IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 CRL.A.No. 282 of 2005 ----------------------- APPELLANT: -------------- MUHAMMED HASSAN @ BAVA, CONVICT NO.963, CENTRAL PRISON, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: --------------- STATE OF KERALA. BY PUBLIC PROSECUTOR MR. JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-9-2008, THE COURT ON 14-11-2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.A. NO. 282 OF 2005 ============================ DATED THIS THE 14TH DAY OF NOVEMBER, 2008 JUDGMENT Hari Rani,J. The appellant, aggrieved by the conviction and sentence imposed on him for the offence under Section 302 of the Indian Penal Code in S.C.No.305/2001 on the file of the IInd Additional Sessions Court, Kozhikode, has filed this appeal. 2. The prosecution case is summarised as follows: The deceased Thahira is the second wife of the appellant/accused. On 25-9-1998 at 1 p.m., the accused with the intention of killing Thahira trespassed into the house of Morakarathode Asmabi wherein Thahira resided with her mother and children, entered into the dining hall of that house, pulled her down by holding her hair and stabbed her with a knife on her thigh, chin, neck and chest and thus caused grievous injuries to her and she succumbed to the said injuries on the way to Beach Hospital, Crl.A.282/2005. -2- Kozhikode. The above crime was committed by the accused as he suspected the chastity of Thahira and further the property assigned by the accused and his first wife in favour of Thahira was sold by her without their consent and knowledge, which also enraged him. Crime No.159/1998 was registered by the police under Section 302 of the Indian Penal Code on the basis of the first information statement given by PW1, the brother of the deceased, which was recorded by PW15 and registered F.I.R,Ext.P1(a). The accused surrendered before the police with the knife and he was arrested by PW15, the Circle Inspector of Police, Cheruvannur. PW15 prepared Ext.P3 inquest report and Mos.1 to 4, dresses worn by the deceased were taken into custody. MO.5, the knife, which was produced by the accused, was also seized by PW15. PW9 conducted autopsy and found the following antemortem injuries on the body of the deceased as noted in the postmortem certificate, Ext.P7: 1. Incised wound of lower jaw 6.5 x 0.8 cm, bone deep(1 cm.deep)oblique, with upper left end situated 1.2 cm to left of midline and 1.5 cm below lower lip. The lower right end was 5 cm to the right of midline over the lower border Crl.A.282/2005. -3- of jaw. 2. Incised penetrating wound 5 x 1 cm oblique on the right side of front of neck with lower medial spare cut and situated 0.5 cm to the right midline 3 cm above collar bone. The upper lateral pointed end was situated 5 cm to the right of midline 6 cm above collar bone. Deep to this wound right sternomastoid muscle was cut for a length of 3 cm in full thickness in its medial part and strap muscles of neck. Then completely cut the trachea 3 cm below the vocal cord, strap muscles of neck on left side and carotid sheath and contents. Then entered the top of left chest cavity and cut the apex of left lung (0.6 x 0.3 cm)The wound has a total depth of 11.5 cm and was directed downwards, backwards and to the left. 3. Incised wound 4.5 x 0.3 cm transverse on the upper part of front of neck, 8cm above the level of jugular notch. Left end was 1.5 cm outer to midline and right end 3 cm outer to midline. Depth was 0.2 to 0.7 cm wound being deeper towards right end. 4. Incised wound 2.4 x 0.3 x 0.1cm oblique on left side of under aspect of chin with upper lateral end situated 5.6 cm to the left of midline on the lower margin of jaw bone. Lower medial end was placed 2 cm to left midline 2.5 cm behind jaw margin. 5.Incised wound 3.2 cm x 0.8 x 0.8 cm transverse over left angle of jaw with front end situated 7.5 cm. to the left midline. Crl.A.282/2005. -4- 6. Incised wound 7 cm x 1 cm transverse over left and back aspect of neck. Front end was 4.5 cm below left angle of jaw and the back end was 3.5 cm to the left of middle back. 7. Incised wound 2.5 x 0.7 cm transverse 0.1 cm deep involving the front medial aspect of palm of right hand, 0.8 cm above root of little finger synovial sheath over the proximal phalanx of little finger cut for a length of 0.4 cm. 8. Incised wound 2.2 cm x 0.4 cm, vertical on dorsum of left hand with lower end situated 5 cm above proximal knuckle of middle finger, wound was 0.1-0.2 cm deep. 9. Incised penetrating wound 3.2 x 1 cm vertical, on the medial aspect of upper part of right thigh, wound was 3 cm below and outer to labia majora. Depth was 5 cm, upper end was square cut and lower end pointed. Wound was directed upwards and backwards. 