Kerala High Court
State vs Shanu T on 8 October, 2010
Author: P.S.Gopinathan
Bench: Pius C.Kuriakose, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Death Sentence Ref..No. 3 of 2009()
1. STATE
... Petitioner
Vs
1. SHANU T,HAMEED
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.RAJA VIJAYARAGHAVAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :08/10/2010
O R D E R
'CR' PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = D.S.R. 3 OF 2009 & CRL. APPEAL NO. 1134 OF 2009 = = = = = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF OCTOBER, 2010.
C O M M O N J U D G M E N T P.S.Gopinathan, J.
The Sessions judge, Kottayam in S. C. No.8 of 2009 (Old No. 277 of 2006) on his file found the respondent in DSR 3 of 2009 guilty for offence under Section 302 of the Indian Penal Code and sentenced him to death. Seeking confirmation of the death sentence, reference was made by the Sessions Judge as mandated under Section 366(1) of the Code of Criminal Procedure. Assailing the conviction and sentence, the convict - respondent in the DSR (hereinafter referred to as the appellant) has preferred the appeal, Crl.A. 1134 of 2009.
Prosecution case:
2. PW8 Sainulabdeen, who retired from Army while working in the Rank of Subedar Major, had a son and a daughter. The daughter was named Sareena. Sareena, while pursuing her Post Graduate Degree in literature, was married to the appellant on 25.10.2001. The appellant was stated to be employed in Muscat and had immovable assets as well as DSR 3/2009 & CRL.A. 1134/2009 2 business in vehicles. At the time of marriage, Sareena was given 150 sovereigns of gold ornaments, Rs. 1,00,000/- in cash and a Delux Maruti car of which Ext.P17 is the Registration particulars. After the marriage, the appellant did not go abroad;
but he continued some business in automobiles at Paippadu, near Changanacherry. The business was not successful. The matrimony was blessed with a daughter in the following year. On the 40th day of the birth of the child, who was named Amisha, ornaments weighing 20 sovereigns were obtained from the relatives. The appellant, who was a spendthrift , had squandered all the gold ornaments and the money. Thereafter, the appellant had been demanding money from PW.8. On 25.8.2006, the appellant telephoned PW.8 and demanded Rs.50,000/- and also to hand over a fixed deposit receipt for Rs. 10,000/- in the name of the child. But PW.8 was not amenable. On the next day, at about 10 A.M., the appellant strangulated Sareena with a shawl which was marked as MO6. When she became unconscious, she was lifted to the store room attached to the kitchen of the house. Amisha, who had been to the neighbourhood and playing with the daughters of PW.4, was called back home and she was also strangulated with MO6. DSR 3/2009 & CRL.A. 1134/2009 3 When she became unconscious she was also lifted to the store room. He cut down the rubber tube connecting the gas cylinder with the stove and took the gas cylinder to the store. Then it was noticed that Sareena was moving. He took M.O.5, a wooden model of a snake boat kept in the show case and inflicted severe injuries at the head, face and neck of both Sareena and Amisha. Then the appellant sprinkled kerosene, which was kept in M.O.12 bottle, over the face of both. The regulator of the gas cylinder was then opened and ignited. The gas caught fire with explosion. Hearing the explosion, the neighbours ran to the house which was found locked from inside. The tape recorder and television were switched on in full swing. PW.3 Ratheesh, an immediate neighbour and others asked the appellant to open the door. The appellant did not heed. So, they attempted to kick open the door, but in vain. By the time, the appellant opened the back door. PW.3 and others entered the house and found that Sareena and Amisha, who were lying in the store room, were on flames. Water was poured over and put off the fire. Amisha was taken out first and rushed to Pushpagiri Hospital, Thiruvalla, where PW.11 was working as a medical officer. PW11, after examining Amisha, declared her 'brought DSR 3/2009 & CRL.A. 1134/2009 4 dead' with a history of burn injuries. Sareena was also lifted to the very same hospital. She was also declared 'brought dead'. The matter was informed to the police by phone for which Ext.P8 treatment report was prepared. Some of the gathered telephoned the matter to the uncle of Sareena who was examined as PW.1. PW.1, who was running a hotel at Kollakadavu, rushed to the hospital and found Sareena and Amisha dead with burns and other injuries.
Law in motion:
3. PW.1 rushed to the Changanacherry Police Station and gave Ext.P1 First Information Statement before PW.18, the then Sub Inspector of Police. After recording Ext.P1, a case as Crime No. 730 of 2006 for offence under Section 302 I.P.C. was registered for which Ext.P1(a) First Information Report was prepared. The matter was communicated to PW.20, the then Circle Inspector of Police through express message. PW.20 took over the investigation. He proceeded to the spot. PW.5, an immediate neighbour, took the appellant to his house. From there, the appellant was arrested by PW.20. On interrogation, the appellant disclosed that M.O. 5 and M.O.6 were kept by him at his home and he would take it and hand over to PW.20 if he DSR 3/2009 & CRL.A. 1134/2009 5 was taken to the house. In pursuance to the statement so made by the appellant, PW. 20 took him to the house. M.O.5 and M.O.6 were taken out by the appellant from the store room and handed over to PW.20. PW.20 seized M.O.5 and M.O.6. PW.20 prepared Ext.P5, the scene mahazar, wherein the seizure of MO5 and 6 is also stated. From the spot of occurrence, a gas cylinder and singed clothes of Amisha and Sareena were also seized while preparing the scene mahazar. PW.20 proceeded with the investigation. On completing the investigation, having convinced that the appellant had committed offence under Section 302 IPC, a charge sheet was submitted before the Judicial Magistrate of the First Class, Changanacherry. The learned Magistrate took cognizance and proceeded as C.P. 60/2006. On finding that the offence alleged is triable by a Court of Session, by order dated 6.12.2006, the case was committed to the Court of Session, Kottayam. By the time, the appellant moved this Court and obtained bail. The learned Sessions Judge, taking cognizance, issued process to the appellant. He entered appearance and engaged a lawyer to defend the case.
DSR 3/2009 & CRL.A. 1134/2009 6 Procedure before the Trial court:
4. The learned Sessions Judge, after hearing the prosecution and the appellant, found that there are materials to send the appellant for trial for offence under Section 302 IPC.
Hence, charge was framed. When read and explained, he pleaded not guilty. Therefore, the appellant was sent for trial. On the side of the prosecution, PW.1 to PW.20 were examined. Exts.P1 to P26(a) and M.Os 1 to 33 were marked. During the course of the cross examination of PW.7, Exts.D1 and D2 were marked. After closing the evidence for the prosecution, the case was posted for recording the statement of the appellant. But the appellant absconded. In spite of repeated coercive steps, he could not be apprehended. Consequently, the case was transferred to L P Register and periodically arrest warrants were repeated. On 5.1.2009 the appellant was arrested and produced. Thereupon, the case was re-numbered. Since it was submitted that he was not engaging a counsel, the Sessions Judge appointed Adv. Sri. R. Sudevkumar to defend the appellant. The appellant was then questioned under Section 313 of the Code of Criminal Procedure. He admitted the relationship between himself and the deceased and further DSR 3/2009 & CRL.A. 1134/2009 7 stated that they were leading a harmonious life and he was very affectionate to his wife and daughter. He had some failure in the business. He asked Sareena to demand back the amount which he had lent to PW.8, but Sareena did not agree. Since he could not find out any other source for money, he insisted to demand back the amount. Though he went to the sit out with phone to call PW.8, he did not. He returned back to the room. While so, he heard a sound from the kitchen. He rushed to the kitchen. He heard the cry of the daughter from the store room. He kicked on the door. The door fell into the store room over Sareena and the child. No sooner door fell down, than the fire and glass pieces were flown out. He put off the fire with water. Hearing his cry for help, the locals gathered. He lifted the child to the kitchen and hugged her. The gathered people obstructed him and thereafter he lost his sense and came to senses only when police came to the house. The prosecution and the appellant were then heard and on finding that the appellant is not entitled to be acquitted under Section 232 of the Code of Criminal Procedure, he was called upon to enter his defence.
No defence evidence was let in. The appellant and the prosecution were again heard. The learned Sessions Judge, on DSR 3/2009 & CRL.A. 1134/2009 8
appraisal of evidence entered a finding of guilt. Accordingly, the appellant was convicted. Again, the appellant and the prosecution were heard regarding sentence. The learned Sessions Judge arrived at a conclusion that the case on hand falls within the category of 'rarest of the rare' cases. Consequently, the appellant was sentenced as above.
Preliminary Objection:
5. Before arguing to the merits of the case, Sri. Raja vijayaraghavan, the learned counsel appearing for the appellant, argued that the appellant was very much prejudiced for the reason that the learned counsel appearing before the trial court got no time to prepare the case. Therefore, the witnesses could not be effectively cross examined and there were serious omissions in putting questions in cross examination. It was further submitted that after the absconding of the appellant pending trial and the arrest thereafter, he was not defended by a lawyer of his choice. The lawyer engaged by the learned Sessions Judge had no sufficient experience to defend a case of this nature and due to lack of experience of the lawyer, the appellant was not properly instructed before questioning him under Section 313 of the Code of Criminal Procedure and that DSR 3/2009 & CRL.A. 1134/2009 9 the counsel had not properly presented the case during the argument. With the above submission, the learned counsel prayed for setting aside the conviction and sentence and to remand the case for fresh disposal. In support of the argument, the learned counsel relied upon the decisions reported in Mathai Thommen v. State (AIR 1959 Kerala 241), Kunnummal Mohammed v. State of Kerala (AIR 1963 Kerala 54), Bashira v.
State of U.P. (AIR 1968 SC 1313), Panchu Gopal Das v. State (AIR 1968 Calcutta 38) and the decision of this Court in Abdul Razak v. State of Kerala, (2009KHC 1027). The learned counsel further submitted that Adv.Smt. Ajitha Salam, along with a junior Advocate Sri. Raji R. was earlier engaged by the appellant and that Smt. Ajitha Salam got appointment in the State Service and she had to give up the engagement and the case was entrusted to Advocate Sri. Shibu George on 12.1.2008. Stating these reasons, accompanied by a memo dated 12.1.2008, the appellant applied before the trial court for adjourning the trial which was scheduled to 14.1.2008. But, without assigning any good reason, the petition was dismissed. In that circumstance, Advocate Sri. Shibu George, without preparing the case had to defend and cross examine the witnesses. The learned counsel for the DSR 3/2009 & CRL.A. 1134/2009 10 appellant produced the photocopy of the affidavit, the petition and the memo filed by Advocate Sri. Shibu George.
6. Assailing the above argument, the learned Public Prosecutor submitted that the submission is devoid of merit. The learned Public Prosecutor, after collecting datas, submitted that Smt. Ajitha Salam surrendered her enrollment certificate as early as on 27.9.2007 and thereafter, on various occasions, the case was taken before the Sessions Judge. The appellant, who was also present in court, was well aware in advance that Smt. Ajitha Salam could not proceed with the trial and had got sufficient opportunity to engage another lawyer. Even on 23.11.2007, when the charge was framed and scheduled the case for examination of the witnesses from 14.1.2008 onwards, the appellant was aware that Smt. Ajitha Salam could not appear for examining the witnesses and had got ample time to find out another counsel and to engage him sufficiently in advance to get ready on 14.1.2008. But Adv.Sri. Shibu George was engaged only on 12.1.2008 for which the appellant alone can be found fault with. However, the Sessions Judge gave sufficient opportunity to the learned counsel to cross examine the witnesses after preparing the case. It was also submitted that Adv.Sri. Shibu George DSR 3/2009 & CRL.A. 1134/2009 11 is a well experienced criminal lawyer and that no prejudice at all was caused to the appellant. Originally, the relevant records alone were forwarded to this Court from the trial court. The petition for adjournment and order thereon were not sent to this Court. Persuaded by the repeated submissions of Advocate Sri. Raja Vijayaraghavan, to ascertain as to what exactly happened, we, over phone through Registry, collected the order on the petition filed by the appellant. We notice from the communication received from the Sessions Judge, Kottayam, that the said petition was numbered as Crl. M.P. 93/2008 and it was disposed of on 14.1.2008 before proceeding with the examination of the witnesses, with the following order:
"Examination of the witnesses can be deferred on payment of cost to the witnesses. But the counsel for the accused agreed to cross examine the witnesses and he later cross examined two witnesses today. Anyway, if the counsel wants time, cross examination can be adjourned. And the petition rejected".
Going by the Order Sheet, we notice that on 17.11.2007, the appellant and the prosecution were heard regarding the charge and on 23.11.2007, the charge was framed. The case was thereafter scheduled from 14.1.2008 to 18.1.2008 for DSR 3/2009 & CRL.A. 1134/2009 12 examination of the witnesses. It was on 14.1.2008, when the case was taken for the examination of the witnesses, the application for adjournment was filed.
7. From the order, which we quoted above, it can be seen that though, the Sessions Judge declined to adjourn the trial as such, he ordered to defer the examination of the witnesses, provided the costs of the witnesses were paid. But the learned defence counsel was not amenable for such a course and volunteered to cross examine the witnesses and it was thus, the witnesses were examined. In this view of the matter, we find no merit in the submission of the appellant. In the decisions cited by the learned counsel for the appellant, the circumstances therein are entirely different. In Mathai Thommen's case (AIR 1959 Ker. 241), the accused had not engaged a lawyer. The case was scheduled on 4.8.1958 for trial. The defence lawyer was engaged by the Sessions Judge only on 2.8.2005. The counsel even did'nt get time to discuss with the accused or to get instruction. Even otherwise, the prosecution case was disbelieved and the accused was acquitted. In Mohammed's case, (AIR 1963 Ker. 54)an inexperienced advocate was engaged.
DSR 3/2009 & CRL.A. 1134/2009 13 However, for want of evidence to sustain conviction the accused was acquitted. In Bashira's case (AIR 1968 SC 1313) the defence counsel was not given sufficient time to prepare the defence since the examination started on the day on which the counsel was engaged. In Panchu Gopaldas' case also the position is identical. In Abdul Razak's case (2009 KHC 1027) it was noticed that despite the specific rule mandating appointment of senior counsel for defending sessions case, a junior lawyer with less experience was engaged by the trial court. It was a case disposed of by another Division Bench consisting one of us (Gopinathan, J.). From the facts of the case, we notice that in that case the witnesses were not at all effectively cross examined by the defence counsel engaged from the court. In that circumstances, the case was remanded back to the trial court for fresh trial. Here, such circumstance is not available. From the initial stage, the appellant engaged a lawyer of his choice during the pre-trial postings. The counsel engaged earlier left the Bar even before framing the charge. Another counsel was engaged by the appellant. However, accepting the argument that the counsel did not get time to prepare, the trial court offered to give time to the defence DSR 3/2009 & CRL.A. 1134/2009 14 counsel to cross examine the witnesses on conditions. But the counsel did not avail and volunteered to cross examine the witnesses then and there. As regards the lack of experience of the lawyer, no material was placed before us. In the above circumstances, we had gone through the oral evidence, especially the cross examination. Going by the cross examination of the witnesses, we find little material to come to a conclusion that the witnesses were not properly or effectively cross examined. Sri. Raja Vijayaraghavan, the learned counsel, submitted that going by the statement of the witnesses he noticed that some questions which would have been put to the prosecution witnesses in cross examination were not asked. He even requested us to go through the case diary statements. Since the case diary statements were not relevant, we did not do so.
8. In criminal cases, lawyers are differently shaping their defence. In cases where there are direct eye witnesses, some times, the defence lawyers could not do much wonder while cross examining a witness. In a criminal case, since the trial proceeds without a specific pleading, what is more relevant is as to what should not be asked in cross examination rather DSR 3/2009 & CRL.A. 1134/2009 15 than what all could be asked in cross examination. We notice, from our experience in several civil and criminal cases, that some times many questions which would have been put to the witness were seen not asked. Probably, that may be due to the way in which the defence lawyer shaped his defence. Sometimes, when the witnesses are cross examined at length putting extraneous or irrelevant questions, there may be instances where certain material particulars would be omitted. Such omissions cannot be taken as a reason to conclude that it was because of the inability of the lawyer to prepare the case or due to lack of experience or that because of that omission any prejudice was caused to the accused. Sometimes, some criminal lawyers may omit certain aspects to be put to the witnesses on fear that adverse answers may come and that would go against the party. When viewed the cross examination of the witnesses in this angle, we could not see anything to come to a conclusion that the witnesses were not effectively cross examined. On the other hand, very shrewd questions were seen put to material witnesses and effectively cross examined at lenght. Going by the nature of cross examination, it could not be said that Advocate Sri. Shibu George was not experienced enough to defend a case DSR 3/2009 & CRL.A. 1134/2009 16 in which the accused was facing trial for an offence under Section 302 IPC. Adding to that, it is admitted by Sri. Raja Vijayaraghavan that Advocate Shibu George was voluntarily engaged by the appellant. We cannot find fault with the appellant engaging a lawyer of his own choice and it is not at all justified to remand a case of this nature for the reason that some questions also might have been put to the witnesses in cross examination and those omissions might be due to the lack of experience of the defence counsel. In the cases referred to us, the accused had not engaged a lawyer of their choice, but the trial judge engaged a counsel under Section 304 Cr.P.C. just before the trial. Here, the position is entirely different. So we find, as we mentioned earlier, that Smt. Ajitha Salam got suspended her certificate of enrolment as early as in September, 2007. In the normal course, a responsible defence counsel would inform the client especially when the engagement is of serious nature about the intention of the lawyer to stop practice and would have asked to find out another lawyer of their own choice. It is submitted by Sri. Nazar, the learned Public Prosecutor that the appellant would have been informed as early as in September, 2007 to find out another lawyer. The memo DSR 3/2009 & CRL.A. 1134/2009 17 filed by the then counsel along with the petition for adjournment is dated 12.1.2008. In that memo, she had styled herself as 'the formerly advocate' and then working as CTO Trainee (Reserve). That means it was only a formal memo given by the lawyer and the appellant might have been informed about the same long back. So we find that the learned Sessions Judge had not at all denied any opportunity to the defence counsel to prepare the brief and to cross examine the witnesses. On the other hand, though the request for adjournment was not justified, the learned Sessions Judge had offered to give sufficient time to prepare the case, if so required and to cross examine the witnesses, provided the cost of the witnesses were paid. Without availing that opportunity, the defence counsel volunteered and cross examined the witnesses. No prejudice is caused to the appellant so as to warrant a remand of the case for a fresh trial. We notice that Rule 80 of the Criminal Rules of Practice mandates that Sessions cases shall be given prejudice. It is accordingly the Sessions Judge gave preference. With sufficient notice, the trial was scheduled day to day. It appears that the attempt of the defence was to see whether schedule for examination of the witnesses could be adjourned and DSR 3/2009 & CRL.A. 1134/2009 18 rescheduled. When it was understood that the case would not be adjourned to a longer date, the defence lawyer examined the witnesses. There is no denial of opportunity or justice. The method adopted by the learned Sessions Judge is perfectly correct.
