IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRL.A.No. 2242 of 2007(A) ------------------------- SC.494/2006 of ADDL.SESSIONS COURT, ADHOC-I, MANJERI CP.13/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PONNANI .................... APPELLANT : THE PRISONER -------------------------- ABOOBACKER, S/O. AHAMMED CONVICT NO.5033 CENTRAL PRISON, KANNUR BY ADV. M.R.JAYAPRASAD (STATE BRIEF) RESPONDENT : --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI.JIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.2242 of 2007 ***************************** Dated this the 20th day of December, 2011 JUDGMENT BASANT, J. Did the court below err in placing reliance on the ocular account given by PW7? Is the evidence of PW7 sufficiently inspiring to found a verdict of guilty and conviction of the appellant under Section 302 I.P.C? These questions are raised for our consideration in this appeal by Advocate Shri M.R.Jayaprasad. 2. The appellant has been found guilty, convicted and sentenced under Section 302 I.P.C. He faces the sentence of imprisonment for life and fine of Rs.10,000/-. Default sentence has also been imposed. 3. The prosecution alleged that the appellant is guilty of uxoricide. He, a 48 year old person, is alleged to have inflicted multiple stab injuries on his first wife Saffiya, a woman aged about 43 years, with the intention of causing her death. The incident allegedly took place on 06.10.2005. Injuries were allegedly inflicted with M.O.6 knife. The deceased was rushed to the hospital. She did not respond to treatment and expired on Crl.Appeal No.2242 of 2007 2 11.10.2005. The alleged incident had taken place at about 10 a.m on 06.10.2005. Crime was registered on the basis of Ext.P2 F.I statement lodged by PW2, a brother of the deceased (not an eye witness) on 08.10.2005 at 7.15 a.m. Investigation was completed and final report/charge sheet was filed by PW14. 4. The case was duly committed to the court of session by the learned Magistrate after observing all legal formalities. The appellant denied the charge levelled against him by the learned Sessions Judge. Thereupon the prosecution was directed to adduce evidence in support of its case. The prosecution examined PWs 1 to 14 and proved Exts.P1 to P17. M.Os.1 to 6 were also marked. 5. In the course of cross examination of prosecution witnesses and later when examined under Section 313 Cr.P.C, the accused took up a defence of total denial. According to him, his wife deceased Saffiya was guilty of indiscretions. This had obliged him to shift his residence along with the deceased on a couple of occasions. He was employed at Kannur and during his absence, according to him, Saffiya was engaged in the sale of narcotic drugs (ganja). When he returned from his place of employment at Kannur, he prevailed upon Saffiya to discontinue Crl.Appeal No.2242 of 2007 3 the ganja business. The members of the ganja mafia aggrieved by such severance of connection with them by the deceased may have inflicted the injuries on the deceased, it was suggested. No defence witnesses were examined. Ext.D1 a case diary contradiction was marked when PW7 was in the witness stand. 6. The learned Sessions Judge came to the conclusion that it was safe to accept the oral evidence of PWs 2 and 6 (brothers of the deceased), PWs 4 and 7 (son and daughter in law of the deceased) that the appellant had suspicions against the chastity of his wife. The court further came to the conclusion that it was absolutely safe to place reliance on the oral evidence of PW7, the sole eye witness. The court further found that the evidence of PW8, a neighbour, broadly supports the oral evidence of PW7. The medical evidence tendered by PWs 5, 12 and 9 and Exts.P4, P8 and P6 also broadly supported the oral evidence of PW7, it was found. The recovery of M.O.6 knife under Ext.P5 recovery mahazar by the Investigating Officer in the presence of PW6 on the basis of information furnished by the accused was further reckoned as a circumstance affording inspiration for the oral evidence of PW7. To sum up, the court found that the prosecution has succeeded in proving the offence Crl.Appeal No.2242 of 2007 4 under Section 302 I.P.C against the appellant. 7. We have heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant argues that the Sessions Judge had erred grossly in placing reliance on the oral evidence of PW7. At any rate, the appellant is entitled to the benefit of doubt, argues the learned counsel for the appellant. 8. The learned Public Prosecutor on the contrary contends that the oral evidence of PW7 is eminently reasonable and natural and her evidence is supported by a host of other circumstances available in the case. The court below has not committed any error in accepting and acting upon the oral evidence of PW7, which inherently inspires confidence and which is supported by several other circumstances, contends the learned Prosecutor. 