IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 Death Sentence Ref..No. 4 of 2009(S) ------------------------------------ SC.1366/2008 of DISTRICT COURT, THRISSUR C.P. No. 113 OF 2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY. .................... COMPLAINANT -------------------- STATE OF KERALA BY SR. PUBLIC PROSECUTOR SRI.C.M.NAZAR SR. PUBLIC PROSECUTOR SRI. S.U.NAZAR RESPONDENT(S): --------------- MAMMYKUTTY S/O MOIDU C. NO.7301, CENTRAL PRISON, KANNUR. ADV. ADV.LEAN JOSE(STATE BRIEF) FOR R THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 18-10-2010 ALONG WITH CRA NO. 2650 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------------------------------------- DSR No. 4 of 2009 & Crl. A. No. 2650 of 2009 ----------------------------------------------- Dated this the 18th day of October, 2010 J U D G M E N T Gopinathan, J. The Sessions Judge, Thrissur in Sessions Case No.1366/08 on his file convicted the appellant in Crl. Appeal No.265/09 who is respondent in DSR No.4/09 for offence under Section 302 and 498A IPC. Hereinafter the convict is referred to as the appellant. The learned Sessions Judge sentenced the appellant, who is the first accused, to be hanged by neck till he is dead for offence under Section 302 IPC. For offence under Section 498A IPC, the appellant was sentenced to rigorous imprisonment for three years. The death sentence was referred to this Court under Section 366 of the Code of Criminal Procedure for confirmation. The conviction and sentence are assailed by the appellant in his appeal. The prosecution case in brief is that Abdul Khader Musaliar, DSR.4/09 & CA.2650/09 -2- the 2nd accused and son of the appellant Mammikutty married Mymoona. PW-10 Muhammed and PW-11 Fathima are the parents of Mymoona. The marriage was on 12-3- 2006. On the date of the marriage Mymoona was aged 26 years, whereas Abdul Khader Musaliar was aged only 23 years. Mymoona was given ornaments weighing 30 sovereigns and a sum of Rs.1 lakh. The appellant, his wife Nabeesa who was the third accused and Abdulkhader were not satisfied with the quantity of the gold ornaments and the amount given at the time of marriage. Though the appellant, his wife and son were aware on the date of the marriage that Mymoona was older than Abdul Khader, later relating to the age they picked quarrel and there was even demand to have the date of birth of the deceased corrected in the records. There was also demand for giving more dowry. Three months after the marriage Mymoona was taken to her parents and asked for giving ornaments DSR.4/09 & CA.2650/09 -3- weighing 20 sovereigns more and another sum of Rs.50,000/-. When PW-10 declined to heed to the demand, Abdul Khader went away leaving mymoona there and stating that Talaq would be pronounced. But on the next day Abdul Khader returned and took back Mymoona stating that what he had stated on the previous day need not be taken seriously and that he was taking Mymoona back home. Demand for more dowry and money was subsequently repeated. PW-10 managed to give some house hold articles. But the appellant, his wife and son were not happy with it. During the holy month of Ramzan in 2007, PW-10 invited the appellant and family members to join the family for breaking the fast. But the appellant did not care to go to PW-10 to join for breaking the fast. Mymoona was also not sent. Out of the matrimony, a girl child was born and she was aged 7 months as on October 2007. On 2-10- 2007 PW-10 telephoned to appellant and enquired why they DSR.4/09 & CA.2650/09 -4- had not gone home for breaking the fast. The appellant replied that PW-10 was not listening to their demands. Hence they were not joining them to break the fast. The appellant told PW-10 that on the next day he would know a matter which the entire world would listen. According to the prosecution, in between 8 and 8.30 a.m. on 3-10-2007 the appellant inflicted severe cut injuries on Mymoona with M.O.1 chopper, a very deadly weapon. Knowing the incident, PW-1, a neighbour and others rushed to the house of the appellant. PW-1 saw the appellant standing at the Verandah of the house with chopper in his hand. In an adjacent cot Mymoona was lying with bleeding injuries on her head, neck and hands. He along with one Hassan, who is now no more, lifted the injured Mymoona to the Divine Hospital, Wadakkanchery wherein PW-12 was the casualty Medical Officer. PW-12, after examining Mymoona reported brought dead. The matter was reported to the brother of DSR.4/09 & CA.2650/09 -5- Mymoona. Hassan proceeded to the Cheruthuruthi Police Station at 10.00 a.m. where PW-21 