IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE R.BASANT & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 CRA.No. 90 of 2007 ( ) SC.97/2005 of SESSIONS DIVISION , WAYANAD, KALPETTA ACCUSED(S)/ACCUSED 1 MUYYAN, S/O.BASAVAN, 53 YEARS, WORKING AS A KOOLIE KULLIPURA COLONY MADKKARA NENMENI. BY ADV.SRI.PROMY KAPRAKKATT SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT COMPLAINANT(S) 1 THE STATE OF KERALA REPRESENTED BY THE, PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- Crl. Appeal No. 90 OF 2007 ------------------------------------ Dated this the 20th day of December, 2011. JUDGMENT Basant, J. Has the prosecution succeeded in proving the charge under Section 302 IPC levelled against the appellant? Is the accused entitled to any benefit of doubt from the totality of circumstances available in the case? Is the accused entitled for acquittal for the reason that the prosecution has not proved the injury on the accused and has not taken any steps to ensure that the counter case is tried along with this case? These questions are raised for consideration before us. 2. The appellant faced the charge of uxoricide. He, a person aged about 53 years had allegedly caused the death of his wife Vellachi, a woman aged about 50 years by inflicting stab injuries on her with MO3 knife. Suspicion about the chastity of the wife is allegedly the motive for the appellant to indulge in such conduct. 3. The crime was registered on the basis of Ext.P5 First Information Statement lodged before the Police by the 2 Crl. Appeal No. 90 of 2007 informant PW7. The investigation was completed and final report was filed by PW13. The learned Magistrate after observing all legal formalities committed the case to the court of Session. The appellant denied the charge framed against him under Section 302 IPC by the learned Sessions Judge. Thereupon the prosecution examined PWs 1 to 13 and proved Exts. P1 to P11. MOs 1 to 4 series were also marked. 4. In the course of cross-examination of prosecution witnesses and when examined under Section 313 Cr.P.C., the accused took up a defence of total denial. He denied all circumstances which appeared in evidence and which were put to him. He submitted further during 313 examination that he was innocent. A vague suggestion is seen advanced during the cross-examination of PW9 that it was PW9 who inflicted injuries both on the deceased and the appellant. No defence witnesses were examined. Exts. D1 to D5 contradictions in the statement before the police and the 164 statements of the witnesses were marked. 3 Crl. Appeal No. 90 of 2007 5. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that it was safe to place reliance on the oral evidence of PWs 3, 7, 9 and 11. The learned Judge felt that the evidence of PWs 3, 7, 9 and 11 support each other. The learned Sessions Judge further found that the medical evidence about the injury suffered by deceased Vellachi affords support for the ocular account given by the witnesses. The learned Sessions Judge further placed reliance on the recovery of MO3 knife under Ext.P3 seizure mahazar on the basis of information furnished by the appellant to the investigating officer PW13 in Ext.P7 confession statement. The court finally came to the conclusion that the charge under Section 302 IPC has been established satisfactorily. 6. We have heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant assails the evidence of PWs 3, 7, 9 and 11. Their evidence is not worthy of acceptance, it is contended. Though the accused has not taken up any specific 4 Crl. Appeal No. 90 of 2007 alternative stand in the course of the trail, the learned counsel for the appellant argues that at any rate it ought to be held that the prosecution has not placed the entire facts before the court. The learned counsel for the appellant further brings to the notice of the court that though the prosecution tried to explain the injury on the appellant, no attempt has been proved to prove the precise injury suffered by the appellant. The learned counsel for the appellant further points out that though it is admitted and not disputed that a counter case has been registered against PW9 on the basis of the complaint of the appellant, the prosecution is guilty of blacking out the entire facts in respect of that crime. The case and the counter case were not tried together. This has resulted in prejudice against the appellant. In these circumstances, in any view of the matter the appellant is entitled to the benefit of doubt now, contends counsel. 7. We have considered all the relevant inputs. An appellate judgment is and ought to be read as a continuation of the judgment by the trial court. In that view of the matter, 5 Crl. Appeal No. 90 of 2007 we deem it unnecessary to re-narrate the oral and documentary evidence relied on by the contestants. Suffice it to say, that we have been taken in detail through the oral evidence of PWs 1 to 13 and the contents of Exts.P1 to P11. We have also been taken through the charge framed by the court below and the answers given by the accused in the course of his 313 examination. We shall advert to relevant materials specifically if necessary in the course of discussions. 