10. Contused abrasion 1 x 0.6 cm on the lower part of front of right knee. 3. PW9 was of the opinion that the deceased died due to penetrating injuries sustained on her neck and left chest and the injuries can be caused by MO.5 knife. PW14, the Town Circle Inspector, who was in additional charge of Cheruvannur Circle Inspector conducted the investigation of the case from 25-9- 1998 to 28-9-1998. He prepared the scene mahazar, seized some of the material objects and questioned the witnesses. He Crl.A.282/2005. -5- produced the accused before court along with remand report. Further investigation was conducted by PW16 till 27-2-1999. He also questioned the witnesses and recorded their statements. Later his successor Mr.N.V.Joseph laid the charge against the accused before the Judicial First Class Magistrate's Court-V, Kozhikode. The learned Magistrate committed the case to the Sessions Judge, who made over the same to the IInd Additional Sessions Court, Kozhikode for trial and disposal. The Additional Sessions Court framed the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code 4. The accused pleaded not guilty to the charge. From the side of the prosecution, PWs.1 to 16 were examined and Exts.P1 to P21 were marked. Mos.1 to 12 were also marked. The accused was questioned under Section 313 of the Code of Criminal Procedure regarding the incriminating circumstances, which appeared against him in the evidence. He denied the entire prosecution case and pleaded innocence. The accused filed a statement before the lower court wherein he has stated that prior to the incident, he was residing with Thahira, his second Crl.A.282/2005. -6- wife, in his house at Edavannappara. That house belonged to him and his first wife Kadeeja. They have registered that house in favour of Thahira. While they were residing in that house, the accused used to go for his work and at that time Thahira was having illicit relationship with others which was questioned by him and warned her not to repeat the same. On the next day while he went to his work, Thahira went to the house of her brother near Saradamandiram along with her youngest two children leaving the elder daughter Jamshina in his house. He used to go occasionally to see Thahira and children. On 25-5-1998 while he was proceeding to that house to see Thahira and her children and when reached at the main road, he saw some persons who were running. On enquiry, he was informed that somebody stabbed Thahira and caused injuries to her and they were proceeding to take her to the hospital. Then he proceeded to that house where his wife Thahira was residing and on the way Puthenpurayil Babu, the brother of Thahira and 5 to 8 other identifiable persons caught him and assaulted him and he was taken subsequently to Nallalam police station. He Crl.A.282/2005. -7- sustained injuries in the attack. From the police station Babu and others informed the Sub Inspector that the accused stabbed Thahira. At that time, the Sub Inspector told Babu to bring the knife. Accordingly, Babu went out and brought the knife which was handed over to the Sub Inspector. Subsequently, the Sub Inspector arrested him and he was implicated as the accused with the allegation that he stabbed Thahira who succumbed to the injuries. The injuries sustained by him was shown to the Sub Inspector and he was taken by the Head Constable along with one police constable to the Government General Beach Hospital from where the Doctor examined him and after consultation with the police, who accompanied him, issued the certificate. The Doctor did not enquire anything to him. Thereafter he was produced before the Judicial First Class Magistrate Court-V, Kozhikode and remanded. He has not committed any offence and he submitted he used to maintain Thahira and children. 5. No witness was examined on the side of the defence. After hearing both sides, the trial court found the accused guilty under Section 302 of the Indian Penal Code and he was Crl.A.282/2005. -8- sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for a further period of one year. The appellant, aggrieved by the conviction and sentence, has preferred this appeal. 6. We heard the learned counsel appearing for the appellant Sri. Gracicous Kuriakose and the learned Public Prosecutor Sri. Jai George. 