Sreekumar @ Varayan Kuttan vs State Of Kerala

P.B.Suresh Kumar, J.

The first accused in S.C. No.458 of 2013 on the files of the Additional Sessions Court-V, Thiruvananthapuram who stands convicted and sentenced for the offences punishable under Sections 447 and 302 of the Indian Penal Code (the IPC), is the appellant in this appeal preferred under Section 374(2) of the Code of Criminal Procedure (the Code).

The case relates to the death of one Binu who was residing with his family in a tribal settlement. He was engaged in rubber tapping and tree felling works. The appellant is a person who was involved in a few forest offences and was sought to be arrested in connection with the said cases by the forest officials. On 5.10.2011, when Binu went out in the morning as usual for his works, he saw the appellant on the way. As Binu and others in the settlement were required by the forest officials to inform them if they spot the appellant in the locality, Binu informed the presence of the appellant in the locality to PW8, a Forest Reserve Watcher and returned home. The indictment against the appellant in the case is that after sometime, by about 9 a.m., while Binu was washing his hands in front of his house, the appellant, his mother Saraswathy and two others namely Sreejith and Ratheesh trespassed into the courtyard of the house of Binu and the appellant asked Binu whether he informed the presence of the appellant in the locality to the forest officials and also whether he thought that the appellant would not come out of jail. It was alleged that the appellant thereupon took out a chopper, hung on his waist and inflicted several cut injuries on the body of Binu using the said weapon. It was also alleged that when Binu attempted to ward off the attack with his hand, his ring finger was chopped off and Binu died at once as a result of the said injuries. As far as the involvement of other accused are concerned, the allegation is that Sreejith and Ratheesh caught hold of the body of Binu so as to enable the appellant to inflict injuries on Binu and the mother of the appellant, Saraswathy stood near and exhorted the appellant to kill Binu.

On the basis of the information furnished by PW1, Neyyar Dam Police registered a case on the same day itself. PW21 is the officer who investigated the case and laid the final report. There were altogether seven accused in the final report. Sreejith and Ratheesh referred to above were accused Nos. 2 and 3 respectively. As they could not be apprehended, the case against them was split up and the remaining accused were committed for trial. The remaining accused other than the appellant were, Saraswathy, the mother of the appellant, and two others who alleged to have harboured the appellant after the crime. As the accused who were committed for trial denied the charge framed and read over to them by the Court of Session, the prosecution examined 21 witnesses as PWs 1 to 21 and proved through them Exts.P1 to P26 documents. MOs 1 to 18 are the material objects identified by the witnesses. The appellant and other accused did not enter on defence when called upon to do so after the evidence by the prosecution and after the incriminating circumstances in the evidence were put to them as provided in Section 313 of the Code, though the appellant maintained the stand that he is innocent and he was in Tamil Nadu on the relevant day. The Court of Session, in the circumstances, on an appraisal of the materials on record, convicted and sentenced the appellant and acquitted the remaining accused, who faced the trial, of the charges levelled against them. As noted, the appellant is aggrieved by the conviction and sentence imposed on him and hence, this appeal.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The essence of the elaborate submissions made by the learned counsel for the appellant is that the prosecution has not established beyond doubt that it is the appellant who caused the death of Binu.

The  point  that  arises  for  consideration, therefore, is whether the conviction of the appellant is supported by evidence which would establish his guilt beyond doubt.

The appellant did not challenge the evidence let in by the prosecution to prove that the death of Binu is a homicide and that the same would amount to murder punishable under Section 302 of the IPC. On the other hand, as noted, the attempt of the learned counsel for the appellant was to establish that the evidence let in by the prosecution is not satisfactory to establish the guilt of the accused.