9. As regards the counsel engaged by the Sessions Judge, from the stage of recording the statement of the appellant under Section 313 Cr.P.C., it was submitted by the learned Public Prosecutor, after collecting datas, that Advocate Sri. Sudev Kumar, who was engaged to defend the appellant, was enrolled on 5.5.1999 and he was attached to the office of Advocate Sri. C.S..Ajayan, who is a leading criminal lawyer in Kottayam Bar and as on the date of engagement, Sri. Sudev Kumar had more than nine years experience in the Bar.
10. Sri. Raja Vijayaraghavan, learned counsel appearing for the appellant, could not point out any relevant material which was not argued before the trial court. Having heard either side and reading the impugned judgment, we find that every relevant defence was presented before the trial court and it was duly considered by the trial court. Regarding the answers given when questioned under Section 313 of the Code of Criminal DSR 3/2009 & CRL.A. 1134/2009 19 Procedure, we notice that there isn't any embarrassing answer given by the appellant. It is true that he had admitted certain material facts. In the light of the evidence on record, we find that the facts which he had admitted during the questioning under Section 313 Cr.P.C. are facts which he could not otherwise deny. Therefore, it could not be said that the appellant was not properly instructed. No prejudice was caused to the appellant by the engagement of Advocate Sri. Sudev Kumar by the Sessions Judge under Section 304 Cr.P.C. as a defence lawyer. He is an experienced lawyer in conducting criminal cases and the trial was not vitiated. A lawyer, appearing in a case at the appellate stage may find some loopholes here and there in the conduct of cases by his counterpart in the trial court. Sometimes, the lawyer in the appellate court might have thought that if the trial was conducted in the manner he thinks or witnesses were examined or cross examined in the way he thinks, his client would have won the case. Wishes have no bar. Remand of a case on such argument may lead to uncertainty. The crucial question is whether there was denial of opportunity to defend and thereby prejudice was caused to the appellant. Sometimes, instances may occur where there is failure to defend properly causing prejudice. With that possibility DSR 3/2009 & CRL.A. 1134/2009 20 in mind we have gone through the judgment impugned, evidence on record and the defence statement. We find that there is no denial of opportunity and the case was properly and effectively defended. There is no merit in the objection raised by the appellant. In the above circumstances, we turn down the request for a remand of the case and proceed to examine the merits of the case.
Evidence on record:
11. PW.1 is the first informant. He is the uncle of deceased Sareena. He would depose that the appellant is the husband of Sareena and that Amisha is the daughter born to the appellant and deceased Sareena and that he, who was running a hotel at Kollakadavu, got information over phone on 26.8.2006 that Sareena and her daughter had some casualty and brought to the Pushpagiri hospital. He rushed to the hospital and found the dead bodies of Sareena and the child in the mortuary with burn as well as bleeding injuries. He rushed to Changanacherry Police Station and gave Ext.P1 First Information Statement. He would further depose that the marriage of the appellant and Sareena was in 2001 and at the time of marriage, Sareena was given a Maruti car, 150 sovereigns of gold ornaments and one DSR 3/2009 & CRL.A. 1134/2009 21 lakh rupees. After the marriage, the couple were residing at Paippad. Though the matrimony was happy during the early days, later, it was strained and there were occasions of quarrel and he had to intervene and settle.
12. PW.2 would depose that he is an immediate neighbour of the appellant and on 26.8.2006 by about 10 AM he, who was studying in VIIth standard, was preparing to go for tuition and that by the time he heard some sound from the house of the appellant. Seeing other neighbours rushing to the house, he also rushed to the house and found that the door of the house was locked from inside. PW.3 was knocking at the door to open . When went to the back side of the house, he saw fire inside the house through the window. The appellant was standing inside. Later the appellant opened the door. People rushed inside the house and put off the fire. The child was taken out by PW.3 from the store room. Then the appellant pressed the neck of the child stating that she alone should not survive. The gathered people prevented the appellant. PW.3 later took the child to the hospital. Sareena was also taken to the hospital and later, he knew that both were dead.
DSR 3/2009 & CRL.A. 1134/2009 22
13. PW.3, a carpenter, would depose that he is the immediate neighbour of the appellant. On 26.8.2006 while he was preparing to go for his routine work he heard a sound from the house of the appellant. He rushed to and found that the house was bolted from inside. Television and Tape recorder were in full swing. He attempted to brake open the door by kicking. By the time the mother of the appellant told that the appellant was inside the house. Despite repeated requests, the appellant did not open the door. Again he attempted to kick open the door. By that time somebody from the backside told that the appellant opened the door. He rushed inside the house through the back door opened by the appellant. The appellant was standing inside the house. He saw fire from the store room. He along with others poured water and put off the fire. The gas cylinder, which was on fire, was removed to the kitchen. Sareena and Amisha were lying inside the store room. He took the child first and handed over to PW.6. The child was then taken to the hospital in an auto rickshaw. Sareena was also taken to the hospital. The doctor, after examining them declared both dead. He would further depose that the appellant and the Sareena were leading a DSR 3/2009 & CRL.A. 1134/2009 23 normal life after marriage and later, there were quarrels. He identified the gas cylinder which was marked as M.O.1. He had also identified the singed clothes found on the body of both victims. The clothes identified were marked as M.Os.2 to 4.
14. PW.4 would depose that she is an immediate neighbour of the appellant. She had two children. Amisha, who was aged 31/2 years used to go over to her house and play with her children and on 26.8.2006, Amisha was with her children. While she was planning to give some food to Amisha, the appellant called her home and later, by about 10 A.M., she heard a sound from the house of the appellant. She rushed to the house and found that the front and back doors were locked from inside. After some time, the appellant opened the back door. She along with others rushed inside the house and found Sareena and the child lying in the store room. Being got shocked she came out. She had further deposed that there were broken pieces of the door inside the store and that M.O.5 is the model of a snake boat kept in the showcase of the appellant and M.O.6 is the shawl used by deceased Sareena.
DSR 3/2009 & CRL.A. 1134/2009 24
15. PW.5, yet another neighbour of the appellant would depose that he is an electrician and that at 10A.M. on 26.82006 while he was returning from Paippad junction to his home, he saw some people gathered around the house of the appellant. He went there and found that the doors of the house were opened. The appellant was inside the kitchen. He saw Sareena lying in the store room. The child was removed to the hospital. His paternal uncle told him that in case the appellant was left alone at his home there was possibility for the appellant committing suicide. At his request the appellant put up pants and shirt. PW5 took home the appellant. When enquired, the appellant told that he had murdered his wife and child by beating with the model of the canoe and that he thought of committing suicide. He would further depose that the appellant was arrested by the police.
16. According to the prosecution, the appellant had also confessed to PW5 that he had strangulated Sareena and the child. When became unconscious, they were taken to the store room to set them ablaze. Just before putting on fire, they were found moving. Then he beat them at their head with the model of the canoe and then put on fire. However, PW.5 did not support the prosecution on that aspect. Though the case DSR 3/2009 & CRL.A. 1134/2009 25 dairy statements, which were marked as Exts.P2 and P3, were put to the witness with permission of the court and cross examined, no material was disclosed in support of the prosecution in that regard.
17. PW.6 would depose that he is a head load worker at Paippad junction and that the appellant is known to him and that on 26.8.2006 he had been to the father of PW.2 who is residing in front of the house of the appellant and while he was talking with the father of PW.2 he heard the sound of an explosion. He rushed to the house of the appellant along with PW.2 and his father. The house was found closed from inside. Though they attempted to open the door by kicking, it was not opened. When failed to open the door he went to the side of the kitchen and opened the shutters of the window on the eastern side of the kitchen and found the appellant standing inside the kitchen. He uttered the appellant to open the door and threatened that unless it was opened they would break open the door. Hearing that, the appellant opened the door of the kitchen. When he rushed inside the house the appellant stated that he had finished both. Sareena and the child were found lying inside the store room. They were on flames. PW.3 put off the fire by pouring DSR 3/2009 & CRL.A. 1134/2009 26 water and the gas cylinder was removed. PW.3 took out the child from the store room and handed over to him, but he could not hold the child as it was burnt. PW.3 then took the child to the hospital and 20 minutes later, Sareena was also taken to the hospital.
18. PW.7 is the wife of PW.5. She would depose that by about 10' clock on 26.8.2006 she heard an explosion from the house of the appellant. She along with the neighbours rushed to the house. The doors were found closed from inside. People gathered asked the appellant to open the door. Later the appellant opened the back door. She entered the house and found the legs of Sareena in the store room. She felt fainted and came out. She would further depose that PW.3 took the child to the hospital and that the appellant was later brought to her home by her husband. From there, the appellant was taken custody by the police.