8. It is the case of the prosecution that there was a strained relationship between the appellant and the deceased - spouses. It is the case of the prosecution that the deceased entertained suspicions about the chastity of his wife. He was addicted to alcohol and used to pick up unnecessary quarrels and disputes with his wife. On this aspect, the prosecution chose to rely on the evidence of PWs 2, 3, 7 and 11 neighbours and PW9, the son of the appellant. We have sufficient materials to indicate the truth of this allegation of the prosecution against the appellant. We find not a semblance of doubt aroused in our mind about the acceptability of this 6 Crl. Appeal No. 90 of 2007 aspect of the prosecution case. The alleged motive - nay to put it more appropriately, the strain in the relationship between the appellant and the deceased, is brought out clearly by the evidence of the prosecution. The court below we are satisfied was absolutely justified in entering that finding of fact. 9. We now come to the precise incident that has taken place. On this aspect, we have the evidence of PW3, a neighbour. He is a child witness. Indication suggests that he was aged only about 13 to 14 years on the date when he allegedly witnessed the occurrence. He does not witness the entire occurrence. He only sees the accused chasing his wife the deceased and his son PW9. PW9 was holding an iron rod in his hand at that time. The accused who was holding MO3 knife was allegedly chasing his wife (the deceased) and his son (PW9) along the pathway from the house of the appellant to the place of occurrence. PW3 subsequently perceives the conduct of the appellant chasing his son PW9 away from the scene of the crime, after infliction of injuries on the deceased. 7 Crl. Appeal No. 90 of 2007 At that time, blood stained MO3 knife was in the possession of the appellant. He was bleeding from an injury suffered on him. He was chasing PW9 who was holding an iron rod in his hand. 10. PW7, the informant also gave an identical version. He also does not ocularly perceive the actual infliction of the injuries on the deceased by the appellant. Like PW3, he also witnessed the appellant chasing his wife (the deceased) and his son (PW9). He later found, the appellant chasing his son PW9 away from the scene of the crime. He at that time was carrying MO3 knife in his possession. There was blood on MO3 knife. This version of PW7 is supported by the contents of Ext.P5 First Information Statement lodged by PW7. The incident had taken place at 4.15 p.m. on 14.02.2004 and we note that Ext.P5 FI statement was lodged at 5 p.m. on the same day. The First Information Report registered by the police had reached the court on 14.02.2004 at 11.30 p.m. We refer to these to satisfy ourselves that the contents of Ext.P5 has the fragrance of nascent truth. 8 Crl. Appeal No. 90 of 2007 11. PW9, the son of the appellant and PW11, a next door neighbour to the scene of the crime had allegedly witnessed the occurrence. They speak about the details of the occurrence. The appellant had chased his wife (the deceased) and his son (PW9). PW9 at that point of time was holding an iron rod in his hand. Both of them were chased by the appellant who was holding MO3 knife. The mother and the son ran in different directions - one through the front of the house of PW11 and the other behind, around the same house. The appellant went after the deceased. At this spot of occurrence, the deceased was allegedly stabbed by the appellant with MO3 knife on a couple of occasions. His son PW9 who reached the scene, allegedly beat his father the appellant with an iron rod. This is the consistent version of PWs 9 and 11. Though attempts were made to discredit the version of PW9 with the help of Exts. D4 and D5 contradictions, in the inquest report, those contradictions are insufficient to generate any serious doubt about the version of PW9 which is eminently supported in all particulars by PW11, 9 Crl. Appeal No. 90 of 2007 the other eye witnesses. Of course we do perceive some difference in the details of perception - as to whether the deceased had fallen down before she suffered the first stab injury at the hands of the appellant. But that incongruity is too irrelevant to generate any serious doubt against the version of PW9 and PW11. 12. The court below had chosen to place reliance on the ocular account tendered by PWs 3, 7, 9 and 11. On broad probabilities as also intrinsically when the evidence of PWs 3, 7, 9 and 11 is appreciated, we find absolutely no reason to disagree with the conclusion of the court below. We concur with the conclusion of the court below that the evidence of PWs 3, 7, 9 and 11 can safely be accepted. 