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 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.A.No. 1477 of 2005 (A) -------------------------------------------- SC.150/2004 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CP.160/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... APPELLANT: -------------------- KANNAN, S/O. CHELLAN, CONVICT NO.2137, CENTRAL JAIL, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: ------------------------ STATE OF KERALA. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1477 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2009 JUDGMENT Basheer, J: This appeal unveils yet another tragic instance of an unfortunate young wife meeting her sad end at the hands of a hard drinking sadistic husband who suspected her chastity. What makes the crime in this case more appalling and sinister is the manner in which the appellant perpetrated the heinous act. He hit her all over her body, kicked and dragged her through the ground, put her head on the door step and kicked on the head; and to top it all he used M.O.8 iron road to injure her private parts. All these, according to the prosecution, because he suspected that his wife, a mother of two children - girl of 17 years and boy aged 15 - was having an illicit affair with his younger brother (PW5). 2. The court below accepted the oral testimony of PWs 1 to 3 who witnessed the inhuman and cruel act which went on nearly for two hours and found the appellant guilty. The court below sentenced the appellant to undergo imprisonment for life. The above order of conviction and sentence is under challenge in this appeal. 3. The prosecution case may be briefly noticed. 4. On January 2, 2003 the appellant/accused went to the Government Hospital at Poodamkallu along with his wife, the deceased, to Crl.A.No.1477 OF 2005 :: 2 :: see his son who was admitted there because of high fever. It appears that PW5, the younger brother of the appellant, had also reached the hospital to enquire about the health of his young cousin. By around noon, the appellant returned from the hospital along with the deceased and PW5. When they reached near the house, PW5 got out of the auto and proceeded to his tharavadu house. Appellant went to a nearby residential joint where illicit liquor was available. Deceased went to her house. When the appellant came back to his house sometime late in the afternoon, he did not find his wife there. She came a little later. Appellant started to abuse the deceased. She went to the neighbouring house of PW2 in order to escape from the fury and assault of the appellant. At about 5 p.m., the appellant called his wife back assuring that no harm would be caused to her. She came back to her house along with PW1 and her daughter (PW2). 5. PW1 in her deposition stated that when she came back from her daily work she had heard the appellant and deceased quarreling. But since this was a daily affair, she did not bestow any special attention. But she saw that the daughter of the deceased was sent out of the house by the appellant. At about 5'o clock in the evening deceased came to the house of PW1 and sat down there. She told PW1 what had transpired in the day and informed PW1 that she had in fact gone to her tharavadu house after she left the appellant and PW5. However, according to the deceased, her Crl.A.No.1477 OF 2005 :: 3 :: husband suspected that she had gone with PW5 and engaged in illicit activity. Since she could not withstand the beating she went to the house of PW1 to take shelter. At about 6.30pm the appellant came to the house of PW1 and told the deceased to go with him assuring that nothing would happen. PW1 further stated that deceased was in fact frightened to go with the appellant to their house. Therefore, PW1 went along with the deceased as requested by her. As soon as they reached the courtyard of the residence of the appellant, he started beating the deceased. She fell down. She was dragged inside the house. The beating continued. Thereafter, the head of the deceased was put on the door step. The appellant kicked on the head and chest of the deceased. When PW1 tried to intervene, appellant told her that she would also face the consequence if she went near her. Blood was oozing out from the nostrils of the deceased. PW1 and PW2 stood there as helpless spectators. The neighbours in the colony did not bother to come to the help of the victim, since quarrel between the appellant and his wife was a daily feature. When PW1 found the ongoing process of assault unbearable, she went to the nearby residence and telephoned to the neighbour of PW5. By the time, she came back, she saw the deceased was lying in the courtyard. She was unconscious. She was also naked. The dress (maxi) which she had been wearing before the incident was torn off and strewn all over the courtyard. Crl.A.No.1477 OF 2005 :: 4 :: She took another dress and put it on her body. The appellant was standing near the deceased in the courtyard. A little later Madhavan (PW4), Muraleedharan (PW5), Maruvan and the daughter of the appellant reached the scene. A jeep was brought by Maruvan. They took the deceased in the jeep to the hospital. PW1 also went along with the others to the hospital. When the deceased was taken to the Government Hospital, Poodamkallu it was about 8 p.m. Doctor was brought to the hospital. He advised that the deceased be taken to the hospital at Kanhangad. When they took the deceased to Kanhangad, the doctor who examined her pronounced her death. 6. PW2, the daughter of PW1, also narrated the incident without much variation. PW3, the daughter of the appellant and the deceased, stated that sometime in the afternoon when her mother reached shortly after her father's arrival in the house, the quarrel had started. According to PW3, her mother reached home at about 3.30 p.m. His father was drunk and as soon as mother reached there he asked her angrily why she was late. Mother did not give any reply. Her father took a knife and threw it at her mother. It did not hit the target. Mother ran away from the house. PW3 further stated that she was frightened seeing the above incident and ran away to her joint family house nearby. PW3 further stated that her father used to abuse her mother and beat her on all days Crl.A.No.1477 OF 2005 :: 5 :: after consuming liquor. According to PW3, when she came back to the residence along with PW4 and 5 on getting the telephonic message, she saw her mother lying in the courtyard unconscious without any dress on her body. She found several bleeding injuries on the body of her mother. She brought a dress from inside and gave it to PW1 to cover the body of her mother. 