19. PW.8, the father of the deceased Sareena would depose about the marriage, the ornaments and the dowry given at the time of marriage and further deposed that the ornaments and the dowry given were squandered by the appellant. He was told by Sareena that the appellant was intimidating and DSR 3/2009 & CRL.A. 1134/2009 27 assaulting her for money. He was told by the father of the appellant that the ornaments were in the lockers. Sareena told him that all the ornaments were sold and squandered. He would further depose that on the 40th day of the birth of the child, about 20 sovereigns were obtained as gift and those ornaments were also appropriated by the appellant. The appellant had on various occasions, over phone demanded money and that at 8 p.m. on 25.8.2006, the appellant demanded a sum of Rs. 50,000/- and to hand over a fixed deposit receipt for Rs. 10,000/-, (copy of which is marked as Ext.P4). When PW.8 declined to heed the demand he was told that he would face the consequences. On the next day, he knew that Sareena and the child met with an accident by bursting of the gas cylinder and they were taken to the Pushpagiri Hospital. He, along with wife, rushed to the hospital and understood from the gathered that Sareena and the child were murdered by the appellant who was not found there.
20. PW.9 is an attestor to Ext.P5 scene mahazar. He had also identified M.Os. 5, 6 and 7.
21. PW.10 would depose that on 26.8.2006, while he was working as Assistant Surgeon at the Taluk Hospital, DSR 3/2009 & CRL.A. 1134/2009 28 Changanacherry, the police brought the appellant who had burns on both elbows and shins and that Ext.P6 is the case sheet prepared. He would further depose that the burns on the appellant could be sustained in the process of escaping from the fire and that if the burns were sustained during the process of saving persons from fire, the burns should have been at the tip of fingers and that the hands also would have been burnt.
22. PW.11 would depose that he was the Medical Officer at Pushpagiri Medical College, Thiruvalla on 26.8.2006. On that day at 10.40 a.m. Amisha aged four years was brought dead to the hospital with the history of burn injuries and that Ext.P7 is the record maintained in the hospital. He would further depose that Sareena aged 25 years was also brought dead with the history of burns and Ext.P8 is the record maintained in the hospital and that the matter was informed to the police over phone.
23. PW.12 would depose that he was Lecturer in Forensic Medicine and Asst. Police Surgeon attached to the Medical College Hospital, Kottayam. On 27.8.2006, he conducted autopsy on the body of Sareena alias Lovely, aged 25 years, involved in Crime No. 30/2006 of Changanacherry Police Station. DSR 3/2009 & CRL.A. 1134/2009 29 He noticed the following ante mortem injuries on the body of Sareena:
1. Contusion 3x2x0.5 cm. on the left side of forehead 4 cm. to the left of midline and 4 cm. above the eyebrow.
2. Lacerated wound 4x1x0.5 cm.. vertical on the back of head just behind right ear.
3. Contusion of right frontal, temporal and parietal regions of scalp over an area 16 x 10 x0.5 cm. underneath there was a depressed fracture over an area 10x8x0.3 cm. involving the right frontal and parietal bones. The base of right side of anterior cranial fossa was fractured into fragments.
Brain showed thick film of subdural and diffuse subarachnoid bleeding on both sides. The gyri were flat and sulci were narrow.
4. Contusion 0.5x0.5x0.2cm involving the root of nose.
5. Lacerated wound 3 x 1.5 cm. through and through oblique involving the right side of upper lip and adjoining part of face, the upper outer end being 1 cm. outer to the ala of nose. Fracture dislocation of right upper central incisor tooth at its lower end.
6. Lacerated wound 4x2.5x0.5 cm. horizontal on the right side of forehead 4 cm. to the right of midline and overlying the eyebrow.
The right eye ball was contused.
7. Lacerated wound 3x1x0.5cm. vertical on DSR 3/2009 & CRL.A. 1134/2009 30 the right side of face just in front of the lobule of ear.
8. Lacerated wound 3x1x0.5cm. oblique on the right side of neck the upper inner end being 2 cm. to the right midline and 3 cm.
below the lower end of jaw bone.
9. Contusion of right strenomastoid muscle 3x1cm. involving whole thickness at a point 4 cm. above its sternal end.
10. Superficial burns involving the face upper part of front of neck, whole of right upper limb up to wrist front and sides of trunk up to a site just below umbilicus. Upper 1/3 of both thighs and upper 10 cm. of front of both legs.
11. Linear abrasion 9x0.2 cm. vertical on the back of left forearm 3cm. below the elbow."
He would further depose that he had also conducted postmortem examination on the body of a female child by name Amisha aged four years, involved in the same crime and noted the following ante-mortem injuries.
1. Contusion 3x3x0.2cm. involving the tip of adjoining part of right side of nose.
2. Contusion 2x2x0.2 cm. involving the middle of right upper eyelid.
3. Contusion 1x1x0.3 cm. involving the right lower eyelid being 3cm. to the right of DSR 3/2009 & CRL.A. 1134/2009 31 midline.
4. Contusion 1.5 x1.5x0.3cm. on the right side of face just outer to the outer end of eye.
5. Abrasion 2.5x1cm. on the back of lobe of right ear.
6. Lacerated wound 2x1x0.3 cm. oblique on the left side of face the inner upper end being 2 cm. to the left of midline.
7. Lacerated wound 1x0.5x0.5cm. involving the inner aspect of left angle of mouth.
8. Contusion of frontal region of scalp in the midline over an area 6x4x0.5 cm. (seen on dissection). Brain showed thick subdural and diffuse subarachnoid bleeding on both sides. The gyri were flat and sulci were narrow.
9. Fracture of alveolar part of maxilla on left side.
10. Fracture of left upper central and lateral incisor tooth.
11. Contusion of right sternomastoid muscle 2x1x0.5 cm., 3 cm., above its sternal end.
12. Fracture of body of mandible between left central and lateral incisors.
13. First degree burns involving face, front of trunk, front of both upper limbs and front of both lower limbs.
14. 3rd decree burns involving an area 10x4cm on the back of left arm and 10x5cm. on the back of left wrist."
DSR 3/2009 & CRL.A. 1134/2009 32 He would also depose that Ext.P9 and P10 are the postmortem certificates relating to Sareena and Amisha and that the death was due to the combined effect of burns and blunt injuries sustained to the head and neck and that injury Nos. 1 to 8 found on Amisha could be caused by a weapon like M.O.5 and injury No. 9 was possible only by strangulation or throttling and that it could be caused by strangulation with a ligature like M.O.6 shawl. The soot articles in the air passage is a sure sign of ante-mortem burns. According to him, Sareena was alive when she suffered burn injuries. As regards the injuries noted in Ext.P9, it was deposed that injury No.1 to 10 and 12 could be caused by a weapon like M.O.5 and injury No. 11 could be caused by strangulation or throttling and it is possible to have that injury by strangulating with a ligature like M.O.6. There was presence of kerosene in small quantity and there is every likelihood of pouring kerosene over face and being licked/ swallowed and that the head injury, contusion on the neck and burns found on Sareena were independently sufficient in the ordinary course to cause death and that the head injury, blunt injury to neck and the burns found on Amisha were independently sufficient in the ordinary course to cause death. DSR 3/2009 & CRL.A. 1134/2009 33
24. PW.13, the then Village Officer, Paippad would depose that he had prepared Ext.P11 plan of the scene of occurrence. PW.14 had deposed that he, who is a photographer, as requested by the police, took the photographs of the dead bodies lying at the Pushpagiri Hospital and that Ext.P12 series are the photos and Ext.P13 series are the negatives. PW15, a photographer in Police Department, would depose that he took the photographs of the scene of occurrence and that Exts.P14 and P15 series are the photographs and the negatives.
25. PW.16 would depose that he was working as Scientific Assistant in the Police Department and on 26.8.2006, as requested by the investigating officer he went to the spot and collected thirteen items of material objects from the spot of occurrence. M.Os 8 to 19 were identified by him. Ext.P16 is the list given by him. PW.17 was examined to prove Ext.P17, the extract of the registration certificate in respect of maruti car bearing No. KL-4K/1287 registered in the name of Sareena. PW. 18 had given evidence regarding the recording of Ext.P1 and registration of the case thereon. PW.19 would depose that he, who was the Tahsildar, Changanacherry, had conducted inquest on the body of Sareena and Amisha and that Exts.P18 DSR 3/2009 & CRL.A. 1134/2009 34 and P19 are the inquest reports.
26. PW.20 would depose about the process of investigation. According to PW20, on the basis of the statement given by the appellant he seized M.Os. 5 to 7 and that Ext.P5 is the scene mahazar prepared by him. He had seized imitation studs as well as an imitation chain from the store room. He seized a plank ( ), which was marked as M.O.22, gas cylinder which was marked as M.O.1. Pieces of a door, a match box and glass pieces, which were identified as M.Os. 20 to 27 were also seized. He would also depose that he obtained a print of the palm of the appellant on a cellophane tape and that the material objects were forwarded to the Chemical Examiner and to Forensic Science Laboratory. He had also seized the clothes worn by the appellant and singed clothes of the child and Sareena. The clothes and the waist chain seized by the Tahsildar at the time of inquest were identified as M.Os. 28 to 33.
Submissions:
27. The learned counsel for the appellant conceded that Sareena and Amisha had unnatural death. While the prosecution argues that it is a case of homicide, the learned counsel for the DSR 3/2009 & CRL.A. 1134/2009 35 appellant argues that it is a case of suicide. According to the learned Public Prosecutor, the nature of injuries found on the deceased would convincingly establish that it is a case of homicide. The statement of the appellant also would show that he had advanced a defence of suicide. In support of the statement given by the appellant, it was argued by the learned counsel for the appellant that Sareena along with the child might have entered the store room after taking the gas cylinder inside the store room and after opening the regulator, they might have set ablaze and the appellant who was in the front room, hearing the sound of bursting while igniting the gas, rushed to the store and found that the door of the store room was locked from inside. The appellant was forced to kick at the door which fell inside the store with its fittings. It was further argued that the injuries found on the neck and head of the victims might be due to the fall of the wooden planks and there is nothing even to suspect that the injuries found on the victims might have been inflicted by the appellant in the attempt to murder them.
