Vijayan vs State of Kerala

A.K. Jayasankaran Nambiar, J.—This Criminal appeal filed by the accused arises from the judgment dated 22.5.2010 of the Sessions Judge, Wayanad, Kalpetta. The prosecution case, in brief, is that on 6.6.2007, at about 8.15 hours, the accused stabbed his wife Narayani with a knife, in a paddy field at Chathamangalam on the north eastern side of the house of one Chandu, with the intention of committing murder and as a result of that act, she succumbed to the injury. The accused had also consumed poison and attempted to commit suicide, and, thereby, according to the prosecution, he had committed offences punishable under both Sections 302 and 309 of the Indian Penal Code (hereinafter referred to as ''IPC'').

The accused was produced before the Judicial First Class Magistrate Court-II, Sulthanbathery, which committed the case to the Sessions Court, Wayanad. Charges were framed against the accused on 25.8.2008. The prosecution examined PW1 to PW15 and marked Exts. P1 to P14 and proved Material Objects 1 to 18. After closing the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure when he denied all the incriminatory evidence used against him. No evidence was adduced on the side of the defence. After hearing the prosecution and the defence, the court below found that the prosecution had proved that the accused had committed the murder of his wife Narayani and thereby committed the offence punishable under Section 302 IPC. The court below also found that the prosecution had proved that the accused had consumed poison in an attempt to commit suicide, thereby committing the offence punishable under Section 309 IPC. The trial court therefore convicted him for the said offences and sentenced him to undergo life imprisonment and fine of Rs. 10,000/- for the offence punishable under Section 302 IPC. He was also sentenced to undergo simple imprisonment for one year for the offence punishable under Section 309 IPC. The sentences were to run concurrently and a set off was also permitted of the detention period.

In the appeal, the learned counsel for the appellant would mainly contend that the knife that was allegedly used by the accused to commit the crime was not recovered from the scene of the crime but was seized from the house of PW10, the mother of the deceased. It is therefore contended that there was no evidence to connect the said material object with the accused other than the deposition of PW3 Janu and PW4 Leela, who were eye witnesses to the stabbing incident. It is also pointed out that the blood stains on the knife were not examined by the chemical examiner with a view to confirming whether the stains were caused by the blood of the deceased. Essentially, the attempt of the appellant is to discredit the investigation carried out in the matter by pointing out that the recovery of the knife was done in a manner that did not establish the connection between the said knife and the act alleged to have been committed by the accused using that knife. The appellant would also place reliance on the evidence of PW7, Dr. V. Ravindran, who was working as Civil Surgeon in the District Hospital, Mananthavady. He relies on the deposition of the said PW7 which indicates that the accused was admitted in the hospital on 6.6.2007 and discharged on 12.6.2007 in connection with the consumption of an organo phospherous compound which was poisonous. In particular, he relies on that part of the testimony of PW7 which indicates that a person who consumes organo phospherous compound had the chance of developing confusion, delirium and convulsions, and that, in that stage, the person cannot do anything. Counsel for the appellant would submit that this testimony of PW7 was sufficient to indicate that the accused who had consumed poison even before allegedly stabbing his wife could not possibly have walked the distance of about 95 meters after consuming the poison, to stab the deceased. It is relevant to note however that the reliance by the appellant on the testimony of PW7 ignores that part of the testimony of PW7 which clearly indicates that the delirium developed after consuming the poison will often occur only after some time and that even if a sufficient quantity of poison is consumed the delirium will not be caused immediately.

Per contra, the learned Public Prosecutor would contend that there has been a correct marshalling of the evidence by the court below and the attempt by the appellant to pick holes in the prosecution case on the ground of alleged defective investigation is not legally tenable.