7. PW4 and 5 spoke about what they saw in the courtyard of the residence of the appellant on reaching there pursuant to the phone message. They also stated that they took the deceased to the hospital. PW6 was a witness to Ext.P2 inquest. We do not deem it necessary to refer to the evidence of other witnesses who were examined by the prosecution to prove the formal steps taken in the matter of inquest, preparation of scene mahazar, etc. 8. Pw.10, the doctor who conducted autopsy, noted 23 injuries on the body of the victim all of which need not be re-produced in this judgment for the reason that the defence did not have a case that the victim did not suffer such injuries. In Ext.P7 certificate the doctor opined that post mortem findings were consistent with “death due to smothering”. In his deposition the doctor further stated that Passage of air into the lungs was obstructed by covering mouth and nostrils. Face must have been pressed with force against some hard object. He further stated Crl.A.No.1477 OF 2005 :: 6 :: that injury Nos.10, 12, 18 and 19 could be caused with a weapon like M.O.8 and injury Nos.1 to 9 could be caused by pressing the head and face against ground. More importantly, the doctor further stated that even if smothering had not taken place, the injuries noted on the body of the victim would have caused death in the ordinary course of nature, especially injury No.23 which is extracted hereunder: “Contusion of the scalp on the back and right side; skull was intact. There was a thin film of subarachnoid bleeding bilaterally...” 9. Sri.Grashious Kuriakose, learned counsel for the appellant, has vehemently contended that conviction under Section 302 IPC was not warranted under any circumstances, inasmuch as the appellant might not have intended to cause the death of the victim. The injuries were not likely to cause death under normal circumstances, he contends. Further, the evidence will not suggest that the appellant had knowledge that those injuries would result in death of the victim. It is thus contended by the learned counsel that the appellant could have been, if at all, convicted for a lesser offence. We are unable to agree. 10. The contention of the learned counsel that the appellant had no intention to cause death of his wife is totally misconceived. As has been noticed already, the doctor had noticed 23 ante mortem injuries on the body of the victim. The evidence of Pws.1 and 2 will clearly show how Crl.A.No.1477 OF 2005 :: 7 :: mercilessly and intentionally had the appellant gone about the onslaught to cause the death of the innocent victim. He had not only battered and smashed the poor woman all over her body but also thrust M.O.8 iron rod into her genital region. He had started the operation by throwing M.O.7 knife aiming at the victim. It may appear that the misery of the victim might have been much less if the knife had hit the target; but unfortunately the poor lady was destined to suffer for nearly two hours or more. From the evidence it is revealed that the appellant had pushed her face down while she was lying on the ground to the door step and beaten her on the head. It is further revealed that the victim had suffered several fractures. Injury No.10, 12 and 18 are tell tale of the gruesome nature of the assault perpetrated by the appellant on the victim. The are extracted hereunder: “10. Abraded contusion involving the soft tissues of left forearm and palm at their back. The lower end of ulna was fractured 3 cm. above the wrist. Metacarpal bone of middle finger was also fractured. There was a punctured wound 0.3 x 0.3 cm. on the back of palm 2.5 cm. above the root of middle finger. 12. Lacerated wound 2 x 0.5 cm. on the back and inner aspect of left forefinger at its base; bone underneath fractured near the first interphalangeal joint. Crl.A.No.1477 OF 2005 :: 8 :: 18. Lacerated wound 5 x 2.5 cm. vertically placed at the lower part of pubic region, extending down to the upper part of labium major on the right side.” 11. We do not propose to elaborate further. Suffice it to say that the contention of the learned counsel for the appellant that the appellant had no intention to commit murder is only to be repelled straight away. We do so. 12. The next contention raised by the learned counsel is that the appellant deserves some sympathy since he was in an inebriated condition at the relevant point of time. This contention is also liable to be rejected at the threshold itself. 13. The other circumstance pointed out by the learned counsel is that the appellant had also accompanied Pws.1 and others while the victim was taken to the hospital. Learned counsel submits that if the appellant had inflicted the injuries on his wife with an intention to commit murder, he would not have bothered to take her to the hospital. In her deposition Pw.1 had categorically stated that she had compelled the appellant to accompany them to the hospital. Therefore the contention raised by the learned counsel in this regard cannot be sustained at all. 14. The evidence of Pw.1 did further reveal that the unfortunate woman had tried to escape from the clutches of the appellant and take Crl.A.No.1477 OF 2005 :: 9 :: shelter in the residence of Pw.1 But the appellant had called her back to his residence assuring that no harm would be caused to her. Still, the deceased was reluctant and she had requested Pw.1 to accompany her to the residence. Immediately after reaching the residence the appellant had started the onslaught. In this context it may also be noticed that Pw.1 was threatened by the appellant when she tried to intervene. All the above aspects will undoubtedly show that the appellant had a premeditated mind to kill his wife. 15. We may conclude the judgment by referring to the defence set up by the appellant as discernible from the cross examination of the witnesses and also from the statement made by him under Section 313 of the Code of Criminal Procedure. In the course of cross examination of Pw.1, the suggestion put to her by the defence was that the deceased might have died due to suffocation/strangulation when Pw.5 tried to stop the victim crying aloud while he was attempting to commit rape on her. Such a suggestion was put to Pw.5 also. But in the statement given by the appellant under Section 313 of the Code his case was that he was with his son at the hospital on that day. He came to know about the death of his wife while he was in the hospital. 16. Having carefully considered the entire evidence on record, we are satisfied that the court below was justified in finding the appellant Crl.A.No.1477 OF 2005 :: 10 :: guilty under Section 302 IPC. The sentence awarded to the appellant cannot be termed as inappropriate at all. In our view, the appellant deserved a more heavier and stringent punishment. As we have indicated in the earlier part of our judgment, people like the appellant are a menace to the society. The appellant perpetrated the crime in a brutal manner which no human being would dare to commit even on an animal. The injuries found on the body of the victim would reveal the cruel mind of the appellant. Such people do not deserve any sympathy and they should be shunned by the society. The appeal fails. It is accordingly dismissed. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes/an Crl.A.No.1477 OF 2005 :: 11 :: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1477 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 7th day of August, 2009