IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 CRL.A.No. 1232 of 2007(D) ------------------------- SC.279/2003 of V ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): -------------- ASOKAN C-NO. 4063 CENTRAL PRISON VIYYUR, THRISSUR. BY ADV. ADV.MANOJ R [STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE HILL PALACE STATION THRIPUNITHURA - CRIME NO. 151/2003. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- CRL. APPEAL NO. 1232 OF 2007 ------------------------------------ Dated this the 25th day of November, 2011. JUDGMENT Basant, J. Did the court below go wrong in accepting and acting upon the oral evidence of PWs 2 to 5? Do their evidence generate any reasonable doubt in the mind of the court? These are the questions that arise for consideration in this appeal. 2. The appellant Asokan face the indictment for uxoricide. He is alleged to have caused the death of his wife Kanjana by inflicting two injuries on her with MO1 knife at about 1.45 p.m. on 08.05.2003 near their house. 3. The crime was registered on the basis of Ext.P1 First Information statement lodged by PW1, the brother of the deceased who had only hearsay information about the incident. Investigation was completed by PW17 who filed the final report before the learned Magistrate. The learned Magistrate after complying with all legal formalities committed the case to the court of Sessions and cognizance 2 Crl. Appeal No. 1232/2007 was taken by the learned Sessions Judge. The accused pleaded not guilty to the charge under Section 302 IPC framed against him by the learned Sessions Judge. 4. There upon the prosecution examined PWs 1 to 17 and proved Exts. P1 to P14. Mos 1 to 7 were also marked. 5. The appellant took up a defence of total denial. He raised the contention that the testimony of the eye witnesses do not deserve acceptance. The possibility of the deceased having suffered the fatal injury to her heart when PW2 allegedly withdrew the knife from the injury was also suggested. The accused did not examine any defence witness. Exts. D1 and D2 case diary contradictions were marked when PW4 was examined as a witness. 6. An appellate judgment is and must be read in continuation of the judgment of the trial court impugned in the appeal. It is not hence necessary or expedient to re- narrate all the oral and documentary evidence adduced by both sides before the trial court. Suffice it to say that the learned counsel have read to us the oral evidence of PWs 1 to 17 as also the contents of Exts.P1 to P14 and Exts. D1 and D2. The charge framed by the court and the 313 examination of 3 Crl. Appeal No. 1232/2007 the accused as also all other relevant documents have been read to us in detail. 7. We have heard the learned counsel for the appellant and the learned Prosecutor. The learned counsel for the appellant argues that the learned Sessions Judge had erred in accepting and acting upon the oral evidence of PWs 2 to 5. The learned counsel further argues that at any rate, it is quite possible in the facts and circumstances of this case that the fatal injury to the heart was suffered not because of the alleged infliction by the accused but by the aggravation of that injury in the course of the attempt by PW2 when she tried to withdraw the knife from the wound on the back suffered by the deceased. 8. We have considered all the relevant inputs. A very prompt First Information statement Ext.P1 was lodged by PW1, the brother of the deceased. PWs 2 and 3 are two women who are neighbours of the deceased. PW4 is a young man of the neighbourhood who had also witnessed the occurrence. PW5 is the daughter of the appellant and the deceased. She was aged about 13 years when she allegedly witnessed the occurrence and 14 years when she tendered 4 Crl. Appeal No. 1232/2007 evidence as PW5. She had not witnessed the infliction of the injury. She had reached the scene immediately after the occurrence. She had seen her mother with the injuries and her father leaving the scene. She also proved the dying declaration allegedly made by her mother/the deceased to her when the deceased was being moved from the hospital at Tripunithura to the General Hospital, Ernakulam to which she was referred for better management. PW7 was also available at the scene of the crime. She as well as the deceased were watching Television in her house. When she came to the scene after hearing the commotion, she found the deceased with injuries and the accused moving away from the scene of the crime. PW5, the eldest daughter of the deceased and the appellant was also present at the scene of the crime. 