IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 CRL.A.No. 907 of 2007() ----------------------- SC.263/2005 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOZHIKODE .................... APPELLANT(S): ACCUSED --------------------- ROBERT CHAPPATHIL, S/O.CHARLIS, CHAPPATHIL HOUSE, CHALIDAM, KOORACHUDU, KOYILANDY TALUK. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. C.B.C.I.D. KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P. Q. BARKATH ALI, JJ. .................................................... Crl.Appeal No. 907 of 2007 ................................................... Dated this the 6th day of September, 2011 JUDGMENT V.Ramkumar J. In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the accused in S.C. No. 263 of 2005 on the file of the Addl. Sessions Court, Adhoc - I, Kozhikode challenges the conviction entered and the sentence passed against him for offences punishable under Sections 498 A and 302 I.P.C. 2. The case of the prosecution can be summarised as follows:- The marriage between A1 (Robert Chappathil) Son of Charles in his second wife, and hailing from Koorachundu Chalidom in Kayanna Village of Quilandy Taluk and deceased Suja hailing from Kallanode Koorachundu, took place on 25-7-1996 as evidenced by Ext.P6 agreement of marriage dated 25-7-1996 registered before the Sub Registry Office, Balussery. Thereafter A1 and Suja Crl. Appeal No. 907 of of 2007 2 were residing in the house of Devanesan @ Raju (A2) who is the son of A1's father born in his first wife, in Koorachundu Panchayath in Kayanna Village. While residing in the house of A2 the latter used to make prurient overtures at Suja and was subjecting her to untold mental torture. Subsequently A1 put up Chappathil House (Bldg. No. VII/436 of Koorachundu Panthayath) to the south of the house of A2 in the same compound and shifted his residence to that house. Two female children by name Rosmin and Rosna (who were aged 4 years and two years respectively in the year 2001) were born to A1 and Suja. From the month of February 2001 onwards A1 used to unfoundedly allege matrimonial infidelity to his wife Suja. He used to say that the 2nd child born to her was not his but was the child born to Suja in her extra marital relationship. On account of the above suspicion he was not maintaining Suja and the children and used to treat them with cruelty after consuming liquor. In the night of 12-6-2001 A1 had driven out Suja and her children from the Chappathil house and on the intervention of the local people they were taken back to the said house. At that time A1 had physically assaulted Suja in the Crl. Appeal No. 907 of of 2007 3 presence of the public. Due to the cruelty and humiliation meted out by A1, some time between 10 p.m. and 12 midnight of 12-6- 2001 Suja left Chappathil house and committed suicide by hanging in the rear veranda of the nearby house of A2 bearing building No. VII/223 of Koorachundu Panchayath. Thinking that his wife Suja had committed suicide after casting the burden of maintaining the two children on him and with a view to avoid the said burden, A1 sometime between 12 midnight of 12-6-2001 and 2.30 a.m. On 13-6-2011 carried the children to the well belonging to Koonamthanath Thankachan and situated near the pathway and located about 200 metres to the north of Chappathil house and caused the death of the two children by throwing them in to the well. Since A1 and A2 had treated suja with cruelty of such magnitude as to drive her to commit suicide both A1 and A2 thereby committed an offence punishable under Sections 498 A and 306 I.P.C. Since A1 had intentionally and knowingly caused the death of the two innocent children by throwing them into the well as aforesaid, A1 had also committed the offence of murder punishable under Sec. 302 I.P.C. Crl. Appeal No. 907 of of 2007 4 3. On A1 and A2 pleading not guilty to the charge framed against them by the court below, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 29 witnesses as P.Ws 1 to 29 and got marked 41 documents as Exts,. P1 to P41 and 6 material objects as Mos 1 to 4. After the close of the prosecution evidence, accused 1 and 2 were questioned under section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The first accused had the following to submit before Court:- It was a love marriage between himself and Suja and Suja was at that time working in a driving School at Koorachundu. They finally got their marriage registered in the Sub Registrar's Office, Balussery. Thereafter they