IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 CRL.A.No. 539 of 2004() ----------------------- SC.244/1998 of IV ADDL.SESSIONS COURT, ERNAKULAM CP.9/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... APPELLANT/ACCUSED: ----------- RAJU, S/O.KRISHNAN, AGED 64 YEARS, THARAYIL VEEDU, NELLIMATTOM KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM. BY ADV. SRI.T.D.ROBIN SRI.DIPU.V. SRI.ANUP.R RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON 30/05/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.HEMA, JJ. ----------------------------------------- CRL. APPEAL NO. 539 OF 2004-C ----------------------------------------- Dated 30th May, 2008. JUDGMENT Balakrishnan Nair, J. The appellant challenges the conviction and sentence in SC No.244/98 on the files of the IVth Additional Sessions Judge, Ernakulam. 2. The brief facts of the case of the prosecution are the following : The deceased was the wife of the appellant. They were living together in Tharayil Veedu in Kavalangadu Panchayat at Nellimattom kara in Kuttamangalam Village. The appellant was a drunkard and to clear his debts, he wanted to sell the property in which they were residing. The deceased was not amenable to the said demand of the appellant. The appellant was harbouring doubts regarding the chastity of his wife also. The murder took place on 09.03.1997 at 4.15 pm. The appellant, using his towel (thorthu), strangulated the deceased. Hearing a cry from the house of the appellant, the persons residing in the neighbourhood came to the scene. PW1, one of the neighbours removed the CRL.A NO.539/2004 2 appellant by force and others, who came along with him removed the thorthu from the throat of the deceased and it was found that she was already dead. The first information statement was lodged by PW1 at 6.30 pm. The SI of Police, Oonnukal Police station (PW12) registered a crime as Crime No.31 of 1997 under S.302 IPC. PW13, the CI of Police took over the investigation. The said Officer prepared the inquest report Ext.P3 and Ext.P4 scene mahazar. The dress of the accused was seized under Ext.P5 mahazar on his arrest on 10.03.1997. The post-mortem examination was conducted by PW11 on 10.03.1997. The accused was examined by PW10 and Ext.P7 wound certificate was issued on 11.03.1997. 3. The Circle Inspector of Police questioned the witnesses, completed the investigation and laid the charge before the Judicial First Class Magistrate's Court, Muvattupuzha. As per CP No.9/97, the case was committed to the Sessions Court, Ernakulam, which was numbered as SC No.244/98. The Sessions Judge framed the charge against the appellant under S.302 IPC. The charge against the appellant was that at 4.15 pm on 09.03.1997, at the eastern main room of Tharayil Veedu, bearing Door No.II/1999 of Kavalangadu Panchayat, he committed murder by intentionally CRL.A NO.539/2004 3 causing the death of his wife Smt.Sarojini, by making ligature using a towel (thorthu) and strangulated her to death and thereby committed murder under S.302 IPC. The appellant pleaded not guilty to the charges. The prosecution examined PW1 to PW13 and marked Exts.P1 to P10. The Sessions Judge questioned the accused on the material points brought out in evidence against him under S.313 of the Cr.P.C. The accused did not tender any defence evidence. After hearing both sides, the Sessions Judge found the appellant guilty of the charge and convicted him to undergo rigorous imprisonment for life. The aggrieved appellant has come up in appeal. 4. We heard Mr.T.D.Robin, learned counsel for the appellant and also Mr.S.U.Nazar, learned Public Prosecutor for the State. The learned counsel for the appellant pointed out that the prosecution has failed to prove any motive from the part of the appellant to murder his wife. There is no material on record to support the motive. Though, PW13, the investigating officer has spoken about some motive for the accused to murder his wife, the said statement made by the witness based on the information collected by him during the course of the investigation is not admissible in evidence. But, the learned Sessions Judge has relied on the said version of the C.I of Police, as CRL.A NO.539/2004 4 evident from the question put to the accused under Section 313 of the Cr.P.C., concerning the above aspect. The learned counsel also pointed out the conflicting versions given by Pws. 1 to 3, as to who removed the towel from the neck of the deceased and who examined her to find out whether she was breathing. The contradictions in the depositions on this point are very material, it is submitted. Regarding the lodging of F.I.Statement also, there is apparent conflict between the versions of PW1 and PW3, it is submitted. As per the deposition of PW3, the statements were recorded at 5 p.m., whereas the FIR was registered only at 6.30 p.m., based on the information lodged by PW1. So, the crime is not registered on the basis of the first information. The F.I. Statement recorded