was the Sub Inspector and gave Ext.P12 first information statement. PW-21, after recording Ext. P12 registered a case as crime No. 526/07 against the appellant for offence under Section 302 IPC by Ext.P12(a) first information report. PW-21 sent express message to PW-23, the then Deputy Superintendent of Police, Kunnamkulam. PW-23 took over the investigation. The matter was also reported to PW-19, the Executive Magistrate and Additional Tahsildar, Thrissur. PW-19 went to Divine Hospital, Wadakkanchery and at 1.00 p.m. he prepared Ext.P1 inquest report wherein PW-3 is an attester. PW-23 went to the spot of occurrence and prepared Ext.P5 scene mahazar wherein PW-7 is an attester. It is seen that the thumb and index finger of the left hand of Mymoona were severed and were lying at the spot. PW-20, the Asst. Sub Inspector of Police seized the same after preparing Ext.P2 inquest DSR.4/09 & CA.2650/09 -6- report wherein PW-4 is an attester. PW-23 while preparing Ext.P5 scene mahazar collected blood samples through PW- 18, the Senior Instructor, Forensic Science attached to Police Academy. PW-23 proceeded with the investigation. The appellant was kept under surveillance at Cheruthuruthy Police Station. PW-23 arrested the appellant and interrogated. At the time of arrest the shirt worn by the appellant was stained with blood. It was seized on the strength of Ext. P4 mahazar wherein PW-6 and PW-20 are attesters. The shirt was marked as M.O.5. During the course of interrogation the appellant stated that he had kept the chopper over a wooden rack placed along the western wall of the house. Dhoti worn by him was kept under the same wooden rack and in the event he was taken home he would take it and hand it over. Accordingly as led by the appellant PW-23 went to the house of the appellant at 6 p.m. The appellant took out M.O.1 chopper kept over the DSR.4/09 & CA.2650/09 -7- wooden rack along the side of the western wall and handed it over to PW-23. Blood stained dhoti kept under the wooden rack was also taken out and handed it over to PW- 23. PW-23 seized the same after preparing Ext.P6 recovery mahazar wherein PW-8 is an attester. Ext.P14 series are the arrest memos. The appellant was then produced before the Judicial Magistrate of the First Class, Wadakkancherry along with Ext.P15 remand report. Reporting correct address of the appellant, Ext.P16 report was filed. PW-23 then got the photographs of the dead body taken by CW-23 who was not examined. M.O.9 series are the photographs. M.O.9 series were seized on the strength of Ext.P18 seizure mahazar. The Material objects seized were forwarded to the Court along with Ext.P17 and P19 property lists. Thereafter he filed Ext.P20 forwarding note to forward the material objects for chemical examination and obtained Ext.P21 report of the Chemical Examiner. During the course of DSR.4/09 & CA.2650/09 -8- investigation it was revealed that the son and wife of the appellant had subjected Mymoona with cruelty with a view to coerce her and her relatives to meet unlawful demand for dowry. Therefore, they were arrayed as A2 and A3 respectively for offence under Section 498A IPC read with 34 IPC. Ext.P22 report was submitted by PW-23 on 17-10- 2007 to that effect. Further investigation was taken over by PW-22 who succeeded PW-23. PW-22 after completing the investigation submitted a charge sheet for offences under Section 302 IPC and Section 498A read with 34 IPC before the Judicial Magistrate of First Class, Wadakkanchery. 3. The learned Magistrate took cognizance as C.P.113/08 and proceeded with. The presence of the second and third accused could not be procured and hence the case against second and third accused were split up and separately proceeded. Finding that the offences alleged against the appellant are triable by a Court of Session, after DSR.4/09 & CA.2650/09 -9- complying with the requisite procedures, by order dated 1- 12-2008, the case against the appellant was committed to the Court of Session, Thrissur. The appellant was in custody ever since his arrest on 3-10-2007. The presence of the appellant was procured by issuing production warrant. Since the appellant was not defended by a counsel, a legal aid counsel was appointed by the learned Sessions Judge to defend the appellant. After hearing the prosecution and the appellant charge for offence under Section 302 and 498A read with 34 IPC was framed. When read over and explained the appellant pleaded not guilty. Hence he was sent for trial. 