IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.A.No. 1051 of 2005 -------------------------------------- SC.403/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.21/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT: -------------------- BELRAJ, CONVICT NO. 767, CENTRAL PRISON, KANNUR. BY ADV. LEGY ABRAHAM (STATE BRIEF) RESPONDENT: ------------------------ STATE OF KERALA. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON 03/07/2009 DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1051 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of July, 2009 JUDGMENT Basheer, J: Appellant was tried for the offence punishable under Section 302 of the Indian Penal Code. The court below found him guilty of the offence and convicted and sentenced him to undergo imprisonment for life. The said order of conviction and sentence is under challenge in this appeal. 2. The gravamen of the charge against the appellant was that he had committed murder of his wife Ajitha, aged 28 years, by cutting her with M.O.1 chopper inside the kitchen of her house at about 12.30 p.m. on January 22, 2002. The incident was witnessed by PW1, the mother of the deceased, PW2, the cousin of the deceased and PW3, the minor son of the deceased. Prosecution further alleged that the accused had reported before the police station immediately after the incident. PW9, Circle Inspector conducted investigation and laid charge against the appellant thereafter. 3. PW1 to PW10 were examined and Exts.P1 to P12 (a) and M.O.1 to M.O.10 were marked on the side of the prosecution. DW1, a Psychiatrist, was examined on the side of the defence. Exts.D1 and D1(a) were also marked on his side. 4. PW1, the mother of the deceased, in her deposition stated that the accused had married her daughter about 9 years prior to the incident. Crl.A.No.1051 OF 2005 :: 2 :: Two children were born in the said wed lock. Deceased Ajitha and her two children were living with her husband at Pullur near Irinjalakkuda. But Ajitha had come to her maternal home with the children two days prior to the incident to attend a wedding in the family. PW1 asserted before the court that she was in the house on the day of the incident. She was spreading the cloths on the drier line when she heard the cry of her daughter from the kitchen. When PW1 went towards the kitchen, she saw the accused cutting and stabbing the deceased with M.O.1 knife. Deceased Ajitha suffered injuries on her neck, back side, etc. Blood was oozing out from the wounds. PW1 cried aloud and pleaded with the accused not to kill her. Accused went away from the scene through the eastern side of the house. PW1 further stated that Sakunthala (PW2), a cousin of the deceased, and her son Abil (PW3) were also present at the scene of occurrence. PW1 and Sakunthala carried Ajitha to the veranda on the western side of the house. By the time, her mother had also came to the scene. She identified M.O.1 chopper before the court. Similarly, M.O.2 and 3, lunki and shirt, worn by the accused at the time of the incident were also identified by her. 5. PW2, who was admittedly the daughter of the paternal uncle (father's elder brother) of the deceased, deposed before the court that she was residing very near to the residence of PW1. On the day of the incident, she had come to the residence of PW1. While she was talking with Ajitha, she Crl.A.No.1051 OF 2005 :: 3 :: had gone to the residence of Velayudhan, her immediate neighbour, since she was informed that there was a telephone call for her. After attending the call, she was on her way to the residence. When she reached near the house, she heard a loud cry from the side of the kitchen in the house of PW1. She ran towards the kitchen. She saw the accused cutting at the neck of Ajitha. Blood was splashing out of the wound. She cried aloud. PW1 who reached there also cried aloud. Accused went out the house with M.O.1 in his hand. The son of the deceased had also come running to the scene. PW2 stated that she and PW1 carried the body of Ajitha to the veranda on the western side of the house. She identified M.O.1 chopper before the court. 6. PW3, the son of deceased Ajitha, was about 9 years old at the time of the incident. He was examined by the court after ascertaining whether he could be a competent witness. The court found that the child was capable of answering questions. PW3 stated that he heard his mother crying aloud from the kitchen. When he went to the kitchen, he saw PW1 and PW2 there. His mother was lying on the ground with her face down. There was profuse bleeding from the injuries on her and back side. He saw his father (accused) going out of the kitchen. This witness also identified M.O.1 chopper used by the accused. 7. PW4 was a witness to Ext.P1, scene mahazar. PW5 was an attester to Ext.P2, seizure mahazar under which M.O.1 chopper was recovered from Crl.A.No.1051 OF 2005 :: 4 :: below the roofing tiles and tin sheet on the eastern side of the residence of PW1. PW6 was the Village officer who prepared Ext.P3 scene plan. PW7 produced Ext.P4 report of the Forensic Science Laboratory. PW8, doctor conducted autopsy on the body and issued Ext.P5 postmortem certificate. The doctor had noted ten antemortem injuries on the body of the victim. Injury Nos.1, 2 and 4 were incised wounds found on the back of left side of neck, right and back side of neck and also on the back of left side of chest. The doctor opined that the victim died due to cut injury to neck. Since there is no dispute with regard to the cause of death, we do not deem it necessary to extract those injuries in this judgment. 8. PW9, C.I., conducted investigation of the case and PW10, Sub Inspector, had recorded Ext.P12 statement allegedly given by the accused at the police station about half an hour after the alleged incident. PW10 had registered Ext.P12(a), First Information Report, pursuant to Ext.P12 statement given by the accused. 9. We have heard Sri.Legy Abraham, who was appointed as State Brief in the case, and also the learned Public Prosecutor. Learned counsel for the appellant has taken us through the evidence of the witnesses who were examined before the court below. Learned counsel submits that the court below ought to have given due weight and consideration to the conduct of the accused immediately after the incident. Obviously learned counsel has Crl.A.No.1051 OF 2005 :: 5 :: referred to the fact that the accused had himself reported the matter to the police within half an hour after the incident. He also invites our attention to the evidence of DW1, the Psychiatrist, examined on the side of the accused. It is seen from the evidence of DW1 that the accused was under his treatment for anxiety neurosis sometime in 1996 and again in 2003. The doctor in his evidence had only stated that he had prescribed a medicine for hyper tension and anxiety, a tablet of mild dosage which according to him was being generally prescribed to control anxiety. This evidence, in our view, will not in any way help the appellant/ accused to get the benefit of Section 84 of the Indian Penal Code. Admittedly, there is no evidence to show that the accused had been suffering from any kind of unsoundness of mind immediately prior to or at the time of commission of the crime. The evidence of DW1 will only show that the accused had undergone some treatment for anxiety neurosis. The doctor who treated him has categorically stated in his statement that only mind meditation was given to him for anxiety and that too long prior to the incident and much later after the commission of the crime. In that view of the matter, the submission made by learned counsel for the appellant seeking protection under the provisions contained in Section 84 IPC cannot be sustained. The prosecution, in our view, has convincingly proved the charge against the appellant through the evidence of PW1 to PW3. Crl.A.No.1051 OF 2005 :: 6 :: Having carefully perused the evidence of all these three material witnesses who are none other than the mother, cousin and young son of the deceased, we do not find any reason to disbelieve them. Oral testimony of these witnesses will undoubtedly show that it was the accused and no one else who was the perpetrator of the crime. These witnesses had seen the accused inflicting the fatal injuries on the body of the deceased with M.O.1 chopper. There is a distinct ring of truth and naturalness in the evidence of these three witnesses. We do not find any reason to disbelieve them. We do not find any reason to interfere with the order of conviction and sentence passed by the court below. There is no merit in the appeal and it is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes // True copy // P.A. to Judge Crl.A.No.1051 OF 2005 :: 7 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1051 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 3rd July, 2009