at 5 p.m has been suppressed by the prosecution. The learned defence counsel also pointed out that PW4 Pennamma did not support the case of the prosecution. So, she was cross-examined by the prosecutor with the permission of the court. In the cross-examination, she has admitted giving statements to the police, supporting the case of the prosecution. But, the learned Public Prosecutor at the trial stage failed to ask the witness which of the versions stated by her is correct. Even though there is such a lacuna in the evidence of PW4, her evidence has been relied on by the CRL.A NO.539/2004 5 trial court to find the appellant guilty. The learned counsel also strenuously contended that the non-examination of Rajan, Renju and Angels, who were Cws.4, 5 and 6 respectively and were present at the time of commission of the offence, is a material irregularity affecting the credibility of the prosecution case. The learned counsel for the appellant also pointed out that the trial court has blamed the defence for not having a consistent case regarding the incident. The said approach of the trial court is unsustainable in law, it is submitted. He also pointed out that the accused is entitled to take inconsistent and conflicting pleas. 5. The learned Public Prosecutor submitted that the trial court correctly appreciated the evidence and validly entered the finding of guilt against the appellant. The contradictions pointed out by the learned counsel for the appellant are of no consequence, it is submitted by the Public Prosecutor. 6. Before dealing with the above contentions, we will first refer to the evidence on record. PW1 to PW4 are the eye witnesses, who witnessed the commission of the offence. PW1 is residing in the neighbourhood of the appellant. He stated that the appellant is working as a rubber tapper and his wife was a coolie worker. He has been residing in the neighbourhood for the CRL.A NO.539/2004 6 last 5 years. Smt.Sarojini was killed on 09.03.1997 by the appellant, strangulating her using a towel (thorthu) at about 4 pm on 09.03.1997. When he went to the scene of occurrence along with Sri.Unni (PW3), they saw the accused strangulating the deceased, using the towel. It was a red coloured towel. PW1 asked the appellant to release her. He, using force, removed the appellant . Thereupon, PW3 loosened the towel around the neck of Sarojini. Upon examination by PW3, it was found that the deceased Sarojini was not breathing. Immediately thereafter, the accused went out. It was PW2 who called him and PW3. Rajan and Renju, the children of PW2 were also present. He went to the police station and gave the F.I. Statement before the SI of Police. The F.I.Statement was marked as Ext.P1 through the said witness. He also stated that he was not aware of any quarrel between the deceased Sarojini and the appellant. Though the witness was extensively cross-examined by the defence, nothing has been brought out to discredit the evidence given by him. 7. PW2 deposed before the trial court as follows: He is residing in the house immediately on the eastern side of the house of the accused. The deceased is the wife of the accused. She died on 9.3.1997 at about 4 p.m. He CRL.A NO.539/2004 7 was hearing a programme in the radio. While so, hearing the shouting of the accused, he came out of his house. Then he saw the accused strangulating Smt.Sarojini by putting a towel around her neck. He was shocked by seeing the incident. He called Pws. 1 and 3. He along with them went to the house of the accused. PW1 caught hold of the hand of the accused. PW1 then forcibly struck at the hands of the accused. The accused was strangulating the deceased using a red towel. PW1 loosened the towel. Upon examination by PW3, it was found that Smt.Sarojini was dead. The witness added that he had no quarrel with the family of the accused. The accused was a rubber tapper and Smt.Sarojini was doing coolie work. There was some quarrel between them. It was PW1 who removed the accused by using force. The incident took place in the house of the accused, in the front room. At the relevant time his children Renju and Rajan, apart from his nephew Angels and sister Pennamma were there. Before this incident, two cots from the house of the accused were attached and taken away by a Co-operative Society. Whether there was any quarrel between them because of that incident, was not aware to him. He identified the towel used for strangulating the deceased. It was marked as M.O.1. Though he was extensively cross-examined, his deposition CRL.A NO.539/2004 8 regarding the commission of the offence by the accused remained unshattered. He was also confronted with some statements made by him before the police, which were apparently at variance with the version given by him before the court. But those contradictions are not very material. For example, he has not stated before the police that at the relevant time he was hearing a radio programme. On hearing the sound, as per the statement made before the police, PW2 first sent his children to enquire the reason for the shouting. When confronted with that statement, PW2 emphatically denied that. He said, he has not made such a statement before the police. As noticed by us, the other contradictions pointed out by the defence are also having no bearing on the central fact that he saw the accused strangulating his wife using a red towel. 