IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRL.A.No. 242 of 2005() ----------------------- SC.340/2003 of ADDL. SESSIONS COURT, FAST TRACK NO.1, PALAKKAD .................... APPELLANT: ----------- SREENIVASAN, S/O. KANAKAPPAN, C.NO.8927, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. ADV.LIGEY ANTONY(STATE BRIEF) RESPONDENTS: --------------- STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SHRI S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.APPEAL No.242 OF 2005 ---------------------------------- DATED THIS THE 27th DAY OF AUGUST, 2008 J U D G M E N T Balakrishnan Nair, J. The appellant challenges the conviction and sentence imposed on him by the Additional Sessions Judge, Fast Track Court No.1, Palakkad in S.C.No.340/2003. The prosecution case in brief is as follows. 2. The accused is the husband of deceased Vijayakumari. She was the daughter of PW1. The accused was harbouring doubts regarding the chastity of his wife. He thought she was having illicit relationship with her elder sister's husband Muralidharan. The accused after his marriage was living along with his wife and father- in-law in their house. The elder sister of the deceased was residing in the neighbouring house, in the same compound. Later, she shifted her residence from there. On 2.8.2002, the deceased Vijayakumari after taking lunch went out saying that she is going to her elder sister's house. After some time, the accused also went out in the same direction. When she was returning from her sister's CRL.A.No.242/05 -2- house, she was accosted by the accused and using a chopper, he cut her throat. This incident was witnessed by PW3 Valliyamma and PW4 Ramakrishnan. The incident took place at 3 PM. On being informed of the same by PW4, PW1 came to the scene. Soon thereafter, he went to the Police Station and lodged Exhibit P1 first information statement based on which PW20, Assistant Sub Inspector of Police registered the crime and forwarded Exhibit P1(a) FIR. The Tahsildar conducted the inquest. PW7 conducted the autopsy and prepared Exhibit P5 postmortem certificate. PW22 conducted the investigation and PW23 verified the investigation and laid the charge before the Judicial First Class Magistrate's Court-II, Palakkad. The learned Magistrate committed the case for trial by the Sessions Court which in turn was made over to the Additional Sessions Judge, Fast Track No.I, Palakkad for trial. 3. The accused was charged for the offences under sections 302, 315, 309 and 498A IPC. He pleaded not guilty to the charges. From the side of the prosecution PWs 1 to 23 were examined and Exhibits P1 to P17 were marked. Material Objects, MO1 to MO11 (series) were also produced and marked from the side of the prosecution. The accused was questioned under Section 313 Cr.P.C. He denied the circumstances appearing in the evidence against CRL.A.No.242/05 -3- him,which were put to him by the trial court. He also said that when he was talking to his wife, Muralidharan the brother-in-law of the deceased came to the scene and quarrelled him. He attacked the accused using a chopper. But, by accident, the chopper struck at her neck, as she tried to save the accused and she succumbed to the injury. He submitted that he is totally innocent and has been falsely implicated in this case. 4. The learned Additional Sessions Judge after hearing both sides found the accused guilty of the offences under sections 302 and 315 IPC and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for two months for the offence under Section 302 IPC. He was also sentenced to undergo rigorous imprisonment for five years for the offence under Section 315 IPC. The substantive sentences of imprisonment were to run concurrently. He was acquitted of the offences under Section 309 and 498A IPC. The appellant, aggrieved by the above judgment, has preferred this appeal. 5. The learned counsel for the appellant took us through the evidence on record. She submitted that the version of PWs 3 and 4 that they saw the accused cutting at the neck of Vijayakumari using a CRL.A.No.242/05 -4- chopper cannot be believed. PW3 has stated that the incident took place in front of her house. She also said that she saw the incident while she was taking food. Exhibit P4 inquest report itself shows that the house of PW3 is at a distance of 17 metres in the north-west direction from the scene of occurrence. The said place is in front of the house of PW4 which is at a distance of 13.68 metres. So, the version given by PW3 that she has witnessed the incident cannot be correct. The learned counsel also pointed out that two dhothies MO8 and MO9 were recovered from the scene. MO9 was sent for chemical analysis. But, what was done to MO8 is not clear from the evidence on record. It is not possible that the accused was wearing two dhothies. The inquest report would show that the deceased was wearing a maxi and it is unnecessary for her to wear another dhothi. So, the presence of two dhothies would suggest the presence of a 3rd person there. If that be so, the case of the defence that Muralidharan was present at the scene would appear to be correct. So, the version of the defence regarding the incident is probable and therefore the accused is entitled to get the benefit of doubt. The learned counsel also submitted that all the occurrence witnesses are relatives of the deceased and therefore interested in the outcome of the case. Therefore, their testimony CRL.A.No.242/05 -5- should be viewed with caution. 