Kerala High Court
Kamalasanan vs State Of Kerala on 28 June, 2013
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939
CRL.A.No. 1621 of 2013 (C)
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AGAINST THE ORDER/JUDGMENT IN SC 1128/2010 of ADDITIONAL DIST. &
SESSIONS COURT (ADHOC)-II, KOLLAM DATED 28-06-2013
(CP 23/2010 of J.F.C.M.-II,KOTTARAKKARA)
APPELLANT(S):
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KAMALASANAN, C.NO.8157,
CENTRAL PRISON, TRIVANDRUM-12
BY ADV. ADV. ANANDAN PILLAI(STATE BRIEF)
RESPONDENT(S):
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STATE OF KERALA
REPRESENTED BY DGP,
HIGH COURT OF KERALA,
ERNAKULAM.
R1 BY ADV. SPL.PUBLIC PROSECUTOR SMT.AMBIKA DEVI S.
FOR ATTROCITIES AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5-12-
2017, THE COURT ON 11/12/2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & P.SOMARAJAN, JJ.
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Crl.Appeal No. 1621 of 2013
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Dated this, the 11th day of December, 2017
J U D G M E N T
Shaffique, J.
The accused in SC No.1128/2010 on the file of the Additional District and Sessions Judge (Adhoc-II), Kollam has preferred this appeal challenging the judgment dated 28/6/2013 by which he was found guilty and convicted and sentenced to undergo imprisonment for life and to pay fine of `20,000/- for the offence under Section 302 of the Indian Penal Code (IPC for short) and in default of payment of fine, to undergo simple imprisonment for three months.
2. According to the prosecution, the accused committed murder of his wife Anandavally on 21/4/2008 at about 2 pm by hitting her with a wooden reaper on her head, face and other parts of the body. Though she was taken to hospital, she succumbed to injuries at 4 am on 27/4/2008. The motive of crime was the suspicion the accused had against his wife having some illicit connection with others. To prove the prosecution case, they Crl.Appeal No.1621/13 -:2:- examined 15 witnesses, marked Exts.P1 to P13 and produced material objects MO1 to MO4.
3. Learned counsel for the appellant Sri. Anandan Pillai argued that there is no eye witness to the incident and the circumstantial evidence pointed out by the prosecution has not been proved beyond reasonable doubt. The only material relied upon was the presence of the accused in the scene of crime which cannot be believed. All the witnesses who had spoken regarding his presence were not stating true and correct facts and the intention was to make the accused liable for the death of his wife.
4. On the other hand, the learned Public Prosecutor supported the stand taken by the Court below. She argued that a heinous crime has been committed against a lady, aged 60 years. His suspicion was that his wife is having some illicit connection with others. At the age of 60, he should have thought that such a possibility never exits. Further, the ante-mortem injuries itself would show the nature of the crime. She was beaten to death with a wooden reaper weighing 800 gms. He did not show any mercy to her, even while his son had come and saw mother lying down completely unconscious, he stamped on her. It is argued Crl.Appeal No.1621/13 -:3:- that there is no reason to interfere with the conviction and sentence.
5. PW1 is the son of the accused and the deceased. He deposed that PW4, Sheela, informed him that his mother was being murdered. He immediately rushed to his mother's place. He saw his father with a reaper in his hand, which he identified as MO1. His father told him that he had killed her. He saw her having several injuries. He immediately went from the said place and informed the Ward Member, PW3, who had come along with him. In their presence, the accused kicked the victim on her chest twice. Thereafter, they took her to Government Hospital Kadakkal, where she was examined by PW5 and on noticing that the injuries were serious in nature, she was referred to the Medical College Hospital, Thiruvananthapuram for expert management and she died on 27/4/2008 at about 4 a.m. The officer who had conducted the investigation had also submitted that she was unconscious while she was in the hospital throughout and therefore her statement could not be recorded. PW1 also identified MO1 reaper, MO2 and MO3 dress, the accused was wearing at the relevant time.
Crl.Appeal No.1621/13 -:4:-
6. Evidence of PW1 is supported by PW3, the Ward Member. PW3 is also an attestor to the inquest report. PW3 has further reiterated that PW1 had come to call him and he along with PW1 went to the house of accused. They saw the accused standing there with the wooden reaper in his hand and seeing them, he again stabbed the deceased. She was lying down with several injuries and blood stained. He asked the accused to keep away and thereafter the victim was taken to the hospital in an auto. He also identified MO1 reaper, MO2 and MO3, dress of the accused.
7. PW2 is the neighbour of the accused. He deposed that on 21/4/2008 at 2.30 pm, he heard a loud screaming from the house of the accused. Since it was a regular affair, he did not give any attention. He also stated that the accused used to manhandle his wife quite often and he had also identified MO1 to MO3.
8. PW4 is a cousin of the deceased. On 21/4/2008, at around 2 pm, she went to the colony where the accused was residing. She had gone there to distribute dress to children as it was the 1st death anniversary of her mother. One Sheela (CW6) Crl.Appeal No.1621/13 -:5:- informed her about hearing some sound from the house of the accused. She immediately went to the house of Anandavally and found her lying down with injuries. The accused was standing there with a reaper MO1 and blood stains were in his hand. She immediately informed the matter to PW1. The aforesaid evidence is not discredited in any manner which clearly proves the presence of accused in the scene of crime along with the murder weapon.
9. None of these witnesses who had spoken about his presence and the manner in which he behaved immediately after the incident have any enmity with the accused. However, it is in evidence that no one liked the accused since he quarrels with his wife and other persons in the locality. Even his son was residing separately on account of his quarrelsome nature. But in evidence PW1 clearly stated that both father and mother, according to him, are important in his life. The reaper which was used for the crime was recovered as per Ext.P5 seizure mahazar proved by PW8. The scientific evidence adduced by the Doctor clearly proves 33 ante- mortem injuries and he had come to a conclusion that it is a case of homicide. The following were the ante-mortem injuries noted Crl.Appeal No.1621/13 -:6:- by him:-
"1. Multiple abrasions varying in sizes from 05.x0.3 cm to 1.5x0.5 cm over an area 12x5.5 cm on the right side of face just in front of tragus of ear.
2. Abrasion 0.5x0.5 cm on the right side of root of nose 0.5 cm outer to midline.
3. Sutured wound 2.5 cm long 1 cm deep on the left cheek its upper inner end 2 cm below the middle of eyelid with multiple small abrasions over an area 8x4.5 cm around. Eye lids of left eye were seen contused.
4. Multiple abrasions varying in sizes from 02.x0.2 cm to 1x0.5 cm over an area 7x5 cm on the lower lip and adjacent part of chin.
5. Contusion of whole of temporalis muscle. Brain showed bilateral subdural and subarachnoid hemorrhages. Sulci were narrowed and gyri flattened.
6. Fracture of II to VII ribs of right side at their angles.
7. Fracture of II to VIII ribs of left side at their angles with flakes of pus sticking on the surface of lungs.
8. Sutured surgical inter coastal drainage wound 2 cm long oblique on the left side of chest 8 cm below the middle of armpit.
9. Contusion 2.5x2x1 cm on the right shoulder tip.
10. Contusion 3.5x2x1 cm on the outer aspect of right arm 4 cm below shoulder tip.
11. Contusion 8.5x6x1 cm on the front aspect of Crl.Appeal No.1621/13 -:7:- right arm 10 cm above the elbow.
12. Contusion 8x6x1 cm on the outer aspect of right arm 11 cm above elbow.
13. Abrasion 3.5x3 cm on the back of right elbow.
14. Contusion 34x5.5x8x2 cm on the outer aspect of left arm, elbow and adjacent part of forearm with multiple abrasions of varying sizes 0.5x0.5 cm to 3.5x1 cm over the contusion.
15. Multiple abrasions varying in sizes from 0.3x0.2 cm to 0.5x0.5 cm over an area 4.5x4 cm on the back of left forearm 4 cm above elbow.
16. Three abrasions 1x0.2 cm each horizontal on the back of left hand at the root of index, middle and ring finger.
17. Contusion 9x4.5x2 cm on the front of left leg 15 cm below knee.
18. Multiple abrasions varying in sizes from 0.3x0.3 cm to 1.5x0.5 cm over an area 10x5 cm on the front of left leg just below knee.
19. Contusion 7.5x3x1 cm on the front of left leg 18 cm below knee.
20. Contusion 12x3x2 cm on the inner aspect of right knee and adjacent part of leg.
21. Contusion 7x3x1 cm on the inner aspect of left leg 8 cm below knee.
22. Contusion 5x2x1 cm on the front of right thigh 12cm above knee.
23. Multiple abrasions varying in sizes from 0.3x0.3 cm to 0.5x0.5 cm over an area 6x3 cm on the front of right knee.
24. Contusion 5x2x1 cm on the front of right leg 12 Crl.Appeal No.1621/13 -:8:- cm below knee.
25. Contusion 8x4x2 cm on the inner aspect of right leg 11 cm below knee.
26. Contusion 7x5x2 cm on the inner aspect of left leg 6 cm below knee.
27. Contusion 6x2x1 cm on the inner aspect of left leg 17 cm below knee.
28. Contusion 10.5x8x2 cm on the upper outer quadrant of right buttock.
29. Contusion 5x3.5x2 cm on the inner half of left buttock.
30. Contusion 7x3.5x1.5 cm oblique on the back of right thigh its lower outer end 31 cm above knee.
31. Contusion 5.5x3x2 cm on the right side of back of trunk 3 cm outer to midline and 14 cm above the natal cleft.
32. Multiple abrasions varying in sizes from 0.5x0.3 cm to 3x0.5 cm over an area 18x7 cm on the left side of back of trunk just outer to midline and 12 cm above the natal cleft.
33. Contusion 2x0.8x0.5 cm on the right side of back of trunk 12 cm outer to midline and 5 cm below the natal cleft.
Abrasions were covered with loosely adherent brown scab, Sutured wound had adherent edges. Contusions were brownish and intracranial bleeding were brownish.
Air passages contained blood stained froth. Lower lobes of both lungs were consolidated. Stomach was empty without any unusual smell, mucosa normal. Urinary bladder was empty. Uterus Crl.Appeal No.1621/13 -:9:- and appendages were atrophic. Uterine cavity contained an endoemetrial fibroid of 2cm diameter. All other internal organs were pale otherwise normal.
Sample of blood and vaginal swab and vaginal smear were preserved and sent for chemical analysis. Blood group determination was done at Blood Bank Medical College Hospital, Thiruvananthapuram was found to be AB Rh positive.
Clinical case record bearing IP No.573236 of Medical College Hospital, Thiruvananthapuram was perused after autopsy."
Though there is no eye witness to the actual injury being caused, the presence of the accused in the scene of crime holding a reaper MO1 in his hand clearly proves his involvement in the crime. At any rate, a presumption can be raised under Section 106 of the Evidence Act which requires to be explained by the accused. The recovery of MO1 weapon on the basis of the statement given by the accused based on disclosure statement corroborates the assumption made by the investigating officer regarding the commission of crime. The scientific evidence from the Forensic Science Lab which is produced as Ext.P13 would show that MO1 and MO3 contained human blood. MO1 is the Crl.Appeal No.1621/13 -:10:- reaper and MO3 is the shirt of the accused. The other items also contained blood, but it was insufficient for determining the origin.
10. All these circumstances clearly prove the complicity of the accused to the crime. When the case is considered on the basis of circumstantial evidence, we do not come to any other hypothesis other than the guilt of the accused. No grounds are made out for interference either to the finding of guilt or to the sentence.
Appeal is dismissed.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
P.SOMARAJAN, JUDGE kp/Rp //True Copy// PS to Judge