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 28TH MARCH 2011 / 7TH CHAITHRA 1933 Death Sentence Ref..No. 7 of 2009() ----------------------------------- SC.344/2007 of III ADDL.DIST. & SESSIONS COURT, THODUPUZHA .................... COMPLAINANT: -------------------- STATE BY SR. PUBLIC PROSECUTORS SRI.S.U.NAZAR & SRI.C.M.NAZAR RESPONDENT: --------------- JOMON @ JOJO ADV. SMT.SATHYASREEPRIYA (STATE BRIEF). FOR R THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 28/03/2011, ALONG WITH CRA NO. 2294 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” PIUS C. KURIAKOSE & GOPINATHAN, JJ. ---------------------------------- DSR. No. 7 OF 2009 & Crl. Appeal No. 2294 OF 2009 ------------------------------------ Dated this the 28th day of March, 2011 J U D G M E N T ~~~~~~~~~~~~ P.S.Gopinathan, J. The 3rd Additional Sessions Judge (Ad hoc-I), Thodupuzha by judgment dated 6-10-2009 in Sessions Case No. 344 of 2007 found the respondent in D.S.R. No. 7 of 2009, who is the appellant in Criminal Appeal No. 2294 of 2009, guilty for offence under Sections 302, 323 and 447 I.P.C. Consequently, he was convicted and sentenced to death and a fine of Rs.500/- for offence under Section 302 I.P.C. For offence under Section 323 IPC, he was sentenced to rigorous imprisonment for one year. For offence under Section 447 I.P.C. he was sentenced to rigorous imprisonment for three months. The capital sentence was referred to this Court as mandated under Section 366 of the Code of Criminal Procedure. It is in pursuance to that reference, D.S.R. was registered. Assailing the conviction and sentence, the appeal was preferred by the convict, (hereinafter referred to as the appellant) through the Superintendent, D.S.R.No.7/2009 2 Central Prison, Thiruvananthapuram. 2. The prosecution case in brief is that at early morning on 2-9-2006 the appellant committed murder of his mother and grandfather. Then he set ablaze the dead bodies. In that process the appellant sustained burns. With the burns the appellant went to the house of PW7 Nandini, a neighbour and requested help for fetching a vehicle to go to hospital. Taking the request seriously the husband of PW7 went out in search of vehicle. Then the appellant entered the house of PW7 and threw out their radio. PW7 got scared and ran to the house of another neighbour, late Damodaran. The appellant followed her. Seeing it, PW7 entered the house of Damodaran and escaped through the back door. At about 6.00 a.m., the appellant trespassed into the property of deceased Damodaran situated in Mukkadan Kara in Konnathadi Village in Idukki District and requested to fetch a vehicle. PW-3, the son of Damodaran, who is the husband of Santha, proceeded in search of vehicle. The appellant stated that he had arrived there after murdering his mother and grandfather. Hearing this, Damodaran asked PW-3 to call the D.S.R.No.7/2009 3 neighbours. PW-3, instead of searching for vehicle, went to PW1, an immediate neighbour and reported the matter. No sooner PW3 went out than the appellant started brutally assaulting Damodaran with an axe marked as MO1. Seeing it Santha cried aloud. PW6, Aliamma, another neighbour, hearing the cry rushed to rescue. Then PW6 was slapped . PW6 got injured and fell down. Being got scared, PW6 fled away. Then Santha attempted to intervene. Santha was also brutally assaulted with MO1. PW-1 rushed to the house and found that the appellant was standing with MO1 in his hand. Santha and Damodaran were found lying in the courtyard with bleeding inujuries. When asked, what he was doing, the appellant responded that he would murder all. PW-1 got scared and retreated. PW1 also obstructed PW-3 going to the house and asked to call the other neighbours. PW1 asked the appellant to put down MO1. Obeying the commands of PW-1, the appellant put down MO1 and went out. PW-1, with the help of PW-2 and other locals caught the appellant and tied the hands and legs. Damodaran and Santha were lifted to the hospital in a jeep driven by PW-8. The matter was reported to the police. Police D.S.R.No.7/2009 4 party headed by PW18, the Sub Inspector of Police, Vellathooval Police Station rushed to the scene and the appellant was taken to the Taluk Head Quarters Hospital, Adimali and arranged surveillance. PW-1 went to the Vellathooval Police Station and narrated the incident to PW18. PW-18 recorded Ext.P1 first information statement given by PW-1. On the basis of Ext.P1, a case as Crime No. 56 of 2001 for offence under Section 447 and 307 I.P.C was registered for which Ext.P1(a) first information report was prepared. 