4. On the side of the prosecution, PWs. 1 to 23 were examined and Exts.P1 to P22 were marked. Nine material objects were exhibited and marked as M.Os. 1 to 9. After closing the evidence for the prosecution the appellant was questioned under Section 313 of the Code of Criminal DSR.4/09 & CA.2650/09 -10- Procedure. The appellant stated that he was employed as a night watchman at Wadakkanchery and used to reach home at about 9 a.m. and as usual when he reached home he noticed that his daughter-in-law was lying over the cot with bleeding injuries. Though he attempted to lift her, he could not succeed. He cried for help. Gathered people told him that daughter-in-law was inflicted injuries by some unknown person. At his request a vehicle was brought. By the time he lost consciousness and came to sense only when police arrested him. At the request of the police he handed over a chopper. But that was not with him. He was a follower of Congress Party. PW-1 had political enimity and he was falsely implicated. Thereafter, the appellant and the prosecution were heard. On finding that the appellant was not entitled to be acquitted under Section 232 Cr. P.C. he was called upon to enter his defence. But no defence evidence was let in. Thereafter, the appellant and the DSR.4/09 & CA.2650/09 -11- prosecution were again heard. On finding that the prosecution had succeeded to establish the offence alleged against the appellant, the learned Sessions Judge, by judgment dated 28-4-2009 found the appellant guilty for offence under Section 302 and 498A IPC. Again the appellant was heard on 29-4-2009 regarding sentence and thereafter the appellant was sentenced as above. Now the reference under Section 366 Cr. P.C. as well as the appeal. 5. The appellant was not assisted by a lawyer. Hence the registry appointed Advocate Sri. Lean Jose at the expense of the State to prosecute the appeal. We heard Sri.C.M.Nazer, learned Public Prosecutor as well as Advocate Sri.Lean Jose. 6. In fact, the appellant had not disputed the homicide. But his contention is that it was committed by someone else. DSR.4/09 & CA.2650/09 -12- Evidence adduced 7. PW-1 had deposed that on 3-10-2007 at about 8 - 8.30 a.m., he came out of the house which is near to the house of the appellant. He heard a hue and cry from the house of the appellant. He heard that the appellant inflicted cut injuries on his daughter-in-law. PW-1 rushed to the house of the appellant and found that the appellant was standing in front of his house with chopper in his hand. Over a cot at the Verandah, Mymoona was seen lying with chop injuries at the back of the head, neck and hands. He fetched a car and Mymoona was lifted to Divine Hospital, Wadakkanchery. The doctor, after examining Mymoona, reported that Mymoona was dead. It was further deposed that the appellant went behind the house with chopper when the people gathered. 8. PW-2 had deposed that he was JCB operator and he was involved with building construction work and on 3-10- DSR.4/09 & CA.2650/09 -13- 2007 while he was going for his work through the side of the house of the appellant he saw people running towards the house of the appellant. He also rushed to the house and found that Mymoona was lying with bleeding chop injuries. Her head was over the cot and the body was on the floor. The appellant, who was having M.O.1 chopper stained with blood in his hand, intimidated at chopper point that no one shall approach and would be murdered. PW-2 had further deposed that PW-1 and Hassan together lifted Mymoona in a car to the hospital. PW-3 is an attestor to Ext.P1 inquest report prepared by PW-19, additional Tahsildar, Thrissur. During the course of the preparation of the inquest report, maxi, underskirt and brassieres of the deceased, which were marked as M.Os. 2 to 4, were seized. 9. PW-4 is an attester to Ext.P2 inquest report prepared by PW-21 Sub Inspector in respect of two DSR.4/09 & CA.2650/09 -14- amputated fingers of the deceased. 10. PW-5 was examined as a witness to the occurrence. But she did not support the prosecution. She had supported the prosecution to the extent that Mymoona was the daughter-in-law of the appellant and Mymoona was murdered. She did not even remember the date. Though, with permission of the Court, the learned Public Prosecutor put leading questions and confronted PW-5 with C.D. statement which was marked as Ext.P3 series, no material was disclosed to support the prosecution. 11. PW-7 is an attester to Ext.P5 scene mahazar. PW- 8 is an attester to Ext.P6 recovery mahazar on the strength of which M.O.1 chopper alleged to have been used by the appellant to inflict injuries and M.O.6 dhoti worn by the appellant during the time of the commission of the offence were seized. 