IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 CRL.A.No. 522 of 2005() --------------------------------- SC.1195/2002 of II ADDL. SESSIONS COURT, TRIVANDRUM CP.80/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... APPELLANT(S): ACCUSED: --------------------------------------- HARIDAS, S/O.SUBBAYYAN ASARI, KUZHIVILA VEEDU, URUPOIKA, EDAKKODE DESOM AND VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): COMPLAINANT AND STATE: ------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER &THOMAS.P.JOSEPH, J - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Criminal Appeal No.522 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2009 J U D G M E N T BASHEER , J The appellant was prosecuted for the offence punishable under Section 302 of the Indian Penal Code. The charge against him was that he had committed murder of his wife. The trial court found the appellant guilty and accordingly, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- with a default sentence. The above order of conviction and sentence is under challenge in this appeal. 2. The prosecution case may be briefly noticed. 3. The appellant, his wife Surakumari (the deceased) and their son Harish (PW2) were staying in one of the two rooms in the residential building owned by the parents of the appellant at the relevant point of time. It is on record, that the sister of the appellant (PW3) and her minor son Sooraj (CW4) were occupying the other room on the northern side of the same house. On September 9, 2000, at about 9.00 p.m. the appellant and the Criminal Appeal No.522 of 2005 -2- deceased were engaged in slicing vegetables inside their bed room. Both of them were sitting on the cot. At that time PW2 and CW4 were also in the room. After some time, appellant and the deceased started to quarrel. According to the prosecution, appellant asked PW2, his nine year old son, and CW4 to go out of the room. Immediately thereafter PW2 heard his mother screaming that she was being killed. PW2 rushed back to the room. He found the appellant stabbing the deceased on the left side of the chest holding the deceased close towards his body. 4. The deceased was taken to the hospital by the appellant, his mother, sister (PW3) and brother and wife in the taxi car belonging to PW1, who came to the scene as informed by CW5. On reaching the hospital the deceased/injured was taken inside. After sometime, she was brought back to the car. PW1 was asked by somebody in the car to go to the Medical College Hospital, Trivandrum, via the residence of the appellant. As the car reached near the residence of the appellant, PW1 was asked to stop the car. PW1 was informed that there was no purpose in going to the Medical College hospital, since the deceased was no more. Criminal Appeal No.522 of 2005 -3- 5. PW1 gave Ext.P1 statement before the police at about 11 p.m, on the basis of which Ext.P1(a) First Information Report was prepared and a crime was registered under Section 174 of the Code of Criminal Procedure. Obviously PW1 had reported the matter to the police since he had some suspicion about the death of Smt. Surakumari, as indicated by him in Ext.P1 itself. The investigating officer who took over investigation on the next day found that it was a case of murder and therefore Section 302 IPC was incorporated. Investigation was conducted further and charge sheet was laid, after arresting the accused on September 14, 2000. 6. The prosecution examined PWs 1 to 11 and marked Exts.P1 to P11 and MO1 to MO11. There was no oral or documentary evidence on the side of the appellant. 7. The learned Sessions Judge after a careful evaluation of the oral and documentary evidence adduced by the prosecution, found that the evidence of PW2, the son of the appellant coupled with the other materials available on record clinchingly proved that prosecution had succeeded in proving the charge against the appellant. Accordingly, appellant was found guilty, convicted Criminal Appeal No.522 of 2005 -4- and sentenced as mentioned earlier. 8. It is contended by the learned Counsel for the appellant that the Court below was not justified in relying on the sole testimony of PW2 to hold the appellant guilty. He points out that, PW3 the other inmate of the house had not supported the prosecution case. It is further contended by the learned Counsel that the evidence of PW2 could not have been relied on, since there were several glaring omissions in his evidence. PW2 was trying to embellish the prosecution case which was evident from his testimony. The learned Sessions Judge committed serious illegality in accepting the testimony of PW2 and holding the appellant guilty, it is contended by the learned counsel. 9. PW1 had set the law in motion by informing the police about the suspicious death of Smt. Surakumari. It is contended by the learned Public Prosecutor that the evidence of PW1 as regards the conduct of the appellant, his mother, sister (PW3) and brother and his wife while they took the deceased in the car to the hospital and also on their way back to the residence clearly indicated that all of them were trying to conceal something. If, in fact the murder had been committed by an Criminal Appeal No.522 of 2005 -5- outsider as suggested by the appellant and his sister (PW3), the conduct of these people especially that of the appellant could never have been like this. We will deal with the above aspect a little later. 