3. Damodaran and Santha were first taken to Morning Star Medical Centre at Adimali, wherein PW-13 was the Casualty Medical Officer. Both the injured were in a critical condition. Blood pressure was not palpable. PW-13 provided first aid and soon referred the injured to a major hospital. Accordingly, the injured were taken to the Medical College Hospital, Kolencherry, wherein PW-11 was the Casualty Medical Officer. PW11 examined Damodaran and was referred to PW10, the consultant Neuro Surgeon of the Medical College Hospital. On the way to the hospital, Santha succumbed to the injuries. C.T. Scan on the D.S.R.No.7/2009 5 head of Damodaran showed deffused subarachnoid Heamorrhage. He was immediately ventilated. But his condition deteriorated and expired by 11.15 a.m. on the same day. Matter was reported to the police. On getting death information, PW-18 filed Ext.P13 report for substituting Section 302 IPC for 307 IPC and the matter was reported to the Circle Inspector of Police, Adimali, who was examined as PW19. As instructed by PW19, PW-18 went to the hospital and conducted inquest on the body of Damodaran. Ext.P2 is the inquest report wherein PW4 is an attester. PW18, then rushed to the spot of occurrence and prepared Ext.P11 scene mahazar wherein PW15 is an attestor. He seized material objects M.Os.1 to 5 with the assistance of PW-14, the Scientific Assistant attached to the Forensic Science Laboratory Unit at Kottayam. PW17, the Assistant Sub Inspector conducted Inquest on the body of Santha. Ext.P3 is the Inquest report wherein PW5 is an attestor. On 3.9.2006, PW19 took over the investigation. He recorded the statement of the witnesses and filed Ext.P14 report specifying the address of the appellant. Then he filed Ext.P15 report to incorporate Section 323 IPC. On 12-9-2006, the appellant, while in hospital, was D.S.R.No.7/2009 6 remanded to the judicial custody on the basis of a report furnished before the Judicial Magistrate of the First Class, Adimali. MO6, a lunki worn by the appellant at the time of occurrence was recorded. The Appellant was discharged from the hospital on 15-9-2006. Thereupon, he was remanded to Sub Jail, Devikulam for which Ext.P18 report was filed. 4. PW19 forwarded the material objects to the committal court along with Ext.P19 property list. In pursuance to the forwarding note, copy of which was marked as Ext.P20, submitted by him, the committal court forwarded the material objects to Forensic Science Laboratory, from where Ext.P21 report was obtained after forensic examination. On completing the investigation, the charge sheet was submitted before the Judicial Magistrate of First Class, Adimaly alleging offence under Sections 302, 323 and 447 IPC. 5. The appellant, who was in judicial custody, was produced before the committal court in pursuance to the production warrant issued. The copies of the final report and D.S.R.No.7/2009 7 other connected records were furnished to the appellant. The offence u/s 302 IPC being triable by a Court of Session, by order dated 29.6.2007, the case was committed to the Court of Session, Thodupuzha, from where the case was made over to the Additional Sessions Judge. Since the appellant was not defended by a lawyer, Adv. Sri.Joby George was engaged at State cost to defend the appellant. After hearing the appellant and the prosecution, on finding that there are materials to send the appellant for trial, a charge for the above said offences was framed. When read over and explained, the appellant pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution, PWs1 to 19 were examined. Exts.P1 to P22 and MOs 1 to 6 were marked. During cross examination of PWs 6 and 8, certain portions of their case diary statements were marked as Exts.D1 to D3. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1) (b) of the Code of the Criminal Procedure. The appellant denied the incriminating evidence and further stated that he went to bed at 8 p.m. on the previous day. When he woke up he found himself amidst fire. He sustained burns. He ran out of the house D.S.R.No.7/2009 8 and rushed to the house of PW7 and requested PW7 to fetch a vehicle to take him to the hospital. But she left the house. Thereupon, the appellant rushed to the house of PW3 and requested to fetch a vehicle. PW3 went out. Deceased Santha asked the appellant as to what happened to his mother. Stating that he ran out of the house on sustaining burns, the appellant went out of the house of Santha. When the appellant reached near his house, he heard a cry from the house of Santha. He rushed back to the house of Santha and found Santha and Damodaran lying in a pool of blood. Apprehending that those who had assaulted