6. We heard the learned Public Prosecutor appearing for the State. The learned Public Prosecutor pointed out that PW3 is an 80 year old lady and even if there is some mistake in the direction spoken to by her regarding the place of occurrence, the same is not of any consequence. The learned Prosecutor also pointed out that a reading of the evidence of PW3 as a whole would show that she saw the incident after she has taken food. It is also pointed out that the Investigating Officer in his deposition has stated that PW3 stated before him that she saw the incident after she took the food and came out from her house. The learned Public Prosecutor further submitted that the non-sending of one of the dhothies for chemical analysis will not affect the prosecution case. Further, it is pointed out that the defence has not cross-examined the Investigating Officer on this point. Without doing that, it cannot be canvassed that it is a material irregularity, it is submitted. 7. Before adverting to the rival contentions, we will first refer to the deposition of the witnesses in this case. PW1 is the father of deceased Vijayakumari. He stated that the accused is the husband of his daughter Vijayakumari. His son-in-law is hailing from a place CRL.A.No.242/05 -6- called Kava near Malampuzha. After the marriage, they were residing in the house of PW1. His daughter died about seven months after the marriage. He saw the dead body of his daughter in the Panchayat Road near to the house of PW3 Valliyammal. He saw it at about 3 PM. He saw a cut injury on the neck of his daughter. He came to the scene on being told of the incident by PW4 Ramakrishnan. On the date of occurrence, he saw his daughter alive by 2PM. She gave food to him and her husband, the accused. It was about 2PM that she gave them food. Later, she went to the house of her elder sister. After five minutes, the accused also went out. Later, he is seeing the body of his daughter. When he came near to the dead body, he saw the accused running away from there. At that time, the accused was carrying a chopper. It was a chopper being used in the house of PW1. He identified MO1 chopper. He gave Exhibit P1 FI statement. He identified his signature in Exhibit P1. The accused was harbouring doubts about his daughter. He was not aware, why the accused was doubting her. The accused used to manhandle her occasionally. At the relevant time, his elder daughter along with her husband was staying at a distance of about 1KM from his house. Some time before that they were residing in a house near to the house of PW1. He CRL.A.No.242/05 -7- identified the ornaments MO2 series to MO4 worn by Vijayakumari. The invitation card for the wedding of the marriage of his daughter with the accused was marked through him as Exhibit P2. Exhibit P3 was its cover. In cross-examination, he has stated that the police questioned him twice. The distance from his house to the scene of occurrence is about half a kilometer. He went to the police station by 4 PM. The accused was the foster son of one Tomichan. He has told the police that the accused went out of the house five minutes after his daughter went out. He does not remember whether he has told the police that the accused went out of the house after half an hour of the deceased leaving the place. Five minutes after the accused went out, PW4 came and told him about the incident. He also heard a hue and cry from the place of occurrence. He heard it from his house. On hearing the noise, he started. Thereupon, Ramakrishnan came and told him about the incident. He has not stated so to the police. He saw the accused running. He has told so to the police. If the police has not written like that, he has nothing to say. The elder daughter changed her residence as there was no water available in the place where they were staying earlier. He denied the suggestion that he told the police that the elder daughter shifted her residence because of the doubt harboured by the accused regarding the illicit relationship with Vijayakumari and his elder CRL.A.No.242/05 -8- son-in-law. He is unaware of any such reason. 8. PW2 is the witness to the inquest report Exhibit P4. PW3 Valliyamma is the witness who saw the incident. She has stated that she knew Vijayakumari the daughter of PW1 Kasu. The accused is the husband of Vijayakumari. The accused and Vijayakumari were residing in the house of PW1 at Oduvankadu. She saw the accused attacking Vijayakumari using a chopper. He inflicted two cut injuries. They were on the neck of Vijayakumari. The incident took place at about 3 PM. Vijayakumari died on the spot. The incident took place in front of her house in the Panchayat road. At the relevant time, Vijayakumari was pregnant by about six months. The accused caught hold of both the hands of Vijayakumari while he attacked her using the chopper. In cross-examination, she has reiterated that the incident happened in front of her house. The house of Padmavathi who is the wife of PW4 Ramakrishnan is beyond a temple which is on the southern side of the house of PW3. PW1 is the younger