13. At this juncture, certain technical contentions are advanced by the learned counsel for the appellant. The learned counsel contends that the appellant had suffered injuries. The injuries have not been satisfactorily proved or explained by the prosecution, it is contended. We find some merit in this contentions - to a limited extent. The injury on 10 Crl. Appeal No. 90 of 2007 the deceased is explained by the oral evidence of both PWs 9 and 11 who asserted that PW9 had beaten the appellant with an iron rod that he was carrying after the deceased was stabbed by the appellant. It is hence not a case where injury on the appellant is not explained by the prosecution. The evidence clearly shows that the prosecution has offered an explanation for the injury on the accused. The prosecution did not want to make a secret of this injury suffered by the appellant. Even the evidence of PWs 3 and 7 reveal clearly that the appellant who did not have any injury when he was running after his son and wife had a bleeding injury on his head when he was returning after infliction of injuries on the deceased. 14. To sum up, we find no attempt on the part of the prosecution to suppress the injury on the appellant. That injury is admitted. That injury is explained as the injury suffered by the appellant when his son PW9 used an iron rod which he was carrying against the appellant. Injury on the head is indicated. That injury is explained thus. 11 Crl. Appeal No. 90 of 2007 15. We have adverted to this aspect in detail to highlight the facts and it is not a case where the injury on the accused is not explained by the prosecution. Ocular account by witnesses admits and gives a cogent and effective explanation for the injury suffered by the appellant. However the prosecution has not chosen to medically prove the injury suffered by the appellant. It is there that the prosecution is guilty of indiscretion. We have no hesitation to agree with the learned counsel for the appellant that ideally the prosecution must have proved the injury on the appellant by tendering medical evidence. In addition to (or as part of its duty of) explaining the injury, the prosecution has undoubtedly the burden of proving the precise injury also. Whether explanation is acceptable would on many occasions depend on the nature of the injury suffered by the indictee. To that extent we note that the precise injury suffered by the appellant has not been proved by medical evidence. The inadequacy or insufficiency of the prosecution lies in that aspect and that aspect alone. Whether we go by the evidence 12 Crl. Appeal No. 90 of 2007 of PW9 and PW11, or the version of the appellant, it is evident that the appellant suffered the injury when his son PW9 used the iron rod against the appellant. We advert to this aspect only to note that the absence of medical evidence to prove the injury is not crucial in the circumstances. 16. It is then contended that in respect of the injury inflicted on the appellant by PW9 a crime has been registered and a prosecution was launched against PW9. The court below also appears to have been apprised of this fact as is evident from the closing observations in paragraph 16 of the impugned judgment. However, we note that the said case against PW9 was not taken up for trial before the court of session which tried the case against the appellant. The learned counsel for the appellant argues that the laudable procedure prescribed by law that the same judicial mind must consider the case and the counter case has been breached by the conduct of the prosecution not insisting that the case against the appellant and the counter case against PW9 are tried by the same court. We have perused the final report 13 Crl. Appeal No. 90 of 2007 submitted by the police. We note that it has not been specifically reported to the learned Magistrate in the final report that a counter case has been registered and a final report has been filed in the counter case. 17. It is perhaps disturbing to note that even the learned Sessions Judge who was apprised of the fact of the registration of a counter crime and the launching of a prosecution against PW9 did not think it necessary to insist that the case and the counter case are tried together. We have no hesitation to agree that this is a lapse on the part of the system - the investigator, the prosecutor and the adjudicator, all being responsible for that unfortunate consequence. 18. We have already noted that we are left with not a semblance of doubt about the complicity of the appellant on the basis of the oral evidence of PWs 3, 7, 9 and 11. We have further noticed that their evidence is supported by various other circumstances in the case - including the prompt Ext.P5 FI statement, medical evidence about injuries on the deceased 14 Crl. Appeal No. 90 of 2007 and also the recovery of MO3 knife on the basis of information furnished in the confession statement given by the appellant to PW13. We have further noted that the injury on the accused has also been satisfactorily explained though the injury has not been proved by medical evidence. 19. We are now left with one question alone. That is, whether the appellant is entitled to the benefit of any doubt on the basis of the inadequacy on the part of the prosecution in not medically proving the injury on the appellant and in not insisting that the case and the counter case must be tried together. 