THOTTATHIL B. RADHAKRISHNAN, J.
The Death Sentence Reference and Criminal Appeal arise from Sessions Case No.535/2010 of the Court of Session, Mavelikkara.
2. We have heard the learned counsel for the appellant and the learned Public Prosecutor.
3. The gist of the prosecution case is as follows:
At about 8.30 p.m. on 24.6.2006, the accused came to the shop of Suresh Kumar, one of the deceased persons, to buy cigarettes. Suresh Kumar declined to give cigarettes without being paid for it, since that was the last transaction of the day and therefore Suresh Kumar insisted on payment, at least towards part of the price of the cigarettes sought to be purchased. This led to exchange of words between Suresh Kumar and the accused. P.W.2 Sathy, the wife of Suresh Kumar and a neighbour Saralamma were present at that time in front of that shop. Saralamma is stated to have advised Suresh Kumar and his wife that it is better to be careful because, the accused is known for creating problems. Later at that night, at about 9.45 p.m., when Suresh Kumar and his father's brother's son Prasannan were in the house of Suresh Kumar, the accused came over and called Suresh Kumar from outside. When Suresh Kumar went out, the accused, stated to be enraged by the previous incident, took out M.O.1 knife, which he had brought and inflicted stab injuries on Suresh Kumar. Hearing the altercation, Prasannan went to save Suresh Kumar and the accused stabbed Prasannan more than thrice. P.W.2, the wife of Suresh Kumar ran out of the house, held Suresh Kumar, and also saw Prasannan being stabbed by the accused. Later, Suresh Kumar and Prasannan succumbed to injuries in the hospital that night. Suresh Kumar was declared dead at around 10.10 p.m. and Prasannan at around 11 p.m. The First Information Statement given by P.W.1 was recorded by the jurisdictional police at around 11.15 p.m.
4. The Court of Session found that Suresh Kumar and Prasannan met homicidal death at the hands of the accused. The court below believed the version of P.W.2 Sathy, the wife of Suresh Kumar. Her testimony was corroborated by P.W.1, the maker of the First Information Statement, Ext.P1. The evidence of P.W.2 is to the effect that P.W.1 was present during the course of the first transaction at about 8.30 p.m. His presence is also spoken to by P.W.2 as regards the second transaction at 9.45 p.m. At least, immediately following the incident, P.W.1 came there on hearing P.W.2's cry. Therefore, the presence of P.W.1 stands proved by the testimony of P.W.2. Hence, the non-seizure of the blood stained clothes worn by P.W.2 by the investigating agency could be treated only as a superficial default in investigation. That by itself does not turn the case in favour of the accused. More particularly, the material legal evidence on record establishes the facts and circumstances of the case, sustaining the finding of guilt. The non-availability of the blood-stained clothes does not, in any manner, impair that finding. P.W.3 is Manikuttan, who assisted in taking the victims to the hospital and Gopi, P.W.4 is the driver of the car, which carried the victims to the hospital. Their evidence is trustworthy. Different other witnesses and documentary evidence were also referred to by the Sessions Court. The Sessions Court believed the recovery of the knife, M.O.1, on the basis of disclosure statement by the accused from a well in the premises of P.W.13, Janardanan. It was held that the other material particulars have also been proved by cogent evidence, including the recovery of clothes worn by the accused and the victims. The court below found that the accusation against the accused persons stands proved. It was of the view that the act of the accused was a gruesome one, which did not call for any lesser sentence than death penalty. It was found that it is a rarest of the rare cases. Death penalty was therefore awarded. The captioned DSR is on the question of confirmation of the death sentence and Criminal Appeal is by the accused.