7. The learned counsel appearing for the appellant submitted that the prosecution has not explained the injuries found on the body of the accused as revealed from the wound certificate, Ext.P11. So, the true facts were not brought out before the court for a correct decision in this case. Further, the testimonies of PWs.2 and 3, occurrence witnesses, examined on the side of the prosecution, are contradictory to each other with regard to the number of stabs caused by the accused. According to PW2, the accused stabbed three times on the body of the deceased, whereas PW3 has deposed that the accused stabbed several times. So, no reliance can be placed on their evidence to Crl.A.282/2005. -9- support the prosecution case. Therefore, the learned counsel prayed to acquit the accused on the ground that the prosecution has not succeeded in proving its case beyond reasonable doubt. 8. It is submitted by the learned Public Prosecutor that the prosecution has mainly relied on the evidence of PWs.2 and 3, the actual eye witnesses of the whole incident and also the evidences of PWs.1,4 and 6, who also witnessed major part of the incident. Further, cross examination made by the learned defence counsel of all the witnesses examined on the side of the prosecution was confined to the motive only and the overt acts of the accused spoken to by the relevant witnesses were not at all challenged. 9. The case of the prosecution that the deceased died on account of homicidal violence is not disputed before us and the said fact also stands proved through the evidence of PW9, who conducted autopsy and issued the postmortem certificate, Ext.P7. According to PW9, the cause of death of the deceased was due to penetrating injuries sustained on the neck and left chest and those injuries can be caused by MO.5 knife. In the Crl.A.282/2005. -10- cross examination, it is deposed by PW9 that most grievous injury was injury No.(2) as noted in Ext.P7. The relevant portion of Ext.P7 reads as follows: “ Incised penetrating wound 5 x 1 cm oblique on the right side of front of neck with lower medial spare cut and situated 0.5 cm to the right midline 3 cm above collar bone. The upper lateral pointed end was situated 5 cm to the right of midline 6 cm above collar bone. Deep to this wound right sternomastoid muscle was cut for a length of 3 cm in full thickness in its medial part and strap muscles of neck. Then completely cut the trachea 3 cm below the vocal cord, strap muscles of neck on left side and carotid sheath and contents. Then entered the top of left chest cavity and cut the apex of left lung (0.6 x 0.3 cm)The wound has a total depth of 11.5 cm and was directed downwards, backwards and to the left.” According to the prosecution, the deceased was attacked by the accused with the knife, MO.5 at about 1 p.m. on 25-9-1998 and the whole incident was witnessed by PWs.2 to 4. The incident, according to the prosecution, was on account of the enmity of the accused to Thahira, his second wife, owing to suspicion of her chastity and owing to the ill-feeling towards her as she sold Crl.A.282/2005. -11- the property assigned by the accused and his first wife, to a third party without their consent and knowledge. With that ill-feeling and enmity, the accused came to the house of Asmabi, wherein Thahira was residing along with her mother and children, armed with a knife with intention to cause death of Thahira. 10. PW2 (Nabeesa), the mother of the deceased has deposed as follows: On 25-9-1998, at about 1 p.m. Thahira was sitting in the verandah of their residential house along with her mother; Shahina PW3 who is the daughter of PW1, and one Nabeesa and they were talking with each other. When Thahira saw the accused coming to the said house, she went inside of that house saying to her mother about the arrival of the accused. When the accused entered the house, Smt. Nabeesa went to her house. PW2 also entered the house. The accused peeped into other rooms by standing in the dining hall. He caught hold of the hair of Thahira and pulled her down. Then he took a knife from his waist and stabbed Thahira inside her thigh. When PW2, the mother of Thahira, and PW3 Shahina, tried to catch the accused, he pushed them away and sat on the chest of Thahira and Crl.A.282/2005. -12- stabbed on her neck and chin after closing her mouth with one hand. When they made a hue and cry, the accused ran away with the knife. PW2 tried to catch the accused by