10. As mentioned by us earlier, PW1 had come to the residence of the appellant with his taxi car to take the deceased to the hospital. According to this witness, the appellant, his sister (PW3), mother, brother and his wife put the injured in the car and took her to the hospital. PW1 further stated that none of them told him what was wrong with the deceased, even though he asked them. But he stated that he saw blood was oozing from the chest of the deceased. He further stated that some blood had oozed from the body of the deceased to the car seat. He had wiped it off after reaching the hospital. After some time the deceased was brought back to the car and PW1 was told that she had to be taken to the Medical College Hospital. But on the way, as the car reached near the residence of the appellant, PW1 was told that there was no purpose in going to the Medical College Hospital. PW1 was asked to drop them at the residence of the appellant. He realised that the deceased was no more. PW1 Criminal Appeal No.522 of 2005 -6- further stated that he went to the Police Station and gave Ext.P1 statement. PW10 Sub Inspector of Police recorded his statement and registered a crime (Ext.P1(a)). 11. As indicated above, the alleged incident took place inside the bed room of the residence of the appellant. It had come out in evidence that the appellant who was employed in the Gulf had come back to his village about a month prior to the incident. It is also on record that the appellant and the deceased had gone to the market on that day and purchased some vegetables since it was 'Uthradam' day. It is further revealed from the evidence that the appellant and deceased were sitting on the cot in the bed room and cutting vegetables while their son (PW2) and his cousin (CW4) were sitting in the room with them. The prosecution case is that the appellant was using MO1 knife for slicing vegetables. 12. PW2 was nine years old at the time when the alleged incident took place. He stated that he and his cousin Sooraj (Son of PW3) were inside the bed room when the appellant and deceased were engaged in cutting vegetables. After some time, his mother told him to wash some utensils which were lying in Criminal Appeal No.522 of 2005 -7- the kitchen. He finished the work and came back to the room along with Sooraj. 13. PW2 was studying in 9th standard in Kerala Kalamandalam at Thrissur at that time. He stated that the adjoining room on the southern side of the house was being occupied by PW3 and Sooraj, while in the other bed room the appellant and deceased used to sleep. Going by the version of PW2, while the appellant and deceased were cutting vegetables, the appellant started scolding the deceased. Appellant brandished the knife at the deceased. He asked PW2 and CW4 (Sooraj) to go out of the room. Both of them went out. Just when PW2 reached near the door, he heard his mother crying aloud that she was being killed. When he turned back and looked, he saw the appellant stabbing on the left side of the chest of his mother with MO1 knife after holding her close to his chest. PW2 ran to the joint family house situated about six meters away from the building. He informed the matter to his grand mother (mother of the appellant) and aunt, PW3 (sister of the appellant). They rushed to the scene. PW2 also accompanied them. According to PW2, appellant slashed the knife at him. His grand Criminal Appeal No.522 of 2005 -8- mother and PW3 caught hold of the appellant. PW2 further stated that his mother was taken to the hospital in a car. He saw the incident in the light of the electric bulb in the room. He identified MO1 knife. PW2 further stated that the appellant and the deceased used to pick up quarrel quite often. Though PW2 was cross examined at length, the defence did not succeed in bringing out any thing to discredit his testimony. The suggestion put to PW2 was that he was watching T.V. along with the appellant and Sooraj in the nearby joint family house at the relevant point of time when the alleged incident took place. The above suggestion was emphatically denied by PW2. The other suggestion put to PW2 was whether his mother had not been suffering from fits and hallucination. This suggestion was also emphatically denied by PW2. 14. PW3, the sister of the appellant did not support the prosecution case. She stated that she was sitting in the joint family house along with her father when she heard a loud cry from the house of the appellant. When she came out, she found the deceased lying in the courtyard of the house where the appellant and she had been living. She immediately ran to the Criminal Appeal No.522 of 2005 -9- residence of CW5 and summoned a taxi over telephone. When the car came, the deceased was taken to the hospital. The doctor who examined the deceased informed that the deceased was no more. PW3 disowned her statement before the police that she had come out of the house hearing the cry of PW2 saying that the appellant had stabbed the deceased. She was declared hostile. She also stated that she had not told the Police as seen recorded in Ext.P2. According to PW3, the appellant was also watching T.V. in the joint family house nearby at the time when the alleged incident took place in the courtyard. 