IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRL.A.No. 1890 of 2007() ------------------------ APPELLANT(S): -------------- RAJAN,S/O.PADMANABHAN, C.NO.1604,CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.SAJEEV.T.P. RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2011,THE COURT ON 14/12/2011 DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- Crl. Appeal No. 1890 of 2007 ------------------------------- Dated this the 14th day of December, 2011 J U D G M E N T Chitambaresh, J. The sole accused in Crime No.598/2004 on the file of the Adoor Police Station is the appellant. The accused stood charge sheeted for offence alleged under Section 302 of the Indian Penal Code (‘the Code’ for short). The accused was convicted and sentenced to undergo imprisonment for life. The accused assails the sentence of conviction and the imposition of sentence in this appeal. 2. The allegation is one of uxoricide and the reason is suspected fidelity. The prosecution alleged that the accused inflicted fatal injuries on his wife with an axe on the morning of 1.9.2004 on a public road. The wife of the accused was immediately removed to the Medical College Hospital where she succumbed to her injuries eleven days after. The investigation commenced by the lodging of Ext.P1 First Information statement by PW.1 who is the daughter of the accused and the deceased. She had come to her parental home for the Onam vacation even though Crl.A.No.1890 of 2007 2 she was residing elsewhere with her husband and children. She was indoors and had rushed to the public road on hearing the cry of her mother and PW.2, a neighbour. The neighbour was examined as PW.2 who testified that she heard the cry of the deceased while she was sweeping the courtyard of her house in the morning. She saw the accused hacking the deceased on her neck and head. She ran to the deceased and pulled out the axe embedded in the body of the deceased. Her evidence indicated that she attempted to prevent the accused from continuing the ghastly act. The lungi of the accused fell down loosened in the scuffle ensued thereafter. Yet another neighbour was examined as PW.3 who witnessed the scuffle aforesaid and the accused leaving the place without the lungi. The brother of PW.2 was examined as PW.4 who reached the scene after the incident and had seen the deceased lying on the road after the axe was removed from her neck. MO.1 axe used for inflicting the injuries was identified by PWs.2, 3 and 4 and MO.2 lungi of the accused was identified by PW.3. 3. The attestor to Ext.P3 scene mahazar was examined as PW.5 and the Village Officer who prepared Ext.P4 Crl.A.No.1890 of 2007 3 sketch was examined as PW.6 and their evidence clearly identified the place of incident. The Panchayat Member who attested Ext.P5 inquest report was examined as PW.7 and the Doctor who conducted postmortem on the body of the deceased was examined as PW.8. Ext.P6 postmortem certificate issued by him reflected that as many as twelve injuries were suffered by the deceased of which some are fatal and sufficient to cause death in the ordinary course of nature. The Joint Director of Forensic Science Laboratory was examined as PW.9 who issued Ext.P7 report and identified Ext.P8 report of his subordinate. The Sub Inspector of Police who registered Ext.P1(a) First Information Report on the basis of Ext.P1 First Information Statement was examined as PW.10. He had prepared Ext.P3 scene mahazar and had taken into custody MO.1 axe and MO.2 lungi apart from MO.3 series blood stained sand and MO.4 hair material. He had arrested the accused on same date of the incident and the Circle Inspector of Police who laid the charge sheet after investigation was examined as PW.11. 4. The accused when questioned under Section 313 of the Code of Criminal Procedure has come forward with a Crl.A.No.1890 of 2007 4 theory of accidental fall by the deceased on the axe during the push and pull between him and the deceased for possession of the axe. The same was repeated by the counsel for the appellant contending inter alia that the injury was not intentional and could as well be accidental. Such a contention is puerile for the simple reason that the deceased was found lying on the road with her face down and the axe embedded on the back of her head. That this was the posture in which the deceased was found on the road is discernible without the semblance of any doubt from the oral evidence of PWs.1 to 4 which we have no reason to disbelieve. Moreover, the deceased had sustained as many as twelve injuries which would not have been possible by a single fall during the tussle. The oral evidence of PW.2 also rules out this theory. 5. Yet another contention urged by the appellant was that the deceased died only eleven days after and that the treatment records during this period is not forthcoming. True it is that PW.8 is only the Doctor examined by the prosecution. He had conducted the postmortem examination on the body of the deceased and evidence is lacking as regards the treatment given Crl.A.No.1890 of 2007 5 during the interregnum. But a perusal of the order sheet reveals that the Doctor concerned was abroad and was not available for examination in court. Moreover we find that there was no cross examination on this point when PW.8 was in the witness stand and therefore the failure to produce the records of treatment is inconsequential. The evidence of PW.8 is categoric to the effect that ‘injury No.2 is fatal and sufficient to cause death in the ordinary course of nature'. We extract the said injury No.2 below:- “Sutured wound 7 cms. Horizontal on the lower end of back of neck. The wound cut spine almost through and throw between T1 and T2 vertebrae. The wound was directed forwards, downwards and to the right for a depth of 7 Cms.” 6. The presence of the accused at the spot is further fortified by MO.2 lungi especially when he had no case that it did not belong to him or that any other person was involved in the transaction. A faint attempt was made by the appellant to contend that the actual spot at which the stabbing took place has not been correctly identified and is ambiguous. But the oral evidence of the eye witnesses coupled with the scene mahazar and site plan leaves no room for any doubt as regards the place Crl.A.No.1890 of 2007 6 of occurrence. The evidence afforded by the eye witnesses has been relied on by the court below to hold the accused guilty and we find no infirmity what so ever on that count. This is especially so since the evidence of PW.2 against whom no animosity was even alleged is clinching and assures the confidence of the court about the guilt of the accused. 7. The evidence on record proves beyond doubt that the accused had inflicted the bodily injury on his wife sufficient in the ordinary course of nature to cause death attracting clause ‘thirdly’ of Section 300 of the Code. The judgment of conviction and the imprisonment for life of the accused under Section 302 of the Code by the court below is well founded. 8. The Criminal appeal fails and is hence dismissed. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj.