IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 CRL.A.No. 565 of 2007() ----------------------- SC.36/2005 of SESSIONS COURT, THODUPUZHA CP.28/2004 of JFCM-II, PEEERMADE .................... APPELLANT(S): ACCUSED. ----------------------------- RAJENDRAN, AGED 50, S/O.CHANDRAKUMAR, SREE BHAVAN HOUSE, MANJUMALA, PEERUMEDU. BY ADV. SRI.M.H.HANIL KUMAR SRI.A.P.VASAVAN RESPONDENT(S): COMPLAINTANT/STATE. -------------------------------------------- STATE OF KERALA, REP. BY C.I. OF POLICE, KUMALY POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SR. PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = Crl.Appeal No.565 of 2007 = = = = = = = = = = = = = = Dated this the 1 st day of August, 2011 Judgment V.Ramkumar,J. In this appeal filed under Sec.374(2) Cr.P.C. the appellant, who was the sole accused in S.C.No.36/2005 on the file of the Sessions Court, Thodupuzha for an offence punishable under Section 302 IPC, challenges the conviction entered and the sentence passed against him. PROSECUTION CASE 2. The case of the prosecution can be summarised as follows: The marriage between the deceased (Indira) and the accused (Rajendran) took place twenty years ago. Both of them were labourers engaged in picking tender tea leaves in the Choorakulam Estate. The accused along with his wife and four children was residing in one-room cottage by name Sribhavan at Kutti colony in Choorakulam Upper Division, Puthuval -59 in Peerumedu Village. The accused used to frequently consume alcohol and get inebriated and used to unfoundedly suspect the fidelity of his wife. On Crl. Appeal No.565 of 2007 2 06.5.2001, the accused had driven out his wife Indira from the above quarters. Indira with the help of her elder sister Pushpam had managed to stay in another quarters along with two of her sons Chandrasekharan and Rajasekharan. On 16.5.2001 at about 7.30 pm, the accused who did not relish his wife staying away from him went to the quarters where Indira was staying and forcibly took her to his quarters Shribhavan under duress threatening her with an “L” shaped large knife. Her younger son PW2 who was attending a karate class came in search of his mother to Sribhavan. At that time the accused forcibly thrust rice mixed with poison into the mouth of Indira and made her swallow the same. Indira was rushed to the Primary Health Centre, Vandiperiyar from where while undergoing treatment she died at 6.15 am on 18.05.2001. The accused who had intentionally and knowingly administered poison to his wife has thereby committed the offence of murder punishable under Section 302 IPC . THE TRIAL 3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offence, the prosecution was permitted to Crl. Appeal No.565 of 2007 3 adduce evidence in support of its case. The prosecution altogether examined 11 witnesses as P.W.s 1 to 11 and got marked 13 documents as Exts.P1 to P13 and 7 material objects as MOs.1 to 7. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before the Court:- He is innocent. His wife's elder sister(PW1) and her children had assaulted him. He then saw his wife getting into the house stating that the quarrel took place on account of her. After half an hour PW2 the younger child came and announced that deceased Indira had consumed poison. The neighbours came running and took her to the hospital. He was also taken to the hospital. Both himself and his wife were in two different hospitals. On 18th the eldest child came and told him that his wife Indira had died. That is how he came to know about the death of his wife. Crl. Appeal No.565 of 2007 4 There is a case arising out of the occurrence in which he was assaulted. 5. Since this was not a case of no evidence for the prosecution, the learned Sessions Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support thereof. He examined 3 witnesses as DWs. 1 to 3 of whom DW3 is his eldest son. He also got marked Exts.D1 to D6. 6. The Sessions Judge, after trial, as per judgment dated 25.05.2006 found the appellant guilty of the offence of murder and sentenced him to imprisonment for life and to pay a fine of `1,00,000/-(Rupees one lakh only) and on default to pay the fine to suffer rigorous imprisonment for one year. The fine amount as and when realised was directed to be given in equal shares to the children of the deceased excluding DW3(who supported the accused). It is the said judgment which is assailed in this appeal by the accused. Crl. Appeal No.565 of 2007 5 THIS APPEAL 7. We heard Advocate Sri.Hanil, the learned counsel appearing for the appellant and Advocate Sri C.S.Hrithwik, the learned Public Prosecutor, who defended the State. 8. The only point, which arises for consideration is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not. The Point:- THE PROSECUTION EVIDENCE 9. PW1(Pushpam) is the elder sister of Indira the deceased. She proved Ext.P1 First Information Statement. PW2 (Chandrasekharan) is the youngest child of the accused and the deceased. He supported the prosecution case. PW3(Dwararaj) was an attester to Ext.P2 inquest report as per which the Police had seized MOs.1 to 5. PW4 (Dr.M.Manikandan) was the Asst.Surgeon in the Primary Health Centre, Vandiperiyar. On 17.05.2001 at 1 am Crl. Appeal No.565 of 2007 6 deceased Indira, aged 35 years, was examined by him on an allegation that she had consumed poison at about 9 am on 16.5.2001. He proved Ext.P3 wound certificate. PW4 further deposed that Indira died at 6.15 am on 18.5.2001 while undergoing treatment there. PW5(Jyothi) is an attester to Ext.P4 (Scene Mahazar) prepared by the Investigating Officer. She also proved MO6 poison which was seen wrapped in a Kerala Kaumudi paper and seized by the Police under Ext.P4. PW6 (Manikandan) is yet another attester to Ext.P4 scene mahazar. PW7 (P.P.Peethambaran) was the Village Officer of Peerumedu Village. He proved Ext.P5 scene plan. PW8 (M.A.George) was the Sub Inspector of Police, Vandiperiyar Police Station. He recorded Ext.P1 F.I.Statement of PW1 on 18.5.2001 at 10.30 am and registered Ext.P1(a) FIR. PW9 (Balachandran Nair) who was the Circle Inspector of Police, Kumali conducted the major part of the investigation. He held inquest over the dead body of Indira at 1.30 pm on 18.5.2001 from the Primary Health Centre, Vandiperiyar Crl. Appeal No.565 of 2007 7 and took into custody MOs.1 to 5 garments and ear rings of the deceased. He then proceeded to the scene of crime and prepared Ext.P4 scene mahazar at 10 am on 19.5.2001 and took into custody MO6 poison found wrapped in a Kerala Kaumudi paper and MO7 vomit residue. During the course of investigation he produced the properties before the committal Magistrate as per Ext.P6 property list. He got the scene plan prepared by the Village Officer. Since the accused was in the Taluk Head Quarters Hospital, Peerumedu in relation to the occurrence which took place as a sequel to the present occurrence, PW9 arrested the accused consequent on his discharge from the hospital on 1.06.2001. Exts.P6 and P7 are the arrest memo and inspection memo respectively. Ext.P9 is the arrest notice served on the son of the accused. On the strength of the statement given by the accused he registered crime No.107/2001 of Vandiperiyar Police Station for offences punishable under Sections 324 and 326 read with 34 IPC against PW1 and her sons. PW10 (Dr.S.Girish) was the Crl. Appeal No.565 of 2007 8 Professor of Forensic Medicine, Medical College Hospital, Kottayam. On 19.5.2001 he conducted autopsy over the dead body of Indira and issued Ext.P11 postmortem certificate. He had preserved the viscera, liver, kidney and blood of the deceased for chemical analysis. He had reserved the final opinion pending receipt of the chemical report on those internal organs. Ext.P12 is the chemical report as per which the stomach contents, liver and kidney and blood of deceased Indira contained “Phorate” a poisonous organo phosphorous compound which is the toxic ingredient of the insecticide sold under the trade name “Thimet”. Based on Ext.P12 chemical report, PW10 gave Ext.P13 final opinion dated 6.10.2005 as per which the death of Indira was due to Phorate poison. PW11 (C.D.Rajan) who was the Circle Inspector of Police, Kumali from 16.07.2001 to 12.06.2002 submitted the final report before the J.F.C.M, Peerumedu. Crl. Appeal No.565 of 2007 9 DEFENCE WITNESSES 10. DW1(K.E.Sebastian) who was the Asst. Surgeon in the Taluk Head Quarters Hospital, Peerumedu who proved Ext.D5 wound certificate pertaining to the accused who was allegedly assaulted with a sickle shaped knife. He had two fractures, one on the left radius and the other on the left fibula and two lacerated injuries. DW2(Tojan V Cyriac) who was the Circle Inspector of Police, Kumaly proved Ext.D6 final report in crime No.107/2001 of Vandiperiyar Police Station. As per the final report PW1 and her son Babu were the accused in the said case. DW3(Rajkumar) is the eldest son of the accused and the deceased. He deposed in support of the defence to say that the deceased was committing suicide by swallowing rice mixed with poison. APPELLANT'S ARGUMENTS 11. The learned counsel appearing for the appellant made the following submissions before us in support of his fervent plea for acquittal of the appellant:- PW1 is an influential lady who was inmically Crl. Appeal No.565 of 2007 10 disposed of against the accused. It was only after the accused expressed his disinclination to settle crime No.107/2011 in which he was brutally tortured by PW1 and her sons that PW1 finally lodged Ext.P1 FIS at 10.30 am on 18.5.2001. According to the prosecution, the forcible administration of poison allegedly by the accused was at 9 pm as spoken to by PW2. The version of PW1 that herself, her sons and Rajasekharan (CW4) went to the house of the accused at 10 pm so as to get a narrative from PW2 regarding the occurrence cannot be true. Going by the testimony of PW2, CW4(Rajasekharan) and CW6 (Rajamani) who are two of the sons of the accused and the deceased were present in the house. But, for reasons best known to the prosecution, the said two sons of the deceased have not been examined. Going by the version of PW1 regarding the poison that it was kept in a plastic cover in a jar and was in the form of granules. To the same effect is the testimony of PW2 as well. The prosecution case is that the said poison was Furadan. DW3, who is the eldest son of the accused and the deceased has categorically stated that the poison which was mixed by his mother with rice and consumed was Furadan. But the testimony of PW4, the doctor Crl. Appeal No.565 of 2007 11 at the Primary Health Centre, Vandiperiyar and the findings in Ext.P12 Chemical report would go to show that the poison which was ingested by Indira was Organo Phosphorus poison. Furadan is not an Organo Phosphorus poison but a carbonate compound which has been negatived as is evidenced by the entry against Sl.No.3 under Section V of Ext.P12 chemical report. It will be unrealistic that no rice particles mixed with the poison could be recovered from the scene of crime by the Investigating Officer. Even MO6 poison which was allegedly seized under Ext.P4 scene mahazar was not sent to the Chemical examiner for finding out whether it was Organo phosphorous poison. According to PW1, Rajasekharan (CW4) who is one of the sons of the deceased told her that the accused had taken the deceased forcibly from the 2nd quarters to his own quarters showing a chopper. Going by the testimony of PW2 it was one Chitira who told him that the accused had taken the deceased by force to his own quarters. But both CW4 and Chitira were not examined by the prosecution. That apart, according to the prosecution, it was the incestuous relationship between CW4 (Rajasekharan) and his mother (the deceased), which was objected to by the accused. In spite Crl. Appeal No.565 of 2007 12 of that CW4 was not examined by the prosecution. Equally unbelievable is the dying declaration sought to be proved through PW1. According to PW1, the deceased told her that the accused had forcibly mixed poison with rice and had thrust it into her mouth while she was writhing in her bed. PW1 would say that on 17.5.2001 afternoon the deceased had regained consciousness and had again made a dying declaration to the effect that the accused forcibly made her swallow rice mixed with poison and she was compelled to swallow the same on the threat that if she disobeyed him he would cut the head of PW2 and it was with a view to save the life of PW2 that she obeyed the accused. No attempt has been made to record the dying declaration through the Magistrate and no attempt was also made to report the fact that the deceased regained consciousness to the doctor. As against this, there is a credible testimony of DW3 who has deposed that the deceased who had become desperate on account of the family quarrel committed suicide by taking furadan mixed with rice. Both PWs.1 and 2 have virtually admitted the suggestion that when PW1 and her children were locked in a scuffle with the accused, PW2 came and announced that the Crl. Appeal No.565 of 2007 13 deceased had consumed poison. The court below was not justified in disbelieving DW3 and placing implicit reliance on the testimony of PWs.1 and 2 ignoring the above vital aspects. JUDICIAL EVALUATION 12. We are afraid that we cannot agree with the above submissions made on behalf of the appellant. The appellant Rajendran and her 37 year old wife Indira together with their 4 sons namely Rajkumar(DW3), Rajasekharan (CW4), Rajamani(CW6) and Chandrasekharan(PW2) were residing in the one room cottage by name Sribhavan at Kutticolony in Choorakulam Upper Division Poduval- 59 of Peermedu Village. Both the accused and the deceased were labourers employed for picking the tender tea leaves in the Choorakulam estate. The accused used to get frequently inebriated and was in the habit of picking up quarrels with Indira on the unfounded suspicion that she was having an incestuous relationship with her own son Rajasekharan (CW4). On 06.5.2001 the accused had driven out his wife Indira who with the help of her elder sister Pushpam Crl. Appeal No.565 of 2007 14 examined as PW1 had taken asylum along with two of her sons Rajasekharan (CW4) and Chandrasekharan (PW2) in another quarters. On the ill fated day namely 16.5.2001 at about 7.30 pm the accused who did not relish his wife staying away from him barged into the alternate accommodation of his wife and took her back to his quarters by force after threatening her with a knife. PW2 (Chandrasekharan) was at that time attending a Karate class. He was informed that his mother was taken away by force by his father. He, therefore, went to Sribhavan in search of his mother to find the appellant forcibly thrusting rice mixed with poison into her mouth. This part of the evidence of PW2 has been fully believed by the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility. The trial Judge was also not inclined to accept the interested testimony of DW3 , the eldest son of the accused who is admittedly under the care and protection of the accused. PW1 and her sons who came to quarters of the accused soon after the forcible Crl. Appeal No.565 of 2007 15 administration of poison mixed with rice to the deceased found her writhing on the bed and when she asked her sister as to what happened, the latter revealed that her husband had forcibly made her swallow poison mixed with rice. Indira was rushed to the Primary Health Centre, Vandiperiyar by PW1 and others in a unconscious state. While undergoing treatment in the said hospital Indira came back to her senses in the afternoon of 17.5.2001. When PW1 ran to fetch the doctor she could not find the doctor and she returned to the bed side of the deceased. At that time also the deceased made a dying declaration to PW1 that she was made to swallow poison mixed with rice and the accused, her husband, had threatened to chop off the head of her son (PW2) in case she did not swallow the rice and that was how she was forced to swallow the rice. The testimony of PW2 also shows that the accused had threatened to kill him if he divulged the above occurrence to anybody. This part of the testimonies of PWs.1 and 2 have been found to be credible and intrinsically believable. Crl. Appeal No.565 of 2007 16 Of course, extremely annoyed by the wicked act of the accused, PW1 and her sons might have assaulted him resulting in crime No.107/2001. That was only the involuntary reaction of any sister in such situation. The incestuous relationship between the deceased and one of her sons (Rajasekharan), then aged only 18 years) attributed by the accused was nothing but a perverted story coming out from the warped mind of the accused. 13. DW3 is the only witness who says that the poison which was mixed with rice was Furadan. The prosecution does not have a case that it was Furadan which was mixed with rice. Hence, we are not inclined to accept the defence argument that what was detected in the stomach contents etc. of the deceased was some other poison belonging to organo Phosphorus group. DW3 who was admittedly under the care and custody of his father was rendering lip service to his father. 14. The so-called admissions by PWs.1 and 2 that when PW1 and her children quarrelled with the accused Crl. Appeal No.565 of 2007 17 PW2 came and announced that the deceased had consumed poison also cannot be taken as such. Those affirmative nods extracted through leading questions have to be read along with the totality of the evidence in which both of them have categorically stated that it was the accused who mixed the poison with rice and made his wife swallow the same. There is no dispute that the rice mixed with poison was swallowed by the deceased. The only area of controversy is as to whether it was suicidal ingestion or homicidal ingestion. The testimony of PW1 that her sister explained the circumstances under which the deceased was compelled to swallow the rice mixed with poison has been fully accepted by the trial Judge. 15. The result of the foregoing discussion is that the conviction was rightly entered against the appellant. We, therefore, endorse the conclusions reached by the trial Judge and confirm the conviction recorded against the appellant for murder. The sentence imposed on the appellant also cannot be said to be excessive or unduly Crl. Appeal No.565 of 2007 18 harsh having regard to the fact that this was a case of uxoricide. We, however, dislodge the observation made by the learned trial Judge that DW3 shall be excluded from the compensation awarded. He also will be entitled to his share of the compensation. In the result this appeal is dismissed confirming the conviction entered and the sentence passed against the appellant. Dated this the 1st day of August, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj Crl. Appeal No.565 of 2007 19