12. PW-9 is yet another neighbour of the appellant. He DSR.4/09 & CA.2650/09 -15- had deposed that deceased Mymoona was the daughter-in- law of the appellant and that on 3-10-2007, hearing the cry from the house of the appellant, he, who was a heart patient, came out of the house and found the appellant standing in front of his house with blood stained shirt. Seeing it, PW-9 got exhausted and returned home. 13. PWs-10 and 11 had deposed that Mymoona is their daughter and she was married to Abdul Khader Musaliar, son of the appellant. PW-10 had further deposed that at the time of marriage Mymoona was given gold ornaments weighing 30 sovereigns and Rs.one lakh and that three months after the marriage, Abdul Khader took Mymoona to the house of PW-10 and demanded 20 more sovereigns of gold and Rs.50,000/- as further dowry. When declined to heed the demand Abdul Khader informed athat he would pronounce Talak. Leaving Mymoona at the house, Abdul Khader went away. On the next day he came back and told DSR.4/09 & CA.2650/09 -16- that what he had stated on the previous day need not be taken as serious and Mymoona was taken back by Abdul Khader. It was further deposed by PW-10 that Mymoona was treated with cruelty with demand for dowry. It was also deposed that though PW-10 could not meet the demand for dowry, he had given an almirah, grinder, iron box, mobile phone, motor and vessels. But the appellant and his son were not satisfied with the articles given and they insisted for 20 more sovereigns and Rs.50,000/-. It was further deposed that Mymoona was conceived, gave birth to a girl child and that when she was taken home after confinement, two more sovereigns of ornaments were given. During the Ramzan month in 2007 the appellant and family members were invited to the house of PW-10 to join for breaking the fast. But Abdul Khader informed over phone on Sunday, immediately before 3-10-2007 that they were not joining PW-10 to break the fast stating that PW-10 was not heeding DSR.4/09 & CA.2650/09 -17- their request. The further evidence of PW-10 is that on the previous evening, when he enquired, the appellant, over phone informed that on the following day PW-10 would know a matter which the whole world would listen. The further evidence of PW-11 is that Mymoona was older than Abdul Khader and the appellant and family members were picking quarrels over the same, though the age of Mymoona was disclosed at the time of marriage itself. 14. PW-12 would depose that he was casualty Medical Officer in Divine Hospital at Wadakkanchery on 3-10-2007 and that Mymoona was brought dead to the hospital. 15. PW-13 would depose that on 3-10-2007 he was working as Assistant Professor, Forensic Medicine and Deputy Police Surgeon at Medical College, Thrissur and that on that day he conducted autopsy on the body of Mymoona, aged 27 years and that Ext.P7 is the postmortem certificate. He noted the following ante-mortem injuries: DSR.4/09 & CA.2650/09 -18- 1. Incised wound 9 X 4 cm., bone deep horizontally placed on the back of neck, 2cm. above the root of neck with its left end placed 6cm. outer to midline. The wound had cut fractured the lamina and spinous process of the 6th cervical vertebra and ended by transecting the spinal cord. 2. Incised wound 6 x 2 x 1 cm. placed horizontally on the middle of back of neck, 3.5 cm. above the injury No.1. 3. Incised wound 3 x 0.5 x 0.5 cm., placed horizontally on the back of neck, 0.5 cm. above injury No.2. 4. Superficial incised wounds, 2 in number, measuring 3 x 0.5 x 0.5 cm. and 2.5 x 0.5 x 0.5 cm. placed horizontally and o.5 cm. apart on the back of neck, with the former 2cm. below injury No.2. 5. Incised wound 2 x 1.5 x 0.5 cm. obliquely placed on the back of right shoulder, with its upper inner end 4.5 cm. outer to midline and 1.5 cm. below the top of shoulder. 6. Incised wound 3 x 1.5 x 1.5 cm. on the back of right shoulder, obliquely placed with its upper inner end 12 cm. outer to midline and 1.5 cm. below the top of shoulder. The shoulder blade was partially cut fractured underneath. 7. Incised wound 9 x 5 cm., bone deep, obliquely placed on the back of left shoulder, with its upper inner end 8 cm. outer to midline and 2 cm. below the top of shoulder. The head of humerus was DSR.4/09 & CA.2650/09 -19- partially cut fractured underneath. 8. Incised would 3 x 2 x 0.5 cm. on the front of left shoulder, 1 cm. below its tip. 9. Incised wound 10 x 3 cm., bone deep, on the back of left hand, placed vertically with its upper end touching the Wrist and lower end involving the web space between the middle and ring fingers. The carpal and metacarpal bones underneath were cut fractured. 