Santhosh vs State Of Kerala on 26 February, 2019

[Cites 5, Cited by 0]

Kerala High Court

Santhosh vs State Of Kerala on 26 February, 2019

This appeal has been filed by the appellant challenging the judgment of conviction and order of sentence passed by the 2 nd Additional District and Sessions Court, Pathanamthitta in S.C. No. 504 of 2012 arising out of Crime No.244 of 2011 by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life for the said offence.

2. Prosecution case is that, on 01/04/2011, at about 06.30 P.M., the appellant assaulted his wife with a fire-wood and also caused injury to her head by hitting the head forcefully on the wall of their house bearing No. IV/370 of Malayalappuzha Panchayath. She was taken to a nearby private hospital. The Doctor advised the appellant to take her to General Hospital for giving better treatment. But the appellant did not do so. She was taken back to their house. Due to the injuries sustained, she was found dead the next day morning.

Crl.Appeal No.910/14

-:3:-

3. Prosecution examined PW1 to PW19 as witnesses, marked documents Exts.P1 to P15 and identified MO1 to MO11 material objects. During 313 examination, the appellant denied the incriminating circumstances levelled against him. He pleaded that he is innocent. He fileD a detailed statement under Section 313 of the Code of Criminal Procedure, 1873 (for short 'Cr.P.C.'). No defence evidence is adduced in the case.

4. Learned counsel appearing for and on behalf of the appellant Sri.T.Madhu argued that there is absolutely no evidence against the appellant to connect him with the offence alleged. Court below utterly failed to appreciate the evidence on record. Prosecution did not even have a case that there was any motive for the appellant to commit the crime. No premeditation or intention is proved by the prosecution. Admittedly, the appellant had taken the victim to the hospital. They came back to their house. It was only in the morning the daughters of the appellant and the deceased found the victim dead. Evidence adduced by the prosecution is insufficient to hold that the appellant committed murder of his wife. The Court below erred in convicting the appellant. He pleaded for acquittal. Crl.Appeal No.910/14 -:4:-

5. On the other hand, the learned Special Government Pleader for Atrocities Against Women and Children Smt.S.Ambika Devi argued that the Court below is justified in arriving at its conclusion. There is evidence on record to show that the appellant herein had caused the injuries on the victim who is his own wife, including the fatal injury (injury no.3). She was brutally beaten all over the body. Altogether 32 ante-mortem injuries were noted by the Doctor who conducted the autopsy. Evidence of PW2 and PW3 clearly proves the overt acts of the appellant that resulted in the death of the victim. Court below is justified in its conclusion, and hence there is no need to interfere with the findings of the trial Judge.

6. PW1 gave Ext.P1 FIS to the police on 02/04/2011. PW2 and PW3 are daughters of the appellant and the deceased. They are eye-witnesses to the incident. PW4 is a relative of the deceased who reached at the spot of incident on getting information regarding death of Yamuna. PW5 is the father-in-law of the appellant. PW6 is a relative of the deceased. He is an attestor to Ext.P4 scene mahazar. PW9 is also an attestor to it. PW7 and PW10 are attestors to Ext.P5 inquest report. PW8 is a Crl.Appeal No.910/14 -:5:- neighbour and an autorickshaw driver in whose autorikshaw, the victim was taken to hospital. PW11 is the father of the Doctor before whom the appellant brought the victim. Ext.P6 is the mahazar prepared for verifying the OP ticket. PW12 is the Village Officer, Malayalappuzha who prepared Ext.P7 site plan. PW13 is the Doctor who examined the deceased and referred her to the General Hospital, Pathanamthitta. PW14 is the Doctor who conducted the post-mortem examination of the deceased. Ext.P8 is the post-mortem certificate. PW15 is the Scientific Assistant who collected material object from the scene of incident and Ext.P9 is marked through him. PW16 is the CPO who was deployed for scene guard duty. PW18 recorded Ext.P1 FIS given by PW1 and Ext.P15 is the FIR registered for the same. PW17 is the C.I. of Police who conducted major part of the investigation. PW19 is the C.I. who laid the charge-sheet before Court after verifying records.