9. We have considered all the relevant inputs. An appellate judgment is and ought to be read in continuation of the judgment of the trial court. In that view of the matter, we deem it unnecessary to attempt to re-narrate the oral and documentary evidence relied on by the rival contestants. Suffice it to say that the learned counsel for the appellant has taken us through the Crl.Appeal No.2242 of 2007 5 oral evidence of PWs 1 to 14 in detail. We have also been taken through the contents of Exts.P1 to P17. The learned counsel for the appellant has also taken us through the charges framed by the court below as also the answers given by the appellant in the course of his examination under Section 313 Cr.P.C. We shall refer to the relevant materials specifically wherever necessary. 10. It is evident that the appellant/husband, deceased/wife, their 3 grown up male children (PW4 is one of them) along with PW7, the wife of PW4, and their children are residing in the house where the deceased suffered injuries. The appellant was employed at Kannur and without dispute he had married another woman and the said wife and child are residing at Kannur. 11. It is the case of the prosecution that the appellant was suspicious of his wife. He had doubts about her chastity and used to find fault with her on that score. Disagreement and quarrels were quite common. On this aspect we have the evidence of PWs 2 and 6, brothers of the deceased. We have the evidence of PW4, the son of the deceased as also PW7, the daughter in law of the deceased. Their evidence read as a whole reveals that the suspicion was not about her having any special Crl.Appeal No.2242 of 2007 6 relationship with any other specific person. PW7 was eloquent in the description of the attitude of the appellant when she stated that even when the deceased talked to some other person, that used to irritate and trigger dissatisfaction in the appellant. Not a semblance of doubt remains in our mind about he acceptability of the evidence of PWs 2, 6, 4 and 7 on this aspect of the matter -- of the suspicious attitude and the consequent quarrels of the appellant with his deceased wife. 12. About the incident proper, we have only the evidence of PW7, who along with the appellant and the deceased were available in the house at the relevant time. She was engaged in domestic chores. Her father in law - the appellant, and her mother in law - the deceased, were having some quarrel when she went to bathe her child. She heard loud screams of the deceased that she was being attacked and she rushed to the scene of the occurrence to see the latter part of the incident. The deceased was continuing to inflict injuries on the deceased with M.O.6. PW7 gave graphic description of what she ocularly perceived at the scene of crime. Her evidence is supported by the oral evidence of PW8, a neighbour, who on hearing the cries of PW7 rushed to the scene of occurrence and helped PW7 to Crl.Appeal No.2242 of 2007 7 take her injured mother in law to the hospital. The evidence of PWs 2, 4 and 6 broadly supports this version of PW7. 13. PW5 doctor, to whom the deceased was rushed and who issued Ext.P4 wound certificate as also PW12 doctor, to whose hospital the deceased was referred from the hospital of PW5 and who issued Ext.P8 wound certificate, have categorically stated on oath that the deceased gave her version about the incident to those medical personnel. The alleged cause has been narrated in Exts.P4 and P8. It is crystal clear from the contents of Exts.P4 and P8 as also the oral evidence of PWs 5 and 12 that the deceased had given the version that she had suffered the injuries at the hands of the appellant. The oral evidence of PW7 gets support from such dying declaration given by the deceased to PWs 5 and 12 recorded in Exts.P4 and P8 wound certificates. 14. It is the case of the prosecution that the injuries on the deceased were inflicted by the appellant with M.O.6. We have the evidence of PW4, the son of the appellant, that M.O.6 is a weapon which the appellant keeps in his possession. PW7 also tendered evidence to the same effect. We find no reason to disbelieve that version of PWs 4 and 7, who have no axe to grind against the appellant. The oral evidence of PWs 5, 12 and 9 Crl.Appeal No.2242 of 2007 8 clearly reveal that the injuries described by them in Exts.P4 wound certificate, P8 wound certificate and P6 postmortem certificate could all be inflicted with a weapon like M.O.6. To this extent, the evidence of expert witnesses support and corroborate the oral evidence of PW7. 