brother of her father. He is younger to her. The police have questioned her. PW4 Ramakrishnan is her nephew. There are three houses in the same compound and Ramakrishnan resides in one of them. There is a fencing on the boundary of her brother. The house of PW1 is not far away. If called out loudly from there, it can be heard here. The incident took place CRL.A.No.242/05 -9- while she was taking food. When she came to the scene of occurrence, no one came there. She sent Mani to inform Muralidharan about the incident. After the incident, Ramakrishnan ran to PW1 to inform him about the incident. She denied the suggestion made by the defence that no such incident as spoken to has taken place. She also denied the suggestion that there was a quarrel between the accused and the Muralidharan, as a result of which the deceased died. PW3 has also stated that she is illiterate. 9. The next witness, who saw the incident, is PW4 Ramakrishnan. He stated that he knew the accused and his wife Vijayakumari. The incident took place at 3 PM about 1½ years back in front of his house in the Panchayat road. His wife is the daughter of PW3. The accused attacked Vijayakumari using a chopper twice. Because of the two cuts on her neck, she fell down and breathed her last. MO1 is the chopper used by the accused for attacking the deceased. He went and informed PW1 about the incident. His house is near to the house of PW3. There is a common gate to reach the Panchayat road from both houses. He is illiterate. In cross- examination he has stated that the police did not show him MO1. The house of PW3 is on the immediate north of his house. He is not able to CRL.A.No.242/05 -10- correctly state the directions like east, west, etc. The temple is very near to his house. He is running a tea shop at Kongad. At the relevant time he was lying in his house owing to illness. He did not know how many times the accused attacked Vijayakumari. He also does not know whether there was any conversation between the accused and Vijayakumari. The distance from the place of incident to the house of PW1 will come to 1½ Kms. If called out loudly from his house, it could be heard from the place of occurrence. He saw the incident. He was scared. PW3 also see the incident. He knew Omana, the elder sister of Vijayakumari. He also knew Muralidharan, the husband of Omana. Muralidharan came there after the incident. He denied the suggestion of the defence that Muralidharan attacked the accused, Vijayakumari intervened and in that process she suffered the injury. PW5 is the wife of PW4. She did not see the incident, but came to the scene of occurrence and found Vijayakumari lying there. She saw the accused standing by the side of Vijayakumari. She also saw a chopper in his hand. She has identified MO1 chopper. She has also stated that she saw the accused inflicting the injury on his neck using the chopper which was in his hand. Thereupon, blood started dripping from his neck. Thereafter the accused went from the place. MO1 is the chopper which was used by the accused. CRL.A.No.242/05 -11- 10. PW6 is the elder sister of the deceased. She has spoken to that the accused was harbouring doubts regarding the chastity of his wife Vijayakumari. He thought that Vijayakumari was having illicit relationship with Muralidharan, the husband of the witness. She also added that she told Vijayakumari not to come to her house without the permission of her husband, the accused. 11. PW7 is the doctor who conducted autopsy and issued Exhibit P5 postmortem certificate. He send the visera, blood and urine of the deceased for chemical analysis, blood swab for grouping and scalp hair samples for analysis. As to cause of death, his opinion was that Vijayakumari died due to cut injury on her neck. In the postmortem certificate he has noticed two incised wounds having a size of 14 x 4.5 x 5 cm and 7.9 x 4.8 x 5.2 cm on her neck. Exhibit P6 chemical analysis report from the Chemical Examiner's Laboratory was marked. The said report would show that the blood group of Vijayakumari was 'A+'. There was no poison detected in the viscera. 12. PW8 is the doctor who examined the accused and issued Exhibit P7 wound certificate, which would show that there was an incised wound on the left side of his neck. A small incised wound over left mandible and another incised wound on the back of neck at the right side. The doctor has also noticed that the accused smelt of CRL.A.No.242/05 -12- alcohol. In the wound certificate he has noted the alleged cause of injury as, attack by the husband of the elder sister of the wife of the accused. 