Crl. A. No. 681 of 2015 (D)

Decided On: 28.11.2017

Appellants: Dharman Vs. Respondent: State of Kerala

Hon'ble Judges/Coram:
A.M. Shaffique and P. Somarajan


P. Somarajan, J.

1. Appeal is against the judgment of conviction and order of sentence passed under Section 302 IPC against the accused/appellant in Sessions Case No. 794/2013 of Additional Sessions Judge-V, Palakkad.

2. The prosecution case is that the accused intentionally hacked his wife, Chandrika, with a chopper on the foot of a coconut palm situated in the property of one Scaria in Jellippara-Kandiyur Panchayat and the victim succumbed to the injuries by 9.00 a.m on the same day by 19.05.1998.

3. The learned Sessions Judge relied on the oral testimony of PW 1 to PW 3, eye witnesses to the alleged incident, and the oral testimony of PW 4 and PW 7 besides the recovery of chopper used for the commission of offence, identified as MO3, to prove the complicity of the accused.

4. It is a case wherein the prosecution has examined three eye witnesses to the occurrence who are in agreement with what actually happened and transpired in between the accused and the victim on the ill-fated day. The accused is the husband and the victim is his wife Chandrika. They are also in agreement with respect to the place and the time in which the alleged incident was happened and the nature of weapon used and the manner in which injuries were inflicted. According to PW 1, while he was sitting in the tea shop belonged to one Thulasidharan on 19.05.1998 by 9.00 a.m, the accused came there with a chopper and kept the chopper on the desk and asked for a tea. By that time he had seen Chandrika, the victim herein, who was sitting inside the shop room, on seeing the accused, she left the place and sneaked out through the back door. Thereon the accused followed her with the chopper and inflicted injuries on her neck 5 to 6 times by holding on her tuft. After inflicting cut injuries on the victim, the accused proceeded to the road in front of the shop and squatted on the road and abandoned his chopper there. PW 2 gives sufficient support to what actually spoken by PW 1 and what happened on the ill-fated day. PW 3 also gave corroboration to the ocular testimony of PW 1 and PW 2. The presence of those three witnesses, PW 1 to PW 3, are probable and no suggestion was put up showing any hatredness, enmity or ill-will and nothing was brought out in their cross-examination. All of them identified MO3 chopper. All of them also are in agreement that they heard the commotion from the road, men and women were crying by yelling that the accused is killing the victim. Nothing was brought out to discredit their evidence and no contradiction or material omission was also brought out.

5. Their evidence further stood as corroborated by the oral testimony of PW 7, who is the witness to Exhibit P4 seizure mahazar. PW 13 is another witness to Exhibit P4 mahazar. Both of them are in agreement that MO3 chopper was recovered from the road.

6. The main challenge raised by the appellant regarding recovery of MO3 weapon, the chopper used for the commission of offence, is that the alleged recovery cannot be brought under the purview of Section 27 of the Evidence Act in view of the oral testimony made by PW 1 regarding the place wherein the accused kept the chopper after the commission of the offence. The place wherein the chopper was kept by the accused after the commission of the offence was spoken by PW 1 stating that it was kept in the road side and abandoned there by the accused. A material object or an incriminating factor which could be brought under Section 27 of the Evidence Act should be the one not within the knowledge of investigation. If the place wherein the alleged material object was concealed is known to the prosecution witnesses and not within the exclusive knowledge of the accused/accused persons, the detection and recovery of the same in furtherance of the disclosure statement alleged to have been made by the accused while in police custody cannot be brought under Section