15. There was some delay in the lodging of Ext.P2 F.I statement. That F.I statement is lodged by PW2, the brother of the deceased, who was not a witness to the occurrence. The incident had taken place on 06.10.2005 at 10 a.m. The deceased was seen by PW5 doctor at 11.45 a.m. She was later seen by PW12 doctor on the same day. But it is seen that the F.I statement was not recorded till 7.15 a.m on 08.10.2005. It was then that PW2 went to the police and lodged Ext.P2 F.I statement. In the light of the unambiguous statement of the alleged cause to PWs 5 and 12 doctors, which has been recorded clearly in Exts.P4 and P8 wound certificates, we find no significance for the delay in the lodging of the F.I statement. The contents of Ext.P2 F.I statement support the present version of PW7. 16. We do further have the evidence of PW14 Investigating Officer that when he arrested the appellant on Crl.Appeal No.2242 of 2007 9 14.10.2005, he gave Ext.P12 information in the course of his confession statement. On the basis of that confession made by the appellant, PW14 allegedly recovered M.O.6 from its place of concealment under Ext.P5 seizure mahazar in the presence of PW6. This evidence of recovery of M.O.6 affords further assurance for the version of PW7 that the appellant had wielded M.O.6 weapon and had caused injuries on the deceased with such weapon. 17. Though the learned counsel for the appellant argues that PW7 should be disbelieved, we find not a semblance of valid reason by which the court below should have rejected the oral evidence of PW7. We take note of the improbable and artificial defence taken by the appellant that the deceased may have suffered injuries at the hands of the so called members of the ganja mafia, of which the deceased was allegedly a part. All the witnesses have stoutly denied this suggestion. This suggestion has no legs to stand on. It remains a figment of the imagination of the appellant with absolutely nothing to support such a theory of involvement of the deceased with any ganja mafia. The defence raised does not in any way arouse any doubts in our mind. Crl.Appeal No.2242 of 2007 10 18. We do note that the medical evidence clearly shows that the deceased succumbed to the injuries suffered - particularly injury No.2 described in Ext.P6. We extract the same below: “2. Incised penetrating wound 2X0.5 cm, transverse, with suture marks on sides (suture removed) on left side of chest 12 cm below arm pit. The back end was sharp cut. The nature of front end could not be ascertained due to healing of the wound. The wound entered chest cavity by cutting the muscles below 8th rib and produced a cut on left side of diaphragm (1.5cm long sutured) 3 c.m away from its attachment with ribs. The thickness of chest wall was 2 c.m. The direction was approximately transverse and minimum depth was 5 c.m.” 19. We are most disappointed to note that after such a long period of existence of Section 299 and 300 I.P.C on the statute book, specific evidence was not elicited from the medical experts to confirm that the injury to which the deceased succumbed was sufficient in the ordinary course of nature to cause death. The Investigator does not appear to have elicited Crl.Appeal No.2242 of 2007 11 this crucial information. The Prosecutor very surprisingly did not seek opinion of the experts on this aspect. What is to us most disappointing is that the learned Sessions Judge also omitted to elicit specific evidence on this crucial aspect. 20. But that omission, though disappointing and dis heartening, cannot persuade us to concede to the appellant the benefit of any doubt. A perusal of the injury eloquently declares that the said injury to which the deceased succumbed was sufficient in the ordinary course of nature to cause death. Expert's evidence is and ought to be solicited on that point. But that does not evidently mean that a court is a prisoner to the opinion of the expert or that, absence of specific evidence on that point by the medical expert should persuade the court to concede to the appellant the benefit of any non existent doubt. We have gone through the evidence of PWs 5, 12 and 9. We have perused the injuries. We are satisfied that the totality of circumstances eminently reveals that the injuries were sufficient in the ordinary course of nature to cause death. 21. Moreover, the nature of the weapon and the parts of the anatomy where the injuries are inflicted by the deceased and the circumstances of infliction do safely point to an intention on Crl.Appeal No.2242 of 2007 12 the part of the appellant to cause the death of the victim - his wife. Injuries inflicted with such a dangerous weapon on vital part of the anatomy by the appellant on his helpless wife must also suggest clearly that the intention of the appellant was to cause the death of the deceased. Under clause thirdly of Section 300 I.P.C, if not, under clause firstly of Section 300 I.P.C, the offence established clearly falls within the offence of murder defined under Section 300 I.P.C. Conviction of the appellant under Section 302 I.P.C is hence perfectly justified. 22. We are, in these circumstances, satisfied that this appeal must fail. This appeal is consequently dismissed. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/