Evaluation
28. The defence has in fact no case that the injuries other DSR 3/2009 & CRL.A. 1134/2009 36 than burn injuries, found on both the victims were self inflicted injuries. A look at the nature of injuries would show that there were very severe injuries including contusion and lacerated wound on the head and face of both the victims. If it is a case of suicide and they had self inflicted injuries in that attempt, after sustaining such injuries, they might not be able to ignite gas and to have the fire. It is also not possible to cause such bodily injuries after igniting fire. Even the defence theory stated by the appellant and the one argued by the appellant's counsel is not consistent. According to the appellant, the door of the store room broke and fell on the victims when he kicked on the same. On the other hand, appellant's counsel would contend that the door was broken due to the explosion and the wooden planks fell on the victims with force of explosion and sustained injuries. Very consistent case of the prosecution as well as the defence is that the gas was ignited at the closed store room and it is because of the pressure of sudden fire the explosion took place. If it is so, normally the wooden planks of the store room would have been thrown out to the kitchen and not to the store room. So, if the door was broken due to the explosion there is least possibility of the same being fallen over the victims. Even if the theory DSR 3/2009 & CRL.A. 1134/2009 37 advanced by the appellant and the counsel is true, there is possibility for only one impact on the body of the deceased. The nature of the injuries found on both the victims would show that all the lacerated wounds and contusions were independent. None of the injuries found on the victims corresponds with any other injury. For example, injury No.5 on Sareena is a lacerated wound 3 x 1.5 c.m. through and through oblique involving the right side of upper lip and adjoining part of face, the upper outer end being 1 cm outer to the ala of nose. There was fracture dislocation of right upper central incisor tooth at its lower end. Whereas injury No.3 would show that there was contusion involving frontal, temporal and parietal regions of scalp over an area of 16 x 10 x 0.5 cm. underneath there was a depressed fracture over an area of 10 x 8 x 0.3 c.m. involving the right frontal and parietal bones. If a wooden plank is thrown at Sareena either by kicking on the door or by explosion and she sustained injury No.5, it is very unlikely for having injury No.3 also sustained in the same impact. It is pertinent to note that gyri of Sareena were found flat. It indicates that there was a heavy hit at the head covering the frontal temporal and parietal regions. The same wooden plank would not cause injury No.5 in the very same hit.
DSR 3/2009 & CRL.A. 1134/2009 38
29. Yet another thing we notice is that the burns found on the body of Sareena were on the front side and there was no burn on her back side. The very case of the prosecution is that the gas was ignited while both the victims were lying unconscious. The probabilities are much in favour of the prosecution because the burns found on front side suggest that the victim sustained while she was supine and not in any other positions. If the fire was ignited either in the sitting or standing position in an attempt to commit suicide, there would have been burns on the back as well. The burns found on Amisha are also on the front side except some burns on the back of the left arm and left wrist. It appears that Amisha also sustained burns while she was supine with hands bent. If that is so, the wooden plank thrown from the door either by kicking or by explosion may not hit at the head and neck simultaneously causing injuries of the manner described in the post-mortem certificate. So also the various injuries found on Amisha are also suggestive that those injuries are differently or separately inflicted and those injuries are not due to one impact caused by falling or flying of the wooden planks on explosion. It is also pertinent to note that to PW12 it was suggested in cross examination that the injuries DSR 3/2009 & CRL.A. 1134/2009 39 were possible by explosion. It was flatly denied by PW12. According to PW12, if the injuries were sustained as a result of the explosion the injuries would be of high velocity wounds. No high velocity wound was seen on the body of either of the victims. It is also pertinent to note that there is no suggestion to PW12 that any of the injuries noted in Exts.P9 and P10 is a corresponding injury. In the above circumstances, we have to find that the contusion, lacerated wounds, fractures etc. were caused by independent and separate actions and not by a single blow by falling down of door pieces due to kick or impact with a flying piece of wooden plank from the door due to explosion. So the nature of injury is consistent with the theory of homicide and inconsistent with the theory of suicide.
30. It appears that, taking clue from Exts.P2 and P3, prosecution alleged in the charge sheet that the first attempt was to commit murder by strangulation and then to burn and while attempting to put on fire, symptoms of life were noticed and it was then the other injuries were inflicted with MO5 to make sure the death. Having due regard to the nature of the injuries sustained, though we are not relying upon Exts.P2 and P3, the story suggested by the prosecution appears to be DSR 3/2009 & CRL.A. 1134/2009 40 convincing and rule out the defence suggestion. As we mentioned earlier, the burn injuries found on the victims were on the front side and not on the back side. Since the gas was leaked out only through the regulator there was no much gas to burn wide for a long time. So the burns caused only superficial injuries on the front side while the victims were supine on the floor in an unconscious condition. Unless they were made unconscious by strangulation or assault it is rather impossible to make them lie so as to enable the assailant to ignite fire after releasing the gas from the cylinder. So also, the injury Nos.1 to 8 found on Sareena and injury Nos.1 to 13 found on Amisha might have been caused only in an unconscious condition one after another on each of them. If the victims were in a conscious condition normally there would have been cry for help. If the child was assaulted first in the presence of Sareena, she would have cried aloud and also would have been intervened. No mother would remain mute or without response when the child is assaulted. Then there would have been signs of violence in the scene of occurrence. So also, if Sareena was assaulted first, the child would have cried aloud. Likewise, if Sareena was assaulted in the conscious condition, there would have defence and DSR 3/2009 & CRL.A. 1134/2009 41 consequent violence. At least, she would have tried to fly away from the scene. But no such attempt was seen made. Visualizing materials in this manner, in every possibility, Sareena should have been first strangulated and after she became unconscious, the child should have been strangulated and made unconscious and then both of them were taken to the kitchen and brutally assaulted in the unconscious condition and thereafter they might have been set ablaze. Probably they might have screamed in the unconscious condition. But to avoid identifying the cries of the victims the television and the tape recorder were switched on in full swing. It is also indicative that the gas was ignited while the victims were in a breathing condition, though not conscious, because the air passages were blood stained with froth and soot. PW12 had deposed that the presence of soot in the air passages is an indication that though unconscious, the victims were breathing while setting ablaze. It is also worthy to note that the death was not due to the burns alone. So the nature of the injuries found on the victims, in fact, suggest only the prosecution theory of homicide.
31. Now the oral evidence can be looked into. According to PW2, on hearing the sound of explosion, he and others rushed DSR 3/2009 & CRL.A. 1134/2009 42 to the house of the appellant. At that time, the doors on the front side as well as on the back side were closed and the appellant opened the back door only after repeated requests and after the gathered people kicking at the door to open. The appellant had not even made a cry for help. Learned counsel for the appellant commented about the reliability of evidence of PW2. It is alleged that PW2 is a child witness. His evidence would show that the Sessions Judge, without ascertaining the competency of the witness to give evidence, was given oath and was examined as if a witness competent to give evidence. Relying on the decisions reported in Aravindakshan Pilla v. State of Kerala (1988(2) KLT
990) and Chandran v. State of Kerala (2005 KHC 1091) it was submitted by the learned counsel that since the competency of PW2 to testify was not examined by the trial judge, the evidence of PW2, as such, is to be rejected. As against the said argument, the learned Public Prosecutor canvassed our attention to the decision reported in Kabiraj Tudu v. State of Assam (1994 Crl. L. J. 432) wherein at para 9, after referring to Section 118 of the Evidence Act and Section 4(1) of the Oaths Act, it is held as follows; :-
DSR 3/2009 & CRL.A. 1134/2009 43 "Oath or affirmation shall be made by all witnesses, the only exception being the case of a child under 12 years of age where the Court is of the opinion that though he understands the duty of speaking the truth he does not understand oath or affirmation. If the Court is so satisfied, oath will not be administered to the witness. The evidence will nevertheless be admissible."
Again at para 10 it is held as follows:-
"Even in the absence of specific record of preliminary questions or the satisfaction the appellate Court could examine the nature and tenor of the evidence recorded, the manner in which the witness faced in cross-examination and satisfy itself about the competency under both the provisions."
32. We have made an anxious and critical scrutiny of the evidence of PW2. It is true that the competency of PW2 to testify or whether he is competent to take oath was not tested by the trial court. Then what is probable and possible is only to go through the evidence and see whether the witness is giving reasonable answers or whether the evidence of PW2 can be believed or not. The learned counsel for the appellant took us through the evidence of PW2, at certain portions, more than once. He was cross examined at length. None of the answers given by him suggest that he is not at all a competent witness. There is nothing to suggest that his answers lacks prudence or DSR 3/2009 & CRL.A. 1134/2009 44 that answers are not reasonable. Neither there is anything to suggest that the witness was subjected to any tuitoring. What is suggested at the end of the cross examination is that the witness had not seen anything and that he is giving evidence as instructed by the Investigating Officer. Crucially we notice that there is no such suggestion to PW20 that he had tutored PW2. Going by the evidence of PW20, the Investigating Officer, there is little material to conclude that the Investigating Officer had taken any undue interest in the prosecution of this case or that he had even made any attempt to influence or tutor any of the witnesses. In the above circumstances though we find that the trial court omitted to test competency of the witness to take oath and give evidence his evidence as such cannot be thrown out as he had given prudent and reasonable answers in the chief examination as well as in the cross examination. PW2 withstood cross examination.