following him upto the road, but he escaped. Subsequently, PW1, the brother of the deceased brought a car and Thahira was taken to the hospital. PW1 identified MO.5 knife used by the accused to stab his sister Thahira. According to PW1, he heard a hue and cry from the house of Asmabi and he rushed to that house and saw the accused fleeing from there with the knife. He followed the accused, but could not catch him. PW1 has also deposed regarding the enmity of the accused towards Thahira that it was due to the sale of the property at Edavannappara without the knowledge of the accused and also due to the suspicion that the deceased Thahira had illicit relationship with others. These witnesses were cross examined by the learned defence counsel and nothing has been brought out to discredit their evidence. In the cross examination of PW2, it is elicited by the learned defence counsel that the accused stabbed Thahira firstly on the thigh and subsequently on the neck, face and other parts of the Crl.A.282/2005. -13- body which she cannot state one by one. This is quite natural, being the mother of the victim. 11. The evidence of PW2 is corroborated by PW3 in all aspects. PW3 is the brother’s daughter of the deceased Thahira. She has reiterated the evidence tendered by PW2 regarding the attack of the accused and about the incident. She is the daughter of PW1 and was present in the house of Asmabi at 1 p.m. on 25-9-1998, when the incident happened. The relevant aspects spoken to by PW3 are as follows: When she was sitting and talking in the verandah of Asmabi’s house along with the deceased Thahira, grandmother PW2, and another woman who was a friend of her grandmother, she was called by Thasleena, the daughter of Asmabi to her study room and she went there. Subsequently, the accused came there and entered the dining hall and peeped into all other rooms of the said house. Thereafter, the accused caught hold of the hair of deceased Thahira and pulled her down and he sat on her chest and stabbed her by taking a knife from his waist. PWs.2 and 3 tried to prevent the accused, but he pushed them away. The accused Crl.A.282/2005. -14- closed the mouth of Thahira with his left hand and stabbed her with his right hand 3 or 4 times on her chin, neck etc. Thereafter, the accused ran away with the blood stained knife. PW2 ran behind the accused. This witness went to the neighbouring house of Subaida and informed about the incident. PW3 also deposed about the cause of enmity of the accused towards Thahira, that is, his suspicion of her illicit connection with others and also the sale of the property at Edavannappara by her without the knowledge of the accused. PW3 has identified MO.5 knife used by the accused to attack Thahira. This witness also has been thoroughly cross examined by the learned defence counsel. But nothing has been elicited to discredit her version about the incident. 12. PW4 is one Thasleena, who was another occurrence witness. She has deposed that the deceased Thahira along with her mother and her two children were residing in the house of Asmabi on mortgage arrangement and the incident occurred on 25-9-1998,Friday at 1 p.m. in that house. When she was sitting in her room along with PW3, the accused came there. Crl.A.282/2005. -15- PW3, Shahina, got out of that room and came into the dining hall. On hearing the hue and cry from the dining hall, she went there. At that time the accused caught hold of the hair of Thahira and pulled her down. The accused stabbed Thahira with a knife, taken from the waist, sitting on her chest. PW4 cried aloud and ran away to the neighbour's house. After that at about 1.30 p.m. when she came back to her house, Thahira was lying there motionless in a pool of blood in the dining hall. In the cross examination, she has stated that she was frightened by seeing the accused with the knife and she left the place. Thus it is revealed from the evidence of PW4 that she saw the major part of the incident and the overt acts of the accused. Nothing has been elicited in the cross-examination of this witness to discredit her testimony about the incident. 