were having a happy married life and two female children were born to them. They were named Rosmin and Rosna. While so, they constructed Chappathil House at Koorachundu and shifted their residence to the said house. One week prior to the occurrence there developed an illicit intimacy between Suja and P.W.9 (Gopan) who is a relative of Suja's maternal aunt Lissy. On coming to know of the Crl. Appeal No. 907 of of 2007 5 said affair when he questioned her she initially denied the same. But on Further questioning she eventually admitted her extra marital affair with Gopan. He advised Suja against continuing the said affair. Suja was feeling guilty on realising that he had already come to know of the extra marital affair. Thereafter himself and Suja were mentally alienated. Since his family life had been shattered, he took to drinking frequently by visiting the toddy shop at Koorachundu. During the ill-fated night, after reaching home drunk he, as usual, got into the office room in the house and had gone to bed there. The next day morning hearing the commotion outside when he attempted to open the door it was seen that the door was bolted from outside. He raised a hue and cry and somebody opened the door. He came to know the death of his wife and children only at that time. He feels that on account of the mental turmoil for committing the unpardonable sin of matrimonial infidelity, she might have committed suicide after killing the two children. He was falsely implicated in this case at the instance of O.D. Thomas (PW22) the Panchayath member who was inimically disposed of against him . He is totally innocent in this case. 5. Since this was not a case of no evidence for the prosecution within the meaning of section 232 Cr.P.C. the trial court did not record an order of acquittal at that stage. Accused Crl. Appeal No. 907 of of 2007 6 Nos. 1 and 2 were, therefore, called upon to enter on their defence and to adduce any evidence which they might have in support thereof. The first accused volunteered himself to give evidence as DW1. Ext.D1 is the contradiction of P.W.1 while he was questioned by the Tahsildar during inquest. Ext.D2 series are the case diary contradictions of P.W.9. 6. The learned Addl. Sessions Judge, after trial, as per Judgment dated 27-3-2007 found that there was no acceptable evidence of matrimonial cruelty or abetment of suicide as against A2 and, accordingly, acquitted A2 of all the offences charged against him. The first accused (appellant herein) was, however, found guilty of matrimonial cruelty punishable under Sec. 498 A I.P.C. and murder punishable under Sec. 302 I.P.C. For the conviction under Sec. 302 I.P.C., he was sentenced to imprisonment for life and to pay a fine of Rs. 25,000/- and on default to pay the fine, to suffer rigorous imprisonment for two years. For the conviction under Section 498 A I.P.C. the appellant was sentenced to rigorous imprisonment for three years and to pay fine of Rs. 5,000/- and on default to pay fine to suffer rigorous Crl. Appeal No. 907 of of 2007 7 imprisonment for six months. The substantive sentences of imprisonment were directed to run concurrently. It is the said judgment which is assailed in this appeal by the first accused. 7. We heard the Sr. Advocate Sri. P. Vijayabhanu, the learned counsel appearing for the appellant and Advocate Sri Hrithwik, the learned Public Prosecutor who defended the State. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT WITNESSES FOR THE PROSECUTION 09. (A) P.W.1 (Raju) is the elder brother of deceased Suja. He proved Ext.P1 complaint preferred by him to the Chief Minister on 16-6- 2001 alleging that his sister Suja was constantly harassed by her husband A1 and his brother A2 and they have together murdered Suja and her tender children. (B) PW2-Suresh, who is the twin brother of deceased Suja was examined to prove the alleged harassment made by her husband A1 to her. Crl. Appeal No. 907 of of 2007 8 (C) PW3-Meenakshi is the wife of PW1. She also deposed about the harassment meted out by A1 and A2 to deceased Suja. (D) PW4-S.Vasanthi is the elder sister of deceased Suja. She also toed the line of PWs.1 to 3 with regard to the harassment made by A1 to deceased Suja. (E) PW5-Kodakkan Muhammed is a neighbor of A1 and deceased Suja at Koorachundu. He deposed about the quarrel which took place between the husband and wife in the night of 12.6.2001 and a subsequent raproachment at the instance of the local people. He proved Ext.P2 scene mahazar pertaining