IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 CRL.A.No. 463 of 2005() ----------------------- SC.23/2002 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CP.4/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT: -------------- SASIDHARA KURUP, S/O. KESAVA PILLAI, C.NO.8555, CENTRAL PRISON, TRIVANDRUM-695 012. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT: --------------- STATE OF KERALA. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & Thomas P. Joseph, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 463 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2009. Judgment Basheer, J: Appellant was charge sheeted by Chengannur Police for the offence punishable under Section 302 IPC on the allegation that he had committed murder of his 12 year old daughter in the early hours of March 20, 2001, in one of the rooms in his residence. The trial court found the appellant guilty and convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.10,000/- and in default, to undergo rigorous imprisonment for 2 more years. The period of detention undergone by the appellant was allowed to be set off under Section 428 of the Code of Criminal Procedure. 2. The prosecution case in brief was that the appellant and Pw.2, his wife, had been living together with their two children born in the wedlock; the eldest of which was aged 12 years (deceased) and the younger one aged 9 years (Pw.3) at the time of the incident. The marriage between the appellant and P.w.2 had taken place about 12 years ago. The appellant who was earlier working in Bombay had gone to Gulf a little later in search of a job. He had come back from Gulf 2 years prior to the incident. According to the prosecution, the appellant had suspected the paternity of his eldest child Saranya, and he used to pick up quarrel with Pw.2, his wife, because of this suspicion. 3. On the fateful night, the appellant is stated to have taken his eldest Crl.A.463/05. : 2 : daughter to his room, while Pw.2 took the younger one (Gowri) to her bed room. At about 4 am., Pw.2 heard her eldest daughter crying out loudly saying “Daddy don't do me anything”. Pw.2 and Pw.3, the younger daughter, rushed to the room where her husband and the eldest daughter were sleeping. At that time Pws.2 and 3 are stated to have seen the appellant with a kitchen knife in his hand and about to stab the deceased girl. According to Pw.2, she went inside the room and tried to prevent her husband from inflicting any injury on Saranya. But the appellant forcibly pushed Pws.2 and 3 out of the room and locked the door from inside. Pws.2 and 3 had gone towards the window on the southern side of the house and looked inside. They saw the appellant pushing the young girl down on to the cot and stabbing her on the left chest with the knife. Hearing the hue and cry made by Pw.2, the neighbours (Pws.1, 4 and 6) came rushing to the scene. They also saw the appellant inside the room with blood splashed on his dress, on the bed and the floor and the young girl lying in a pool of blood. Appellant was having M.O.1 knife in his hand. Somebody telephoned to the Police in the meanwhile. P.w.10, Asst. Sub Inspector of Police and party reached the scene . Pw.10 also saw the appellant inside the room with the knife in his hand. The Police kicked open the door and forcibly took the appellant outside. Pw.10 arrested the accused and took him to the Police Station. The girl was taken to the hospital where she was declared dead. It was on the basis of the First Information Report given by Pw.1 (Ext.P1) that the Police had registered the crime. After completing the investigation the appellant was charge sheeted. 4. The prosecution examined Pws.1 to 12 and marked Exts.P1 to P8 and M.O.1 to M.O.10 on its side. Ext.D1 was marked on the side of the Crl.A.463/05. : 3 : defence. 5. The defence set up by the appellant, as discernible from the trend of cross examination and also from the answers given by him while he was questioned under Section 313 of the Code of Criminal Procedure, appears to be that the case was falsely foisted against him. 6. We have carefully gone through the deposition of the material witnesses viz., Pws.1 to 4 and Pw.10 and the other relevant materials available on record. 7. Pw.1 is the neighbour and a relative of the appellant who had heard the hue and cry from the residence of the appellant. According to Pw.1, he heard the cry of Pw.2, the wife of the appellant at about 4 a.m. and rushed to the scene. Pw.1 stated that he rushed to the residence of the appellant on hearing the cry of Pws.2 and 3. Pw.2 was crying aloud that the appellant was about to kill her daughter. When he reached the residence of the appellant, he found Pw.2 looking through the window inside the room on the southern side of the house. Pw.1 also peeped inside. He saw the deceased girl lying beneath the cot in a pool of blood. The appellant was standing nearby with the kitchen knife in his hand. The room was found locked from inside. Pw.1 also cried aloud and some more neighbours came to the scene. All of them tried to find out whether the child could be saved by opening the door. In the meanwhile, someone from the group had telephoned to the Police. The Police reached the scene immediately and asked the appellant to open the door. The appellant refused to do so. Thereupon, the Police forcibly opened the door and caught hold of the appellant. The appellant as well as the child were taken in the jeep. The child was taken to Chengannur Govt. Hospital by about 5 a.m. The Doctor Crl.A.463/05. : 4 : who examined the child declared that the child had passed away. Pw.1 stated that he saw a wound on the left chest of the deceased girl. Pw.1 further stated when he was examined in the court that he could not identify the knife which was used by the appellant at that distance of time. But he stated that he had given Ext.P1 First Information Statement. He identified his signature in the said statement. 8. Pw.2 the wife of the appellant deposed before the court that the appellant had married her about 13 years ago and the two children were born in the said wedlock. At the time of her death, the eldest daughter Saranya was 12 years old. At that time she was studying in Standard VI. She had written her annual examination and was awaiting the result. At the time of marriage the appellant was employed in Bombay. He had worked there for 8 years. He had gone to Gulf and worked there for some time. He came back to the village two years prior to the incident. After his return from the Gulf, the appellant used to harass and assault Pw.2 alleging that the deceased Saranya was not his daughter. He started this harassment 6 years prior to the incident. According to Pw.2, Saranya had a fair complexion, whereas her second daughter Gowri was dark in complexion. Pw.2 further stated in her cross examination that the appellant had generally shown a loving nature towards his two children. But he used to harass Pw2 alleging that the deceased Saranya was not his daughter. The appellant and Pw2 used to sleep in the room on the southern side and the two children used to sleep in the other room. But on the fateful night, the appellant told Pw2 to allow the deceased girl to sleep in the room on the southern side where he used to sleep. Accordingly, the appellant and the deceased had gone to the room on Crl.A.463/05. : 5 : the southern side, whereas Pw2 went to the other room with the younger child. Some time later in the night at about 4 a.m., she heard Saranya crying out “Daddy don't do anything to me”. Pw.2 and her younger child Gowri (Pw.3) came running out of their room and rushed towards the room on the southern side. At that time she found the appellant stabbing the deceased girl which fell on her left finger. Pw.2 barged inside the room telling the appellant not to do anything to the girl. The appellant pushed Pws.2 and 3 out of the room and locked it from inside. Pw.2 went outside the house through the verandah on the eastern side and came towards the window on the southern side. When she looked inside the room through the window, she found the appellant pushing the girl down on to the cot and stabbing her on the let side of the chest with M.O.1 kitchen knife. At that time the young girl was crying aloud and blood was gushing out of her body from the chest. The child fell down from the cot. Hearing the cries, Pw.1 and other neighbours came to the scene. When they asked the appellant to open the door, he refused to do so. Shortly thereafter, the Police came to the scene on getting a phone call from some one among the group of people who had gathered there. The Police kicked open the door since the appellant refused to heed to their demand. Police caught hold of the appellant and he was taken to the Police Station in the jeep. The child was taken to the hospital in the same jeep. Though Pw.2 went to the hospital in an auto rickshaw soon thereafter, she came back after getting information from the Doctor that the girl had passed away. P.w.2 was cross examined at length. But nothing was brought out to discredit her testimony. Pw.2 had identified not only M.O.1 kitchen knife but also the dress and the ornaments worn by the child (M.os.2 to 7). The Crl.A.463/05. : 6 : bloodstained bed sheet was also identified by Pw.2 (M.O.8). 10. Pw.3, the younger daughter of appellant and Pw.2, corroborated the version given by her mother in all particular details. Pw.4 was yet another neighbour who had come to the scene on hearing the hue and cry. Pw.4 stated that he had come running to the residence of the appellant on hearing the loud noise. When he reached the scene Pw.2 told him that her husband had stabbed her daughter Saranya inside the room and that he had locked the room from inside. Pw.4 asserted that he saw the appellant standing inside the room with the knife in his hand. Even though Pw.4 also asked the appellant to open the door, he refused to do so. 11. Pw.10, Asst. Sub Inspector is yet another witness who saw the appellant with the knife in his hand inside the room. According to Pw.10, he was on patrol duty on that night. At about 4.15 a.m. when the patrol party had reached near Chengannur Railway Station he got a message on his wireless set informing that a father had stabbed his daughter and was remaining inside the locked room. Pw.10 reached the scene by about 4.30 a.m.. A that time he saw large number of people gathered around the house. When Pw.10 looked inside went towards the window on the southern side of the house, he saw the mother of the child (Pw.2) and others also standing at the window and looking inside the room and weeping. Pw.10 further stated that blood had splashed around the room, both on the cot as well as the floor. Even though Pw.10 asked the appellant to open the door, he refused to do so. Pw.10 tried to open the door on the eastern side but it was locked. Pw.10 stated that he kicked open the door on the northern side. When Pw.10 went inside the room, he found the appellant standing with a knife in his hand. But as soon as Pw.10 entered the room, Crl.A.463/05. : 7 : the appellant threw the knife towards one corner of the room. The child was lying in a pool of blood under the cot. The appellant was taken into custody and arrested by Pw.10. The child was taken to the hospital in the jeep with the help of the people, who had gathered there. On reaching Chengannur Govt. Hospital, the Doctor informed that the child was no more. Pw.10 further stated that he recorded the statement of Pw.1 (Ext.P1) and registered Crime No.98 of 2001 under Section 302 IPC against the appellant. The First Information Statement was marked as Ext.P6. Pw.10 identified M.O.1 knife which was used by the appellant to commit the crime. Pw10 asserted that Mo1 was found in the possession of the accused at the time when he reached the scene. 