8. PW3 Mr.Unni has deposed before the court as follows: He is residing in the house on the western side of the house of the accused. The wife of the accused Smt.Sarojini was killed on 9.3.1997 at about 4 p.m. The murder took place in her house. PW2 called him to come out, in view of the hue and cry from the house of the accused. Taking PW1 also with him, he went to the house of the accused. Thereupon, he saw the accused CRL.A NO.539/2004 9 strangulating Sarojini, using a towel. He asked the accused to release her. But, he did not obey. PW1 caught hold of the accused and released the deceased from the clutches of the accused. Sarojini's head came out beyond the door of the house. The towel was loosened. He examined whether Sarojini was breathing. It was understood that she was dead. At the relevant time the accused was wearing only an underwear. Immediately he went out of the house. When he saw the incident, at first, the accused and Sarojini were inside the room. After the altercation, Sarojini's head came out of the door. He knew the accused and the deceased for the last two years. They were quarrelling frequently. Sarojini used to go for coolie work. Peeling ginger was her main work. Before the incident, their relationship was not cordial. Kalavangad Co-operative Bank attached and took away two cots from the house of the accused. It was because of the default of the accused. He identified M.O.1 towel. In the cross-examination, the said witness stated that police came there by about 5 O' clock. Pws.1 and 2 were called. The brothers of Sarojini, who were present there, were also called and questioned. Regarding the incident, the persons present there, were questioned. They stated what they have seen. The Station Writer has written down what they CRL.A NO.539/2004 10 stated. The statement was not read over to him. All the persons present there signed the statement and thereafter all of them returned at about 6.30 p.m. The questioning was done at Oonnukal Police Station. They went to the Police Station as called by the police and gave the statements. One constable came to the scene and called all of them to the Police Station. The next day, the C.I of Police came to the scene of occurrence. All the witnesses were questioned and their statements were recorded by the Writer on that day. 9. The last of the eye-witnesses is PW4, who is the sister of PW2. She was residing along with PW2 at the relevant time. The witness knew the deceased Sarojini. She was the wife of the accused. She died on 9th March. The witness does not remember the year of the incident. She has studied only up to second standard. On hearing the sound, she along with PW2 and other family members came out of their house. Then she saw Sarojini lying with her head on the door step. She was not aware how Sarojini died. When the police questioned her, she stated what she has seen. She was questioned by the C.I of Police. The Prosecutor sought permission of the trial court to declare the witnesses as hostile. She was declared as a hostile witness and she was cross-examined. In the cross-examination of the Prosecutor she stated as CRL.A NO.539/2004 11 follows: Hearing the sound, PW2 first came out. Behind him, she along with the two children of PW2 came out. She was confronted with her previous statement that she saw the accused strangulating his wife Sarojini using a towel. She admitted that she has so stated before the police. Though she could not remember the colour of the towel, she identified M.O.1 towel. She stated that she was residing there for the last 10 to 20 years. She was not aware of the (strains in the) relationship between the deceased and the accused. Sarojini used to go for coolie work. She was mainly doing peeling of ginger. At the relevant time, PW2 and his two children were there, apart from her. PW1 came first. Thereafter, she and her family members came. PW4 was briefly cross-examined by the defence. The statements in the cross- examination will neither help the prosecution nor the defence. 