13. PW9 is the doctor who treated the accused for the injuries sustained by him. PW10 is the doctor who took the blood sample of the accused for chemical analysis. PW11 is a head load worker who is a witness to the seizure of MO1 as per Exhibit P8 mahazar. He would depose before the court that he found the accused with the blood stained chopper. He using force took the accused to the nearby Police Outpost and handed over the accused and the chopper. Thereupon, the chopper was seized under Exhibit P8 mahazar by the police. PW12 is the Head Constable before whom PW11 produced the accused along with MO1 chopper. He is also a witness to Exhibit P8 mahazar. PW13 is the Head Constable who is a witness to Exhibit P9 mahazar for seizing Exhibits P2 and P3 which are respectively, the invitation card, of the marriage of the accused and the deceased Vijayakumari, and its cover. PW14, Head Constable is the witness to Exhibit P10 mahazar for the receipt of MO5 photos and MO6 negatives of them. PW15 Village Officer prepared Exhibit P11 scene plan. PW16 is the witness to Exhibit P12 mahazar for the collection of blood of the accused. PW17 is the witness to Exhibit P13 mahazar prepared for the collection of blood CRL.A.No.242/05 -13- and hair of the deceased from the mortuary. PW18 is the witness to Exhibit P14 mahazar as per which MO1 chopper was seized by the Investigating Officer from PC 3668 V.K.Mani who produced it. PW19 is the witness to Exhibit P13 mahazar. PW20 is the Assistant Sub Inspector of Police who recorded Exhibit P1 FI statement and forwarded Exhibit P1(a) FIR to the Magistrate's Court. PW21 is the Tahsildar who conducted the inquest and prepared Exhibit P4 inquest report. PW22 is the Investigating Officer, who conducted the investigation. In the cross-examination by the defence, he has stated that PW1 Kasu told him that the elder daughter shifted her residence because of the doubt entertained by the accused regarding the relationship between Vijayakumari and Muralidharan, the husband of the elder daughter of PW1. He also stated that while questioning PW3 Valliyamma, she has not stated that she saw the incident while she was taking food. He added that Valliyamma told that she saw the incident while she was sitting on the veranda of her house after taking food. He has also stated that PW5 Padmavathi in her statement before him has stated about her seeing the accused causing injury on his neck. He has also stated that when Omana PW6 was questioned, she did not say that her husband, Vijayakumari and accused went to Tomichan, the foster father of the accused. The Investigating Officer added that he was CRL.A.No.242/05 -14- told that Vijayakumari and husband of PW6 were sent to Tomichan. When they met Tomichan at Malampuzha, the accused also reached there. He further deposed that based on Exhibit P7 no crime has been registered against Muralidharan. The accused was discharged from the hospital on 5.8.2002. Immediately, thereafter, he was arrested. From 2.8.2002 to 5.8.2002, the accused was under police surveillance. 14. PW23 is the Dy.S.P. who verified the investigation and laid the charge before the J.F.C.M.-II, Palakkad. 15. We notice that the witnesses who have spoken about the role of the accused are the relatives of the deceased. But, they are not chance witnesses and they happened to witness the incident because, they were admittedly residing in the neighbourhood. Normally, a relative of the deceased will not shield the real culprit and falsely implicate an innocent person. May be some embellishment is possible from their side to ensure the conviction of the accused. But, in this case, PWs 3 and 4 have spoken about the accused causing injury on the neck of the deceased. Both of them have spoken about two cuts inflicted by the accused using a chopper. Their version is supported by medical evidence also. Though there are some minor discrepancies in their statements, we feel that their evidence is trustworthy and can be relied on against the accused. We notice that the trial court also has CRL.A.No.242/05 -15- relied on their evidence treating the same as trustworthy and convicted the accused. We find no reason to take a different view. The reasons urged by the defence are not sufficient to discard their testimony. When PW3 says that the incident took place in front of her house, it need not be understood as exactly in front of the house. The possibility of Muralidharan present at the scene of occurrence is not borne out from the materials on record. The suggestion made by the defence can only be taken as an attempt to wriggle out of the criminality. Further, PW5 in her deposition has categorically stated during cross- examination that Muralidharan came to the scene only after the incident and the accused left the scene. We find no reason to disbelieve the above version of PW5. We notice that medical evidence has conclusively proved that Vijayakumari died of two cut injuries on her neck. As mentioned earlier, Pws 3 and 4 have spoken about infliction of cut injury by the accused on her. PW5 has spoken about the presence of the accused at the scene. She has also spoken, as mentioned earlier, that Muralidharan was not present at the scene as suggested by the defence. There is no reason to disbelieve the evidence of PW11 who is a witness who saw the accused along with the chopper. It was he who caught him and handed over to the nearby Police Outpost. We are not dealing with all the points decided by the CRL.A.No.242/05 -16- trial court. But, only those points necessary to meet the attack made by the appellant in this case. We are of the view that none of the contentions raised by the appellant which we have already noted above is sufficient to dislodge the finding of guilt against the accused. We agree with the reasons and conclusions of the trial court. In the result, we affirm the conviction and sentence imposed on the appellant and dismiss the appeal. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn