IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Death Sentence Ref..No. 3 of 2009 ------------------------------------------------ [SC.NO.8/2009 OF SESSIONS COURT, KOTTAYAM] .................... COMPLAINANT: ----------------------- STATE BY SR. PUBLIC PROSECUTORS SRI. C.M. NAZAR & SRI. S.U. NAZAR. RESPONDENT: ---------------------- SHANU T. HAMEED. BY ADV. SRI.RAJA VIJAYARAGHAVAN. THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 08/10/2010 ALONG WITH CRL.A .NO. 1134 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. 'CR' PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = D.S.R. 3 OF 2009 & CRL. APPEAL NO. 1134 OF 2009 = = = = = = = = = = = = = = = = DATED THIS, THE 8TH DAY OF OCTOBER, 2010. C O M M O N J U D G M E N T P.S.Gopinathan, J. The Sessions judge, Kottayam in S. C. No.8 of 2009 (Old No. 277 of 2006) on his file found the respondent in DSR 3 of 2009 guilty for offence under Section 302 of the Indian Penal Code and sentenced him to death. Seeking confirmation of the death sentence, reference was made by the Sessions Judge as mandated under Section 366(1) of the Code of Criminal Procedure. Assailing the conviction and sentence, the convict - respondent in the DSR (hereinafter referred to as the appellant) has preferred the appeal, Crl.A. 1134 of 2009. Prosecution case: 2. PW8 Sainulabdeen, who retired from Army while working in the Rank of Subedar Major, had a son and a daughter. The daughter was named Sareena. Sareena, while pursuing her Post Graduate Degree in literature, was married to the appellant on 25.10.2001. The appellant was stated to be employed in Muscat and had immovable assets as well as DSR 3/2009 & CRL.A. 1134/2009 2 business in vehicles. At the time of marriage, Sareena was given 150 sovereigns of gold ornaments, Rs. 1,00,000/- in cash and a Delux Maruti car of which Ext.P17 is the Registration particulars. After the marriage, the appellant did not go abroad; but he continued some business in automobiles at Paippadu, near Changanacherry. The business was not successful. The matrimony was blessed with a daughter in the following year. On the 40th day of the birth of the child, who was named Amisha, ornaments weighing 20 sovereigns were obtained from the relatives. The appellant, who was a spendthrift , had squandered all the gold ornaments and the money. Thereafter, the appellant had been demanding money from PW.8. On 25.8.2006, the appellant telephoned PW.8 and demanded Rs.50,000/- and also to hand over a fixed deposit receipt for Rs. 10,000/- in the name of the child. But PW.8 was not amenable. On the next day, at about 10 A.M., the appellant strangulated Sareena with a shawl which was marked as MO6. When she became unconscious, she was lifted to the store room attached to the kitchen of the house. Amisha, who had been to the neighbourhood and playing with the daughters of PW.4, was called back home and she was also strangulated with MO6. DSR 3/2009 & CRL.A. 1134/2009 3 When she became unconscious she was also lifted to the store room. He cut down the rubber tube connecting the gas cylinder with the stove and took the gas cylinder to the store. Then it was noticed that Sareena was moving. He took M.O.5, a wooden model of a snake boat kept in the show case and inflicted severe injuries at the head, face and neck of both Sareena and Amisha. Then the appellant sprinkled kerosene, which was kept in M.O.12 bottle, over the face of both. The regulator of the gas cylinder was then opened and ignited. The gas caught fire with explosion. Hearing the explosion, the neighbours ran to the house which was found locked from inside. The tape recorder and television were switched on in full swing. PW.3 Ratheesh, an immediate neighbour and others asked the appellant to open the door. The appellant did not heed. So, they attempted to kick open the door, but in vain. By the time, the appellant opened the back door. PW.3 and others entered the house and found that Sareena and Amisha, who were lying in the store room, were on flames. Water was poured over and put off the fire. Amisha was taken out first and rushed to Pushpagiri Hospital, Thiruvalla, where PW.11 was working as a medical officer. PW11, after examining Amisha, declared her 'brought DSR 3/2009 & CRL.A. 1134/2009 4 dead' with a history of burn injuries. Sareena was also lifted to the very same hospital. She was also declared 'brought dead'. The matter was informed to the police by phone for which Ext.P8 treatment report was prepared. Some of the gathered telephoned the matter to the uncle of Sareena who was examined as PW.1. PW.1, who was running a hotel at Kollakadavu, rushed to the hospital and found Sareena