20. Our sense of justice prompted us to probe further and deeper into the matter. We wanted to ascertain the fate of the counter case. Both sides were directed to take instructions. We are now informed that neither the accused nor the prosecution had wanted the counter case to be tried along with the sessions case. The case against PW9 was disposed of subsequently after the disposal of the case against the appellant by the learned Sessions Judge. The manner in 15 Crl. Appeal No. 90 of 2007 which it was disposed of is indeed interesting and crucial. The appellant had compounded the offence alleged against PW9 and the case against PW9 was closed under Section 320 Cr.P.C. 21. We are conscious of the fact that we are not expected to look into the records of a counter case for the purpose of using any material therein. But in the peculiar facts and circumstances of this case we did look into the case diary in respect of the counter case more out of inquisitiveness and curiosity to ascertain why both sides did not press that the two cases must be taken up for trial together. We do not want to expatiate. A reading of the counter FI Statement allegedly lodged by the appellant eloquently declares why the defence did not want both cases to be tried together. We are deeply dissatisfied that two such major inadequacies have crept in in the trial of the case. The injury on the accused must have been proved by medical evidence. The case and the counter case must have been tried together. 16 Crl. Appeal No. 90 of 2007 22. Any and every inadequacy in the conduct of trial cannot persuade a court to readily concede the benefit of any non existent doubt in favour of the accused. Totality of circumstances have to be taken into consideration. We have already noted that the injury on the accused is explained though it is not strictly proved by medical evidence. We are further satisfied that because of the crucial omission (in not insisting the case and the counter case must be tried together) no prejudice or failure of justice has resulted in the peculiar facts and circumstances of this case. It will not be in apposite for us to note straight away that the insistence that a case and the counter case should be tried together is not the mandate of any express provision of the Code of Criminal Procedure. It is a principle laid down by precedents. Our attention has not been drawn to any precedent or provision from which it can be argued that such failure/inadequacy ipso facto must persuade a court to throw its hands up, terminate the tenth discovery process and concede the benefit of any non existent 17 Crl. Appeal No. 90 of 2007 doubt to the indictee. 23. We did contemplate the possibility of remanding the matter back to ensure that the case and the counter case are disposed of afresh together. In as much as the counter case has already been compounded and proceedings have been closed, that option is also not available to us now. 24. Having rendered our very anxious consideration to the totality of circumstances we are of the view that such inadequacy/insufficiency on the part of the investigator/ prosecutor/adjudicator cannot and should not prompt us to mechanically concede any benefit to the appellant as it is very clear that the appellant did not also desire or want evidence to be introduced in the form of counter FI Statement lodged by him which would have been fatal to his attempted defence in the sessions case. 25. In these circumstances, though thoroughly dissatisfied with the inadequacy which has crept in the conduct of the trial, we are not persuaded to concede any benefit of doubt to the appellant. 18 Crl. Appeal No. 90 of 2007 26. The learned counsel for the appellant submits that in any view of the matter conviction under Section 302 IPC is not justified. We have looked at the nature of injury described in Ext.P4 postmortem certificate. The nature of the weapons used, the nature of the injuries inflicted and the manner of infliction of injuries eloquently suggest to us that in any view of the matter the appellant must have intended to cause the death of his wife the deceased. Even otherwise we are convinced that intentional injuries were inflicted by the appellant on the deceased and the injuries inflicted which are described injuries 1 and 2 in Ext.P4 postmortem certificate are sufficient in the ordinary course of nature to cause death. Hence both under clause firstly and thirdly of section 300 IPC the offence proved against the accused clearly falls under the offence of murder defined under Section 300 IPC. 27. The learned counsel for the appellant argues that at any rate, the appellant is entitled to legitimate mitigation under Exception 1 and or Exception 4. Grave and sudden 19 Crl. Appeal No. 90 of 2007 provocation is not even indicated from the materials available on record. The appellant has no such specific case. It is trite that the burden is on an indictee to bring his case within the sweep of any one of the exceptions under Section 300 IPC. There is nothing available on record to even remotely suggest that the appellant is entitled to the benefit of Exception 1 and or Exception 4 as claimed by the learned counsel for the appellant. 28. No other contentions are raised. We are satisfied in these circumstances that the verdict of guilty, conviction and sentence imposed on the appellant under Section 302 IPC only deserves to be upheld. 29. In the result, this appeal fails and dismissed. R. BASANT JUDGE V. CHITAMBARESH JUDGE ncd