5. The learned counsel for the accused argued that the testimony of P.W.2 is ridden with inherent infirmities and material contradictions. It is also argued that the testimony of P.W.1, the maker of the F.I.S and the versions of P.W.3 and P.W.4 do not corroborate P.W.2 and go a long way to discredit her testimony. It was further argued that the recovery of M.O.1 from the well of P.W.13 Janardanan cannot be believed, for the reason that the evidence appears to suggest that the recovery was a sham mechanization of the investigating agency. It is also argued that the version of P.W.2 would show that the nighty that was worn by her when she supported her bleeding husband was drenched in blood, however that, the said nighty was never seized and produced by the police. According to the learned counsel for the appellant, the seizure of the nighty stated to have been worn by P.W.2 would have clinchingly established the availability of P.W.2 in the scene of occurrence. Such course not having been adopted by the investigator, there is serious suspicion as to the availability of P.W.2 in the scene of occurrence, it is argued. It is pointed out that P.W.13 was declared hostile at the instance of the prosecution. The seizure of the clothes and other material particulars and evidence were also impeached by the learned counsel. It is pleaded that the material evidence on record does not point to the guilt of the accused beyond reasonable doubt. It is finally argued that, in any view of the matter, death sentence awarded by the Sessions Court is unsustainable.
6. The autopsy reports show that there were elements of ethyle alcohol in the vicera of the victims.
P.W.2, the wife of Suresh Kumar, one of the victims, denied the suggestion that Suresh Kumar and Prasannan were consuming alcohol. She said that they were having 'vadas'. The presence of ethyle alcohol in the vicera of the victims, according to the learned counsel for the appellant, takes away the credibility of P.W.2's testimony. We think that it is not so. The question whether ethyle alcohol was present or not can be considered as available on record through the autopsy report. But, the question whether P.W.2 had known, as a matter of fact, whether her husband and his cousin had consumed alcohol is also a debatable one. More importantly, the wife cannot be expected to always speak in the truest of the true versions on ground reality, when she is questioned about the habits of such nature, attributed to the husband. In sofaras the case in hand is concerned, suffice it to say, that the absence of any injury on the accused, except the one which has been explained by the prosecution as not relatable to the incident in question, clearly rules out the impact of alcohol and the situation was being created by the victims having consumed alcohol. We, therefore, repel this plea on behalf of the appellant.
7. Exts.P7 and P8 post-mortem certificates issued by P.W.7, the Surgeon, who conducted the post-mortem corroborated by the version of material witnesses regarding the incident and also the inquest reports clinchingly show that both Suresh Kumar and Prasannan suffered homicidal death.
8. The scene of occurrence as described through the witnesses is also elaborated through Exts.P11 and P12 scene plans and Ext.P5 scene mahazar. It is further fortified by Exts.P2, P2(a) and P2(b) which are the photographs, though the negatives were not produced. The scene of occurrence as spoken to by P.W.2 and P.W.1 and other witnesses is to the effect that there is a small shop which deals with petty trades and a public telephone booth on either side of a residential accommodation consisting of one kitchen and a room. The place of occurrence was well-lit with tube lights as is spoken to by the witnesses. P.W.2 spoke about the altercation and exchange of words which happened at around 8.30 p.m. between the accused and Suresh Kumar while the latter was about to close down his shop. The interference of Prasannan to avert any incident was also spoken to by her. The second incident, that is to say, the accused coming to the residence of Suresh Kumar at about 9.45 p.m. and Suresh Kumar going out immediately on the accused calling him, is also cogently spoken to by P.W.2, who said that she and Prasannan also went out and the accused stabbed Suresh Kumar just before P.W.2 reached the place and Suresh Kumar fell down immediately as a result of the stab injury. She said that she supported Suresh Kumar and yelled out for help. During that time, she also saw Prasannan, who tried to save Suresh Kumar from being stabbed by the accused in the road immediately in front of the residence and shops. We have evaluated the testimony as to the scene of occurrence, including as is available in the photograph. The scene of occurrence has been described as the road and the place in front of the house and shops. The building structure is a small composite unit and the space between the building and the road is bigger. There is no reason why P.W.2's testimony in that regard cannot be believed.
P.W.1's version is that hearing the loud cry he came running and saw the accused going away from the scene of occurrence. He immediately brought the car of P.W.4 Gopi and he along with P.W.3 Manikandan took both the victims in that car to GEMS Hospital. One thing we notice is that there is no suggestion anywhere in the cross- examination of the witnesses that P.W.2, the wife of Suresh Kumar or P.W.1, P.W.3 or P.W.4 had any hostile animus to speak falsehood against the accused to inculpate him in a serious offence like one punishable under Section 302 of the Indian Penal Code. Equally, we cannot also ignore the fact that P.W.2, the wife of Suresh Kumar would have had only the clear and determined view to ensure that the real culprit behind the death of her husband gets convicted. The testimony of P.W.2, as we read through, may contain certain errors regarding the mentioning of dates. Firstly, we would recall that she was testifying before court more than seven years after the incident. Secondly, and more importantly, she comes from a marginalised and socially challenged sector. Though she had been a student in an I.T.C., she was not even certain as to how many seconds make a minute. Her answers to such questions were so varying that she did not reflect the standard of information and knowledge of a matriculate. We see that there is no such contradiction in her deposition, which would take away its veracity, to be relied upon to sustain the order of conviction.