13. PW6 is one Kadeeja. She has also deposed that on 25-9-1998 at 1 p.m. while she was proceeding to her house with fire wood, she saw the accused entering the house of Asmabi. Her house is situated about 4 to 5 houses away from the house of Asmabi. At that time 2-3 persons were also sitting in Crl.A.282/2005. -16- the verandah of that house. After 2-3 minutes, she heard a hue and cry from that house and she threw down the fire wood and proceeded to the house of Asmabi. At that time she saw the accused fleeing from that house with a blood stained knife in his hand. She went inside the house and found Thahira lying in a pool of blood. PW1, Babu, who is the brother of the deceased, reached there with a car and Thahira was taken to the hospital and she also went along with them in the car. From the hospital they were informed that Thahira breathed her last. In the cross examination, it is deposed by PW6 that herself and the accused were walking one after the other. The accused went to the house of Thahira and she proceeded for some distance and then she heard the cries from the house of Thahira. Thereafter, she proceeded to the house of Thahira, where she found the accused running out of that house and PW2 chasing him. At that time, the accused was holding a knife in his hand. It was witnessed by her from a distance of about 5 metres. She has not seen the actual incident. Nothing has been elicited in the cross examination of this witness to disbelieve her evidence regarding Crl.A.282/2005. -17- those aspects. It was elicited by the prosecution that the accused was present in the place of incident and he escaped from there with the blood stained knife, MO.5. 14. The prosecution has also relied on the evidence of PW1, the first informant of the incident. PW1 is the brother of the deceased, who informed about the incident to PW15, the Sub Inspector of Police, Nallalam police station who recorded the statement at 2.30 p.m. on 25-9-1998 and registered the F.I.R, Ext.P1(a). PW1 has deposed that the accused used to ill-treat his sister Thahira, who has told him about it. Accordingly, he went to the house at Edavannappara along with his younger brother Musthafa and took Thahira and her children to his house wherein they resided for about one week. Subsequently, Thahira shifted her residence to the house of her elder sister Asmabi. The accused went to that house and forcibly took his eldest daughter Jamshina from the house. Thereafter, Thahira sold the house at Edavannappara and shifted her residence to the house of Asmabii on mortgage arrangement. The said house was sold by Thahira without the knowledge of the accused. Crl.A.282/2005. -18- Subsequently, after two months the incident happened on 25-9- 1998 at about 1 p.m. in the house of Asmabi. When he heard the hue and cry from the house of Thahira, he went there and he saw the accused running out from that house with a knife. He entered into the house of his sister and found Thahira lying there in a pool of blood. He tried to catch the accused by following him, but could not catch him. He brought a car and took the injured to the hospital. The Doctor examined her and informed that she is dead. PW1 has also deposed about the reason for enmity of the accused towards his sister. He was suspecting the chastity of his sister and was harbouring ill-feeling towards her as she sold a property assigned by him and his first wife. He has identified the dresses worn by the deceased at the time of the incident. This witness was also cross examined by the learned defence counsel and nothing has been elicited to discredit his version regarding the enmity of the accused towards his sister, Thahira and about the presence of the accused at the place of incident at the relevant time. 15. The remaining witnesses examined on the side of the Crl.A.282/2005. -19- prosecution are the witnesses to the seizure mahazar, inquest report, scene mahazar etc. and the official witnesses, who have no knowledge regarding the way in which the incident happened. So, we are not elaborately dealing with their versions. The investigating officers were examined as PWs.14 to 16. In the cross examination of the learned defence counsel they have stated regarding the investigation of the case and laying of charge against the accused before the learned Magistrate. 16. The argument advanced by the learned counsel appearing for the accused that the prosecution has not explained regarding the injuries sustained by the accused as revealed from the evidence of PW13 and from the wound certificate, Ext.P11, is of no relevance in this case. The accused has not pleaded private defence in this case. The defence has no case that the accused sustained injuries from the scene of occurrence. In the statement filed under Section 313 of Cr.P.C., it is stated by the accused that on 25-9-1998 while he went to