IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH SEPTEMBER 2007 / 6TH ASWINA 1929 Death Sentence Reference No. 2 of 2006 --------------------------------------- S.C.NO.111/2001 of ADDL. DISTRICT COURT (ADHOC-I), KALPETTA .................... COMPLAINANT: ------------ STATE OF KERALA BY SHRI K.C.SANTHOSHKUMAR, PUBLIC PROSECUTOR RESPONDENT/ACCUSED: ------------------ RAJEEV @ KRISHNA KUMAR, S/O.DAMODERAN NAMBIAR, SAROJA NIVAS,MANANTHAVADY. BY ADV. SHRI.P.K.RAMKUMAR AND SHRI M.S.SAJI THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 28/09/2007, ALONG WITH CRL.APPEAL NO.2314 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K.HEMA, JJ. ---------------------------- D.S.R.No.2/2006 & Crl. Appeal No.2314/2006 ---------------------------- Dated this the 28th day of September, 2007 Judgment Koshy,J. Sole accused in Sessions Case No.111 of 2001 on the file of the Additional Sessions Court (Ad hoc-I), Kalpetta was alleged to have committed house trespass and murdered a 33 year old woman and her two children - 9 year old son and 7 year old daughter. He is also accused of inflicting grievous injuries on another child aged 9 who was examined as PW14. The Sessions Court found him guilty and imposed death penalty for the offence punishable under section 302 of the Indian Penal Code subject to confirmation by this court. He was further sentenced to undergo rigorous imprisonment for 10 years, one year, 10 years, 7 years, 5 years and 3 years respectively for offences punishable under sections 449, 342, 307, 397, 506 (ii) and 201 of the Indian Penal Code. The death sentence reference is numbered as D.S.R.No.2 of 2006. Appeal filed by the accused is numbered as Crl. Appeal No.2314 of 2006. D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 2 2. The allegation of the prosecution, as summarised by the trial judge,is as follows: "The accused committed house trespass into the house of CW3 bearing house number IV/414 of Mananthavady Panchayat situated at Kuzhinilam Puthenpura, about 5 k.ms. west from Mananthavady town on the western side of Mananthavady-Thalassery public road on 9.7.1999 in between 8.30 p.m. and 10.00 p.m. with intention to commit robbery and with preparation to commit murder when CW3 was not available in his house. Thereafter, the accused wrongfully confined the inmates therein bolting the front door from inside the house and threatened wife of CW3, Rosamma with death showing chopper demanding money and when she opposed the same the accused hit her with chopper with intention to kill her. When her children Jobin, aged nine years and Josna @ Thanku, aged seven years came near to her seeing this, the accused gave blows to the children also with chopper. He again hit several times Rosamma and the above two children with chopper causing fatal injuries and all of them succumbed to the injuries on the spot. In that incident, the accused caused grievous hurt to Robin, twin brother of the above said Jobin cutting with chopper with intention to murder him. Thereafter, the accused committed theft of three gold bangles and one gold chain worn by Rosamma and another gold chain kept in the wall almirah weighing total six and quarter sovereigns. It is also alleged that the accused threw away blood-stained bath towel into the bush on the side of the road, blood-stained chopper and socks into the nearby property and blood-stained pants and shirt into the drainage at Mananthavady town thereby the accused caused disappearance of evidence of the commission of the offence. D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 3 Thus, the accused is alleged to have committed the above said offences." Even though the incident occurred in the night of 9.7.1999, the accused was arrested only on 9.1.2001. After framing of the charge sheet, the case was posted for trial from 21.12.2004. Counsel for the defence applied for time. That was not allowed and an advocate was appointed as State Brief and PWs 1 to 40 were examined and Exts.P1 to 46 were marked. The accused approached this court by filing Crl. R.P. No.2431 of 2004 and that was allowed and the accused was allowed to engage an advocate of his own choice and the persons who were already examined were recalled and an opportunity was given for further examination of those witnesses. Accused denied the allegations against him and all incriminating evidence adduced by the prosecution in 313 statement and he also examined two defence witnesses. He also marked Exts.D1 to 7. Before going into the merits of the case, we may consider the medical evidence. 