7. We heard both counsel at length and perused the evidence on record. In our assessment, three questions are to be considered by us to arrive at a conclusion as to whether the Court below was justified in its impugned finding against the appellant Crl.Appeal No.910/14 -:6:- herein by which he was put behind the bars for life term.

(i) Whether prosecution proved beyond reasonable doubt that the death of Yamuna was a homicide?

(ii) Whether appellant herein is the person who caused injuries on the victim which led to her death as alleged by the prosecution?

(iii) Whether the appellant had the mens rea to commit murder as alleged by the prosecution?

8. PW2 and PW3 are the daughters of the appellant and the deceased. Prosecution cited them as eyewitnesses to the incident. According to them, their mother was attacked by their father on 01/04/2011 and she was taken to hospital. She was taken back to home and in the morning they found her dead in the house. PW14 conducted post-mortem examination of the deceased on 03/04/2011 and issued Ext.P8 certificate. She deposed in Court that she had noted 32 ante-mortem injuries on the corpse of the victim. According to her, the cause of death of the victim was the head injury. Ext.P5 is the inquest report prepared by PW17 on 02/04/2011. All these evidence proves the fact that the death of Yamuna was not a natural one but a Crl.Appeal No.910/14 -:7:- homicide. Court below is right in arriving at that finding.

9. Coming to the next question, it is necessary to look into detail the evidence adduced by the prosecution especially that of PW2 and PW3 who are cited as eye-witnesses. PW2 deposed that the person standing in the dock is her father. They were living together in the same house. Her mother died between 08.30 P.M. on 01/04/2011 and 06.30 A.M. next day. 01/04/2011 was a holiday for her school. So, herself and PW3, her sister were in the house. Her father went for job on that day and came back by 03.00 P.M with three of his friends. One of them was Vinod. They spent time in their new house which was unfinished at that time. As they were there, the ladies in the house went to a nearby shed. They came back to house only after those three friends left the house. Her father was in the house when they reached there from the shed. It is her version that she heard her father asking something to her mother. As PW2 was outside, she could not hear what her father asked. In the night, her father had taken her mother to hospital in an autorickshaw. PW3 also accompanied them. At that time there were injuries on the body of her mother. Till mother was taken to the hospital, nobody else Crl.Appeal No.910/14 -:8:- was in the house except the appellant, deceased, PW2 and PW3. She had seen the injuries on the leg, hand etc of her mother. Blood was also found. She asked her mother how she sustained such injuries, but mother did not reply. After coming back from hospital, the appellant and the victim got into a room and slept. Herself and PW3 slept in another room. In the morning as she went to her mother, her father was not there in the room. She called her mother but there was no response. She informed the matter to PW1. PW1 came and checked and said that her mother is dead. She identified the orange coloured nighty worn by her mother on that day and it is marked as MO1. She also identified the blood-stained fire-wood seized by police from the spot and marked as MO2 series. MO3 is the bedsheet and MO4 is the pillow cover on which the victim was sleeping. She also identified MO5 series bangles belonging to her mother. MO6 is the plastic mat spread on the cot. It was blood-stained. MO7 is the kaily mundu seized by the police. There was blood in the room in which her mother was lying. According to her, after consuming alcohol, her father was in the habit of quarrelling with all of them. On the date of incident also, there was quarrel between her father and Crl.Appeal No.910/14 -:9:- mother. It is her version that her father beat her mother for demanding money for paying electricity bill. Another reason for beating the victim was that she had not informed the appellant that the household items were over. According to PW2, the injuries found on the body of her mother was the result of the assault from her father. She is studying in plus one at the time of giving evidence in Court. At the time of being beaten by her father, her mother was screaming not to kill her. She deposed that even if hue and cry is heard from her house, the neighbours would not come to rescue fearing her father. She also stated that she had shown the place of occurrence to the police and had also given statement to police. During cross-examination, she stated that her father picked up quarrel with her mother only at times when he consumes alcohol. Otherwise they were in loving terms. She also admitted that her father was well-drunk at the time of incident. Her father assaulted her mother because of her mother not answering to the questions put to her by him. She also stated that her father had hit her mother at the shoulder two to three times. She further admitted that her statement in chief examination that her mother had cried by asking her father not Crl.Appeal No.910/14 -:10:- the kill her, she stated it because police had asked her to say so. She denied the suggestion that she is stating untrue things before Court at the instance of police. In re-examination, she clarified that police never threatened her to depose in particular manner before Court. Whatever she had seen and heard she was stating before Court.