The materials on record indicate that it is based on the ocular evidence tendered by PW2, the wife of Binu and the evidence tendered by the witnesses examined as PWs 1, 3, 5, 6 and 8 which would corroborate the evidence tendered by PW2, that the appellant was found guilty by the Court of Session. Let us appreciate the evidence tendered by PW2 first. As noted, PW2 is none other than the wife of Binu. PW2 deposed that on the relevant day, Binu returned home after work at about 8.30 a.m. and informed her that he saw the appellant on the way on a boulder and that he informed the matter to the forester. She deposed that Binu, thereupon, cleaned the dry fish kept in the house and while he was washing his hands after that, the appellant came to their house with Sreejith, Sankar and Saraswathy. It was deposed by PW2 that as she felt something wrong on their arrival, she informed the matter to PW8, the Forest Reserve Watcher. It was also deposed by PW2 that the appellant then shouted at Binu "ന വ ള ചറ യ കമ  ? എന  ഞങളള ജ വ ക   സമത ക മ . ഞങ  ജയ ല   ന ന  ഇറങ   എന കരത മയ ?” She deposed that thereupon, the appellant removed a chopper from his waist and hacked on the face, hand and other parts of the body of Binu, and his ring finger was consequently chopped off. It was also deposed by PW2 that when she cried out requesting the appellant not to do anything to Binu, Saraswathy shouted at the appellant to kill Binu and that Sankar and Pappu caught hold of Binu. PW2 deposed that thereupon, the appellant has inflicted cut injuries on the head and neck of Binu also. She deposed that Binu died on the spot. She also deposed that on hearing her cries, PW1 and his wife came to the scene, and by the time, the assailants left the place and among them the appellant proceeded towards the direction of the house of PW1. PW2 identified the appellant in court. She also identified MO1 chopper as the weapon used by the appellant to inflict injuries on Binu. PW2 also identified MO2 blood stained shirt worn by Binu and MO6 blood stained dhoti worn by the appellant, at the time of occurrence. PW2 also deposed that the appellant is involved in several cases and the residents of the settlement were required by the forest officials to inform them if they spot the appellant in the locality. She also deposed that it is on account of the vengeance the appellant maintained towards Binu for having informed his presence in the locality to the forest officials, that the appellant caused the death of Binu. PW2 also deposed that on an earlier occasion, when her husband was away, the appellant threw her child on to a rock and thereby caused injuries to the child. Even though PW2 has stated in cross-examination that she does not use a mobile phone, she at once clarified that it is her husband who informed the forest officials when the assailants arrived at their house. It was also deposed by PW2 during cross-examination that she knows about the cases in which the appellant is involved; that he was also in jail for sometime and that both her husband and she were afraid of the appellant. The only suggestion put to PW2 by the learned counsel for the appellant was that there was a scuffle between Binu and PW1, and she stoutly refuted that suggestion. The evidence tendered by PW2 appeared to us to be real and trustworthy. That apart, PW2 being the wife of the deceased, we do not find any reason to disbelieve her evidence. We came to the said conclusion also for the frankness shown by her in deposing in court that Saraswathy, the mother of the appellant did not catch hold of the deceased nor did she inflict any injury on the deceased, and the utterance “പത ക  അവ ടന മ& യ    ത യ യ രന. എള' കട ക തനയ   ത യ  " made by her voluntarily in the box when she burst out of emotion.

There are only three houses in the tribal settlement, and other than Binu, only PW1 was residing in the settlement. PW1 is a rubber tapper. He deposed that on the morning of the relevant day, between 9 and 9.30 a.m., while he was tapping rubber trees at a distance of about 300 meters away from the house of the deceased, he heard the cry of PW2, and when he ran to the house of PW2, he found the dead body of Binu lying in the courtyard of the house and PW2 sitting beside the body and crying. PW1 deposed that his wife also reached the scene at that time and he was told by PW2 that the appellant hacked her husband to death and that she saw the appellant proceeding thereafter towards the direction of the house of PW1. PW1 also identified the appellant in court. It was also deposed by PW1 that when he attempted to inform others about the death after returning to his house, the appellant rushed back to him and attempted to hack him also. PW1 deposed that he somehow managed to obtain the chopper carried by the appellant and when his wife started crying, the appellant pushed him aside and ran away from the scene. PW1 identified MO1 as the chopper obtained by him from the appellant. He clarified that he could identify the chopper correctly on account of the mark '425' printed on it. He deposed that he kept the chopper at a place in his house and proceeded immediately to the police station. He identified the signature in Ext.P1 First Information Statement. PW1 also deposed that the appellant is involved in several cases, and when he absconds, the police and others require the people in the locality to inform the officials, if the appellant is found in the locality. He also deposed that it is on account of the vengeance the appellant had towards Binu for having informed his presence in the locality to the police that the appellant caused the death of Binu. PW1 deposed that the appellant had once attacked his wife also. As in the case of PW2, PW1 was also subjected to lengthy cross-examination by the counsel for the appellant. Though there was a suggestion by the counsel for the appellant to PW1 that there used to be frequent quarrels between PW2 and Binu, no other material was brought to substantiate the said stand of the appellant, when PW1 denied the same. As noted, even though PW1 had not seen the occurrence, his evidence corroborates fully the evidence tendered by PW2, the ocular witness.