Santha and Damodaran might assault him, he picked up an axe that was lying at the courtyard. When the appellant went to the backyard of the house, PW6 arrived there. Seeing the appellant, PW6 fled away. On the way she fell down. By the time, PW1 reached there and asked him to put down the axe. He obeyed PW1. Thereupon, his hands were tied. The police reached the scene and he was taken custody. Responding to the call to adduce defence evidence, DWs 1 to 4 were examined. Exts.X1 to X3 were also marked. The learned Additional Sessions Judge, on appraisal of the evidence arrived D.S.R.No.7/2009 9 at a conclusion of guilt. Consequently, the appellant was convicted and sentenced as above. Now this reference and appeal. 6. Even by the statement of the appellant, it is evident that Damodaran and Santha sustained bleeding injuries and the appellant was caught by the locals and taken custody by the police. The death of Santha and Damodaran was not at all challenged. But the case of the appellant is that someone else was the assailant. PW1, as stated earlier is the first informant. According to PW1, PW3 rushed to him at about 6.a.m on 2.9.2006 and informed that something had happened at the house of the appellant and the appellant had sustained burns. PW1 rushed to the house of PW3 and found Damodaran and Santha lying at the courtyard in pool of blood with bleeding injuries. The appellant was standing at the courtyard with MO1 axe. When enquired as to what happened, the appellant responded that he would murder all. That response of the appellant itself would show that he was the assailant. PW1 got scared and retreated. By the time, PW3 returned. PW1 D.S.R.No.7/2009 10 restrained PW3 from going to the house and requested PW3 to call the locals. PW1 asked the appellant to put down the weapon and to go out of the courtyard. The appellant obeyed. Thereupon, the hands of the appellant was tied by one Jose Chettan. When asked, the appellant stated that he had a blunder. He finished off his mother and grandfather. Local people gathered. The injured were lifted to the hospital. The matter was reported to the police over phone. The police reached the spot and the appellant was taken custody. PW1, thereupon went to Vellathuval Police Station and narrated the incident to PW18, who recorded the same. Ext.P1 was identified as the First Information Statement given by PW1. Ext.P1 corroborates with the evidence of PW1. PW1 had identified MO1 axe. It was also deposed by PW1 that the appellant had sustained burn injuries. 7. PW2, the husband of PW6, would depose that at 6.a.m. on 2.9.2006 PW6 rushed to the house of Santha hearing her cry and returned back stating that the appellant had been assaulting Damodaran and Santha. PW2 rushed to the house of D.S.R.No.7/2009 11 Damodaran and found that Damodaran and Santha were lifted to the side of the road for being taken to the hospital. The appellant was found standing by the side with his hands tied. The appellant stated that he had finished off his mother and grandfather. Santha and Damodaran were taken to the hospital. When they were taken to the Morning Star Hospital, Adimaly they were referred to the Medical College Hospital, Kolancherry. PW2 had further deposed that Santha had stated that the appellant had assaulted her. 8. PW3 would depose that before 6.a.m. on 2.9.2006 the appellant arrived at his house and reported that he had murdered his mother and grandfather and he wanted a vehicle. Hearing this, his father Damodaran asked him to call the locals. PW3 went to the house of PW1 and reported. Hearing the matter, PW1 rushed to the house of PW3. PW3 called some other neighbours and rushed back home. While he was to enter the compound, PW1 obstructed him. The appellant was found standing with MO1 axe in his hand. He called some other neighbours and returned. Then he found that his wife and father D.S.R.No.7/2009 12 were taken to the road side. The father was unconscious. His wife stated that he was assaulted by the appellant. MO1 was identified as the axe belonging to his house. He had also identified the slippers used by his wife, which were marked as MO2. MO3 series are the wooden sticks seized from the spot of occurrence. 9. PW6 would depose that she is a neighbour of the appellant and that at about 5.30 - 5.45 a.m. on 2.9.2006 she heard the cry of Santha and rushed to her house. Santha was found standing at the courtyard. Damodaran was lying at the courtyard. The appellant was standing by his side. Damodaran asked the appellant as to what he had done to the appellant. Hearing that, the appellant beat Damodaran with MO1 axe. PW6 attempted to intervene. Then she was slapped at her face with hand. As a result, she sustained injury and fell down . As a result of fall, she sustained injury at her head and two teeth. While she getting up, Santha was crying not to hurt her father. Thereupon, the appellant assaulted Santha. PW6 rushed to the house and reported the matter to PW2. She was taken to the D.S.R.No.7/2009 13 hospital, where she had undergone treatment. 10. PW7 would depose that at about 5.30 - 5.45 a.m. on 2.9.2006 the appellant rushed to her house and requested to fetch a vehicle to take the appellant to the hospital. When PW7 asked about his mother, the appellant stated that she was finished off. The husband of PW7 went out to fetch a vehicle. By the time, the appellant entered her house and thrown out the radio. Being got scared, PW7 went to the house of PW3. The appellant followed her. Seeing the appellant following PW7, she entered the house of PW3 and went out through the back door. When she reached home, she heard the cry of Santha that her father was being assaulted. PW7 rushed to the house of PW1 with the children. Leaving the children there, she proceeded to the house of PW3. On the way she found that Santha and Damodaran were lifted to the road side for being taken to the hospital. Damodaran was unconscious. Santha stated to her that she was inflicted cut injuries by the appellant. D.S.R.No.7/2009 14 11. PW8 would depose that he was a jeep driver and that Damodaran and Santha were lifted to the Morning Star Hospital, Adimaly in his jeep. But the injured were referred to the Medical College Hospital, Kolanchery. Santha had stated that the appellant assaulted her. Damodaran was not speaking. He accompanied the injured in an ambulance. On the way, Santha succumbed to the injuries. Damodaran succumbed to the injuries at the Medical College Hospital. 12. PW10 would depose that while he working as Consultant Neurosurgeon at MOSE, Medical College, Kolenchery, Damodaran was referred to him by PW11. Blood pressure and pulse were not recordable. Pupils bilaterally dilated and fixed. C.T.Scan revealed defused Subarachnoid Heamorrhage. The injured was ventilated. His condition deteriorated and expired at 11.15 a.m. PW10 would further depose that deffused subarachnoid heamorrhage could be caused by any blunt trauma to the head and that the injuries could be caused with MO1 or MO3 series. D.S.R.No.7/2009 15 13. PW11 would depose that he was the Casualty Medical Officer at Medical College Hospital, Kollenchery and that at 8.50 a.m. on 2.9.2006 he examined Damodaran who was brought with injuries due to assault. Damodaran had incised wound 5x3x3 cm. occipital scalp, incised wound 4x3x3 cm., 5 cm. below of the 1st wound and lacerated wound 2x1x1 cm, posterior aspect of left elbow. The patient was in a critical condition. So, the patient was transferred to Neuro Surgeon, who was examined as PW10. 14. PW13 would depose that he was working as Casualty Medical Officer at Morning Star Medical Centre at Adimaly and that at 7.a.m on 2.9.2006 Damodaran and Santha were brought to the hospital with injuries. Blood pressure of both of them were not palpable. Both of them had deep wound at the back of head. They were referred to a major hospital as their conditions were bad and that Exts.P9 and P10 are the certificates issued by him. D.S.R.No.7/2009 16 15. PW9 would depose that he was Professor of Forensic Medicine, Medical College, Kottayam and that on 3.9.2006 he conducted autopsy on the bodies of Santha and Damodaran. He noticed the following antemortem injuries on the body of Santha. “1. Lacerated wound 9x2x0.5 cm. sagittally placed on the top of head. Its front end was 7 cm. above the root of nose. 2. Lacerated wound 7x2x0.8 cm. sagittally placed on the top of right side of the head. Its front end was 7 cm. above the top of the ear. 3. Lacerated wound 6x3x1 cm. obliquely placed on the back of head. Its upper inner end was just below the occipit. 4. Lacerated wound 9x6x1 cm. obliquely placed on the right side of the back of head. Its upper outer end was 4 cm. behind the ear exposing the skull bone underneath. 5. Lacerated wound 3x2x1 cm. involving the occipital region. 6. Lacerated wound 7x2x1 cm. on the back of right side of the head. Its lower inner end was 4cm. above the occipit. D.S.R.No.7/2009 17 7. Lacerated wound 4x2x1 cm. on the left side of the back of head, obliquely placed with its lower outer end was 3cm. above mastoid process. 8. Lacerated wound 2.5x1x1 cm. on the right side of the face just outer to the eye. 9. Abraded contusion 2x1x0.5 cm. on the right side of the forehead 2cm. above the inner end of eyebrow. 