33. Going by Section 118 of the Evidence Act and Section 4(1) of the Oaths Act, we find that it is always desirable for a trial Judge to test the competency of a child witness to take oath and give evidence on oath. On such testing if it is found that such witness is not competent to take oath and give evidence on DSR 3/2009 & CRL.A. 1134/2009 45 oath, such witness shall not be examined. But, if a child witness was examined on oath without testing the competency, that alone shall not be a reason to reject the evidences of that witness. Once evidence is recorded, the consideration shall be whether the evidence is trustworthy or not. The competency of the witness can be tested by careful scrutiny of the evidence. On a careful scrutiny if it is found that evidence given by the witness is prudent and reasonable and is not subjected to tutoring, the evidence of a child witness can be relied upon.
34. Yet another thing that we notice is that PW2 cannot be called as a child witness because as on the date of examination he was 13 years old, though he may be a child witness as on the date of occurrence. Section 118 of the Evidence Act stipulates that all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme old age, disease of the mind or body or any other cause of the same kind. It does not specify any age limit. But the proviso to Section 4(1) of the Oaths Act, 1969 stipulates a cut of age for administering oath. We find that a reading of Section 4 of the Oaths Act would DSR 3/2009 & CRL.A. 1134/2009 46 be relevant.
"Sec.4:- Oaths or affirmation to be made by witnesses, interpreters and jurors.-(1) Oaths or affirmations shall be made by the following persons, namely:-
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Sub section (2):- Omitted as not relevant. "
35. The proviso to Section 4(1) casts a duty on court to decide whether the witness below 12 years of age understands the nature of an oath or affirmation. It is for that purpose preliminary examination has to be made. In this case, PW2 being DSR 3/2009 & CRL.A. 1134/2009 47 13 years old as on the date of examination, such preliminary examination was not warranted. We notice that the cut of age stipulated in the proviso to Section 4(1) is as on the date of examination and not as on the date of occurrence. In this view of the matter PW2 cannot be styled as a child witness who shall be subject to preliminary examination. Therefore, the omission of the Sessions Judge to have a preliminary examination is of no consequence.
36. We also notice that even if there is any such omission or any irregularity, by that reason the evidence would not be invalidated because of Section 7 of the Oaths Act, which we quote for correct appraisal.
"Sec.7:- Proceedings and evidence not invalidated by omission of oath or irregularity. - No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
In view of the above provision, even omission to take oath, or irregularity in the administration of oath, whatever may be, would not affect the validity of the evidence. So, the objection of DSR 3/2009 & CRL.A. 1134/2009 48 the learned counsel for the appellant regarding the admissibility of the evidence of PW2 is overruled. What deserves consideration is whether the evidence of PW2 is trustworthy or not. We had a careful scrutiny of the evidence of PW2. His evidence appears reasonable and reliable. He withstood cross examination. We could not find out any material to conclude that his evidence is anyway artificial. On the other hand, he appears to be a natural witness with good prudence. The most important factor we notice is that his evidence corroborates with PWs.3 to 7 in material particulars.
37. The evidence of PW3 also would show that while he rushed to the house of the appellant on hearing the explosion the doors on the front and back were closed from inside and the appellant was inside the house. The appellant did not care to open the door even after repeated requests. Neither there was any cry for help. The appellant was constrained to open the door only after repeated threats to break open the door by kicking. The evidence of PW4 also would corroborate with the evidence of PW2 and PW3 that both the doors were bolted from inside when they rushed to the house on hearing the explosion. The evidence of PWs.2, 3 and 4 were corroborated by the evidence of DSR 3/2009 & CRL.A. 1134/2009 49 PW6 also as regards the fact that when the people gathered around the house on hearing the explosion both the doors were closed from inside and the appellant was inside the house. If it is a case of suicide by the victims there is every possibility for the appellant crying for help. The statement of the appellant would show that he came into the sit-out and tried to phone his father- in-law and then went back into the house. There is no case for him that either of the victims had bolted the door from inside. If that is so, the doors of the house might have been bolted from inside by the appellant alone. That is a circumstance consistent with the prosecution case regarding homicide and totally inconsistent with the defence theory of suicide. If it is assumed that the doors were locked from inside by the victims, the doors would have been opened by the appellant before the gathered neighbours asking or kicking at the door to open it. On the other hand, it is only after repeated kickings and threats by the gathered, the door was opened, that too not the front door, but the back door. The hesitation of the appellant to open the front door is an indication of the deliberate action and guilty conscience of the appellant which speak volumes.
DSR 3/2009 & CRL.A. 1134/2009 50
38. The conduct of the appellant simply standing inside the house after finding his wife and daughter on flames without crying for help also is consistent with the prosecution case of homicide and totally inconsistent with the defence theory of suicide. If it was a case of suicide, definitely the appellant would have cried aloud and he would have been in the forefront in rescue operation. Here, he not only not cried for help and didn't do any rescue operation but also had been preventing the neighbours who gathered there from rescue operations by keeping the doors closed. That conduct of the appellant is also against the defence theory of suicide and consistent with the case of homicide.
39. The evidence of PW4 would show that just before the incident Amisha was playing at the house of PW4. She was called back by the appellant. In fact, if Sareena planned to commit suicide along with the child, Sareena would have called the child and then would have attempted to commit suicide. The fact that the appellant called the child back home from the house of PW4 is also a circumstance in favour of the prosecution and against the defence theory.
DSR 3/2009 & CRL.A. 1134/2009 51
40. Yet another circumstance inconsistent with the theory of suicide is the presence of the match box in the kitchen and absence of any igniting material in the store room. The evidence of Pw3 would show that soon after he putting off the fire, he took out the gas cylinder from the store. Ext.P5 scene mahazar would show that a match box with name 'WE TWO' with a few match sticks was found inside the kitchen. If it is a case of suicide by Sareena by setting ablaze herself, normally the match box should have been inside the store where the fire occurred. But nothing in Ext.P5 would suggest that there was any charged match stick or box in the store room. On the other hand, the presence of the match box in the kitchen would suggest that the fire might have been ignited at the store from the kitchen by another. Now it is pertinent to note that the evidence of Pw10 would show that there were some burns on the right and left elbow and shins of the appellant. It was suggested to PW10 that the burns might have been sustained in attempt to rescue the victims. As we stated earlier, PW10 had flatly denied that suggestion and further stated that in case the burn was sustained in the process of rescuing persons from fire, the fingers would have been burnt. Admittedly appellant sustained DSR 3/2009 & CRL.A. 1134/2009 52 no burn on his finger or hands. There is nothing to disbelieve Pw10 on that aspect. The burns found on the appellant are suggestive that he might have ignited fire by standing inside the kitchen and he might have sustained burn on elbow and shins while running away and that there was no attempt at all from the side of the appellant to rescue the victims from the fire.
41. The appellant in his statement under Section 313 Crl.PC had stated that he attempted to put off the fire by pouring water and he had lifted the daughter from the store room to the kitchen. The evidence of Pw3 would show that while he entered the house after the door opened by the appellant, the victims were on flames and that he put off the flame by pouring water and the gas cylinder was taken out. There is no suggestion to Pw3 that before Pw3 put off the flame, the appellant put off the flame or even attempted to put off the flame or that Pw3 didn't put off the fire. So, it is indicative that there was no attempt by the appellant to rescue the victims. That conduct of the appellant in not putting off the fire also speaks volumes against the theory of suicide and in favour of the theory of homicide.
42. According to the appellant, when he lifted the child from the store room he was prevented by the gathered people DSR 3/2009 & CRL.A. 1134/2009 53 and soon he fell unconscious and gained senses only when the police party came to the scene of occurrence. He had not at all sustained any such severe injury so as to remain unconscious from 10 am. till the police reached the spot of occurrence at 3.30 pm. His statement on that aspect is totally not believable. According to Pw20, the appellant was arrested only at 3.30 pm. The evidence of Pws.5 and 7 would show that the appellant was almost detained at the house of Pw5 on the request of others who gathered there. They kept him under detention on apprehension that if the appellant was left alone there was likelihood to commit suicide. The statement of the appellant that he became unconscious is belied by the evidence of Pws.2 to 7. There is not even any suggestion to those witnesses that the appellant lost senses. But, all along he was conscious and almost calm. It is also pertinent to note that during the period of stay at the house of Pw5 he had not cared to enquire as to what happened to the victims. That conduct of the appellant also is inconsistent with the defence theory of suicide and consistent with homicide.
43. The evidence of Pw3 would show that after he putting off the fire, he first removed the gas cylinder from the store and DSR 3/2009 & CRL.A. 1134/2009 54 then he took out the child and handed over to Pw6. But Pw6 couldn't carry the child. Hence the child was handed over back to Pw3, who later lifted the child to the hospital. The evidence of Pws.3 and 6 on this aspect was not challenged in cross examination. Neither is there any suggestion to Pws.3 and 6 that the child was taken out by the appellant. This being the evidence on record, the defence of the appellant that he took out the child is only to be disbelieved. The conduct of the appellant in this regard is also against the theory of suicide and consistent with the theory of homicide.
44. To Pw8, it was suggested during the cross examination that there were many earlier attempts by Sareena to commit suicide. But the appellant has no such case during the time when he was questioned under Section 313 Crl.PC. Pw8 denied the suggestion. There is no material to come to the conclusion that deceased Sareena had suicide mania. We are persuaded to conclude so, especially since the appellant has no case that Sareena had at any time made any quarrel with him either on the day of the incident or any day earlier or that there was earlier attempt of suicide. It is crucial to note that the very case of Pws.1 and 8 is that in 2001, while Sareena was married, DSR 3/2009 & CRL.A. 1134/2009 55 she was given a Maruti Delux car, 150 sovereigns of gold and one lakh rupees. The evidence of Pw8 would show that on the 40th day of birth of Amisha there was a function and in the function, Amisha got 20 sovereigns of gold. According to Pw8, all the ornaments and money given at the time of marriage and celebration of birth of Amisha were squandered by the appellant. Despite squandering all the ornaments and money Sareena had not even quarreled with the appellant. The evidence of Pw8 persuade us to come to a conclusion that she was well groomed and she had been attempting to manage some how or other despite the squandering habit of the appellant. The evidence of Pw8 that the appellant had squandered the ornaments and money is corroborated by the circumstance revealed out in this case. The inquest report would show that there was not even a gram of gold either on the body of Sareena or Amisha. The appellant has no case that at any time deceased Sareena was intolerant with the appellant regarding the disposal of the ornaments and spending of money. So, in the above circumstance, we find that the attempt to commit suicide suggested to Pw8 is only an experimental suggestion made by the counsel for the appellant during the course of cross DSR 3/2009 & CRL.A. 1134/2009 56 examination and it is without any supporting material.
45. If the evidence of Pw12 and Exts.P9 and P10 are analyzed in the background of the above circumstance, we are justified to arrive at a conclusion that it is a clear case of homicide. There were repeated attacks with dangerous weapon at the head and neck of the victims. There was attempt to strangulate also. As we mentioned earlier, the very case of the prosecution is that at first, the victims were strangulated and then they were lifted to the store room. The evidence of Pw12 coupled with Exts.P9 and P10 would show that the death was not due to the strangulation. It appears that as suggested by the prosecution and we mentioned earlier, due to the strangulation the victims might have become unconscious and thereafter they might have been lifted to the store room by the appellant. The very case of the prosecution, sometimes, as we stated earlier, getting clue from Exts.P2 and P3 that when the appellant attempted to put the victims on flame there were signs of movement indicating that they might come to senses. It is to make sure that they might not survive, assault was made with MO5. Repeated blows with much force were given at the head and neck of the victims. We had earlier mentioned that the DSR 3/2009 & CRL.A. 1134/2009 57 injuries found on the victims are inconsistent with the theory of the plank felling on the victims at the time of explosion. The above case of the prosecution regarding assault with MO5, is supported by the presence of blood stain on MO5. Pw7 had deposed that she had seen MO5 in the showcase of the appellant. According to Pw20, when he reached the spot of occurrence MO5 was found in the store. Ext.P5 would show that MO5 was found with blood stains. So, MO5 which was kept in the show case, as suggested by the prosecution might have been taken by the appellant to the store room and injuries were inflicted with it.
46. The learned counsel for the appellant submitted that MO5 was made with light or soft wood and it is very unlikely to cause the injuries found on the victims with MO5. We notice from Ext.P5 that MO5 is a deadly weapon having a length of 81 cms. and a width of 6 cms. with certain metal fittings. Pw12 had specifically deposed that injuries 1 to 8 found on Amisha could be caused with a weapon like MO5. So also injuries 1 to 10 and 12 found on Sareena could be caused with a weapon like MO5. The evidence of Pw12 on that aspect remains unimpeached. If it is a case of suicide by Sareena, there is little chance of Sareena DSR 3/2009 & CRL.A. 1134/2009 58 self inflicting such injuries. If in attempt to commit suicide by Sareena, she had inflicted injuries on Amisha, Amisha should have cried alound. The appellant has no case that before he hearing the explosion, he heard the cries of Amisha. So, that possibility can be ruled out. So also, if Sareena had self inflicted injuries with MO5, she couldn't ignite the fire. If fire was first ignited, there is no possibility of inflicting injuries thereafter. It appears, as suggested by prosecution that the victims had sustained injuries after becoming unconscious by strangulation. Having due regard to the nature and location of the injury and the evidence of Pw12, we find little merit in the submission made by the learned counsel for the appellant that the injuries found on the victims could not be caused with a weapon like MO5 in the manner stated by the prosecution or that the injuries were self inflicted.
47. The evidence of Pws.2 to 7, in fact, is not helpful to the prosecution to arrive at a conclusion as to how exactly the homicide was committed. Their evidence is harmonious that they heard the sound of explosion and they rushed to the house of the appellant and at the time when they reached the house of the appellant it was bolted from inside. On a careful reading of DSR 3/2009 & CRL.A. 1134/2009 59 the evidence of Pws.2, 3, 4, 6 and 7, which was discussed earlier in detail, we find that their evidence on that aspect inspires confidence and there is nothing to disbelieve them. The learned Public Prosecutor giving reliance to Section 106 of the Evidence Act argued that in the peculiar facts and circumstances of the case, by the evidence of Pws.2 to 4, 6 and 7 it was revealed that at the time when the victims had a homicidal death the appellant alone was inside the house and it is for the appellant to explain as to how the victims had sustained a homicidal death. It is further argued that in the absence of good explanation the defence theory is to be ruled out and the prosecution case is to be believed. According to the learned Public Prosecutor, victims sustained injuries and burns, that led to their death at the closed house where the appellant alone was present and it is for the appellant to explain, and the prosecution is not in a position to prove as to what had happened inside the closed house. Therefore, according to the Public Prosecutor, the burden to prove otherwise is shifted to the appellant and in the absence of at least probable explanation, it is to be held that the appellant alone is the assailant. We find merit in the submission. In the absence of a probable explanation, it has to be concluded that DSR 3/2009 & CRL.A. 1134/2009 60 the appellant alone inside the house is the assailant. In support of the argument the learned Public Prosecutor had relied upon the decision reported in Trimukh Maroti Kirkan v. State of Maharashtra [2006(4) KLT 638 (SC)]. That decision is almost in an identical case. Referring to various earlier precedents, at para.17, the Apex Court held, "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
The dictum laid down is squarely applicable to the case on hand. The explanation given by the appellant is inconsistent with the evidence on record. Neither it is probable.
48. The learned counsel for the appellant on the other hand submitted that the evidence of Pws.2 to 4, 6 and 7 that the door was locked from inside is not believable. He also submitted that the possibility of a third person committing the homicide cannot be ruled out. In the light of the evidence of Pws.2 to 4, 6 and 7 we find no merit in the submission made by the learned DSR 3/2009 & CRL.A. 1134/2009 61 counsel for the appellant. Regarding that aspect, in cross examination, there was no suggestion at all. The appellant, when questioned under Sec.313 Crl.PC stated that the people gathered at the spot on hearing the cry of his mother. If it is a case of homicide by any stranger the mother of the appellant would have been a good defence witness. The presence of the mother of the appellant at the courtyard of the house is even admitted by Pws.2, 3, 4 and 6. If there is any element of truth in the defence version, the appellant would have examined his mother. In the above circumstance we rule out the possibility of the crime being committed by any stranger.
49. Regarding the reliability of evidence of Pws.2 to 4, 6 and 7, the learned counsel had pointed out some discrepancies or variations here and there in their evidence. We notice that the place of occurrence is a village area. Pw2 was a student. Pw3 is a carpenter. Pws.4 and 6 are house wives. Pw5 is an electrician and Pw7 is a head load worker. When evidence in a case is analyzed the standard of the witness is very relevant. When witnesses are subjected to a lengthy cross examination DSR 3/2009 & CRL.A. 1134/2009 62 there is very likelihood of having minor variations, embellishments and some minor inconsistencies in their evidence. In our opinion, those minor variations, embellishments and discrepancies etc are discrepancies of truth and there is nothing to suggest that the witnesses were telling lie or that those discrepancies are so significant enough to affect the core of the prosecution case. Power of observation, retention and representation may vary from person to person. There is, therefore, every natural chance for minor variation. On a critical scrutiny of the evidence of the above witnesses, we find that those minor discrepancies are discrepancies of truth and there is no reason to disbelieve them. Sometimes, witnesses may add their own embellishments and exaggerations. The duty of the court is to find out the nuggets of truth and not to discard the evidence as such. It is pertinent to note that their evidence is only to the effect that when they reached the house of the appellant on hearing explosion, the appellant was inside the house which was bolted from inside and that when the appellant opened the door after some time that too under threat of kick opening the door, the victims were found injured and burnt and was in an unconscious state. In fact, those witnesses had not implicated the appellant, except that the appellant alone was inside the house. The appellant has not challenged his presence inside the house spoken by the DSR 3/2009 & CRL.A. 1134/2009 63 witnesses. There is no case that the witnesses were anyway motivated to depose about the presence of the appellant inside the house. Of course, as we discussed earlier, some circumstances favourable to the prosecution regarding homicide were also revealed out from their evidence. Those circumstances revealed out are quite natural. The finding of homicide alone is inferable from the circumstances.
