IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C. KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 CRL.A.No. 2102 of 2006() ------------------------ ( SC.27/2004 of ADDL.SESSIONS COURT, NORTH PARAVUR CP.37/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA) .................... APPELLANT/ACCUSED -------------------------------- KHADER @ ABDUL KHADER, S/O. AHAMMED, CHITTEKARAMALA VEETTIL, THEVAKKAL, VADACODE KARA, THRIKKAKARA NORTH VILLAGE, ERNAKULAM. BY ADVS. SRI.H.BADARUDDIN SMT.AYSHA RAHMAN RESPONDENT/COMPLAINANT -------------------------------------------- STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KALAMASSERY, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI.S.V.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------- Crl.A.No.2102 OF 2006 ----------------------------------- Dated this the 23rd day of November, 2010 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The appellant is the accused in Sessions Case No.27/2004 on the file of the Additional Sessions Judge, North Paravur. The appellant was prosecuted by the Circle Inspector of Police, Kalamassery, who was examined as PW18 alleging offences under Section 302,307, 324 and 449 IPC. After trial, the learned Additional Sessions Judge found the appellant guilty for offences under Sections 302,307 and 449 IPC. Consequently, he was convicted and sentenced to imprisonment for life for offence under Section 302 IPC. For offence under Section 307 IPC and 449 IPC, he was sentenced to rigorous imprisonment for 10 years each. Substantive sentences were ordered to run concurrently. It appears that for offence under Section 324 IPC he was acquitted. Assailing the above conviction and sentence, this appeal was preferred. CRA.No.2102/2006 2 2. The brief facts leading to the case is that on 31.1.1987 at 11.30 a.m., while PW2 Philomina lying in her house at Vadavukode Kara along with her daughter Jomol, then aged 2 years, the appellant committed criminal trespass into the house of Philomina along with MO1 chopper and chopped Philomina and Jomol. Philomina cried aloud. Hearing the cry, PW 1 and other neighbours rushed to the house. By the time, the appellant took to his heels along with the chopper. PW1 and other neighbours took PW2 and the child to City Hospital, Ernakulam, wherein PW16 was the casualty medical officer. On the way to hospital, the child succumbed to the injuries. PW2 survived. After leaving PW2 at the hospital, PW1 rushed to Thrikkakara Police Station, wherein PW15 was the Head Constable and gave Ext.P1 First Information Statement, based on which, a case as Crime No.7/1987 was registered for offence under Sections 302, 307, 324 and 449 IPC, by Ext.P1(a) FIR. Express message was conveyed to PW18, who took over the investigation. He questioned the witnesses and recorded their statements. The appellant was arrested on 1.2.1987 and interrogated. The appellant stated that the chopper was thrown among the bushes along the side of a pathway. He would take it and hand over. CRA.No.2102/2006 3 PW18 was led to the bushes by the appellant from where, he took out MO1 chopper and handed it over to PW18. MO1 was recovered after preparing Ext.P7 Mahazar. Ext.P7(a) is the statement of the appellant. After completing the investigation, PW18 filed the charge sheet before the Judicial Magistrate of the First Class, Aluva. The learned Magistrate took cognizance as C.P.No.37/2003. On 18.2.1987 the father of the appellant filed a petition before the Magistrate stating that the accused had been suffering from mental ailment. Responding to the petition, the appellant was referred to the Mental Health Centre, Thrissur, from where it was reported that the appellant was suffering from 'Schizophrenia. The appellant was ordered to be admitted in the hospital and periodical reports were called for. On 11.9.2003 it was reported that the appellant was fit to stand trial. Consequently, the appellant was produced before the Magistrate. After furnishing the copy of the charge sheet and other connected record and after hearing either side, the learned Magistrate committed the case to the trial court on arriving at a finding that the offences alleged are triable by a court of sessions. CRA.No.2102/2006 4 3. Since the appellant was not defended by a lawyer, Adv. Sri.M.K. Venugopal was appointed at State cost to defend the appellant. After hearing the prosecution and the appellant, the learned trial Judge framed charge for the above said offences to which the appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution, PWs1 to 18 were examined. Exts.P1 to P14 were marked. MOs 1 to 11 were also marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence. The appellant and the prosecution were heard. On finding that the appellant was not entitled to be acquitted under Section 232 of the Code of Criminal Procedure he was called upon to enter his defence. But no defence evidence was adduced. Thereafter, the prosecution and the appellant were again heard. The learned Additional Sessions Judge, on appraisal of the evidence and hearing either side, arrived at a conclusion that the prosecution had succeeded to establish offence under Section 302, 307 and 449 IPC. Consequently, he was convicted and sentenced as above. Now this appeal. CRA.No.2102/2006 5 4. Sri.H.Badrudin, learned counsel appearing for the appellant and Sri.S.U. Nazar, learned counsel appearing for the prosecution, were heard. Evidence adduced 5. PW1 is the 1st informant. He is not an occurrence witness. He rushed to the house of PW2 on hearing her cry and found PW2 and her child lying in a pool of blood. PW1, with the help of the neighbours, took PW2 and the child to City Hospital, Ernakulam. Then he went to Thrikkakara Police Station and gave Ext.P1 FIS. PW15, the Head Constable, had given evidence that he recorded Ext.P1 FIS and on the basis of Ext.P1, the case was registered and Ext.P1(a) is the First Information Report. 