PW3 and PW5 are persons residing in the neighbourhood. Both of them deposed that they went to the house of Binu on hearing about the occurrence and saw the dead body lying in the courtyard of his house. Among them, PW3 deposed that the appellant and others once frightened his children also after consuming liquor and that they also abused and threatened him one particular night. PW5 also deposed that the appellant and others had attempted to attack him on 14.12.2009 and that he had lodged a complaint against the appellant in connection with that incident. It was deposed by PW5 that he was attacked by the appellant and others as he informed the presence of the appellant in the locality, to the forest officials. As in the case of the evidence tendered by PW1, the evidence tendered by PW3 and PW5 also corroborates fully the evidence tendered by PW2.

PW8 is a Forest Reserve Watcher. He deposed that on 05.10.2011 at about 6.45 a.m., the deceased informed him that the appellant and others are sitting on a boulder near a place called Ayyavilakam, while he was on duty at the place Ananirathiyil. PW8 deposed that he immediately informed the matter to PW6, the Section Forester and he was required by PW6 to come to that place. It was deposed by PW8 that the said place was about 23 kilometers away from the place where he was working and as directed by PW6, he proceeded to that place with one Madhu on a bike. PW8 deposed that on the way, he was informed about the murder of Binu. PW8 also deposed that by the time he reached the house of Binu, the police had also reached there and that he saw the dead body of Binu lying in the courtyard of his house with several injuries and his ring finger was found chopped off. PW6 is the Section Forester referred to by PW8 in his evidence. PW6 deposed that the appellant is the accused in four cases and that there were warrants pending against him for his arrest. PW6 also deposed that the officials of the department had earlier informed the deceased and others in the locality to let them know about the presence of the appellant, if they spot him and that the deceased had informed the presence of the appellant in the locality to PW8 in the morning hours of 05.10.2011. As in the case of PWs 1, 3 and 5, the evidence tendered by PWs 6 and 8 also corroborates the evidence tendered by PW2.

The witness examined on the side of the prosecution as PW7 is a blacksmith who hails from Kulasekharam in the State of Tamil Nadu. He deposed that he used to make and sell implements like knife, chopper, chisel etc. and that it is he who sold MO1 chopper to the appellant. PW14 is the doctor who conducted autopsy on the body of Binu. PW14 deposed that the death was due to multiple injuries sustained by the deceased and that injuries 1, 3 and 4 deposed to have been noted by her are independently sufficient to cause death in the ordinary course of nature. The said injuries are the following:

“1. Incised wound “^” shaped on the face overlying nose and cheeks, the longer right limb 6 x 1 x 3.5 cm and the shorter left limb 4 x 1 x 3.5 cm being on right and left sides of face, the junction of the two limbs being on root of nose 2 cm below the mid point between the two eyebrows, reflecting the nose downwards exposing the sinuses behind.

x x x x x x x x x

Incised wound 10 x 5 x 4.5 cm obliquely placed on left side of neck, its lower inner end 4 cm to left of midline and 5 cm above collar bone. The soft tissues, outer wall of internal jungular vein and tips of transverse process of lower three cervical were seen cleanly cut with separation of tips of transverse process. The wound was directed downwards and to the right.

Incised wound 7 x 6 x 2 to 3 cm obliquely placed on right side of face, under chin and neck 1cm to right of tip of chin and the back end 3.5 cm in front of middle of ear with avulsion of a skin flap 5 x 4.5 x 0.3 cm downwards and outwards to which the cleanly cut portion of jaw bone 5x1.5x1.5 cm was found sticking. The muscles and facial artery found cleanly cut.”

She also clarified in her evidence that the aforesaid injuries could be caused using MO1 chopper. She further deposed that the blood group of the deceased was 'B negative'. PW15, the Assistant Director attached to the Forensic Science Laboratory, Thiruvananthapuram deposed that he issued Ext.P12 report after conducting forensic examination of the various objects collected and sent for the examination in connection with the subject crime. Item 8 in Ext.P12 is MO1 chopper and item 9 in Ext.P12 is the dhoti worn by the appellant at the time of occurrence which was identified by PW2. It is stated in Ext.P12 that item 8 contained human blood belonging to group B and item 9 contained blood which is insufficient for determining its origin. The evidence tendered by PW7, PW14 and PW15 also according to us, corroborates the evidence tendered by PW2. The evidence aforesaid proves beyond reasonable doubt, the guilt of the appellant and we are, therefore, fully in agreement with the findings rendered by the Court of Session in this regard.

The appellant was inflicted with the sentence of life imprisonment for the offence punishable under Section 302 IPC and simple imprisonment for a period of three months for the offence punishable under Section 447 IPC. The sentence imposed on the appellant for the offence under Section 302 IPC being the minimum sentence, we do not find any reason to interfere with the same as well.

In the circumstances, we do not find any merit in the appeal and the same is accordingly, dismissed.