to the house of A2 where Suja was found hanging and Ext.P3 scene mahazar pertaining to the well of one Thankappan from where the dead bodies of two children were recovered. According to this witness, it was raining heavily during the night of 12.6.2001. (F) PW6-T.G.Baburaj is a friend of A1. Even though this witness was cited to prove that A1 who was consuming liquor after making a quarrel with deceased Suja was persuaded and taken home by one Basheer from a toddy shop, this witness did not fully support the prosecution. Instead, he would say that the relationship between A1 and deceased was cordial. This witness also deposed that there was heavy rain in the night of 12.6.2001. Crl. Appeal No. 907 of of 2007 9 (G) PW7-A.T.Johny is the agent and reporter of 'Mathrubhumi Daily', who proved Ext.P4 photograph showing the pictures of Suja and her two children and one elderly woman. Ext.P4(a) is the postal cover in which Ext.P4 photograph was sent by this witness to the Deputy Superintendent of Police. Ext.P5 is the relevant page of 'Mathrubhumi Daily' dated 14.6.2001 which carries the report and photograph of Suja and her children. (H) PW8-Balakrishnan, who was the U.D.Clerk in the office of the Sub Registrar, Balussery, proved Ext.P6 marriage agreement dated 25.7.1996 showing that on that day A1 and Suja got married. (I) PW9-Gopalan @ Gopan is a distant relative of Suja. He is a carpenter by avocation. According to the appellant, it was with this witness that Suja had developed an illicit intimacy by way of extra-marital affair. Ext.D2 series are his case diary contradictions. (J) PW10-Abdul Hameed has his wife house situated near the house of A1. This witness was cited to prove the quarrel between A1 and Suja during the night of 12.6.2001. This witness however, turned hostile to the prosecution. Ext.P7 is the case diary contradictions of PW10. Crl. Appeal No. 907 of of 2007 10 (K) PW11-V.Raju who is a neighbour of A1 is an attestor to Ext.P8 scene mahazar prepared by the local police on 13.6.2001. This mahazar comprehends both the house of A2 where the dead body of Suja was hanging and the well situated 150 metres north in which the dead bodies of the two children were found. (L) PW12-E.Chandran is the photographer, who took Ext.P9 series of photographs of the dead bodies of Suja and her children. He also proved the negatives. (M) PW13-K.M.Assainar is also a neighbour of A1. He is an attestor to Exts.P10 and P11 inquest reports dated 13-6-2011 pertaining to the children of the deceased . (N) P.W.14-Asees C.K. is a neighbour of A1. According to this witness his brother’s wife told him that there was a hue and cry in the house of A1 in the night of 12.6.2001 and when he proceeded to the house of A1, he met Basheer and Kadeesa (PW19) on the way and both of them told him that the problems were solved and accordingly PW14 returned without visiting the house of A1. (O) PW15-A.K.Sankaran is the Tahsildar of Koyilandy Taluk, who held inquest over the dead body of the deceased Suja and her children on 13.6.2001 and Exts.P10 to P12 inquest reports were Crl. Appeal No. 907 of of 2007 11 marked through him. MO1 series are the bangles and chain of deceased Suja seized along with the inquest. M02 series are a pair of silver anklet and a gold covered stud of Rosemin(eldest daughter of Suja) seized at the time of inquest.M03 series are the frock, one silver girdle and a pair of silver anklet of Rosna (youngest daughter of Suja) seized at the time of inquest. (P) PW16-Bhojarajan.K.O. is a person who claimed to know both the deceased and A1. According to him, in the morning of 13.6.2001 when he went to the house of A1, the latter told him that he had torn and thrown the photographs of Suja and her children in the courtyard during the previous night. (Q) PW17-K.K.Mohandas- is a mortuary attender in the Medical College Hospital, Kozhikode. He proved Ext.P13 seizure mahazar of the post mortem register to show the time of placing the dead bodies in the cold room. (R) PW18-Sathyan is an attestor to Ext.P14 seizure mahazar pertaining to Ext.P6 marriage agreement dated 25.7.1996. (S) PW19-Kadeesa.K. is also a neighbour of A1 and the deceased. This witness was cited to prove the quarrel between A1 and the deceased during the night of 12.6.2001. She, however, turned unfriendly to the prosecution. According to this witness, she had Crl. Appeal No. 907 of of 2007 12 seen A1 packing his belongings even before the alleged occurrence. Ext.P15 series are her case diary