15. The other material witness on the side of the prosecution is PW5, the doctor, who conducted postmortem and issued Ext.P4 certificate. In the said certificate the doctor stated that injury No.1 had proved to be fatal and death was caused due to the said penetrating injury sustained by the deceased on her chest. Injury No.1 as described in Ext.P4 is extracted hereunder: “1. Incised penetrating wound 4.5 x 1.8 cm vertically placed on the left side of front of chest with its upper sharply cut end 5 cm outer to midline and 0.8 cm below the collarbone. The other end was blunt. The wound entered the mediastinum by cutting the cartilage of left second rib and adjoining intercostal muscles, pierced the pericardium on the left side, incised the wall of ascending aorta, (3.2 x 0.5 cm involving the whole thickness) 0.5 cm above its root and terminated in its lumen. The track of the wound was directed backwards, downwards and to the right and the Criminal Appeal No.522 of 2005 -10- total minimum depth was 2.4 cm. The pericardial cavity contained 500 gm of blood clot and the heart was in a contracted state. Left chest cavity contained 750 gms of blood clot and 400 ml of fluid blood and the lung was found to be collapsed.” 16. Significantly, PW5 stated that injury No. 1 was unlikely to be a self-inflicted one. She further denied the suggestion that the said injury could not have been caused with MO1. As regards injuries 2 to 8 which were contusions, PW5 stated that they could have been caused by fisting. 17. PW6, the Scientific Assistant (Biology), Forensic Science Laboratory, Thiruvananthapuram had issued Ext.P5 report, after conducting examination of MO1 knife and other material objects. Those objects were found to have contained human blood (A Group). 18. The other material witness (PW9) had attested Ext.P7 Mahazar under which MO1 knife was recovered on the basis of the information furnished by the appellant under Section 27 of the Evidence Act. 19. PW11, the investigating officer, had deposed before the Court that he had arrested the appellant on September 14, 2000 at 9.00 a.m and questioned him. It was pursuant to Ext.P7(a) statement given by the appellant that MO1 knife was recovered Criminal Appeal No.522 of 2005 -11- from the thatched roof of the shed attached to the house of the appellant. Recovery of MO1 was effected at 1.p.m. on the day of the arrest itself. PW11 denied the suggestion that recovery had been effected on the night of the alleged incident itself by PW10 from the courtyard. Similarly, PW11 denied the other suggestion as well that the appellant had been falsely implicated in the case at the instance of the father-in-law (CW7) of the appellant. PW10, the Sub-inspector of Police had recorded Ext.P1 statement of PW1. He registered Ext.P1(a) F.I.R. and conducted inquest on the next day of the alleged incident. Ext.P3 is the inquest report. MOs.2 to 9, the dress worn by the deceased, and, the appellant as well as the bed sheet, pillow cover etc were taken into custody by PW10 as per Ext.P3. 20. We have only referred to the crucial and material pieces of evidence adduced by the prosecution in the case. As has been stated earlier, PW2, the son of the appellant, who was only nine years old at the time of the incident had categorically stated before the Court that he had seen the appellant stabbing the deceased with MO1 knife on the left side of her chest. But PW2 had not stated so when he was questioned by the police. Criminal Appeal No.522 of 2005 -12- The definite and consistent case of the prosecution was that PW2 had come out of the bed room crying aloud that his father had stabbed his mother. 21. It may be mentioned that at the time when PW2 was examined before the court, he was aged 14 years. The learned Sessions Judge had put certain questions to PW2 as a prelude to his examination in the court. To all the questions put to him by the learned Sessions Judge, PW2 had given answers in no uncertain terms and quite emphatically. Thus, the learned Sessions Judge was convinced that PW2 was quite competent and in the right frame of mind to give evidence in the case. Apart from the above minor embellishment, (if one may call it so), the evidence of PW2, in our view, can be totally accepted. 22. It must be remembered that PW2 was fully aware that he was giving evidence against his father. But, still he did not show any symptoms of uncertainty or ambiguity in his assertions before the Court. He assertively and categorically stated that he saw the appellant, inflicting the wound on his mother. Having carefully perused the evidence of PW2, the Learned Sessions Judge did not find any reason to disbelieve him. We have read Criminal Appeal No.522 of 2005 -13- the deposition of PW2 carefully. We are satisfied that the learned Sessions Judge was justified in relying on the oral testimony of PW2. 23. In this context, it may be noticed that the appellant had vaguely suggested that some out-sider was involved in the crime. His defence was that he heard a cry from the house while he was watching T.V. in the adjoining joint family house. When he came out he saw his wife lying in the courtyard. It may at once be noticed that a similar version was given by PW3 his sister, also. But, significantly, the Investigating Officer did not notice any blood mark on the courtyard. On the contrary, blood marks were found on the bed sheet, pillow cover etc in the bed room. 24. In this context, we may also notice that the appellant accompanied the deceased to the hospital in the car. The prosecution case is that after the doctor examined the deceased at the hospital the appellant and others had taken her back to the car of PW1. The deceased was put in the car and PW1 was asked to go to the Medical College, enroute the residence of the appellant. Nothing is discernible from the materials available on Criminal Appeal No.522 of 2005 -14- record, especially from the deposition of PW1 that the appellant had shown any kind of anxiety to save the life of his wife. On the contrary, the conduct of not only the appellant but also that of PW3, his sister, mother, brother etc appeared totally strange. According to PW1, when the car reached near the residence of the appellant, some one in the car asked him to stop it, PW1 was told that there was no purpose in taking the deceased to the Medical College hospital. 