10. Incised amputating wound 6 x 3.5 cm., on the back of left hand involving the roots of thumb and index finger. The severed portion of thumb and index finger were brought separately. The distal phalanx of the index finger was amputated. 11. Incised wound 10 x 3 cm., bone deep, obliquely placed on the front of right hand with its upper inner end just below the wrist. Right index finger was amputated at the level of its root. The severed portion of right index finger and distal phalanx of left index finger were brought separately. 12. Incised wound 5 x 1.5 cm., bone deep on the back of right hand and adjoining part of wrist, with the fifth metacarpal bone cut fractured underneath involving its full thickness. Severed left thumb and index finger with its distal phalanx missing were brought separately in a plastic cover. The DSR.4/09 & CA.2650/09 -20- missing right index finger and tip of left index finger were recovered later from the house and brought separately in a plastic cover along with a request from the Sub Inspector of Police, Cheruthuruthy Police Station. It was further opined that death was due to injury sustained to neck. Injury No.1 was sufficient in the ordinary course to cause death and that all the injuries noted in Ext.P7 could be caused by cutting with M.O.1 chopper which was shown to PW-13 and that injury No. 9 to 12 were defensive wounds while the victim trying to ward off the cuts. In cross examination it was deposed that M.O.1 is a sharp heavy weapon. 16. PW-14, then Varavoor - Pilakkad Group Village Officer, had deposed that Ext.P18 is a scene plan prepared by him and that Ext.P9 is the certificate of possession regarding 2.02 Ares of land in survey No.340/4 possessed by the appellant. PW-15 had deposed that he was the Headmaster of Government High School, Varavoor and that DSR.4/09 & CA.2650/09 -21- deceased Mymoona was a student in the School and that as per the records, extract of which is marked as Ext.P10, date of birth of Mymoona was 11-7-1980. 17. PW-16 had deposed that he was Secretary of the South Thalassery Sunni Juma Ath Committee and that Ext.P10 is a certificate issued by him and that as per the records maintained by the Sunni Juma Ath Committee, the marriage of Mymoona was on 12-3-2006 and that at the time of marriage Mymoona was aged 26 years and Abdul Khader was aged 23 years. 18. PW-17 is a woman constable who had been in charge of the dead body. PW-18 is the Senior Instructor (Forensic Science) attached to Police Academy. She had deposed that she had collected blood samples through a cotton gauze and M.O.7 is the blood stained cotton gauze. 19. PW-19 had deposed that he had prepared Ext.P1 inquest report and that at the time of preparing inquest he DSR.4/09 & CA.2650/09 -22- had seized M.O.2 maxi, M.O.3 underskirt and M.O.4 brassier. PW-20 is an attester to Ext. P4 seizure mahazar whereby M.O.5 shirt worn by the appellant was seized by PW-23. PW-21 had deposed about the recording of Ext. P12 first information statement and registering of the crime as well as the preparation of Ext.P2 inquest report regarding the two amputated fingers of the deceased. PW-23 had given evidence regarding the investigation. PW-22 had deposed that the investigation conducted by PW-23 was completed and charge sheet was laid by him. 20. PW-23 had also deposed that the appellant who was under surveillance at Cheruthuruthy Police Station was arrested at 4.15 p.m. on 3-10-2007 and that Ext.P14 series are the arrest memos and that he seized M.O.5 shirt worn by the appellant at the time of arrest and that Ext. P4 is the mahazar prepared for the seizure of M.O.5. It was further deposed that on interrogation the appellant stated that he DSR.4/09 & CA.2650/09 -23- had kept that chopper over the wooden rack placed along the side of the western wall of the house and that the dhoti worn by him was kept under the wooden rack and in the event he was taken to the house he would take it and hand it over to PW-23 and accordingly on the basis of the information given by the appellant and as led by the appellant he went to the house of the appellant and recovered M.Os. 1 and 6. Ext.P6 is the recovery mahazar and Ext. P6(a) is the disclosure statement given by the appellant. Evaluation of evidence 21. The evidence of PW-1 would show that Mymoona had sustained severe cut injuries and she was taken to Divine Hospital, Wadakkanchery. The evidence of PW-12 would show that Mymoona was brought dead with injuries. The evidence of PW-13 coupled with Ext.P7 post-mortem certificate and