9. We have been taken through evidence of these witnesses in detail. We find absolutely no reason to approach the evidence of PWs 2 to 4, all eye witnesses, with any amount of doubt, suspicion or distrust. The oral evidence of PWs 2 to 4 is supported broadly by the very prompt Ext.P1 FI statement lodged by PW1. Their ocular account is also supported by the evidence tendered by PWs 5 and 7 who had 5 Crl. Appeal No. 1232/2007 reached the scene immediately after the occurrence. The ocular account given by the witnesses is further supported by the dying declaration made by the deceased spoken to by PW5 and PW2. The evidence of the eye witnesses is eminently supported by medical evidence about the injuries, tendered by PW10 Doctor who examined the deceased at the first instance and issued Ext.P5 wound certificate. The evidence of PW9 Doctor and Ext.P4 postmortem certificate does also eminently support the oral evidence of witnesses. The weapon MO1 which was removed from the second injury inflicted by the appellant by PW2 was available at the scene of occurrence and the same was seized by the investigating police officer under Ext.P2 scene mahazar. 10. Why should the evidence of PWs 2 to 4 be approached with any amount of reservation? The cross- examination of these witnesses do not reveal any reason as to why their evidence must be approached with any reservation. The learned counsel for the appellant advances two specific contentions. First of all, the learned counsel contends that it is quite possible that the fatal injury - the injury to the heart suffered by the deceased could have been the result, not of the 6 Crl. Appeal No. 1232/2007 infliction by the accused but as a result of aggravation of that injury when PW2 tried to pull out the knife from the injury. The evidence shows that after the second injury was inflicted by the accused the weapon MO1 was in situ - in the second injury on the back of the chest. The deceased cried out and it is accordingly that PW2 allegedly pulled MO1 from the injury. This contention was advanced before the court below and the said contention is repeated before this Court also that the said injury may have turned fatal only because inept pulling out of the weapon from the injury by PW2. 11. Notwithstanding the vehemence with which the contention is raised, we find absolutely no merit in this contention. Such a possibility of the wound aggravating because of the attempt to withdraw the knife is not even seen suggested to PWs 9 and 10, the medical officers. The learned Sessions Judge took note of fact that the edges of the injury were regular and they do not afford any indication of any further aggravation of the injury because of the attempt to withdraw the knife from the injury. That contention has not legs to stand on when we consider the evidence of PWs 9 and 10 as also Ext.P4 postmortem certificate and Ext.P5 wound 7 Crl. Appeal No. 1232/2007 certificate. 12. The learned counsel for the appellant next contends that though all the witnesses stated that the first injury was inflicted on the abdomen, no such serious injury is seen on the abdomen. The contention is built on the description of injury No. 2 in Ext. P4 postmortem certificate where it is not specifically described to be on the abdomen. We find no substance in this contention also in as much as in Ext.P5 wound certificate PW10 has described the said injury to be an injury suffered on the abdomen. Altogether there are only two injuries and both injuries are described both in Ext.P4 postmortem certificate and Ext.P5 wound certificate. We do note in these circumstances find any merit in this contention. 13. No other contentions are raised. We have anxiously considered all the relevant inputs. We are of the opinion that the court below was eminently justified in placing reliance on the oral evidence of PWs 2, 3 and 4 - eye witnesses as also PW5 and PW7 who had reached the scene immediately after the occurrence. The court below, we do further note, had rightly drawn support for the oral evidence of these ocular witnesses from the dying declaration which is spoken to by 8 Crl. Appeal No. 1232/2007 PWs 3 and 5. We have no semblance of doubt left in our mind about the complicity of the accused based on the oral evidence tendered by PWs 2 to 4. 14. Injury No. 2, it is evident was sufficient in the ordinary course of nature to cause death. That injury is shown to be caused by the accused with MO1. The offence under Section 302 IPC is thus clearly established. Intentional infliction of the fatal injury with MO1 which is sufficient in the ordinary course of nature to cause death must certainly attract conviction under Section 302 IPC. 15. In the result: a) This appeal is dismissed. b) The Registry shall communicate the judgment to the appellant who is undergoing imprisonment. R. BASANT JUDGE V. CHITAMBARESH JUDGE ncd