25. This conduct of the appellant has to be considered in the backdrop of the defence taken by him, particularly the statement given by him under Section 313 of the Code of Criminal Procedure. More over, the appellant had no case that there was any attempt to commit burglary in the house. He did not also mention about any person being inimically disposed towards him or the deceased. Further, as could be seen from Ext.P6 site plan, there was absolutely no possibility of any intruder trespassing into the residence and committing the crime. There was no one else in the house at the relevant point of time other than the appellant. All these aspects will clinchingly show that it was the appellant and appellant alone Criminal Appeal No.522 of 2005 -15- who could have been responsible for the crime. 26. More significantly, MO1 knife was recovered on the basis of information furnished by the appellant under Section 27 of the Evidence Act. Ext.P7(a) statement given by the appellant led to the recovery of MO1. We may also notice that human blood ( A group) was detected by the Chemical Examiner on MO1 knife and other material objects. In the postmortem certificate (Ext.P4) the blood group of the deceased was identified as 'A' Rh positive. 27. It has come out in evidence from the testimony of PW2 that his father used to pick up quarrel with his deceased mother frequently. The case of the prosecution appeared to be that the appellant was suspicious about the chastity of his wife. He had even doubted the paternity of his son. Appellant was employed in the Gulf. He had come back to the country about one month prior to the incident. 28. It is true that PW3, sister of the appellant, resiled from the statement given by her to the police and stated that she had heard the cry of the deceased from outside while she was watching television in the joint family house nearby. As Criminal Appeal No.522 of 2005 -16- mentioned by us earlier, the attempt made by the appellant and PW3 to make it appear as though the deceased was found lying in the courtyard with the stab injury was totally belied by the fact that the investigating officer had not found any blood in the courtyard. Thus, obviously PW3 was trying to help her brother. 29. In this context, we may also notice that PW3 had admitted that the doctor who examined Smt. Surakumari, had informed her and others who took her to the hospital that she was dead. But still, the appellant, PW3 and others had tried to mislead PW1. They had initially asked PW1 to proceed to Medical College Hospital, Trivandrum via the residence of the appellant. But when the car reached near the residence PW1 was asked to drop them there. This conduct of PW3 will indicate that she had made a deliberate attempt to help her brother before the court by resiling from statement given to police under section 161 of the code. 30. The minor discrepancy in the evidence of PW2 pointed out earlier, in our view, was rightly ignored by the learned Sessions Judge. Similarly, the contention raised by the defence that non-examination of CW13, the doctor who examined the Criminal Appeal No.522 of 2005 -17- deceased at the hospital, was fatal to the prosecution case had been rightly repelled by the learned Sessions Judge, since the doctor had not issued any certificate as he had found that the victim was brought dead to the hospital. 31. For all the reasons stated above, we are satisfied that the court below was eminently justified in finding the appellant guilty of the charge levelled against him. 32. Lastly, it is contended by learned Counsel that the appellant is at least entitled to get the benefit of Explanation 4 of Section 300 IPC. He submits that the unfortunate incident might have taken place in the course of a fight between the husband and wife and also out of sudden anger. We are afraid, this contention is only be to be noted inorder to be rejected. It is contended by the learned counsel that the appellant had through out been a loving husband. The fact that he was assisting his wife to cut vegetables would clearly indicate that he was a loving husband. There was absolutely no possibility of the appellant committing such a crime and that to in the presence of his own son. No evidence was adduced by the prosecution to show that there was any fight between the appellant and the deceased Criminal Appeal No.522 of 2005 -18- previously. Not even a suggestion was put to any of the witnesses in this regard. Thus it is contended by the learned counsel that the appellant might have inflicted this injury in the course of a sudden fight. 33. We have carefully perused the evidence in the light of the above persuasive plea made by learned counsel. We are unable to accept the plea of the learned counsel that the appellant is entitled to the benefit of Explanation 4 of Section 300. The fact that the appellant had asked PW2 and CW4 to go out of the room immediately prior to the incident indicates that he had a pre-meditated mind.