10. Abraded contusion over an area 12x8 cm. involving the left side of the face, nose, both lips and adjoining areas of the chin. 11. Abraded contusion 4x3 cm. on the left side of the under chin. 12. Through and through lacerated wound 2x1 cm. involving the left side of the upper lip 3 cm. outer to the midline. 13. Lacerated wound 1x1x1 cm. on the middle of lower lip. 14. Fracture dislocation of the teeth No.21 with infiltration of blood in its socket. 15.Fracture dislocation of the teeth Nos.41 and 42 with laceration of their alveolar margins. D.S.R.No.7/2009 18 16. Abraded contusion 5x2x1 cm. on the right side of the root of neck 4cm. outer to the midline. On dissection, the whole areas on the scalp tissue was seen contused except the left tempero parietal region. Fissured fracture (a) 8cm. long obliquely seen on the right side of the occipital bone (b) 7cm. long on the right, side of the middle cranial fossa which was seen terminated in to the hypophysical fossa. Anterior cranial fossa of the base of skull showed fracture fragmentation. The under surface and the tip of the frontal lobes of brain showed laceration 6x4x3 cm. The subdural and subarachnoid spales had diffuse haemorrhages. Sulci of brain narrowed and gyri flattened. 17. Abraded contusion 16x4x4 cm. involving the back of right arm and adjoining areas of the back of trunk horizontally placed. At the middle it was just above the posterior fold of armpit. 18. Abraded contusion 4x1 cm. on the front of right forearm 10cm. below elbow. 19. Abraded contusion 6x3x1 cm. on the front of right shoulder 4cm. above the front fold of armpit.” D.S.R.No.7/2009 19 The following antemortem injuries were noted on the body of Damodaran. “1. Sutured lacerated wound 8x3x1 cm. obliquely placed on the left side of the back of head. Its upper inner end 3 cm. outer to middline and 9 cm. above the root of neck. 2. Sutured lacerated wound 7x2x1 cm., obliquely placed on the left side of the back of head. Its lower inner end was 3 cm. outer to the middline and 9 cm. above the root of neck and there it was merging with the upper inner end of injury No.1. 3. Sutured lacerated wound 4x1x1 cm. vertically placed on the back of head. Its upper end was at the occipit. 4. Sutured lacerated wound 9x2x1 cm., obliquely placed on the back of left side of the head. Its lower outer end was just above the mastoid process. 5. Abraded contusion 8x3x1 cm. on the outer end of right eye and adjoining areas of the forehead. 6. Abraded contusion 2x2x1 cm. on the root of nose. Them nosal bone underneath was seen fractured. D.S.R.No.7/2009 20 7. Abraded contusion 6x4x1 cm. on the outer end of left eye and adjoining areas of the forehead. On dissection, the scalp tissue showed contusion 18x10x1cm. involving the occipital and both parietal region. Anterior cranial fossa of the base of skull showed comminuted fracture. Fissured fracture (a) extending from the left side of occipital bone and terminated in the middle of right posterior cranial fossa (b) extending from the middle cranial fossa and crossing the petrous part of the temporal bone seen terminated in the foramen magnum. Duramater intact but bulges. Undersurface of the brain showed haemorrhagic contusion 10x8x0.5 cm. Subdural and subarachnoid spaces of the brain had diffuse haemorrhages. Sulci of brain narrowed and gyri flattened. 8. Abraded contusion 8x4x1 cm. horizontally placed on the root of neck involving both sides. 9. Contusion 28x10x4 cm. horizontally involving both sides of the back of trunk. 4cm. below the root of neck 10. Abrasion 4x3 cm. on the back of left wrist. 11. Lacerated wound 2x1x1 cm. on the back of left elbow.” D.S.R.No.7/2009 21 He would further depose that Exts.P4 and P5 are the postmortem certificate relating to Santha and Damodaran respectively and that injury Nos.1 to 7 noted in Ext.P4 were on the head of Santha and that injuries 8 and 9 were on the forehead and that injuries 12 and 3 were of minor nature and that the injuries could be caused with a blunt object like MO1 or MO3 and that injuries No.1 to 7 are sufficient in the ordinary course to cause death. Regarding the death of Damodaran, PW9 would depose that injuries 1 to 4 noted in Ext.P5 could be caused by the blunt side of an axe like MO1 and injuries No.5 to 9 could be caused by beating with MO3 series and that injury No.10 could be caused by a fall and that injuries 1 to 7 are sufficient in the ordinary course to cause death. 16. Regarding the injuries found on the body of Santha and Damodaran and cause of death deposed by PW9, there is no challenge at all. The evidence of PWs 1 to 3 and 6 to 13 would convincingly