12. Pw.5, the Asst. Surgeon attached to the Chengannur Govt. Hospital deposed that when the child was brought to the hospital he had examined her and it was found that she had already succumbed to the injuries. Pw.7 was the other Doctor who conducted the post mortem and issued Ext.P3 certificate . Pw.7 had noted injury No.1 viz., an incised penetrating wound 8.8 X 3.3 cm. placed obliquely on the left side of the chest. Its inner lower pointed end was 3.5 cm. outer to midline and 6 cm. below clavicle. We do not deem it necessary to refer to the other injuries noted by Pw.7 in Ext.P3 post mortem certificate. The Doctor opined that the deceased girl had died due to the stab injury sustained by her on the chest. The Doctor had further stated that injuries 1 and 6 could have been caused with a weapon like M.O.1. 13. Pw.12 the Investigating Officer had conducted the investigation and questioned the material witnesses. Pw.11 laid the charge sheet. He had also prepared Ext.P4 scene mahazar and seized M.O.1 to 9. The Crl.A.463/05. : 8 : Material Objects were sent for chemical examination. Ext.P8 is the report issued by the Chief Examiner of the Laboratory. Pw.6 was the attestor to Ext.P2 inquest while Pw.8 attested Ext.P6 scene mahazar. Pw.8 identified Mos.1 and 8 also. 14. It had come out in evidence that M.O.1 knife contained bloodstains on it. From Ext.P8 report it was revealed that the blood group of the deceased girl was B positive. In Ext.P8 report prepared by the Asst. Director, Forensic Science Laboratory it was stated that item Nos.1 to 6 which were sent for examination were subjected to chemical test. Blood was detected on all the items worn by the deceased. The blood on the dress worn by the deceased girl was found to belong to B positive group. The bloodstains on M.O.1 knife and on all other items sent for examination were also found to be of the same group. The Asst. Director had further certified that the sample blood of the deceased girl was also of B positive group. 15. We have carefully considered the oral and documentary evidence adduced by the prosecution in the case. In our view the prosecution had succeeded in proving the charge levelled against the appellant. As mentioned earlier, the contention raised by the appellant was that he was totally innocent and the case was foisted against him. But it may be noticed that Pws.1 to 4 and Pw.10 had found the appellant with M.O.1 knife in his hand standing near the body of the deceased girl in a pool of blood. The two doors of the rooms were locked from inside. It had come out in evidence that Pw.10, the Asst. Sub Inspector of Police had to break open the door to enter the room to apprehend the appellant. 16. All the witnesses referred to above had seen the appellant with the Crl.A.463/05. : 9 : knife in his hand. In fact, Pws.2 and 3 had further categorically stated that they had seen the appellant stabbing the deceased girl. In that view of the matter, we do not find any reason to disbelieve these witnesses. It may also be noticed that Pw.10 the Police Officer had rushed to the scene on hearing about the case. He had also seen the appellant with the knife in his hand inside the locked room. 17. Keeping in view all the above aspects, we do not find any reason to take a different view from the one that had been taken by the learned Sessions Judge. We find from the records that the appellant had taken a contention that that he was not in a perfect state of mind on the alleged day of the incident. One question put to Pw2, the wife of the appellant, in the course of cross examination whether the appellant had purchased some medicine and consumed it on the previous day probably suggesting that the medicine had some hallucinating effect on the appellant. Apart from the above, there is nothing on record to even suggest that the appellant was not in a proper state of mind. 18. It was further contended that the prosecution had failed to take into custody the alleged weapon used for the crime. That contention is that if the version of Pw.10 that he had come to the scene of occurrence and found the appellant inside the locked room and apprehended him after breaking open the door is correct, he would have taken M.O.1 knife into custody then and there. But the explanation offered by Pw.10 is that he was more concerned with saving the life of the child and therefore he had taken the child to the hospital in his jeep. According to Pw.10, at the time when he had looked through the window on the southern side, he had found the appellant with the knife in his hand. But after breaking open the Crl.A.463/05. : 10 : door when Pw.10 entered the room, appellant had dropped the knife somewhere in the room. At that time, according to Pw.10, he had not bothered to search for the knife. The explanation offered by Pw.10 appears to be quite reasonable and totally acceptable in the facts and circumstances of the case. Therefore the above contention raised by the appellant is also without any merit. 19. Having regard to the entire facts and circumstances of the case, we do not find any reason to interfere with the judgment of conviction and sentence passed by the Sessions Court. The said order is confirmed. The appeal is accordingly dismissed. A.K. BASHEER Judge Thomas P. Joseph Judge an. Crl.A.463/05. : 11 : A. K. Basheer & Thomas P. Joseph, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 463 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - Judgment 5th day of January, 2009.