3. Postmortem examination of the deceased Rosamma was conducted by PW25 doctor. He noticed the following ante-mortem injuries in Ext.P15 certificate: D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 4 "1. Incised wound oblique 9 x 3 x 6 c.m. on back of left half of chest, upper inner end in mid line 19 c.m. below root of neck, lower left end 25 c.m. below root of neck and 7 c.m. left of mid line upper edge was rounded and lower edge sharp. Wound was directed upwards and inwards cutting ribs 6.7 and 8 near the vertebral end and entering chest cavity. Back aspect of lower lobe of left lung was cut 2 x 2 x 1 c.m. There was no blood in chest cavity. 2. Incised wound 4 x 1 x 3 c.m. back of chest in mid line, transversely placed. Left end touching injury No.1. Wound was directed towards left, inwards and outwards and entering chest cavity through 7th intercostal space. There was no injury to lung. 3. Incised wound 7 x 2 x 2 c.m. on back of left shoulder oblique upper edge 4 c.m. below top of shoulder and 11 c.m., left of mid line. 4. Incised wound 4 x 1 x 3 c.m. on back of left shoulder, upper end 3 c.m. below top of shoulder and 7 c.m. to the left of mid line. 5. Superficial incised wound 7 x 0.1 skin deep on back of chest upper edge at root of neck. 6. Superficial incised wound 10 c.m. long back of left shoulder blade. 7. Superficial incised wound 20 x 0.2 c.m. long curved on back of left shoulder blade upper edge in mid line and 8 c.m. below root of neck. 8. Superficial incised wound 20 x 0.1 c.m. back and outer aspect of left chest, upper edge 4 c.m. below armpit. D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 5 9. Superficial incised wound 15 c.m. long on back of chest upper edge in mid line and 1 c.m. above injury No.1. 10. Incised wound 3.5 x 0.1 x 1.5 c.m. on top of left shoulder in sagittal plane 7 c.m. left of mid line. 11. Abrasion 5 x 1 c.m. on front of left arm 7 c.m. above elbow. 12. Incised wound 13 x 4 c.m. back of left side of head left end 1 c.m. above ear, right end 6 c.m. right of mid line 6 c.m. above root of neck. Wound entered the cranial cavity by cutting left temporal and occipital bone 10 x 1 c.m. Left temporal and occipital lobe was cut 3 x 1 x 1 c.m. Subarachnoid bleeding around the injury of brain. 13. Incised wound 8 x 2 c.m. bone deep on right side of head, lower right edge 6 c.m. above root of neck upper left end 11 c.m. above rot of neck and 4 c.m. left of mid line. 14. Incised wound 9 x 2 c.m. oblique on back of head, lower left edge 12 c.m. above root of neck and upper right edge 17 c.m. above root of neck and 8 c.m. right of mid line. 15. Incised wound 9 x 4 x 7 c.m. on top of right shoulder 7 c.m., right of mid line wound was directed downwards and inwards injuring the muscles and blood vessels. 16. Abrasion 4 x 2 c.m. on right side of injury No.15. 17. Incised wound 15 x 2 x 3 c.m. on left side of head. Lower front edge touching middle of eye brow and upper back D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 6 edge 16 c.m. above root of neck. Beneath this injury left frontal and parietal bone was cut 8 x 0.5 x 2 c.m. and injuring dura and brain. 18. Incised wound cutting an area of scalp 5 x 3 c.m. on left side of head, 3 .m. above forehead. The area was chipped off. 19. Incised wound 16 x 2 x 2 c.m. on right side of forehead and head front end at eye brow 2 c.m. right of mid line, back end 4 c.m. to the left of mid line. 20. Incised wound 9 x 7 x 3 c.m. starting at front of wrist, cutting all the metacarpal bones and tendons. Only skin remaining uncut at the back of hand. 21. Tip of index finger cut and lost, middle finger cut at middle phalanx but not detached. Ring finger cut at distal phalanx. 22. L shaped wound on front of face over left malar eninence over an area 3 x 2 c.m. Out of the above injuries, according to the doctor, injury Nos.1, 2, 12, 15 and 17 were fatal. 4. The same doctor conducted postmortem examination of the body of Josna and noted the following injuries in Ext.P14 certificate: "1. C shaped incised wound both ends sharp 16 c.m. long on front of head, forehead right side lower left and 4 c.m. above root of nose in mid line. Right edge 3 c.m. above right eye brow and 6 c.m. right of mid line. Beneath this injury, cut on D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 7 the skull 8 x 7 c.m. exposing the meninges. Dura intact. Underneath this injury subarachanoid haemorrhage over an area 5 x 4 c.m. of right frontal and parietal lobe with contusion 4 x 0.5 c.m. 2. Incised wound 16 c.m. long transversely placed in back of head right and 1 c.m. long above right ear and left and 7 c.m. to the left of mid line. Wound was placed 10 c.m. above root of neck. Beneath this injury occipital and right temporal bone was cut. Dura also cut. An area of 2 x 2 c.m. brain tissue showed laceration. 3. Incised wound 4 x 1 c.m.muscle deep on back of neck (left side) lower inner and 3 c.m. to the left of mid line 0.2 c.m. above root of neck. Inner end shows tailing of 2 c.m. Outer end 2.5 c.m. above root of neck. 4. Incised wound 1.50 x 0.3 c.m. muscle deep on back of right side of chest 3 c.m. below top of shoulder and 7 c.m. to the right of mid line. 5. Contusion 1.50 x 0.3 c.m. left ear lobe (back aspect). 6. Lacerated wound 0.1 x 0.1 c.m. on upper aspect of left ear lobe. 7. Abrasion 1.50 x 0.5 c.m. outer aspect of right wrist. 8. Multiple contused abrasions over an area 6 x 3 c.m. on inner aspect of right arm 3 c.m. below arm pit. 9. Multiple contused abrasions over an area 5 x 3 c.m. on out4er aspect of right chest. D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 8 10. Contused abrasion 11 x 2 c.m. on front of right thigh and knee. 11. Multiple contused abrasions over an area 5 x 3 c.m. in front of right ankle. 12. Abrasion 2 x 1 c.m. on top of right foot 5 c.m. in front of ankle." 5. PW25 doctor also conducted the postmortem of Jobin and noticed two fatal injuries sufficient in the ordinary course of nature to cause death in Ext.P16. They are as follows: "1. Incised wound, C shaped 23 c.m. long on left side of head, forehead and back of head 5 c.m. above left ear. Front end 1 c.m. above outer aspect of right eye brow. Back end 7 c.m. above root of neck and 3 c.m. to the right of mid line. Both ends sharp. Wound entered cranial cavity by cutting left frontal parietal and occipital bones. Dura was cut. Left temporal, parietal and occipital lobe was cut 13 x .5 x5 c.m cerebellum also cut. 2. Incised wound 11 c.m. long on left side of head lower front end at the middle of left eye brow and 4 c.m. to the left of mid line. Upper back end 11 c.m. above ear. Dura was cut 3 c.m. long. Brain laceration 3 x 1.5 x .5 c.m. of left parietal lobe. 3. Incised wound 5 c.m. long on left ear lobe. Ear lobe separated entirely except for lower 1 c.m. 4. Incised wound 1.5 x 0.5 x 0.5 c.m. just in front of left ear. 5. Incised wound 9 x 3 x 1 c.m. back of neck left side inner lower end 2 c.m. above root of neck and 1 c.m. to the left of D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 9 mid line. 6. Incised wound 8 x 2.5 c.m. on back of left hand upper edge 3 c.m. below wrist and in line with knukle of left ring finger. Lower end cutting entire thumb in middle except for skin of palmar aspect. Metcarpals and tendons of index and middle finger cut entirely." Doctor also deposed that after examination, the dead bodies were placed in the refrigerator on 11.7.1999 at 3.35 a.m. and injuries were sustained 24 hours prior to that time. From the medical evidence, it can be seen that all the three persons died due to homicidal injuries and they must have suffered death before 3.30 a.m. on 10.7.1999. There is no dispute that the dead bodies were found in the house itself. Being death sentence reference, we shall also consider all relevant evidence adduced in this case. 6. PW1 gave Ext.P1 first information before the Mananthavady police station. He was supervisor of the properties of sisters of a convent situated at Puthenpura. He also stated that Kuzhinilam is a place about 1 k.m. away from Puthenpura. Near to the convent of the sisters, there is a seminary by name Norbert house and driver of the seminary was one Jose and his house is situated on the side of Mananthavady-Thalassery public D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 10 road. There is only a distance of about 300 metres to the house from the seminary and the seminary and house of Jose are situated on the opposite side of Mananthavady- Thalassery road. On 10.7.1999 at 3.00 p.m. he went near to the house of Jose to apply pesticide for the