9. The testimony of P.W.1, P.W.3 and P.W.4 also do not, in any manner, show any ground on which they could be treated as unreliable or not corroborating the totality of the case as spoken to by P.W.2, the sole eye witness.
10. One of the most important elements against the accused, is the recovery of M.O.1 weapon from the well in the property belonging to his uncle, P.W.13. That witness turned hostile during trial. But the fact of the matter remains that before he was declared hostile he had spoken that, on hearing the hue and cry, he came out and somebody then told him that his nephew stabbed somebody. He said that, on being so notified, he did not then choose to go to the scene of occurrence. The well, from which the weapon was recovered, is essentially in the direction to which the accused is stated to have escaped after the incident, going by the testimony of P.W.2. The disclosure statement and the recovery, following the disclosure, are proved by legal evidence.
P.W.15 and P.W.16 are the fire-men, who retrieved M.O.1 from the well following the disclosure made by the accused to the investigating officer. We have examined the investigating officer's report and the disclosure statement. Recovery and proof of that procedure has been done in accordance with law.
11. The seizure of a burmuda belonging to the accused is also proved. Unfortunately that material was not marked because, by the time the case was taken up for trial, it had deteriorated in quality and substance.
12. With the aforesaid, we may also note that the version of the accused during his examination under Section 313 of the Code of Criminal Procedure did not contain anything to support the story that was attempted to be projected during cross-examination. Beyond that, is the fact that the accused had an injury which was evidenced by Ext.P9 wound certificate issued by P.W.18 Doctor. The accused explained that injury as one suffered from a different occurrence while he was doing some carpentry work. That incident cannot be connected to this incident to make any attribute against the victims. Even as per Ext.P9, it was a healing wound. Therefore, that injury on the accused stood explained by the prosecution as not in any manner connected to the incident.
13. D.W.2, Podiyamma was cited by the accused in support of a probable version that he was not in station at the relevant point of time and that there was yet another person by name Santhosh in the locality. The name of the accused is also Santhosh. D.W.2's son's name is Santhosh. But, unfortunately, for the accused, Podiyamma, the defence witness, tendered evidence essentially corroborating the prosecution version.
14. In the light of the aforesaid discussions and the appreciation of evidence as noted above, the finding of guilt of the accused and the resultant conviction are only to be sustained. We do so.
15. With the aforesaid, we need to examine whether the court below was justified in awarding death penalty. We see that the two particular reasons which persuaded the court below to award death penalty were that it is a case of double murder and the second is that it is a case where the acts were done after the first incident at 8.30 p.m. taking about more than an hour, to go, prepare and come back with the weapon used in the offence. The first victim, i.e., Suresh Kumar had suffered one stab injury. The other victim, Prasannan, suffered three injuries.
16. The learned counsel for the appellant argued that Prasannan voluntarily entered into the incident and the injuries suffered by him would have been the result of immediate provocation or an altercation which was a sudden fight. But, Prasannan carried three injuries of which two were stab injuries with certain aberrations as well. The motive, the social fabric, the absence of prior crystallized animosity and the transaction which cannot be called as an exceptionally exceptional and brutal one, show that the situation cannot be treated as a rarest of the rare one which calls for confirmation of the death penalty awarded by the Court of Session.
For the aforesaid reasons, the Death Sentence Reference and the Criminal Appeal are ordered discharging the death penalty imposed on the accused and modifying the punishment against him to be one of imprisonment for life. Appeal will stand allowed in part to the aforesaid extent. The appellant will be entitled to set off in accordance with law as regards the imprisonment.
Sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE Sd/-
BABU MATHEW P. JOSEPH JUDGE rka /true copy/ P.S. To Judge.