Kerala High Court
Sulthanbathery vs By Advs on 21 May, 2020
Author: M.R.Anitha
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942
CRL.A.No.869 OF 2016
CP 22/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,
SULTHANBATHERY
SC 286/2014 OF ADDITIONAL SESSIONS COURT - I, KALPETTA
CRIME NO.324/2013 OF Pulpally Police Station , Wayanad
APPELLANT/ACCUSED
BABU ISSAC
S/O. ISSAC, AGED 26/2015, KOCHUKUDIYIL HOUSE,
PALAKKOLLY, PULPALLY, WAYANAD DISTRICT.
BY ADVS.
SRI.A.C.DEVY
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
RESPONDENT/STATE
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI-31.
PP SRI. S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11-03-2020, THE COURT ON 21.5.2020 DELIVERED THE FOLLOWING:
Crl.A.869 of 2016
2
JUDGMENT
M.R.Anitha, J.
1. This appeal has been directed against the judgment and order dated 30.11.2015 in S.C.No.286/2014 of the Additional District and Sessions Judge-I, Kalpetta. Appellant/accused has been convicted under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.3,00,000/- in default to undergo simple imprisonment for four years.
2. Prosecution case in brief is as follows :
On 31.7.2013 at about 11.00 pm,
appellant/accused out of enmity towards the
deceased Subila intentionally caused her death by hacking with the chopper at her head, face, back, hand and leg at the courtyard of house No.III/234 of Pulpally Gramapanchayath,where CW5 and family are residing.
Crl.A.869 of 2016 3
3. FIR was registered suo motu by PW1 the Sub Inspector of police, Pulpally police station upon surrender of the accused before the police with MO1, blood stained chopper and the ststement given by him.Thereafter, PW14 Circle Inspector of police, Pulpally, took charge of the investigation, arrested the accused and questioned the witnesses. Thereafter PW13 continued the investigation, questioned PW12,and completed the investigation and filed charge-sheet against the appellant/accused.
4. On the side of prosecution, PW1 to PW15 were examined and Exts.P1 to P20 were marked. MO1 to MO12 were also identified and marked. After the closure of prosecution evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating facts and circumstances put to him. Thereafter both sides were heard. Since Crl.A.869 of 2016 4 the Court below did not feel it fit to acquit the appellant/accused under Section 232 Cr.P.C, he was called upon to enter on his defence. DW1 examined and Exts.D1 and D2 were marked on the defence side. Thereafter on hearing both sides the judgment and order was passed.
5. Heard Adv.Muhammed Sabah, learned counsel for the appellant and learned Public Prosecutor Sri.Nazar and perused the records.
6. To prove that the death of Subila was a homicide, prosecution relies upon the evidence of PW13, Assistant Professor and Assistant Surgeon, Department of Forensic Medicine, Medical College, Kozhikode, who conducted post-mortem on the body of deceased Subila. The post-mortem certificate is marked as Ext.P11.
7. Ante-mortem injuries noted are :
Crl.A.869 of 2016 5
1. Incised wound (cut injury), 6x2x3.5cme (entire thickness), of right hand 2.5cm below wrist, which is almost total amputation except for a skin lag 3cm on anatomical snuff box.
All the metacarpals near the base seen cut fractured along with muscles, lendons, nerves and blood vessels. The injury was directed transversely towards outer aspect.
2. Incised wound (cut injury), 4.5x2x2.5 cm (bone deep), on back of left forearm, oblique, upper outer end 3cm below elbow injury showed slanting towards front and to left.
3. Incised wound (cut injury) 4x0.5 to 1cm on hypothenar area of left hand, 1cm above root of little finger. This injury showed avulsion of skin and muscle for 1.5 cm. Which was directed upwards underneath the muscles and blood vessels seen cut.
Crl.A.869 of 2016 6
4. Incised wound (cut injury) with avulsion 1x0.5cm, on outer margin of tip of left thumb involving the nail for its length 1x0.2 cm, the wound flap was directed upwards for a depth of 1 cm.
5. Incised wound (cut injury) having avulsion 6x3cm, front to back, on back aspect of top of right shoulder. Upper front inner end 3cm outer to root of neck. The injury showed slanting towards left and slightly downwards for a length of 4 cm.
6. Incised wound (cut injury) 14x0.5 to 1cm, on right half of front of face with lower end 1cm inner to right corner of mouth involving entire thickness of upper lip. Then coursed upwards along right side of bridge of nose reaching lower aspect of right orbit, cut fracturing the maxilla underneath and producing a cut injury of globe of right eye. Further it involved right forehead reaching Crl.A.869 of 2016 7 upwards frontal eminence, 3cm right to midline. This injury was of variable depth. Lower end showed cut fracture of alveolar processes at between right upper central and lateral incisor teeth. Upper aspect produced cut fracture of frontal bone and orbital cavity. Both upper and lower eyelids showed (cut injury) to full thickness. The injury was vertically oblique having upper end towards right. The edge showed slanting slightly upwards and towards left.
7. Incised wound, cut injury, transversely placed, 9x1 to 1.5 cm on front and right aspect of face. Front left end on left orbit. 1 cm below globella. At a level of 0.5 cm towards its course to right this injury transected previous injury through upper margin of right orbit producing a cut fracture. (The transsection was at a level of 9 cm above front lower end of previous injury). This injury was directed towards back and slightly Crl.A.869 of 2016 8 downwards and slightly downwards left.
There was superficial tailing transversely at its right end of 3.5 cm.
8. Incised wound, (cut injury) 3x0.5 cm, on right aspect of forehead, transverse and parallel to previous injury and 1.5 cm above it (above upper rim of orbit). Underneath it produced a cut fracture right half of frontal bone for its full thickness.
This injury is in confluence with injury no.6. It was directed towards back, slightly upwards and slightly to left. There was a tailing for 2.5 cm towards right transecting the injury no.6.
9. Incised wound showing avulsion cut injury over an area 4x2.5 cm on right half of forehead, which in depth showed fracture avulsion of outer table of right aspect of frontal bone along with skin, which was seen deflected towards left (this injury Crl.A.869 of 2016 9 was 'C' shapped on apposition with a normal skin tag of 3cm). The lower end merged transversely with inner end of previous injury.
10. Incised wound (cut injury) transverse 5x3x2 cm on right side of face, front end at middle aspect of outer margin of orbit and extended to reaching 2.5 cm above back portion of sygomatic arch. The edges showed slanting towards left and slightly upwards.
11. Superficial incised wound, 1.2x0.2x0.5 cm on right side of face, transverse, 3cm in front of helix of right ear and 0.8 cm below previous injury
12. incised wound (cut injury) 11x1 to 1.5 cm reaching cranial cavity on right side of head, 1Cm above top of ear. This injury was transversely placed with its front end 4 cm above and 1cm in front of level of tragus of Crl.A.869 of 2016 10 right ear. Underneath the right temporal bone showed cut injury. The edges showed slanting towards left and slightly downwards.
13. Incised wound (cut injury) 4.5x0.5 to 1cm merging with previous injury towards its front half with its front end, 0.6 cm below previous. Lower edge involved as a superficial cut avulsion injury of 2.5x0.8 cm on top of helix of right pinna
14. incised cut injury, 5x0.5 to 1cm slightly oblique, on right side of head. Lower back end 2.5 cm behind root of ear. This injury transected previous two injuries at a level of 4 cm from the front end for a distance of 2cm above their transverse course. Edges were directed towards left.
15. Incised cut injury, 12x1 to 2cm x cranial cavity deep on right side of top of head, tranasverse, front to back. Front end 6.5 cm right to Crl.A.869 of 2016 11 midline top of head and 9.5 cm above tragus of right ear. Back end at back of right parietal eminence, 4cm outer to back midline of head. Edges directed towards left and down.
16. Incised cut injury, 14cm oblique on right side of head, transecting the previous injury with its lower back and showing fish tailing for a length of 1cm each and 7cm behind top of right ear. This injury transected previous. 7Cm above its lower end at a distance of 5cm behind the front end of previous injury. Edges directed towards left and slightly backwards.
Under the skull bones showed cut
fracture injuries.
17. The above oblique injury was
transected by an incised cut injury 10 cm oblique on right side of head, front to back with front end 4cm above and 2cm behind injury no.12 and 1.2 cm below and 2cm behind injury no.15. The back end of this injury coursed Crl.A.869 of 2016 12 underneath the right parietal eminence reaching 3cm above and 1.5 com right to occiput. Edges directed to left.
18. Incised wound 7.5x 1 to 2cm reaching cranial cavity on top of back of head, vertically placed along the midline of head. Edges directed towards front and slightly towards left. Right margin of this injury 2.5 cm above its back lower end was in confluence with injury no.12
19. incised cut injury, 10x1 to 2 cm on top of back of head to left side of head, transverse, left lower end 5cm above ear. Right upper end crossing midline for 2.5 cm reaching towards upper end of previous injury, just away 0.5 cm.
20. incised cut injury, 4x1cm transecting the previous injury symmetrically at its middle. Both the above injuries (injury no.19 and 20) directed downwards towards the Crl.A.869 of 2016 13 interior of cranial cavity with the corresponding cut fracture in skull bones underneath.
8. PW13 also opined that death was due to multiple cut injuries on the head involving brain. He would also state that injuries could be caused by MO1 chopper. He would also depose that the deceased was pregnant about five months at the time of incident. During cross-examination he would state that MO1 was shown to him by the investigating officer. There are 20 incised cut injuries on head, face, forehead involving brain also. It is not seen disputed that the death of Subila was a homicide. About 20 cut injuries involving vitals resulting in the instantaneous death of the deceased coupled with evidence of PW13 will leave no room for doubt to conclude that the death of the deceased was a homicide.
Crl.A.869 of 2016 14
9. To prove the case, prosecution mainly rely upon the evidence of PW2 to PW5 and the scientific evidence. PW2 is a close relative of the deceased (nephew of the mother of deceased), who speaks about the dispute between the deceased and accused. He would state that before two days of the incident, deceased went to her paternal house out of the quarrel between them, and accused went to his house from the shed which they had put up for residence at the mother's property of the deceased. He would depose that on 31.7.2013 during sunset, PW4, the sister's husband of the deceased came and informed that the parents of the deceased are missing and accused is there in her house. Then himself and PW4 proceeded to the house of the deceased. On the way accused told him over phone that deceased thrown the thali and chain at his face and accused subsequently hacked her to death with chopper. Accused further stated that he had to go to station and told him to inform his house. Crl.A.869 of 2016 15 Thereafter they went to the house of the deceased and saw the body of the deceased with cut injuries.
10. PW3 is none other than the sister of the deceased. She would state that the incident occurred on 31.7.2013 after 11.00 pm. Her parents came and told that accused came to their house and is making quarrel and they are going to the sister's house of the mother and they left. After some time she heard a cry. suddenly she rushed towards the road and accused was found to be going towards Pulpally town. She also heard accused talking over phone about the murder of the deceased. Though she enquired him about the noise, he left without saying anything. Then herself and 4½ year old child went to the tharawad house and found the deceased lying in a pool of blood. Then she alarmed. People gathered and PW4 also came and she became unconscious. She also deposed that Crl.A.869 of 2016 16 accused and deceased had been quarrelling always.
11. PW4 is the husband of PW3. He would state that the incident occurred two years before. He would further depose that to settle the dispute between the deceased and accused as requested by the parents of the accused and also the accused ,he along with accused, the brother of accused, and one Johnson, reached at the house of the deceased. The parents of the deceased were there. Though they mediated, the deceased was not inclined to go with the accused. Hence they left stating that it can be discussed in the morning. But accused remained there. Thereafter when he returned to his house, the parents of the deceased came to her house stating that there is chaos in their house. Thereafter, he contacted PW2 over phone and he informed him about the disclosure made by the accused. Immediately they went to the spot and saw PW3 weeping and becoming unconscious Crl.A.869 of 2016 17 and the deceased was also found in a pool of blood with cut injuries and he took the child to his house and returned.
12. PW5 is the mother of the deceased. She states that before two days of the incident deceased came from the shed which had been put up in her property, being unbearable of the torture of the accused and accused went to his house. She also speaks about the mediation talk that took place at 8.00 pm with the accused, his brother Biju, John and PW4. But deceased was not willing to go with the accused and apart from the accused all others left. Herself and husband went to her sister's house. After some time, PW2 informed her over phone about the murder of daughter and immediately she rushed to the house and found the daughter with cut injuries and she collapsed.
13. The other witnesses examined by the Crl.A.869 of 2016 18 prosecution are PW6 the witness in Ext.P3 inquest, PW7 an auto driver, who is the witness in Ext.P2 seizure mahazar for seizing Mo1 chopper at the station, PW8 the photographer who took the photos of the body and the scene and photo and CD are marked as Exts.P4 and P5 respectively, PW9 Tahsildar, who prepared the inquest (Ext.P5), and produced MO7 churidar top, MO8 brassier, MO9 churidar pant, MO10 a pair of chappals, MO11 and MO12 imitation thali chain etc, to the investigating officer, PW10 is the senior civil police officer attached to Circle inspectors office, Pulpally who is a witness in Ext.P6 seizure mahazar prepared while seizing the blood sample of the deceased, Exbt.P7 is the seizure mahazar prepared while seizing MO7 to MO12 at the time of inquest, and Ext.P8 is the seizure mahazar prepared while seizing Exts.P4 and P5. PW12 is Special village officer who prepared Ext.P10 scene plan, PW11 is the Panchayath Secretary who issued Crl.A.869 of 2016 19 Ext.P9 ownership certificate pertaining to building No.3/234 and the owner of building is CW5 and he also added that the said number has not come into force and the number existing is 3/41. PW14 is the Circle Inspector who conducted the major portion of the investigation and PW15 completed the investigation and filed the charge against the accused.
14. The learned counsel for the appellant/accused (appellant will hereinafter be referred as accused) assailed the conviction and sentence on the following grounds.
(a).witnesses examined are not dependable.
(b).Non examination of neighbours and mediators is fatal.
(c).delay in reaching the FIR and MO1 before the Court.
(d).Delay in recording the arrest.
(e).Non corroboration of extra judicial confession.
(f).PW2 to whom extra judicial confession has been made is enimical towards the accused.
Crl.A.869 of 2016 20
(g).Exts.D1 and D2 prove enmity of PW4 towards accused and deceased which has not been properly appreciated.
(h).Non examination of CW5, father of deceased amounts to suppression.
(i). Last seen together cannot be accepted due to time gap.
15. (a, b, g) -According to the learned counsel all the witnesses examined to prove the occurrence are close relatives of the deceased and none of the neighbouring witnesses were examined and that creates doubt about the prosecution case. Undoubtedly PW2 to 5 are closely related to the deceased. But the law in that regard is well settled and even Irul v. State (2007 Crl.L.J), 1139) cited by the learned counsel for the appellant underline the proposition of law that their evidence have to be analyzed and scrutinized with care and caution. The same proposition has been laid down by the Apex Court in State of H.P. v.Mast Ram (AIR 2004 SC 5056). So also in Dalip Crl.A.869 of 2016 21 v.S.A. (1953 SC 364), Barat v. S.A. (1974 SC 839), Bhurgaran v. State of Kerala (AIR 2004 SC 1058), it has been laid down that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person.
16. So bearing in mind the above proposition of law that we have to analyse the evidence of PW2 to PW5. PW2 speaks about the extra judicial confession made by the accused over phone to him about breaking of thali and chain by the deceased and throwing the same at his face and subsequently the accused hacked her to death by chopper. He would state that while making the said confession PW4 was there. He also states that the phone call came while they reached near the shop of Joseph. But during cross-examination no question was put specifically challenging the statements given by the accused to him over phone apart from a bald Crl.A.869 of 2016 22 suggestion that accused has not called him on 31.7.2013. It is also not challenged that PW4 was with him while the phone call came. It has further come out from his evidence that accused and deceased were living near his house and hence he knew about their frequent quarrel. Though he would admit during cross-examination that accused had filed a case against him in connection with chitty, it is admittedly after 1-2 months of the incident.
17. The evidence of PW2 with regard to extra judicial confession is corroborated with the evidence of PW4 also. He also states that accused called PW2 over phone and stated about breaking of thali chain and throwing the same by her and himself slashing her to death. It is also stated by PW2 that PW3 was present at the place of occurrence while they reached there. Prosecution case is also that PW3 reached the spot firstly on Crl.A.869 of 2016 23 hearing the cry. She also deposed that on hearing the cry she rushed to the spot and on the way while she reached the road she saw the accused going towards Pulpally area and talking over phone that he killed Manju. Though she asked him about the alarm, he simply walked away without giving any reply. She also stated that she went to the spot with her 4½ year old child and on seeing the deceased lying in a pool of blood she alarmed and people rushed to the spot and PW4 also came, and she became unconscious. Pw4 also stated that he took the child to home and thereafter neighbours came to the scene of occurrence. Even though during cross-examination it was brought out that he stated to the police that he took the child to home after police reached the spot, it does not efface his entire evidence.
18. Evidence of PW4 also prove that there was mediation talk in the issue of accused and Crl.A.869 of 2016 24 deceased on the same day at about 8.30 pm and since deceased was not willing to go with the accused, PW4 and other mediators left deciding to talk about the same on the succeeding day morning. Thereafter the parents of the deceased left the house and they were seen by CW4 at the house and they informed him that there is chaos going on in their house. That may be the reason why they left the house to express their displeasure in accused remaining in their house.
19. Though the learned counsel would contend that PW4 is in enimical terms with the accused and Exts.D1 and D2 were produced and proved from the side of the accused would substantiate that contention and PW4 also admit about the filing of complaint by the deceased against PW4, On going through Ext.D2 it could be seen that, though complaint was filed by the deceased before the Women's Cell against PW4, subsequently the Crl.A.869 of 2016 25 complaint was closed since it has been revealed that the complaint was filed with respect to the dispute between the husband of deceased and PW4 and there is no issue between the deceased and PW4. It is true that Ext.D1 would show that a case has been registered against PW4 under Sections 341, 323 and 326 IPC in Pulpallay Police station at the instance of the accused and the motive alleged in that case is some dispute with respect to chitty amount due to the father-in-law. But the fact that there was a mediation talk at the house of PW5 at the instance of PW4, accused, the brother of accused and one John,friend of the accused has been spoken to by PW5 mother-in-law also. There is no specific challenge during her cross-examination about the mediation talk also. PW4 being the sister's husband of the deceased, it is quite natural that he would participate in the mediation to settle the matrimonial dispute between the deceased and accused. We could not Crl.A.869 of 2016 26 find any serious cross-examination of those witnesses in material particulars also. So their evidence does not suffer from any infirmity and hence inspire the confidence of the court and hence are acceptable.
20. The learned counsel also contended about the non examination of the neighbours which according to him creates suspicion about the prosecution case. The learned counsel for the accused in this context took our attention to Irul v. State (2007 Crl.L.J 1139) wherein it has been held that non examination of witness who was running a shop 20 feet away from the scene of occurrence to speak about the presence of witnesses on seeing leads to an adverse inference against the prosecution case under Sec.114 (g) of the Indian Evidence Act,1872. But on going through the said decision it is seen that the incident took place in that case at about 9.30 pm and the Crl.A.869 of 2016 27 case of the prosecution is that PW1 and 2 have purchased battery light cell from the shop of Mesanam who is running the shop 20 feet away from the scene of occurrence and the evidence of PW1 and 2 is that after purchasing the battery from the shop of Mesanam they heard a hue and cry of the deceased. So in the said context it has been found that if PW1 and 2 were present there and purchased the battery light cell from Mesanam and thereafter they heard the hue and cry, it could have also attracted Mesanam and he also would have rushed to the scene and the shop of Mesanam is situated 20 feet away from the scene of occurrence. So it was concluded that prosecution deliberately with held the examination of Mesanam and hence the adverse inference was drawn against the prosecution under Section 114(g). More over in that case, doctor has given evidence that he has not found any food particles in the intestine of the deceased and doctor also stated that if anyone Crl.A.869 of 2016 28 takes food, it will take 5 to 6 hours for digestion and the evidence of PW1 was that after taking food along with the deceased, he had gone to the shop of Mesanam. But no food particles were found at the time of post-mortem. So that also has been taken as an incriminating circumstance probabilising the inconsistencies and infirmities in the prosecution case. But in this case it is true that PW3 deposed that 5 to 10 houses are there in the colony and she also deposed that she made an alarm on seeing the deceased in a pool of blood and people gathered and PW4 also came. But it is pertinent to note that the incident occurred at 11.00 pm and admittedly it is a colony and normally such people will fall to a deep sleep by 11.00 pm. So also PW3 though deposed that people gathered, she did not state their names. No attempt was also made during cross-examination to elicit their names. So probably apart from close relatives, nobody might have assembled there Crl.A.869 of 2016 29 during that late hours. PW14, the investigating officer when questioned about the reason for non- questioning the neighbours, he categorically stated that neighbours had not come to the scene and hence not questioned them. It is also pertinent to note that the fact that the house of PW3 is quite near to the house of PW5 is also not in dispute. So PW2, PW3 and PW4 are the most natural witnesses to reach the spot. So the fact situation in this case is quite different from the decision cited above. So non examination of neighbours cannot be stated as a material flaw in prosecution case.
21. The learned counsel also advanced arguments about non-examination of other mediators. But admittedly according to PW4 and PW5, the other mediators are the brother of accused and Johnson, a friend of accused also. So it cannot normally be expected that they would be prepared to state Crl.A.869 of 2016 30 anything against the accused. So non-examination of other mediators also cannot be said as fatal.
22. (c), (d) - The learned counsel for the accused would contend that delay has been caused in reaching the FIR and MO1 before the court and further that though the accused alleged to have surrendered at 11.45 p.m, his arrest has been recorded at 4.pm and that creates doubt about the alleged surrender of the accused at 11.45 pm on 31.7.2013 with weapon MO1. But FIR would show that it has reached the court on 1.8.2013 at 6.30 pm. The incident alleged is at about 11.00 pm on 31.07.2013 and FIR has been registered at 00.15hours n 1.8.2013. But no question is seen to have been put to PW1 about the distance between the police station and the JFCM-II, Sulthan Bathery. Even otherwise on the same day at about 6.30. pm the learned magistrate has initialed Ext.P1. So we don't find any inordinate delay in Crl.A.869 of 2016 31 reaching the FIR before the court.
23. With regard to the delay occurred in arresting the accused at 4.00 pm on 1.8.2013 though he had surrendered before the police at 11.45 pm on 31.7.2013, the explanation given by PW1 the S.I of police is that since the case is a one to be investigated by the C.I. Of police he did not arrest the accused. So misunderstanding of the procedure has caused the delay in arresting the accused. Anyway the learned counsel could not point out any prejudice that has been caused to the accused due to the delayed arrest and it also would not create any suspicion because the FIR has been registered at 00.15 hours itself. Moreover the evidence of Pw7 the autorikshaw driver who is parking the auto in the town is a witness in Ext.P2 seizure mahazer of Mo1 chopper and other articles seized at the time of surrender of the accused would prove that it has been prepared at Crl.A.869 of 2016 32 1am on 1.8.13.It has been brought out during cross-examination that S.I. came for calling him at about 12.O'clock. Nothing was brought out during cross-examination to discredit his testimony. There is not even a suggestion that he is in anyway enimical towards the accused so as to depose falsely against him.
24. (f), (e) - According to the learned counsel PW2 to whom extra judicial confession has been made is inimical towards the accused and hence his evidence cannot be accepted as interested and further he would contend that extra judicial confession alleged to have been made is not supported by any corroborative evidence and hence cannot be relied upon.
25. With regard to the enimity of PW2 what could be brought out during cross-examination of PW2 is only that accused has given a case against Crl.A.869 of 2016 33 him in connection with chitty and that too after 1
- 2 moths of the incident. Nothing else was brought out during cross-examination to probabilise the alleged enmity of PW2 towards the accused. With regard to the non-corroboration of extra judicial confession it is to be noted that PW4 with whom PW2 was proceeding towards the house of PW5 has heard the talk between PW2 and accused. PW4 deposes the same during his examination. PW3 also stated that on hearing the cry while she was proceeding towards the family house she saw the accused talking over phone and stating that Manju has been murdered. Immediately he surrendered before the police with the blood stained and flesh containing chopper also. (The relevancy of the said fact would be discussed later). So the contention of enmity of PW2 towards accused and non corroboration of extra judicial confession etc., are not at all sustainable.
Crl.A.869 of 2016 34
26. (h) - The learned counsel would further contend about the non-examination of CW5 the father of the deceased. But PW5 the mother who was also present in the house has been examined and she would depose about the mediation talk and reluctance expressed by the deceased to go with the accused and further that she along with CW5 left the house thereafter. So non-examination of CW5 is not at all significant since it is well settled it is the quality of the evidence, and not the quantity that matters.
27. (i). Lastly he would also contend that the last seen together theory also cannot be applied in this case due to the time gap. But the evidence of PW4 and 5 who were present while the mediation talk took place would bring out that at about 8.30 pm PW4 reached the house of PW5 along with others. Though accused attempted to deny that fact also, during cross-examination of PW14 Crl.A.869 of 2016 35 investigating officer it was brought out that PW5 has stated to him that accused told her that he is talking to his wife and she need not interfere. So that would prove the presence of the accused and talk that had taken place in her house on the fateful day prior to the incident. PW5 also during cross-examination on one occasion deposed that accused and others came to her house at about 8.30 pm. The evidence of PW2 is that at about 11.30 pm PW4 came to his house and intimated that father and mother are not seen in the house. Evidence of PW4 is also that since deceased was not interested in going with the accused he left stating that it can be continued in the morning and he went to the house of Mazen. After meeting Mazen he came to the house; then PW5 and husband (CW5) came to his house and informed that chaos is going on in their house. So the mediation talk might have gone upto 9.30 or so and thereafter on leaving PW4 and others, accused might have started quarrel again Crl.A.869 of 2016 36 with the deceased and that may be the reason why Pw5 and Cw5 left their own house leaving accused and deceased alone in the house. It is after that about 11.00 pm the incident alleged to have taken place. Directly accused went to the police station and surrendered. Registration of Ext.P1 FIR at 00.15 hours on 01.08.2013 would show that there is no time gap as alleged to conclude that accused and deceased were last seen together. It is relevant in this context to quote Arabindra Mukerjee v. State of West Bengal (AIR 2012 SC 3539) wherein it has been held that once the accused was last seen with the deceased, the onus is upon him to show that either he was not involved in the occurrence at all or that he has left the deceased at her home or at any other remarkable place. To rebut the evidence of last seen together and its consequences in law, the onus was upon the accused to lead evidence in order to prove the innocence. But nothing could be Crl.A.869 of 2016 37 brought out through the evidence of prosecution witnesses, or during his examination probabilising his innocence. So it can be safely concluded that prosecution could establish the last seen together theory also.
28. This is a case purely based upon circumstantial evidence. It is well settled proposition of law that in cases depending on circumstantial evidence there must be a chain of circumstances, incompatible with the innocence of the accused and there should be no missing link also.
29. Motive is the prime ingredient and it assumes importance in cases that rest entirely upon circumstantial evidence. The motive alleged in this case is the matrimonial dispute between the deceased and the accused. Witnesses PW2, PW3, PW4 and PW5 would spoke in corroboration about the Crl.A.869 of 2016 38 quarrel between the accused and deceased. It has also come out in evidence that prior to the incident the deceased came to paternal home due to the physical torture and harassment exerted by the accused. On the fateful day also before the incident there was a mediation talk for uniting them. But the deceased was not willing to go with the accused. Thereafter PW4 and other mediators left and even thereafter the quarrel continued and that is why PW5 and CW5 left their house. But the accused remained there and thereafter the brutal act has been done by him. Definitely he might not have any intention to do away with her when he reached her house and participated in the mediation talk. When the mediation failed, parents left and accused and deceased remained in the house and subsequent quarrel might have led to the incident. So motive could be established to a certain extent by the prosecution. Whether this will any way affect the prosecution case is the Crl.A.869 of 2016 39 question for determination. In this context it is relevant to quote State of H.P v. Jeet Singh (AIR 1999 SC 1293). That was also a case of uxoricide wherein accused Jeet Singh who is an army man was convicted of murder of his young wife and sentenced to imprisonment for life under Sec.302 IPC. In that case in para 33 while dealing with the question of motive it has been held by the Apex Court that when prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravell the full dimensions of the mental disposition of an offender towards the person who he offended. In that decision the Apex Court also quoted Mathuni Yadav v. State of Bihar Crl.A.869 of 2016 40 ( 1998 9 SCC 238). The relevant para 17 has been extracted which reads as follows:
"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murder have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champdell struck a note of portion in R.V Palmer (shorthand report at P 308 CC May 1856) thus :
"But if there be any motive which can be assigned, I am bound to tell you that declining all that Crl.A.869 of 2016 41 motive is of little important. We know from the experience of criminal courts that atrocious crimes of this sort have been committed from every slight motive; not merely very malice and revenge but to quite a small pecuniary advantage, from all to drive off if a time pressing difficulties."
"Though it is a sound
proposition that every criminal
act is done with a motive, it is
unsound to suggest that no such
criminal act can be presumed
unless motive is proved. Further
on, motive is a psychological
phenomenon. Some fact that
prosecution failed to translate
that mental disposition of the
accused into evidence does not
mean that no such mental
condition existed in the mind of
the assailant."
30. It is also relevant in this context to
Crl.A.869 of 2016
42
Manikumar Pava v. State of Sikkim (AIR 2002 SC 2920) wherein it has been held that, if prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused who committed murder, absence of motive will not hamper a safe conviction.
31. So the question for determination before us is whether prosecution is able to establish beyond all reasonable doubt through other circumstantial evidence that it is the accused who committed the offence.
32. The last seen theory we have already dealt with in the previous paragraphs, could be established through the evidence of PW4 and PW5. For avoiding the risk of repetition we are not discussing it again.
Crl.A.869 of 2016 43
33. Another important link is the subsequent conduct of the accused in surrendering before the police with MO1, blood stained chopper, immediately after the incident. The evidentiary value of the above fact according to us, is the most important legal and factual aspect in this case. The evidence of PW1 and Ext.P1 FIR suo motu registered by him would prove that at 0.15 hours the FIR was registered in this case. It would prove that accused surrendered before the police at 11.45 pm with MO1 chopper stained with blood and flesh.
34. Evidence of PW7 an autorikshaw driver who is parking his autorikshaw at the town would show that he had seen the seizure of MO1 chopper and other article at station during night and he had signed in Ext.P2 seizure mahazar at about 1am. There is not even a suggestion that he has got any axe to grind against the accused. The only Crl.A.869 of 2016 44 suggestion put to him is that he is stating falsehood to help the Sub Inspector. Ext.P2 also would show that it has been prepared at 1.00 a.m on 1.8.2013. It has been stated by PW7 that he has been called by the sub inspector at about 12.O' clock (midnight). It is stated in Ext.P1 suo motu FIS and also during the evidence of PW1 that accused came to the station on 31.7.2013 at about 23.45 hours holding a chopper in his hand. The further statement given by the accused that he has murdered his wife and body has been lying in the courtyard of the wife's house at Kulathoor and the subsequent narration of the incident by him given to PW1 would definitely be hit by Sec.25 of the Indian Evidence Act since it is a confession made to a police officer. So what is admissible in this regard is only the subsequent conduct of the accused in surrendering before the police station and giving the statement.
Crl.A.869 of 2016 45
35. It is relevant in this context to extract Section 8 of the Indian Evidence Act which reads as follows :
Motive, preparation and previous or subsequent conduct. - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1 - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.
Crl.A.869 of 2016 46
36. In Aghnoo Magsha v. State of Bihar (AIR 1966 SC 119) it has been held that if the first information is given by the accused himself the fact of his giving the information is admissible against him as evidence of his conduct under Sec.8 of the Evidence Act. That decision has been followed in Siddappa v. State of Karnataka (1991 Crl.L.J 458). In para No.5 of the above judgment it has been stated that when the accused himself gives the first information, the fact of giving the information is admissible against him as evidence of his conduct under Sec.8 of the Evidence Act.
37. While analysing Explanation 1 to Sec.8 of the Indian Evidence Act it could be seen that what has been provided therein is including acts other than statements. So when the accused surrenders himself with the blood stained and flesh precipitated MO1 it would come under explanation Crl.A.869 of 2016 47 of act other than the statement and hence to that extent it is admissible under Sec.8.
38. To connect with the above relevant fact is the scientific evidence. PW14 the investigating officer would state that Ext.P15 is the property list by which he forwarded MO1 to MO6 the article seized by Ext.P2 seizure mahazar to the Court. Exts.P16 and P17 are the property lists by which the articles seized at the time of inquest and blood sample and hair sample etc., have been produced before the court.Ext.P18 is the copy of forwarding note by which the above items were forwarded to FSL. Ext.P20 FSL report would prove that blood was detected in MO1 to MO4 and MO6 i.e the chopper,shirt,lunky, mobile phone,currency note of accused, and also Mo7 churitar top, MO8 brassiers, MO9 churitar pant,and MO11 Kontha belonging to the deceased and dried blood of the deceased collected at the time of post mortem Crl.A.869 of 2016 48 It is also reported that blood stains on MO1 chopper, MO7 churidar top, MO9 churidar pant, MO8 brassier, MO11 kontha and blood collected in cotton gauze of the deceased collected at the time of postmortem were subjected to Gel diffussion test and found to be human in origin. It would also prove that MO1, MO2, MO3, MO5, MO6 currency note, MO7, MO9, MO8, MO11 were examined for presence of hair and hair was collected from MO1 chopper and MO7 churidar top. It is also reported that hair collected from MO1 and MO7 were examined through microscope and compared with sample hairs in item 12(b)(i) ... of the deceased, item 12(b)(ii) head hair cut & on abdomen, item No.12(b)(iii) head hair cut & on left elbow of the deceased and the finding is that the hair collected from MO1 chopper and MO7 churidar top and also cut head hair collected item 12(b)(ii) and item No.12(b)
(iii) head hair of the deceased were human scalp hairs which were similar to the sample scalp hair Crl.A.869 of 2016 49 of the deceased in item No.12(b)(i).
39. So the FSL report proves the presence of hair of the deceased in MO1 chopper which has been produced by the accused before PW1 immediately after the incident on surrender before the police is a clinching evidence to connect the accused with the offence. Apart from the above, it is further reported in Ext.P20 that blood was detected in MO1 chopper, MO2 shirt, MO3 lunki, MO4 mobile phone, MO6 currency note which were the articles belonging to the accused and seized at the time of surrender by describing in Ext.P2 seizure mahazar and MO7 churidar top, MO8 brassier, MO9 churidar pant and MO11 kontha of the deceased. It is further reported that blood stains in MO1, MO7, MO9, MO8, MO11 and also item No.12(a) (brown coloured cotton gauze, the dried blood of the deceased collected by the doctor at the time of post-mortem) were subjected to gel diffusion Crl.A.869 of 2016 50 test and found to be human in origin. Those are all link evidence which corroborate the prosecution case pointing to the guilt of the accused. So prosecution could establish a chain of circumstances without any missing link which leads to the guilt of the accused.
40. It is true that the learned counsel for the accused would contend that the articles alleged to have been seized by describing in Ext.P2 seizure mahazar have not been sealed and there is also no evidence to prove where MO1 and other items were kept till those were sent to the Court and hence that caused prejudice to the accused and would amount to a missing link weakening the prosecution case. In this context, the learned counsel took our attention to Sahid Singh v. State of Punjab (MANU/SC/0611/1997). On going through the above decision it could be seen that the arms and ammunitions alleged to have Crl.A.869 of 2016 51 been recovered from the appellant on conducting search. But no independent witnesses have been cited in the search list while effecting the recovery. It is also found that the arms and ammunitions recovered and seized were not picketed and sealed. But in the present case Ext.P2 is the seizure mahazar prepared while accused surrendering before the police station with MO1. An independent witness, PW7 was also cited while seizing the articles by describing in Ext.P2 seizure mahazar. On the immediate next day Ext.P2 seizure mahazar is seen to have been reached before the court. More over no question was put to PW1,the Sub Inspector who seized MO1 and other articles about the sealing of the same. On perusing Ext.P2, it is seen that there is a specific mention against MO3 lunki, MO4 mobile phone and MO5 watch that those were sealed. So whether these items were also sealed or not ought to have been specifically asked to PW1 who has Crl.A.869 of 2016 52 seized articles. So without making any attempt to elicit the facts during cross examining the witnesses properly, at this fag end the accused cannot be heard to contend that MO1 and other articles were not sealed and that creates a missing link and that weakened the prosecution case.
41. Another corroborative evidence which the prosecution could establish is the extra judicial confession made by the accused to PW2. No doubt value of extra judicial confession depends upon the credibility of the witness to whom it has been made. Even though court requires the witness to give the actual words used by the witness as nearly as possible it is not an invariable rule that the court should accept the evidence if the actual words are not used. In this case the extra judicial confession has been made by the accused to PW2 whose evidence we have already found to be Crl.A.869 of 2016 53 trustworthy. It is true that PW2 is a relative of the deceased but it has come out in evidence that deceased and accused were residing in a shed put up in the property of the house of PW5 which is situated nearby the house of PW2. He would depose that while himself and PW4 were going to the house of the deceased on the way a phone call of the accused came and he stated that accused told him that the wife break the thali and chain and threw at his face and thereafter he slashed her to death by chopper and he has to go to station. He further told him to intimate at his house. During cross- examination it was brought out that accused and the deceased were residing nearby his house. Hence he knew about their matrimonial dispute. Though the learned counsel for the accused would contend that accused had filed a case against him in connection with chitty, it has come out that that was after 1 - 2 months of the incident. So nothing could be brought out to infer that he has got any Crl.A.869 of 2016 54 axe to grind against the accused so as to depose falsely about an extra judicial confession made by the accused. Though he could not state the exact words as stated by the accused before the court, it is settled law that there is no invariable rule that the court should not accept the evidence if the actual words are not used. (Rao Shiv Bahadur Singh & anr V State of Vindh.P.[AIR 1954 SC 322]) In this case it has come out that deceased and accused were residing nearby his house and he is also a relative of the deceased and is quite aware of the matrimonial dispute between accused and deceased. So there is no improbability when he states that accused made extra judicial confession with regard to the act committed by him. In this context it is relevant to quote Koya Akuthota Nagaraju v.State (2019 KHC 2131) wherein it has been held that when extra judicial confession is made to an unknown person it cannot be accepted as true and the natural Crl.A.869 of 2016 55 conduct of any human being that he would approach the person with whom he had acquaintance and seek help. That he is approaching a totally unknown person is quite improbable in the natural circumstances. So PW2 being a neighbour of the accused and deceased it is quite natural that he would make such disclosure about the act to PW2. It is also relevant in this context to note that PW2 would state that after making the disclosure of the act committed by the accused he told that he has to go to the station and further that PW2 has to intimate the fact to his house and he also stated to the accused that he does not know the number of his house (probably phone number) and thereafter he went to the house of the deceased. It has come out in evidence that after the incident accused straight away went to the police station and surrendered with blood stained and flesh precipitated MO1 and that subsequent conduct of the accused is also corroborated with extra Crl.A.869 of 2016 56 judicial confession made by him to PW2 that he is going to the station. So the extra judicial confession made by the accused appears to be deliberate and voluntary confession of guilt and such confession are held to be the most effectual proves in law Chattar Singh & Another v. State of Haryana (2009 KHC 4308). It is also relevant in this context to note Silash Singh @ Kurid v. State (2018 KHC 4660) wherein it has been held that corroboration of extra judicial confession in all cases is a sine qua non is neither just nor reasonable preposition. If extra judicial confession is found to be unbiased untainted coming from evidence of trustworthy and reliable witness who has to test of cross-examination against whom there is no remote suggestion or allegation of enmical terms, same can be the basis for holding accused guilty.
42. In Ponnuswamy v. State of Tamil Nadu (2008 Crl.A.869 of 2016 57 Crl.L.J 2563 [SC]) it has been held that extra judicial confession if found to be voluntary and medical report supported prosecution case conviction of the accused for murder was found to be proper. In this case as stated earlier extra judicial confession made to PW2 by the accused seems to be natural and voluntary and it has been corroborated by the subsequent conduct of the accused by surrendering before the police station with the weapon involved is a corroborative evidence to establish the prosecution case through the other chain of circumstances which have already been discussed.
43. The next aspect which require our consideration is whether the case would fall under S.302 IPC or under S.304 Part-I? According to the learned counsel for the accused it is after the deceased breaking the thali and chain and throwing it at his face that accused got infuriated and Crl.A.869 of 2016 58 strike her. So according to him it is out of the grave and sudden provocation of the act of the deceased by throwing the thali chain at his face which resulted in the incident and hence the conviction has to be altered to the one under S.304 Part I of IPC.
44. In this context, the learned counsel for the accused took our attention to Surinder Kumar v. Union Territory Chandigarh (MANU/SC/0589/1989), wherein it has been held that it shall be immaterial to hold which party offers the provocation or commits the first assault in criminal cases in order to convict an accused. But on going through the fact situation of that case, it is seen that the defence of the appellant/accused was that on the date of incident PW2 and the deceased demanded vacant possession of the kitchen and accused told that PW4 had permitted them to continue to occupy it and they Crl.A.869 of 2016 59 uttered filthy abuses in the presence of his sister. On being asked to desist from using such language, PW2 began to throw out the wooden things from the kitchen. When the appellant tried to stop him from doting so, PW2 took out a knife from his pant pocket whereupon appellant took shelter behind a door. PW2 ran towards him with the knife and in the meantime, the deceased moved in between and sustained injuries in question. So in such circumstances, it has been concluded that from the facts it clearly emerges that PW2 and deceased brother entered the room of the appellant/accused and uttered filthy abuses in the presence of his sister and tempers ran high and on PW2 taking out a pen knife, appellant picked up the pen knife from the kitchen, ran towards PW2 and inflicted simple injury on his neck. Hence it was inferred that the deceased might have intervened on the side of his brother PW2 and in the course of scuffle, he received injuries, one of which proved Crl.A.869 of 2016 60 fatal. So taking into account all those factors, it was held that appellant in that case was entitled to the benefit of exception.
45. It is to be noted that in this case it has come out in evidence that there was a mediation talk between the accused, deceased and PW4 and the others at the house of the deceased on the fateful day. Since the mediation was not materialized all the mediators went out deciding to talk over the matter on the succeeding day. But the accused did not leave the house and it has come out from the evidence of PW5 the mother of the deceased that the quarrel continued and thereafter PW5 and CW5 also left their house. Thereafter also the quarrel might have continued and that might have led the deceased to break the thali chain and it is after that the accused strike her repeatedly at her vitals including brain. The evidence of the doctor who issued the postmortem certificate which has Crl.A.869 of 2016 61 been discussed in detail in the previous paragraphs would prove that about 20 deep incised cut injuries have been sustained by her and she died instantaneously on the spot. The opinion as to cause of death by the doctor is also multiple cut injuries to head involving brain. MO1 is a heavy cutting weapon a chopper. So the number and nature of injuries explicitly suggest that the intention of the accused while inflicting such deep cut injuries on the vital parts was to cause her death. The manner in which the accused inflicted fatal injuries upon his five month pregnant wife also shows the inhuman and monstrous behaviour of the accused.
46. In this context it is relevant to quote Muhammed Mytheen Shahul Hameed v. state of Kerala (AIR 1980 SC 108). In that case taking note of the cut injuries on the outer table of the scalp and other fatal injuries upon the unarmed deceased by Crl.A.869 of 2016 62 the accused, it has been held that the act of the accused on the deceased was deliberate and exceptions II and IV to S.300 is not attracted. It is also relevant to quote Ayyappan Kunjumon v. State of Kerala 2016 KHC 58) wherein appellant used a sword as a weapon of offence and he has not stopped by inflicting one or two injuries and there were ten incised wounds. The right hand of the deceased was chopped out and there are also very serious injuries inflicted on the head which is a vital part. In the said circumstances it was held that intention to cause death is apparent from the nature of injuries and the weapon used. The area of injury and chopping of an organ are elaquant and hence it was found that it will come under the definition of murder and is not falling under any of the exceptions. It is also relevant to quote Madhu v. State of Kerala (2017 5 KHC 83) wherein it has been held that extensive nature of injuries would show the force applied by the Crl.A.869 of 2016 63 accused by beating with stick on the head of the injured causing haematoma below the skull and it was also held,the nature of force applied and place where injuries are caused would sufficiently prove intention and knowledge of attributing to cause death and hence it would come under the purview of both first and second limbs of S.300. In Saish Kumar N.State of Kerala 2019 KHC 97) it has been held that intention to cause death is not essential requirement of clause 2 or clause 3 of S.300 IPC, for clause 2 intention of causing bodily injury coupled with offenders knowledge of likelihood of injures of causing death of the particular victim is sufficient to bring the murder within the ambit of clause 3 of S.300. Clause 3 deals with those case where the act is done with the intention of causing such bodily injures in the ordinary course of nature to cause death. Intention to cause death is the essential ingredient of clause 1 of S.300 whereas clause 2 Crl.A.869 of 2016 64 and 3 intention is not for causing death and rather it is limited to the intention to inflict bodily injuries.
47. In the present case, when a husband strikes a pregnant wife with MO1 chopper and inflicted 20 incised cut injuries involving the brain his intention to cause death is explicit and hence the contention to the contra advanced by the learned counsel for the accused cannot at all be accepted.
48. So on an anxious consideration of facts, circumstances and evidence adduced from the side of prosecution and that of the accused, we are of the considered view that the prosecution has succeeded to establish a chain of circumstances which led to an irresistible conclusion pointing the guilt of the accused. So we do not find any reason whatsoever to interfere with conviction and sentence passed under Sec.302 IPC against the Crl.A.869 of 2016 65 accused.
49. In the result, appeal is found to be devoid of any merit and hence dismissed confirming the conviction and sentence passed by Additional Sessions Judge-1, Kalpetta in S.C.286/2014. Accused/appellant is entitled for set off under Sec.428 of Cr.P.C.
A.HARIPRASAD Judge M.R.ANITHA Judge Mrcs/27.4.