plantains cultivated in the paddy field of the convent situated adjacent to the house of Jose and he went to the house of Jose to obtain a knife to open a pesticide bottle. Electric bulb in front of the house was lighted. He pressed the bell, but, nobody opened the door. Then, he went to the back of the house calling wife of Jose. Then, the kitchen door was found opened and wife of Jose Rosamma was lying in the other room in front of the door. He entered the kitchen calling her. In the next room, younger daughter was lying in a pool of blood. He also noticed that another child was also lying in the kitchen without any movement. Immediately, he went to Norbert House and stated the facts to the priests and nuns present in the Norbert House. Two priests and a nun came to the house in a jeep and entered the house through the kitchen door. Robin who was lying in the kitchen was groaning. Immediately, they took Robin to St. Joseph's Hospital, Mananthavady in that jeep. The hospital D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 11 authorities directed the patient to Government Hospital, Mananthavady. First aid was given there and he was referred to the Medical College Hospital, Kozhikode. The priest proceeded to Kozhikode with the child after directing PW1 to inform the police. Accordingly, he gave Ext.P1 first information statement. According to PW1, when they took PW14 to the hospital, dead bodies of Rosamma and two children were lying there. He also deposed that on the previous day at 5.00 p.m. he had seen Rosamma and her children at their courtyard while he was doing agricultural work in the paddy field near to that house. When he enquired about Jose, wife of Jose replied that Jose had gone to Chickmangalur with the priests and he would come back on that day itself. He also stated that he had shown to the police the house of Jose. 7. PW2 is the husband of deceased Rosamma and father of the deceased children. He was residing at Kuzhinilam from 1993 and he was the driver of Norbert House. He went to Chickmangalur on 7.7.1999 with priests of the seminary to attend a function. He also stated that apart from the salary, he was getting income from sale of milk and rearing cows and goats. He was also having plantation cultivation and ginger cultivation. He D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 12 further deposed that he was getting money from brokerage and he got Rs.1,20,000/- in two property transactions. Some amount received by the sale of a cow was kept in the shelf. His wife used to wear three bangles and a thali chain. There was nobody else in his house apart from his wife and children on the alleged date of incident. He returned to Mananthavady on 10.7.1999 evening even before function was over as told by the priests. When they reached near Mananthavady, one of the priests drove the vehicle and told him that some accident occurred to his wife and on Sunday, at 4.00 a.m., they reached at Norbert House and he was asked to sit in a room. He was told later that a thief had entered into his house and only at 7.00 a.m. on that day he came to know about the demise of his wife and children. On that day at 7.00 p.m. dead bodies arrived. He came to know that his son Robin was admitted in the hospital. He was allowed by the police to go to that hospital only after 2-3 days. He identified a bath towel which was used in his house which was marked as MO1. One chain weighing three sovereign kept in a tin was identified by him as MO2. He also identified MOs 3 to 8, ornaments of his wife and daughter. It is his case D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 13 that his wife and children were murdered for committing robbery of valuables. 8. PWs 3 to 5 are inmates of Norbert House during the period. PW3, a 65 year old nun, deposed that she had seen the dead body of Rosamma and her two children. On that day at 9.00 a.m. when she went to the hospital with the kitchen maid of Norbert House, light in the house of Jose was burning. Even though she rang calling bell, there was no sound. Then she knocked on the window, but, there was no response. When she returned at 1.00 p.m. also, the light was burning. In the evening, she came to know about the death of Rosamma and children. PW4 who is a priest deposed that he was told by PW1 that Rosamma was lying in a pool of blood in her house on 10.7.1999 at 3.00 