We have considered the rival submissions. As this is an appeal, we deem it unnecessary to re-narrate the oral and documentary evidence adduced before the trial court. The judgment of the appellate court must necessarily be seen as in continuation of the judgment of the trial court and hence it is unnecessary to re-narrate the evidence adduced before the trial court which is already contained in the judgment of the trial court. We note that the trial court has accepted the prosecution case based, primarily, on the testimony of PW3 and PW4 who are eye witnesses to the incident. It is found in the judgment of the trial court that the said PWs. 3 and 4 are sisters residing at Chathamangalam Colony. They had testified that they are co-workers of Narayani and were engaged in coolie work. On 6.6.2007, at about 7.30 a.m., they went together to the property of Panthamakkal Sasi for ginger cultivation. At about 8.30 a.m. the accused approached them carrying MO 5 plastic cover and MO 6 bottle. On approaching Narayani, he caught her hand, dragged her into the paddy field and shouted that if she refused to go along with him, he would kill her and commit suicide. The accused then drank poison from the bottle which he was carrying. On seeing that, Narayani got scared and ran away. The accused then ran behind her, caught her, took MO 7 knife from MO 5 cover and stabbed her in the chest and the stomach. PW3 also identified MO 5 to MO 7. The testimony indicates that as a result of the stab injury, Narayani fell down. On seeing that, PW3 and PW4 cried out aloud and informed the inhabitants of the Chathamangalam Colony of the incident. Their testimony also indicates that after stabbing Narayani, the accused also fell down in the same place since he was under the influence of poison. When the local people were informed of the incident they came to the scene and took the victim and the accused and placed them by the side of a road from where they were taken to Mananthavady Hospital. The testimony of PWs. 3 and 4 also indicates that when they returned to the place of occurrence of the crime after having run way from there to inform the local people of the incident, they found the mother of Narayani near her and a knife was found in the hands of the said mother of Narayani. Narayani''s mother, who is PW10, has also testified that when she came to the place of occurrence of the crime, she found both Narayani and the accused and the accused was murmuring that he would kill the children. It is her testimony that it was on hearing these words that she feared that the accused would harm the children and therefore she took the knife from the place to her house. She subsequently handed over MO 7 knife to the police when they reached her house at 4.00 p.m. on the same day. The said knife was seized by the police at that time. In her testimony, she has categorically stated that MO 7 is the blood stained knife that was found at the place of occurrence of the crime and that she had taken the knife solely because, when she reached the place of occurrence, the accused was murmuring that he would kill his children and therefore she took the knife and kept it in the veranda of her house before handing it over to the police at 4.00 p.m. on the same day. The trial court also found that the account of the eye witnesses above tallies with the findings in the medical report and also the chemical examiner''s report. The dimensions of MO 7 knife, which was stated to have been the weapon used for the commission of the murder, also conforms to the nature of the wound described in the medical report. The chemical examiner''s report also indicates that the knife had blood stains and that the stains were of human blood. The seizure of the knife is also not in any way inconsistent with the case of the prosecution. As already noted, PW10 has in her testimony indicated the circumstances under which she took the knife back to her house and handed it over to the Investigating Officer later on the same day. Under these circumstances, we feel that even if there is some deficiency in the investigation with regard to the recovery of the knife and the analysing of the blood stains on the knife, we do not think that the defect, if any, in the investigation is of such a grave nature as would necessitate the eschewing of all the other evidence that is stacked against the accused in this case. It is trite that a defective investigation need not always lead to a total rejection of the prosecution case [See Rotash Vs. State of Rajasthan, ]. Further, in this case we find that the testimony of the eye witnesses when corroborated with the other evidence such as the medical report and the chemical examiner''s report, as also the testimony of PW10, all make for a credible testimony that can be relied upon in a criminal trial and hence the mere lapse in investigation with regard to seizure of MO 7 is not, in our opinion, of such seriousness as to reject the credible testimony of eye witnesses and other evidence that is available in the instant case.

In the result, we are inclined to concur with the findings of the court as regards the guilt, conviction and sentence of the accused. Accordingly, the appeal is dismissed. The verdict of guilt, conviction and sentence of the court below is upheld. We also uphold the fine that has been imposed by the court below.