and Amisha dead with burns and other injuries. Law in motion: 3. PW.1 rushed to the Changanacherry Police Station and gave Ext.P1 First Information Statement before PW.18, the then Sub Inspector of Police. After recording Ext.P1, a case as Crime No. 730 of 2006 for offence under Section 302 I.P.C. was registered for which Ext.P1(a) First Information Report was prepared. The matter was communicated to PW.20, the then Circle Inspector of Police through express message. PW.20 took over the investigation. He proceeded to the spot. PW.5, an immediate neighbour, took the appellant to his house. From there, the appellant was arrested by PW.20. On interrogation, the appellant disclosed that M.O. 5 and M.O.6 were kept by him at his home and he would take it and hand over to PW.20 if he DSR 3/2009 & CRL.A. 1134/2009 5 was taken to the house. In pursuance to the statement so made by the appellant, PW. 20 took him to the house. M.O.5 and M.O.6 were taken out by the appellant from the store room and handed over to PW.20. PW.20 seized M.O.5 and M.O.6. PW.20 prepared Ext.P5, the scene mahazar, wherein the seizure of MO5 and 6 is also stated. From the spot of occurrence, a gas cylinder and singed clothes of Amisha and Sareena were also seized while preparing the scene mahazar. PW.20 proceeded with the investigation. On completing the investigation, having convinced that the appellant had committed offence under Section 302 IPC, a charge sheet was submitted before the Judicial Magistrate of the First Class, Changanacherry. The learned Magistrate took cognizance and proceeded as C.P. 60/2006. On finding that the offence alleged is triable by a Court of Session, by order dated 6.12.2006, the case was committed to the Court of Session, Kottayam. By the time, the appellant moved this Court and obtained bail. The learned Sessions Judge, taking cognizance, issued process to the appellant. He entered appearance and engaged a lawyer to defend the case. DSR 3/2009 & CRL.A. 1134/2009 6 Procedure before the Trial court: 4. The learned Sessions Judge, after hearing the prosecution and the appellant, found that there are materials to send the appellant for trial for offence under Section 302 IPC. Hence, charge was framed. When read and explained, he pleaded not guilty. Therefore, the appellant was sent for trial. On the side of the prosecution, PW.1 to PW.20 were examined. Exts.P1 to P26(a) and M.Os 1 to 33 were marked. During the course of the cross examination of PW.7, Exts.D1 and D2 were marked. After closing the evidence for the prosecution, the case was posted for recording the statement of the appellant. But the appellant absconded. In spite of repeated coercive steps, he could not be apprehended. Consequently, the case was transferred to L P Register and periodically arrest warrants were repeated. On 5.1.2009 the appellant was arrested and produced. Thereupon, the case was re-numbered. Since it was submitted that he was not engaging a counsel, the Sessions Judge appointed Adv. Sri. R. Sudevkumar to defend the appellant. The appellant was then questioned under Section 313 of the Code of Criminal Procedure. He admitted the relationship between himself and the deceased and further DSR 3/2009 & CRL.A. 1134/2009 7 stated that they were leading a harmonious life and he was very affectionate to his wife and daughter. He had some failure in the business. He asked Sareena to demand back the amount which he had lent to PW.8, but Sareena did not agree. Since he could not find out any other source for money, he insisted to demand back the amount. Though he went to the sit out with phone to call PW.8, he did not. He returned back to the room. While so, he heard a sound from the kitchen. He rushed to the kitchen. He heard the cry of the daughter from the store room. He kicked on the door. The door fell into the store room over Sareena and the child. No sooner door fell down, than the fire and glass pieces were flown out. He put off the fire with water. Hearing his cry for help, the locals gathered. He lifted the child to the kitchen and hugged her. The gathered people obstructed him and thereafter he lost his sense and came to senses only when police came to the house. The prosecution and the appellant were then heard and on finding that the appellant is not entitled to be acquitted under Section 232 of the Code of Criminal Procedure, he was called upon to enter his defence. No defence evidence was let in. The appellant and the prosecution were again heard. The learned Sessions Judge, on DSR 3/2009 & CRL.A. 1134/2009 8 appraisal of evidence entered a finding of guilt. Accordingly, the appellant was convicted. Again, the appellant and