p.m. Immediately, he along with PWs 1 and 3 and with another priest went to the house of Jose in a jeep, They entered into the house through back door of the house. Dead body of Rosamma and Josna were found inside the house. Robin was sitting in the room near the dead body of Rosamma. There was cut injury on the head of Robin. Hence, he was taken to St. Joseph's Hospital, Mananthavady and from there he was taken to Government Hospital, Mananthavady. After first D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 14 aid and dressing the injury, he was referred to the Medical College Hospital, Kozhikode. They took him to Fathima Hospital, Kozhikode and admitted there. At that time, Robin could say only some words like 'thief, thief, cut' etc. and he was not in a position to narrate the incident. PW5 is another inmate (priest) of Norbin House. He stated he had gone to Bangalore on 7.7.1999 in the Tata Sumo Jeep driven by PW2. On 8.7.1999, there was a function. On 9.7.1999 at 10.00 a.m. they proceeded to Chickmangalur. On 10.7.1999 at 4.00 p.m. he got information that Rosamma and children were murdered. Immediately, they returned to Mananthavady and the matter was informed to Jose step by step. They reached Kuzhinilam at 4.30 a.m. Jose was sent to Norbert House and PW5 went to the house of Jose on that day at night. On 14.7.1999, he, along with Jose, went to Fathima Hospital. He also deposed that Rs.1,63,000/- was recovered from the house of Jose and that was entrusted at Norbert House by the police. That amount was handed over to Jose and, in turn, it was deposited in the bank. PW5 was also present. PW5 was a witness to the recovery mahazar Ext.P2. PWs 6 to 8 are witnesses to Exts.P3 to P5 inquest reports. PW6 identified MO4, PW7 identified D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 15 MOs 8, 13 and 14 and PW8 identified MOs 5, 7, 15 to 17. PW9 accompanied Robin to the hospital at Mananthavady and then to Fathima Hospital, Kozhikode. He was an inmate of Norbert House at that time. PW10 was a Supervisor of Norbert House. He deposed that he was also present when the police inspected the place of occurrence and its premises. As per Ext.P6 seizure mahazar, one chopper and a socks were recovered which were identified as Mos 18 and 19. Another bath towel was also recovered from the road side after preparing Ext.P7 seizure mahazar. PW11 was a nun of St.Cammila Seminary during the year 1999. She deposed that she had purchased a cow from Rosamma for Rs.15,000/-. Rs.10,000/- was given at first and the balance Rs.5,000/- was given to Rosamma on 9.7.1999 at 12 noon. PW12 deposed that he sold 20 acres of property to the convent for Rs.24 lakhs and PW2 Jose was the broker in that transaction and Rs.75,000/- was given to him. PW17 deposed that he sold property through PW2 for Rs.1.5 lakhs per acre and he had given Rs.20,000/- to PW2 as a gift. PW13 is the husband of Rosamma's sister Ancy. He has not seen the incident. He has signed Ext.P8 recovery mahazar of MOs 2 and 21. D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 16 9. PW14 is the only eye witness to the incident. He is a twin brother of deceased Jobin and at the time of incident, he was aged only 9 years. He is a natural witness as he was the only survivor of the inmates of the house who was present at the time of incident. He is also an injured witness. He was examined in chief in 2004. He was aged 14 and was studying in Std. VIII at that time. Final cross examination was conducted only in 2006. By the time final cross-examination was conducted, he has completed the age of 15. There are five rooms in the house. Outside there is a light which they switch on in the evening. There is a calling bell and there are no nearby houses. ' വടനടത വളച ല കളനവടള ഇല. ' He deposed that his mother, brother and sister are the dead. In his house, apart from the deceased, only he and his father were living. On 7.7.1999, his father had gone to Bangalore as a driver of the priests and he was expected back on 9th. Mother's father and Bineesh, son of mother's brother, was requested to stay there before PW2 proceeded to Bangalore. They returned on the morning of 9.7.1999 as they expected Jose to return on 9.7.1999. He D.S.R.No.2/2006 and Crl. Appeal No.2314/2006 17 and his brother and sister returned to the house from the school at noon on the fateful day. Thereafter, his mother went