50. The motive suggested by the prosecution is that the appellant was badly in need of money and he had been insisting deceased Sareena to ask more money from her father. But she was not amenable. That is the only fault on her side that led to the murder of Sareena and child. It is neither a sin nor anything to provoke the appellant to commit the crime. In our opinion Sareena was absolutely justified and correct in refusing to ask for more money from her father. Pw8 would depose that on the previous night at about 8 O'clock the appellant telephoned and demanded for handing over the Fixed Deposit receipt of Rs.10,000/- in favour of Amisha and also demanded Rs.50,000/-. Pw8 declined the demand. Then Pw8 was threatened that he would suffer the consequence. That conduct of the appellant would show that he had been demanding money from Pw8, but DSR 3/2009 & CRL.A. 1134/2009 64 Pw8 didn't heed the demand. Thereby the appellant was frustrated and got antagonized. The statement of the appellant when questioned under Sec.313 Crl.PC also would show that he had some financial difficulties and his business was a failure. On the other hand, the evidence of Pw8 would show that after the marriage the appellant had not gone for any good job at all. According to the appellant, he had advanced some money to Pw8 and when he requested for return of the money advanced, Pw8 refused the same. There is no suggestion to Pw8 in cross examination that there was any such borrowal. The evidence of Pw8 on the other hand would show that he was otherwise not in need of borrowing money from the appellant. Such being the evidence on record, the case of the prosecution that the appellant was motivated because of the failure Sareena to get money demanded from Pw8 is very convincing. The prosecution had succeeded to establish the motive.
51. The prosecution also would rely upon an extra judicial confession of the appellant before Pw5. We notice that the learned Sessions Judge had not given reliance to that confession to come to a finding of guilt. Hence we are not looking into the merits of that confession.
DSR 3/2009 & CRL.A. 1134/2009 65
52. For the foregoing discussions, we find that the prosecution had succeeded to establish that it is a clear case of homicide by the appellant. The signs of strangulation, burns and assault which we discussed earlier would support the prosecution case that the appellant first strangulated the victims. When they became unconscious, they were lifted to the store room. Having seen signs of movement on the body of the victims, the appellant took MO5 from the showcase and inflicted serious blows on the head and neck of the victims. Then MO1 gas cylinder was taken to the store room, opened the regulator and poured some kerosene, which was available in MO12 bottle, on the face of the victims and set ablaze. As a result of the burn injuries as well as due to the injuries inflicted with MO5, the victims had a homicidal death. The appellant sustained superficial burning while setting ablaze the victims. The complicity of the appellant is established beyond the shadow of reasonable doubt. It is a clear case of murder. The learned Sessions Judge was right in arriving at a conclusion that the appellant is guilty for murdering Sareena and Amisha. There is nothing to interfere with the finding of guilt and the conviction thereunder.
53. Regarding sentence, the learned Public Prosecutor submitted that the case on hand had heavy impact on social DSR 3/2009 & CRL.A. 1134/2009 66 order and public interest and is a rarest of the rare case and as awarded by the trial Court the appellant is entitled to capital punishment. In support of the argument the learned Public Prosecutor had also given reliance to the decision reported in Shivaji @ Dadya Shankar Alhat v. State of Maharashtra (AIR 2009 SC 56) which was also relied upon by the trial Court. On the other hand, the learned counsel for the appellant submitted that the facts of the above decision is totally different and that the case on hand cannot be equated with that case. He also submitted that absence of direct evidence is a mitigating circumstance. He had relied upon the decision of the Apex Court in Jagmohan Singh v. State of U.P. (1973 (1) SCC 20), Bachan Singh v. State of Punjab [(1980) 2 SCC 684], Machhi Singh v. State of Punjab [(1983) 3 SCC 470], Subash Chander v. Krishnan Lal [(2001) 4 SCC 458], Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296], Ram Anup Singh v. State of Bihar [(2002) 6 SCC 686], Jayawant Dattatraya Suryarao v. State of Maharashtra [(2001) 10 SCC 109] and Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] and submitted that if this Court takes guidelines from the above decisions, the case on hand would not come under the category of rarest of the rare case and DSR 3/2009 & CRL.A. 1134/2009 67 submitted for converting the capital punishment to one of life imprisonment.
54. Facts of the case would show that it can no way be compared with Bachan Singh's case where seventeen people were murdered. We notice that in Machhi Singh's case after referring to Bachan Singh's case, the Apex Court had mentioned about five criteria to decide the rarest of the rare case. (i) manner of commission of murder, (ii) motive for commission of murder, (iii) anti-social or socially abhorrent nature of the crime,
(iv) magnitude of crime, and (v) personality of victim of murder. Going by the facts of the case we find that the first three criteria were established by the prosecution. The other two criteria are not established.
55. Subash Chander's case (supra) was one of multiple murder. The Apex Court converted the capital sentence to life imprisonment with a rider that the accused had to undergo imprisonment for the rest of the life. In Shri Bhagwan's case, five members of a family were mercilessly battered to death. In that case the capital sentence awarded by the trial court confirmed by the High Court was converted to imprisonment for life with condition that he would not be released for 20 years.
DSR 3/2009 & CRL.A. 1134/2009 68 In Ram Anup Singh's case, father's brother, brother's wife, his daughter and his son-in-law were murdered. In that case capital sentence was reduced to imprisonment for 20 years.
56. In Jayawant Dattatraya Suryarao's case the assailants rushed to the J.J. Hospital in Mumbai and started indiscriminate firing killing not only their targets but also two policemen who were on guard duty and injuring several others. In that case death penalty was modified to imprisonment till the rest of life. In Swamy Shraddananda's case also the capital sentence was reduced to imprisonment for the rest of life. We also notice that in a recent case ie. in State of U.P. v. Krishna Master (AIR 2010 SC 3071) where six persons of a family, wiping out almost all the members of a family were murdered on ground of saving honour of the family. In that case, taking note that the crime was committed 20 years back, the capital sentence was reduced to imprisonment for the rest of life.
57. If we take guidance from the above decisions, though we find that the murder alleged in this case is a heinous one, it would not come under the category of rarest of the rare case to confirm the sentence of death. But we don't think that the sentence can be reduced to the minimum because the crime was DSR 3/2009 & CRL.A. 1134/2009 69 very brutal. There is only aggravating circumstances and no mitigating circumstance. Well groomed Sareena while undergoing postgraduate degree was given in marriage to the appellant with much ornaments, money and a car. Matrimony was blessed with Amisha. Though appellant squandered all ornaments and money, Sareena remained silent and suffered. Only fault that she had committed is that she declined to ask for more money from her father. She was throttled first and when she became unconscious she was brutally assaulted with MO5. Though the injuries caused by assault with MO5 were very fatal, before she breathing last, she was burnt. Amisha, who was playing with neighbouring children were called home and she was treated alike. Protector had become destructor. Very merciless murders. Even if it is assumed that Sareena might have caused any provocation, Amisha had no way provocated. While Amisha was playing in the neighbourhood, she was called by the appellant. She with infantine innocence went to the beloved father. She was too little to sense the deception. She was also subjected to brutal murder, by three modes ie. strangulation, battering and burning. He did all these against his wife and daughter for failure of Pw8 to pay more dowry and Sareena declined to demand from PW8. No doubt, it is a DSR 3/2009 & CRL.A. 1134/2009 70 rare case. According to the learned Public Prosecutor dowry death and domestic violence in demand of dowry are alarmingly increasing and that lighter sentence in such cases may give wrong signal. It is also submitted that a helpless woman and child were murdered in inhuman manner, all for dowry, probably in order to remarry for the sake of extracting dowry once again and in such circumstances, it is for the court to award appropriate sentence so that it may have deterring effect upon intended criminals. Taking into account of the heinous nature of the crime and the brutality and also taking guidance from the decisions referred earlier, and for reasons stated above, we find that it would be just and appropriate to convert the capital punishment to one for imprisonment till the rest of the life without granting commutation or parole and also a fine of Rs.20,00,000/- (Rupees twenty lakhs only).
58. Though not argued, we notice a serious omission in the Judgment as to how the sentence is to be executed. Section 354(5) Cr.P.C mandates that in the case of awarding capital sentence the judgment shall mention that accused shall be hanged by the neck till he is dead. That is conspicuously omitted in the judgment. The judgment should have been strictly in DSR 3/2009 & CRL.A. 1134/2009 71 compliance with Section 354(5) Cr.P.C. However, in view of what is stated above, that omission is not relevant.
59. Canvassing our attention to para.69 of the decision in Swamy Shraddananda's case, it was argued by the learned counsel for the appellant that awarding a sentence of imprisonment barring the right of the executive to commute under Sec.433 Crl.PC is not permissible. According to the learned counsel, a writ petition (Criminal) No.36/2008 is pending before the Apex Court. We make it clear that the above sentence would be subject to the ruling of the Apex Court in the above writ petition.
60. In the result, while confirming the conviction, we decline the confirmation of sentence of death and alter the sentence to one of imprisonment till the rest of his life and a fine of rupees twenty lakhs without granting commutation or parole. In the event of default of payment of fine, the appellant shall undergo imprisonment for a further period of five years. The fine amount, if realised, shall be paid to Pw8 as compensation under Section 357(1) Cr.P.C. The District Collector, Kottayam is directed to confiscate all the movable and immovable properties in the name of the appellant, except the car and be DSR 3/2009 & CRL.A. 1134/2009 72 sold in public auction with notice to Pw8. The sale proceeds shall be adjusted towards the fine amount. The Maruti car bearing registration No.KL 4K/1287 shall be seized and handed over to Pw8. The sentence shall be subject to the result of the Writ Petition No.36/2008 pending before the Supreme Court. We also direct the State to take into account of the nature of the crime, in the event commutation is thought of.
PIUS C.KURIAKOSE, (Judge) P.S.GOPINATHAN, (Judge) knc, kns & kvs/-