6. PW2 had deposed that on 31.1.1987 at 11.30 a.m., while she was lying with her child Jomol, aged 2 years, the appellant entered the house with MO1 chopper and chopped at her and the child. She cried aloud. PW1 and others gathered. The appellant took to his heels. She had identified the clothes worn by her and the child at the time of occurrence and were marked as MO2 to 6. MO7 was identified as the mat on which they were lying. CRA.No.2102/2006 6 7. PW3 is a neighbour. She had deposed that she heard the cry of PW2 and rushed to her house and found that PW2 and child were in a pool of blood. According to the prosecution, she had seen the appellant inflicting injuries. But she didn't support the prosecution on that aspect. Though, with permission of the Court, Ext.P3 CD statement implicating the appellant with the offence alleged, was put to PW3 and cross examined, no material was disclosed to support the prosecution. 8. PW4 is the mother of PW3. PW5 is yet another neighbour. PW6 is the husband of PW5. All of them were examined to prove that they had seen the appellant running towards North along with MO1 chopper. But they didn't support the prosecution on that aspect. All of them had deposed that hearing the cry, they rushed to the house of PW2 and found that PW2 and the child were lying in a pool of blood. 9. PW7 had deposed that he took PW2 and child to the hospital and that on the way, child succumbed to the injuries. PW8 was accompanying PW2 in the jeep. PW10 is a taxi driver. PW11 is a jeep driver in which PW2 was taken to the hospital. CRA.No.2102/2006 7 PW9 was examined by the prosecution inorder to establish recovery of MO1 chopper. MO1 was recovered on the basis of Ext.P7(a) statement. PW12 is an attester to Ext.P8 mahazar whereby MOs 3 to 6, clothes worn by the deceased and child were recovered by PW18. PW13 is an attester to Ext.P9 inquest report prepared by PW18. PW14 is a police constable who took dead body of the child for postmortem. PW16 is the doctor who examined PW2 and issued Ext.P10 wound certificate. PW17 is the wife of Dr.Geroge Sebastian, who conducted postmortem and issued Ext.P11 postmortem certificate. 10. PW16 had deposed that on 31.1.1987 he was working as CMO, City Hospital, Ernakulam. On that day at 1.25 p.m., he examined PW2 and noted the following injuries: “Laceration 2.5x1x0.5 cm just behind the (R) Pinna-scalp. Incised (R) Pinna -5 cm length upwards 2 Lacerated wounds scalp-frontal region 3x1 scalp deep including periostaum 4x1x scalp deep. Lacerated wound 1x0.5x0.5 cm (R) knee auteris. CRA.No.2102/2006 8 Multiple abrasions (R) shoulder Multiple abrasions (L) knee Incised wound 0.5x0.5x0./5 cam at base of (R) hand, index finger” He had further deposed that Ext.P10 is the wound certificate and that the injuries found of PW2 could be caused with a weapon like MO1 and that injury No.1 was of grave nature. The nature of injuries sustained to PW2 evidenced by Ext.P10 wound certificate and deposed by PW16 was not at all challenged in cross-examination. 11. PW17 had deposed that she is a Medical Officer and that her husband Dr.George Sebastian, who is now no more, conducted autopsy on the body of Jomol and Ext.P11 is the Postmortem certificate . It was further deposed that injuries could be caused with a weapon like MO1 and that the cause of death was coma due to injuries to brain. The cause of death deposed by PW17 and certified in Ext.P11 was not at all challenged. CRA.No.2102/2006 9 Evaluation 12. Going by the evidence of PWs 2 and 16 coupled with Ext.P10 we find that there is more than sufficient evidence to come to a conclusion that the appellant had inflicted the injuries noted in Ext.P10 on PW2 with MO1 and that the injury No.3 was of grievous nature. There is no reason to disbelieve PW2, hose evidence is corroborated by the testimony of PW16 coupled with Ext.P10. The conclusion of the learned Additional Sessions Judge on that aspect is based upon cogent evidence and requires no interference. 13. Reading the evidence of PW1, 2, 7 coupled with the evidence of the PW17 and Ext.P11, we find that the prosecution had succeeded to establish that the appellant inflicted chop injuries on Jomol, to which she succumbed. The finding of the learned Additional Sessions Judge on that aspect also requires no interference. Since PWs 3 to 6 didn't support the prosecution case, we had a very careful scrutiny of the evidence of PW2. She withstood the cross-examination. Nothing is revealed to disbelieve her. She has no axe to grind against the appellant. Her evidence instils confidence. By the evidence of PWs 1, 2, 7, 16 CRA.No.2102/2006 10 and 17 coupled with Exts.P10 and P11, it can be safely concluded that appellant with intention to commit murder chopped at PW2 and Jomol. Both of sustained grievous injuries to which Jomol succumbed. 