contradictions. (T) PW20-K.Sreenivasan, who was the Head Constable of Crime Branch Police, Calicut proved Ext.P16 seizure mahazar pertaining to Ext.P4 photographs, Ext.P4(a) postal cover and Ext.P5, relevant page of the report of 'Mathrubhumi Daily' dated 14.6.2001, which were dispatched by PW7 to the Deputy Superintendent of Police. (U) PW21- K.Raghavan Nair was the Sub Inspector of Police, Koorachnudu Police Station. He proved Ext.P17 first information statement dated 13.6.2001 given by A2 reporting the death of Suja and her children. Ext.P18 is the FIR registered by him originally under Section 174 Cr.P.C. under the caption ‘unnatural death’. He proved Ext.P19 property list dated 3.7.2001 pertaining to MO4 series of dress worn by deceased Suja, which were seized under Ext.P12 inquest report. MO5 series are the underwear as well as the frock of the deceased children and MO6 series are the cellophane tapes containing the finger print of deceased Suja and the fibers of the lunki allegedly used for hanging. The above properties sent to court along with Ext.P19 property list. (V) PW22-O.D.Thomas who is an LIC agent and local politician Crl. Appeal No. 907 of of 2007 13 proved Ext.P20 complaint filed by the Action Committee to the Superintendent of Police to the effect that A1 and A2 had together murdered Suja and her children. Similar complaints were preferred to the Assistant Superintendent of Police on different dates, as evidenced by Exts.P21 and 22. (W) PW23-Dr.Thomas Mathew, who was the Assistant Professor of Forensic Medicine, Medical College Hospital, Kozhikode conducted autopsy over the dead body of Suja. He proved Ext.P23 post mortem certificate dated 14.6.2001. When examined before court, PW23 deposed in terms of his opinion that Suja died as a result of hanging. PW23 also deposed that the death of Suja could have occurred approximately 18 to 22 hours before the body was kept in the freezer, which would take us to 7.30 p.m. to 11.30 p.m. on 12.6.2001. (X) PW24- Dr.Krishnakumar.S who was the Medical Officer in the Department of Forensic Medicine, Medical College Hospital, Kozhikode conducted autopsy over the dead body of Rosna (younger child of deceased Suja). He proved Ext.P24 post mortem certificated dated 14.6.2001. He opined that the death of Rosna was due to drowning. According to this witness, the probable time of death of Rosna could be approximately 12 to 16 hours before the body was kept in the cold room, i.e. between 1.30 a.m. and 5.30 am on 13.6.2001. Crl. Appeal No. 907 of of 2007 14 (Y) PW25-Dr.M.Sathikumar, who was the Medical Officer, Forensic Department, Medical College Hospital, Kozhikode conducted autopsy over the dead body of Rosmin(elder daughter of deceased Suja). Ext.P25 is the post mortem certificate dated 14.6.2001. He also gave the same opinion regarding the probable time of death and cause of death of Rosmin as given by PW24 in the case of Rosna. (Z) PW26-A.M.Andy, who was the Additional Village Officer, Kayanna proved Exts.P26 and P27 scene plans pertaining to the places of occurrence, i.e. the house of A2q and the well situated 150 metres away from the house of A2. (AA) PW27-M.Velayudhan, who is the Circle Inspector of Police, Perambra conducted the preliminary investigation of the case. He was present when the Tahsildar held inquest over the dead bodies of the deceased persons. He had submitted Ext.P28 report for adding Sections 498A, 306 and 302 IPC as against the caption ‘unnatural death’ for which the FIR was originally registered by PW21. He arrested A1 and A2 on 14.6.2001. Exts.P29 to P34 are the records pertaining to the arrest. (AB) PW28-P.Jayaraj, who was the Superintendent of Police, Vatakara conducted some part of the investigation before the investigation of the case was taken over by the CBCID. Crl. Appeal No. 907 of of 2007 15 (AC) PW29 - K. Subair who was the Deputy Superintendent of Police, CBCID, Kozhikode conducted the rest of the investigation and laid the charge before court. He submitted Ext.P36 report for deleting Section 302 IPC as against deceased Suja who was originally arrayed as the first accused in the case. Ext.P37 is the seizure mahazar prepared by him with regard to the photographs. He submitted the original of Ext.P38 forwarding note for sending MO6 series to the Chemical Examiner for analysis. He also proved Ext.P39 chemical analysis report which proved that the fibers found in the hands of deceased Suja were corresponding to the fibers found on the ligature material taken from the neck of Suja. Ext.P40 is the property list prepared by PW29 while sending Exts.P4 and P5 and Ext.P9 photos to the committal court. He also submitted Ext.P41 report before the Sub Divisional Magistrate for transferring the inquest report to the committal Magistrate. 