the prosecution were heard regarding sentence. The learned Sessions Judge arrived at a conclusion that the case on hand falls within the category of 'rarest of the rare' cases. Consequently, the appellant was sentenced as above. Preliminary Objection: 5. Before arguing to the merits of the case, Sri. Raja vijayaraghavan, the learned counsel appearing for the appellant, argued that the appellant was very much prejudiced for the reason that the learned counsel appearing before the trial court got no time to prepare the case. Therefore, the witnesses could not be effectively cross examined and there were serious omissions in putting questions in cross examination. It was further submitted that after the absconding of the appellant pending trial and the arrest thereafter, he was not defended by a lawyer of his choice. The lawyer engaged by the learned Sessions Judge had no sufficient experience to defend a case of this nature and due to lack of experience of the lawyer, the appellant was not properly instructed before questioning him under Section 313 of the Code of Criminal Procedure and that DSR 3/2009 & CRL.A. 1134/2009 9 the counsel had not properly presented the case during the argument. With the above submission, the learned counsel prayed for setting aside the conviction and sentence and to remand the case for fresh disposal. In support of the argument, the learned counsel relied upon the decisions reported in Mathai Thommen v. State (AIR 1959 Kerala 241), Kunnummal Mohammed v. State of Kerala (AIR 1963 Kerala 54), Bashira v. State of U.P. (AIR 1968 SC 1313), Panchu Gopal Das v. State (AIR 1968 Calcutta 38) and the decision of this Court in Abdul Razak v. State of Kerala, (2009KHC 1027). The learned counsel further submitted that Adv.Smt. Ajitha Salam, along with a junior Advocate Sri. Raji R. was earlier engaged by the appellant and that Smt. Ajitha Salam got appointment in the State Service and she had to give up the engagement and the case was entrusted to Advocate Sri. Shibu George on 12.1.2008. Stating these reasons, accompanied by a memo dated 12.1.2008, the appellant applied before the trial court for adjourning the trial which was scheduled to 14.1.2008. But, without assigning any good reason, the petition was dismissed. In that circumstance, Advocate Sri. Shibu George, without preparing the case had to defend and cross examine the witnesses. The learned counsel for the DSR 3/2009 & CRL.A. 1134/2009 10 appellant produced the photocopy of the affidavit, the petition and the memo filed by Advocate Sri. Shibu George. 6. Assailing the above argument, the learned Public Prosecutor submitted that the submission is devoid of merit. The learned Public Prosecutor, after collecting datas, submitted that Smt. Ajitha Salam surrendered her enrollment certificate as early as on 27.9.2007 and thereafter, on various occasions, the case was taken before the Sessions Judge. The appellant, who was also present in court, was well aware in advance that Smt. Ajitha Salam could not proceed with the trial and had got sufficient opportunity to engage another lawyer. Even on 23.11.2007, when the charge was framed and scheduled the case for examination of the witnesses from 14.1.2008 onwards, the appellant was aware that Smt. Ajitha Salam could not appear for examining the witnesses and had got ample time to find out another counsel and to engage him sufficiently in advance to get ready on 14.1.2008. But Adv.Sri. Shibu George was engaged only on 12.1.2008 for which the appellant alone can be found fault with. However, the Sessions Judge gave sufficient opportunity to the learned counsel to cross examine the witnesses after preparing the case. It was also submitted that Adv.Sri. Shibu George DSR 3/2009 & CRL.A. 1134/2009 11 is a well experienced criminal lawyer and that no prejudice at all was caused to the appellant. Originally, the relevant records alone were forwarded to this Court from the trial court. The petition for adjournment and order thereon were not sent to this Court. Persuaded by the repeated submissions of Advocate Sri. Raja Vijayaraghavan, to ascertain as to what exactly happened, we, over phone through Registry, collected the order on the petition filed by the appellant. We notice from the communication received from the Sessions Judge, Kottayam, that the said petition was numbered as Crl. M.P. 93/2008 and it was disposed of on 14.1.2008 before proceeding with the examination of the witnesses, with the following order: "Examination of the witnesses can be deferred on payment of cost to the witnesses. But the counsel for the accused agreed to cross examine the witnesses and he later cross examined two witnesses today. Anyway, if the counsel wants time, cross examination can be adjourned. And the petition rejected". Going by the Order Sheet, we notice that on 17.11.2007, the appellant and the prosecution were heard regarding the charge and on 23.11.2007, the charge was framed. The case was thereafter scheduled from 14.1.2008 to 18.1.2008 for DSR 3/2009 & CRL.A. 1134/2009 12 examination of the witnesses. It was on 14.1.2008, when the case was taken for the examination of the witnesses, the application for adjournment was filed. 