14. The learned counsel for the appellant vehemently argued that the appellant was suffering from 'Schizophrenia' and he was unaware of the nature of the act and that in that circumstance the appellant is entitled to an order of discharge. In support of the argument, the learned counsel for the appellant had produced two O.P Tickets and certain bills for payment of the hospital expenditure along with Crl.M.A.No.11020/2010. We have gone through the documents as well as heard the arguments advanced by the learned counsel and the Prosecutor. Annexure-A is an O.P. Ticket issued from MOSC Medical Mission Hospital, Kolencherry on 7.7.1981. It would show that the appellant had consulted a Psychiatrist six years before the occurrence. There is no document to show that till 31.1.1987, the appellant had undergone any sort of treatment. The 2nd O.P. Ticket produced is dated 4.9.2007. It would show that the appellant had consulted the psychiatrist on that date. Going by CRA.No.2102/2006 11 the records, it is seen that on 16.1.2007, this Court released the accused on bail on certain conditions, especially, taking note that the appellant had undergone imprisonment for more than 20 years. The second consultation is 8 months thereafter. No other document was produced to show that the appellant was undergoing any sort of treatment for any mental ailment immediately before or after the crime. There is also no document to show that the appellant had undergone any sort of treatment after 2007. Still then, the learned counsel for the appellant argued that the appellant is undergoing treatment for 'Schizophrenia' and he is entitled to an order of discharge. It has been held by the Apex Court in Seralli Wali Mohammed v. State of Maharashtra [AIR 1972 SCC 2443] that 'it would be dangerous to admit the defence on insanity upon arguments derived merely from the character of the crime. The mere fact that no motive was proved as to why the accused murdered his wife and child nor the fact that he made no attempt to run away when the door was broken open, could not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.' In this case the position is more worse. The evidence of PWs 1 to 7 would show that immediately CRA.No.2102/2006 12 after the crime the appellant fled away from the scene with MO1 chopper. That conduct itself would show that he was aware of the consequences. There is no evidence to show that the appellant did commit the crime without knowing its consequence. It is also pertinent to note that the appellant on interrogation stated to PW18 that he had hidden MO1 among the bushes and in case he was taken to that place he would take it and hand over to PW18. Accordingly, on the basis of Ext.P7(a) statement and as led by the appellant, PW18 went to the bushes among which the appellant took MO1 and handed over to PW18. The recovery of MO1 deposed by PW18 is supported by Exts.P7 and P7(a) and the testimony of PW9. In cross examination of PWs 9 and 18, nothing was revealed out to disbelieve the recovery of MO1. It is also pertinent to note that there is no suggestion to the investigating officer that he had got any axe to grind against the appellant so as to implicate the appellant with a crime of this nature. It is true that to PW18 also it was suggested in cross examination that the appellant was a mental patient. PW18 had denied the same. 15. By the evidence of PW2, it was revealed that the CRA.No.2102/2006 13 appellant had on an earlier occasion advanced to her. But she was not agreeable and there was some wordy exchanges. According to the prosecution, that was the motive for the crime. That motive deposed by PW2 was not challenged in cross examination. We find that the motive spoken by PW2 is believable. So the prosecution had also succeeded to establish the motive. In the above circumstances, on a critical reappraisal of evidence on record, we find no reason to interfere with the conclusions arrived at by the learned Sessions Judge. There is sufficient evidence to arrive at a conclusion that the appellant committed criminal house trespass with MO1 chopper with an intention to murder Jomol and injuries were inflicted on the vital part with MOl. PW2 was also inflicted injuries with an intention to commit murder. Therefore, the prosecution had succeeded to establish offences under Sections 302,307 and 449 IPC. Conviction under challenge is unassailable. 16. Having due regard to the nature of the crime and the sentence imposed, we find that the sentence imposed is reasonable and legal. There is no reason for interference. Appeal is devoid of merits. CRA.No.2102/2006 14 In the result, the appeal is dismissed. The bail granted to the appellant is cancelled. The trial court shall take immediate steps to apprehend the appellant and commit to the jail for serving the remaining part of the sentence. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps