ - and in default, rigorous imprisonment for six months for the offence under Section 302 of Indian Penal Code in SC No. 76/2006 by Additional Sessions Judge, Kottayam. The prosecution case is that deceased Augustin @ Appachan has been in possession and enjoyment of 8 cents of land, where an anjili tree was standing. That 8 cents, though belonged to Kuttisir, the son of the elder brother of the deceased, the deceased was enjoying the property. Kuttisir had assigned his remaining property, excluding the 8 cents in 1992 or 1993. On 5.9.2004 at about 11.15 am, on getting information that the anjili tree was being cut, the CRA 729/09 2 deceased Augustine, along with his son PW1 Suneesh, who was then aged only 18 years, rushed to the spot. It was found that the appellant and PWs 2 to 5 were cutting the anjili tree. The deceased Augustine questioned them as to how they could cut the tree. The appellant threatened the deceased not to approach him. When the deceased approached him, with an axe, appellant inflicted an injury on the neck of Augustine, which caused his death. PW18, the Sub Inspector of Police, on getting information, reached the spot. He recorded Ext. P1 First Information Statement of PW1 and prepared Ext. P1(a) F.I.R. and registered the crime. PW20, the Circle Inspector of Police prepared Ext. P11 inquest report and seized MOs 1 to 6 and 9 to 15 including MO1 axe from the scene of occurrence. The scene of occurrence was also described in Ext. P11. PW20 got the scene of occurrence examined by PW17, CRA 729/09 3 the Scientific Assistant, who prepared Ext. P14 report. The body was sent for autopsy. PW13, Dr.Rajeev conducted autopsy and prepared Ext. P12 post mortem certificate. PW20 arrested the appellant on 8.9.2004. On the information furnished by the appellant, his MO7 and 8 dresses were recovered under Ext. P17 recovery mahazar, in the presence of PW14. After completing the investigation, charge was laid before the learned Magistrate for the offence under Section 302 of Indian Penal Code. The learned Magistrate committed the case to Sessions Judge, who made it over to the Additional Sessions Judge. When charge for the offence under Section 302 of Indian Penal Code was framed, the appellant pleaded not guilty. The prosecution examined 20 witnesses and marked 24 exhibits and identified 18 material objects.

(2.) AFTER closing the prosecution evidence, when the appellant was questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence put to him and contended that he did not inflict the injury on the deceased and as instructed by the father of the church, along with others, he had gone to the scene of occurrence and he was removing the shrubs and then, the deceased came from behind with a chopper and when the deceased attempted to inflict an injury on him, somebody resisted it and the appellant does not know how to use an axe and he is innocent.

(3.) THE learned counsel appearing for the appellant would argue that the evidence of PW1 should not have been relied on at all. It was argued that when the version of PW1 in his Ext. P1 F.I. Statement was that he and the deceased came to know about the attempted cutting of anjili tree and proceeded to the scene of occurrence and the appellant inflicted the injury on the deceased with a, as per the version from the box, PW1, while returning from the church, went to the scene of occurrence and found the appellant and others cutting the anjili tree. When he questioned their authority to cut the tree, appellant threatened him and PW1 came to his house and informed the deceased, who went to the scene of occurrence, followed by PW1. It was pointed out that from the witness box, PW1 has a case that the injury was inflicted with an axe and in cross examination PW1 admitted that he knows the difference between " " and " '' and if that be so and if the appellant had inflicted the injury with the axe, he would not have disclosed in Ext. P1 that the injury was inflicted using a It was argued that the evidence of PW1 is therefore not at all reliable. The learned counsel argued that the evidence of PWs 2 to 9 do not support the prosecution case and it is proved that the property having an extent of 8 cents does not belong to the deceased and it belongs to Kuttisir and Kuttisir had CRA 729/09 7 permitted the church authorities to cut the anjili tree for the use of the church and as instructed by the vicar of the church, the appellant along with PWs 2 to 8 had reached the scene of occurrence and the evidence of PW20 establish that in addition to MO1 axe, MO11 and MO10 small hatchet, apart from a spade, knives and choppers were recovered from the scene and though MO1 was sent for chemical examination, Ext. P24 report does not show that MO1 contains human blood much less the blood group of the deceased and in such circumstances, it cannot be found that appellant inflicted the fatal injury on the deceased. The learned counsel also argued that appellant at the time of his questioning under Section 313 of Code of Criminal Procedure, stated that he does not know how to use an axe and therefore, it cannot be found that appellant inflicted the injury with an axe and under such CRA 729/09 8 circumstances, the conviction is not sustainable. The learned counsel finally argued that when the evidence establish that deceased armed with a chopper, along with PW1, reached the scene of occurrence and caused obstruction to the cutting of the tree which was authorised by its owner and when the deceased attempted to inflict injury with a chopper, one among the group of the appellant in the attempt to prevent it, inflicted the injury, appellant cannot be convicted for the offence under Section 302 of Indian Penal Code and hence the conviction is to be set aside.