10. DW1 is Robert Chappathil, the first accused, who volunteered to give evidence as a defence witness. He gave evidence in tune with his statement under Section 313 (1)(b) Cr.P.C. ARGUMENT OF THE PROSECUTION 11. Sri.Hrithwik, the learned Public Prosecutor who defended the State made the following submissions before us opposing the Crl. Appeal No. 907 of of 2007 16 appeal and in support of the judgment under appeal. 12. The appellant examined as DW1 had no case that there was a quarrel between him and Suja during the night of 12.6.2001. As against this, PWs 1 to 5 have deposed in unison about the quarrel between A1 and Suja during the night of 12.6.2001. This is further probabilized by the fact that utensils were seen scattered in the kitchen of the said house, as deposed by PWs 2 to 4. PW16 has deposed that he had been to the house of A1 in the morning of 13.6.2001 and at that time PW7, the agent and reporter of 'Mathrubhumi Daily' had enquired whether the photograph of Suja and children was available and then A1 told him that he had torn their photographs into pieces and had thrown them in the courtyard which was seen by PWs.7 and 16. It has come out in evidence that deceased Suja was an asthma patient. If it was Suja who had killed both her children by throwing them in the well situated about 150 metres away, one would have seen mud on her legs and cloth and her dress also would have been wet. This is because of PWs1, 5, 6 and 19 have stated that it was raining heavily in the night of 12.6.2001. So in all probability, there should have been mud on her Crl. Appeal No. 907 of of 2007 17 legs and her dress also would have been wet even on the next day morning. But, no mud was detected on her legs or cloth. Her clothes were also not wet in the morning of 13.6.2001. The medical evidence would go to show that Suja died at about 11.30 p.m. on 12.6.2001 and the children died thereafter. If so, it was impossible for Suja to throw the children in the well after she was dead by about 11.30 p.m. on 12.6.2001. Being an asthma patient, it would have been impossible for Suja to lift both the children and leave Chappathil house of A1 and walk for a distance of 150 metres along the hilly terrain to throw the children in the well. There is also evidence to show that there were wells both in the house of A2 as well as in the nearby houses. If Suja had desired to kill the children before herself committing suicide it was unlikely that she would have chosen a far away well to execute her plan of killing the children. The conduct of the Ist accused also shows that on being informed about the death of her children and wife, he did not go to confirm the said news. Hence in all probability, A1 who was not on good terms with Suja consequent on his suspecting the fidelity of Suja and who used to pick up frequent quarrel with her under the Crl. Appeal No. 907 of of 2007 18 influence of alcohol, did away with the children who were saddled on him by Suja when she committed suicide. The appellant, who had gone to bed along with Suja and her children in the Chappathil house owed an explanation as to how Suja and the two children met with their death under unnatural circumstances. In the absence of any explanation forthcoming from A1, it is reasonable to infer that A1, who was nurturing enmity towards his wife, on coming to know that Suja had committed suicide would have taken the two children in the dead of night and carried them to the well situated 150 metres away and unburdened himself of his liability to look after the children by throwing them in the well. The trial Judge who had the advantage of seeing the witnesses and assessing their demeanour has chosen to rely on the proved circumstances in this case and this Court may not interfere with the conviction as also the sentence. JUDICIAL EVALUATION 13. We are afraid that we find ourselves unable to agree with the above submission. Admittedly the prosecution relies on circumstantial evidence to secure a conviction against the Crl. Appeal No. 907 of of 2007 19 appellant. The case of the prosecution as specifically put forward in the charge sheet is that between 12 mid night of 12.6.2001 and 2 a.m. of 13.6.2001 A1 on coming to know that Suja had committed suicide,