V. VENUGOPAL Vs. STATE OF KERALA

JUDGEMENT

(1.) A 60 year old Agriculturist called Kesavan was murdered on 26/04/2004 at about 7.30 p.m. and accused who is his brother in law was convicted for offence punishable under S.302 of the Indian Penal Code. The deceased Kesavan is the husband of PW 4 Nachikutty, sister of the accused. The paddy fields of the accused is lying adjoining to the paddy field of Nachikutty and is lying in a higher level. Water for cultivation in the paddy fields of the wife of the deceased has to be taken through the field of the accused and there has been disputes between the accused and deceased with regard to the diversion of water for cultivation. On 26/04/2004 at about 7.30 p.m. when the deceased Kesavan and PW 1 Sivaswamy Gaundar were walking through Kanakkampara Themparamada road, the accused stopped the deceased and made an attempt to stab him with MO 1 knife. The deceased prevented the same and ran away from there. The accused followed him and again stopped him, stabbed at his chest, neck and left hand with MO 1 knife and thereby inflicted injuries on the body of the deceased. The deceased succumbed to the injuries.

(2.) PW 1 is a neighbour who knows the accused and deceased well. He is a seventy five year old labourer doing the work of maintaining cows. He gave the First Information Statement in terms of the prosecution case. It was marked as Ext. P1. However, during oral evidence he gave a different version. According to him, the incident occurred on the road in the evening and he was coming from Kanakkampara to Themparamada. He further deposed that nobody was with him at that time. Deceased Kesavan was walking ahead and at that time the incident occurred. He further stated that he is not aware who killed him. He has not seen the accused stabbing the deceased. He further stated that lot of people were standing at the place where body of Kesavan was lying and he was also standing there. Then Police arrived there and he gave statement to the police at that time. He also stated that he never went to police station and Ext. P1 is not given by him at the police station. Since he has stated contrary to Ext. P1 statement, he was declared hostile and he was cross examined. Then he admitted that he has stated to the police what he has seen and whatever he stated was written down by the police. The police read it out to him and then only he signed it. He also stated that contents of Ext. P1 are true. He deposed as follows: He further stated that immediately after his arrival, his employer (PW 6) reached there and he told him what he has seen there. Later he stated that after seeing the incident, he ran away with fear. He deposed as follows: In cross examination by accused he stated that he cannot read and write and he is not aware what is written in Ext. P1. Nobody has read it out to him. He has signed the same at the Themparamada road at 9-9.30 a.m. He has not stated anything at the time of signing the same. He was asked to sign and he signed it. At the time when signature was put in Ext. P1, many others were present in the road. There is no other eye witness to the incident.

(3.) THE only evidence, other than the evidence of PW 1, to connect the accused with the crime is the alleged seizure of MO 1 knife by Ext. P12 mahazar. According to the police, on the basis of the information given by the accused MO 1 knife was recovered from a hole in the canal bund and he stated that if he was taken there he can take out the knife. His confession is as follows: However, there is no authorship of concealment. It is not stated by him that he concealed the same. From the disclosure what can be meant is that he has got information that MO 1 knife is kept in the hole in the canal bund and if he is taken there, he will take out the knife. That evidence by itself will not connect the accused with the crime, but, it is admissible under S.27 of the Evidence Act to the extent that accused knew the place where weapon was concealed. The Apex Court in Amitsingh Bhikamsingh Thakur v. State of Maharashtra, 2007 (1) KHC 487 : JT 2007 (1) SC 390 : 2007 (2) SCC 310 held that "facts discovered" for the purpose of S.27 of the Evidence Act is not restricted to physical objects. The knowledge of the accused in relation to the place of concealment of the weapon is a relevant fact and is an incriminating circumstance against the accused. Here, recovery of the weapon at the instance of the accused constitutes one of the links in the chain of circumstantial evidence. MO 1 was sent for chemical examination. Ext. P23 Chemical Examination Report shows that the blades of the knife was moderately stained with blood. The result would also show that human blood was detected in MO 1 knife. The group of the blood was not ascertained due to insufficient quantity. But, it can be seen that MO 1 is stained with human blood. On the basis of the confession statement PW 21 recovered MO 8 shirt worn by the accused at the time of commission of the offence from the house of Chandran, S/o. Aru, bearing house NO. VII/499 of Nalleppilli panchayath as per Ext. P5 seizure mahazar. Ext. P5(a) is the extract of the confession reiterated in Ext. P5 seizure mahazar. PWs. 9 and 10 are the attesters to Ext. P5 seizure mahazar. PW 21 stated that as per Ext. P5(a) disclosure statement and as lead by the accused he recovered MO 8 shirt from the top of the asbestos roof of the bath room attached to the above said house of Chandran. PWs. 9 and 10 have admitted their signatures in Ext. P5 seizure mahazar, but, they deposed that they did not see the actual recovery. They were declared hostile. Evidence of witnesses as a whole prove that shirt was recovered at the instance of the accused. Similarly, the recovery of MO 1 knife and recovery of MO 8 shirt also show the knowledge of the accused where the shirt was. There is no serious cross examination to establish that MO 8 shirt is not belonging to the accused. Ext. P23 report shows that MO 8 shirt also contained human blood stains. Even Ext. P12 mahazar regarding the recovery was attested by PWs 14 and 15 and both of them turned hostile. Even if the attestors to the recovery mahazar are turned hostile, recovery can be accepted as admissible under S.27 of the Evidence Act on the basis of the investigating officer's evidence. Here, recovery is also proved subsisting by photos and PWs 14 and 15 admitted that they singed the recovery mahazar.