10. Based on the depositions of the four eye-witnesses, the learned Sessions Judge found the appellant guilty. We notice that the medical evidence in this case supports the case of the prosecution that the deceased was strangulated using M.O.1 towel. The correctness of the medical evidence was not challenged before us. So, the evidence of the doctor fully corroborates the version of the witnesses. The incident took place in 1997 and CRL.A NO.539/2004 12 the witnesses were examined in 2003. So naturally, all the witnesses may not be remembering all the details of the incident correctly. Pws. 1 to 3 without any contradiction, clearly support the case of the prosecution that the accused strangulated the deceased using a thorthu. In the cross-examination, that part of the evidence tendered by them remains unshattered. The minor contradictions pointed out by the defence are of no consequence. One contradiction pointed out is regarding the version as to who loosened the towel and who examined Smt.Sarojini and pronounced her dead. According to PW1, it was PW3 who loosened the thorthu and pronounced Sarojini dead after examining her. According to PW2, it was PW1 who loosened the towel. PW3 examined Sarojini and pronounced her dead. PW3 only says the thorthu was loosened. It was not specifically stated whether it was done by him or any other witness. But, he stated that it was he, who examined Sarojini and found her dead. The minor contradiction regarding the person, who loosened the towel is of no consequence as far as the credibility of the witnesses is concerned. When an incident which happened six years back is narrated by the witnesses, there is always the likelihood of having some minor discrepancies in their versions. CRL.A NO.539/2004 13 11. The next point canvassed is regarding the recording of the F.I. Statement. P'W1 has stated that on the date of occurrence, he went to the Oonnukal Police Station and gave Ext.P1 F.I.Statement. PW2 says that his statement was recorded by the C.I of Police on the next day of the incident. The statement was taken down at the scene of occurrence. PW3 has stated that the police came to the scene of occurrence by 5 O'clock and Pws.1, 2 and 3, apart from the brothers of the deceased were called to the Station. All of them were questioned regarding the incident. The Station Writer took down the statement, all of them signed the same and they returned by 6.30 p.m.. This statement is used by the defence to canvass that there was an earlier F.I. Statement at 5 p.m., and the present F.I. Statement is the second statement. PW3 further stated that only one Police Constable came to the scene and summoned all of them. The time of reaching the Police Station at 5 p.m and leaving the Police Station at 6.30 p.m., given by PW3 is mainly relied on to buttress the above said defence contention. But, the statement has to be understood as to mean that the witnesses went to the Police Station in the evening, gave the statement and returned. The statement recorded at 6.30 p.m., is the statement given by PW1. The variation in the time spoken to by CRL.A NO.539/2004 14 PW3 will not have the effect, which is now canvassed by the defence. According to the defence, the first statement was recorded at 5 p.m., and thereafter another statement was recorded at 6.30 p.m. Having regard to the fact that the evidence was tendered before the court after the lapse of six years, we feel there is nothing in the statement of PW3 or that of other witnesses, undermining the veracity of their versions. This is not a high-profile case involving high-profile accused. This is one of those run-of-the-mill cases in which, neither the police nor any other witnesses have any interest. The accused was not able to bring out anything against the police to show that they have acted mala fide to falsely implicate him. Equally, the defence have failed to show that the witnesses were trying to falsely implicate him. So, the slight difference in the time-frame spoken to by PW3, will not affect the veracity of the version given by Pws. 1 and 2. 12. Going by the evidence of Pws.1 to 3, we are definitely of the view that they have witnessed the crime and have spoken to the truth. The medical evidence will support their version. The defence have failed, as stated earlier, to show that the police or the witnesses have any motive to falsely implicate the accused. So, we fully endorse the views of the Trial Judge that the CRL.A NO.539/2004 15 prosecution has proved beyond reasonable doubt, the guilt of the accused. Since we have chosen to believe the eye-witnesses, the failure of the prosecution to prove the motive will not affect the sustainability of the case against the appellant. Further, PW3 has spoken in his chief examination that the relationship between the accused and the deceased was not cordial. The same remains unshattered in the cross-examination also. Even assuming there is no evidence regarding the motive, the same is not necessary, in view of the depositions of the eye-witnesses, which we have chosen to believe. In view of the above position, the other contentions raised by the appellant are not of any consequence. So, we are not dealing with them in detail, as the same is unnecessary. In the result, we find that no ground has been made out, warranting interference with the conviction of the appellant or the sentence imposed on CRL.A NO.539/2004 16 him. Accordingly, the Criminal Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE. K.HEMA, JUDGE. Nm/