7. From the order, which we quoted above, it can be seen that though, the Sessions Judge declined to adjourn the trial as such, he ordered to defer the examination of the witnesses, provided the costs of the witnesses were paid. But the learned defence counsel was not amenable for such a course and volunteered to cross examine the witnesses and it was thus, the witnesses were examined. In this view of the matter, we find no merit in the submission of the appellant. In the decisions cited by the learned counsel for the appellant, the circumstances therein are entirely different. In Mathai Thommen's case (AIR 1959 Ker. 241), the accused had not engaged a lawyer. The case was scheduled on 4.8.1958 for trial. The defence lawyer was engaged by the Sessions Judge only on 2.8.2005. The counsel even did'nt get time to discuss with the accused or to get instruction. Even otherwise, the prosecution case was disbelieved and the accused was acquitted. In Mohammed's case, (AIR 1963 Ker. 54)an inexperienced advocate was engaged. DSR 3/2009 & CRL.A. 1134/2009 13 However, for want of evidence to sustain conviction the accused was acquitted. In Bashira's case (AIR 1968 SC 1313) the defence counsel was not given sufficient time to prepare the defence since the examination started on the day on which the counsel was engaged. In Panchu Gopaldas' case also the position is identical. In Abdul Razak's case (2009 KHC 1027) it was noticed that despite the specific rule mandating appointment of senior counsel for defending sessions case, a junior lawyer with less experience was engaged by the trial court. It was a case disposed of by another Division Bench consisting one of us (Gopinathan, J.). From the facts of the case, we notice that in that case the witnesses were not at all effectively cross examined by the defence counsel engaged from the court. In that circumstances, the case was remanded back to the trial court for fresh trial. Here, such circumstance is not available. From the initial stage, the appellant engaged a lawyer of his choice during the pre-trial postings. The counsel engaged earlier left the Bar even before framing the charge. Another counsel was engaged by the appellant. However, accepting the argument that the counsel did not get time to prepare, the trial court offered to give time to the defence DSR 3/2009 & CRL.A. 1134/2009 14 counsel to cross examine the witnesses on conditions. But the counsel did not avail and volunteered to cross examine the witnesses then and there. As regards the lack of experience of the lawyer, no material was placed before us. In the above circumstances, we had gone through the oral evidence, especially the cross examination. Going by the cross examination of the witnesses, we find little material to come to a conclusion that the witnesses were not properly or effectively cross examined. Sri. Raja Vijayaraghavan, the learned counsel, submitted that going by the statement of the witnesses he noticed that some questions which would have been put to the prosecution witnesses in cross examination were not asked. He even requested us to go through the case diary statements. Since the case diary statements were not relevant, we did not do so. 8. In criminal cases, lawyers are differently shaping their defence. In cases where there are direct eye witnesses, some times, the defence lawyers could not do much wonder while cross examining a witness. In a criminal case, since the trial proceeds without a specific pleading, what is more relevant is as to what should not be asked in cross examination rather DSR 3/2009 & CRL.A. 1134/2009 15 than what all could be asked in cross examination. We notice, from our experience in several civil and criminal cases, that some times many questions which would have been put to the witness were seen not asked. Probably, that may be due to the way in which the defence lawyer shaped his defence. Sometimes, when the witnesses are cross examined at length putting extraneous or irrelevant questions, there may be instances where certain material particulars would be omitted. Such omissions cannot be taken as a reason to conclude that it was because of the inability of the lawyer to prepare the case or due to lack of experience or that because of that omission any prejudice was caused to the accused. Sometimes, some criminal lawyers may omit certain aspects to be put to the witnesses on fear that adverse answers may come and that would go against the party. When viewed the cross examination of the witnesses in this angle, we could not see anything to come to a conclusion that the witnesses were not effectively cross examined. On the other hand, very shrewd questions were seen put to material witnesses and effectively cross examined at lenght. Going by the nature of cross examination, it could not be said that Advocate Sri. Shibu George was not experienced enough to defend a case DSR 3/2009 & CRL.A. 1134/2009 16 in which the accused was facing trial for an offence under Section 302 IPC. Adding to that, it is admitted by Sri. Raja Vijayaraghavan that Advocate Shibu George was voluntarily engaged by the appellant. We cannot find fault with the appellant engaging a lawyer of his own choice and it is not at all justified to remand a case of this nature for the reason that some questions also might have been put to the witnesses in cross examination and those omissions might be due to the lack of experience of the defence counsel. In the cases referred to us, the accused had not engaged a lawyer of their choice, but the trial judge engaged a counsel under Section 304 Cr.P.C. just before the trial. Here, the position is entirely different. So we find, as we mentioned earlier, that Smt. Ajitha Salam got suspended her certificate of enrolment as early as in September, 2007. In the normal course, a responsible defence counsel would inform the client especially when the engagement is of serious nature about the intention of the lawyer to stop practice and would have asked to find out another lawyer of their own choice. It is submitted by Sri. Nazar, the learned Public Prosecutor that the appellant would have been informed as early as in September, 2007 to find out another lawyer. The memo DSR 3/2009 & CRL.A. 1134/2009 17 filed by the then counsel along with the petition for adjournment is dated 12.1.2008. In that memo, she had styled herself as 'the formerly advocate' and then working as CTO Trainee (Reserve). That means it was only a formal memo given by the lawyer and the appellant might have been informed about the same long back. So we find that the learned Sessions Judge had not at all denied any opportunity to the defence counsel to prepare the brief and to cross examine the witnesses. On the other hand, though the request for adjournment was not justified, the learned Sessions Judge had offered to give sufficient time to prepare the case, if so required and to cross examine the witnesses, provided the cost of the witnesses were paid. Without availing that opportunity, the defence counsel volunteered and cross examined the witnesses. No prejudice is caused to the appellant so as to warrant a remand of the case for a fresh trial. We notice that Rule 80 of the Criminal Rules of Practice mandates that Sessions cases shall be given prejudice. It is accordingly the Sessions Judge gave preference. With sufficient notice, the trial was scheduled day to day. It appears that the attempt of the defence was to see whether schedule for examination of the witnesses could be adjourned and DSR 3/2009 & CRL.A. 1134/2009 18 rescheduled. When it was understood that the case would not be adjourned to a longer date, the defence lawyer examined the witnesses. There is no denial of opportunity or justice. The method adopted by the learned Sessions Judge is perfectly correct. 9. As regards the counsel engaged by the Sessions Judge, from the stage of recording the statement of the appellant under Section 313 Cr.P.C., it was submitted by the learned Public Prosecutor, after collecting datas, that Advocate Sri. Sudev Kumar, who was engaged to defend the appellant, was enrolled on 5.5.1999 and he was attached to the office of Advocate Sri. C.S..Ajayan, who is a leading criminal lawyer in Kottayam Bar and as on the date of engagement, Sri. Sudev Kumar had more than nine years experience in the Bar. 10. Sri. Raja Vijayaraghavan, learned counsel appearing for the appellant, could not point out any relevant material which was not argued before the trial court. Having heard either side and reading the impugned judgment, we find that every relevant defence was presented before the trial court and it was duly considered by the trial court. Regarding the answers given when questioned under Section 313 of the Code of Criminal DSR 3/2009 & CRL.A. 1134/2009 19