10. PW3 is the younger daughter of the deceased and the appellant. At the time of incident, she was only 12 years of age. At the time of examination in Court, she was studying in 10 th standard and was aged 15 years. Court below, after voir dire test, was satisfied that she was capable of deposing as a witness. She identified her father as the accused standing in the dock. She stated that her mother died between 08.00 P.M. on 01/04/2011 and 06.30 A.M. on 02/04/2011. There was no class on that day. Her father went for job and by 03.00 P.M., came back with three friends. They sat inside the house. PW2, PW3 and her mother sat in the shed. Those friends left the house by 06.00 P.M. Her father did not go with them. After they had left, PW3, her sister and mother came back to the house from the shed. It is her version that at that time her father (appellant herein) had hit her mother Crl.Appeal No.910/14 -:11:- (deceased herein) with his hands. He also had beaten her with a stick. He caught hold on the head of the victim and hit against the wall in the kitchen. She agreed with the suggestion of the Prosecutor that her mother was telling to her father not to kill her. Her father had taken her mother to the hospital. PW3 also accompanied them. Her father had carried her mother to the autorickshaw and had taken her to hospital at Pothippadu. It is her version that at that time she found injuries on the leg and other parts of her mother. From hospital, they told to take her to General Hospital. Her father agreed to do so but took her back home. On reaching home, her mother asked for rice and PW3 had fed her mother. Thereafter her father and mother went to sleep in the same room. Herself and PW2 slept in another room. In the morning as she went to woke up her mother, she did not see her father there. She called her mother but she did not wake up. So, they called PW1. PW1 came and told them that their mother is no more. There was blood in the room, bed-sheet and mat on which her mother slept. She identified articles in Court. She deposed that MO2 series are the wooden sticks used by her father to beat her mother. After the friends of her father left the house, there Crl.Appeal No.910/14 -:12:- was nobody else except herself, PW2, her mother and her father in the house. Nobody else came also. She stated that her statement was taken by the police. During cross-examination she stated that her father was the one who was taking care of all the needs of their family. Her mother was a home maker. According to her, father consumes alcohol once in a while and he picks up quarrel after doing so. After consuming alcohol with friends on the date of incident, her father ate the food her mother had served him. Her father was well-drunk at that time. Her father had beaten her because she did not give answers to the queries put by him to her. Father had hit with his hands. Her mother hurled filthy words at her father. At that time, the appellant had taken a wood and hit below the waist. Her father had hit the head of her mother by catching hold on her hair and towards the front. Forehead got injured and there was bleeding. Her parents fell in love and got married. Grand parents were unhappy about it and they were not in good terms. The appellant himself hired an auto and had taken her mother to hospital. Since her mother was not in a position to walk, her father carried her and managed to get into the auto. Since there was no money with him, her father had Crl.Appeal No.910/14 -:13:- not taken her mother to General Hospital. After coming back home from hospital, her mother took some water from her. At the time when meals were given to her mother, her father was sitting on the cot embracing her mother. After that they slept together. She denied the suggestion that her mother got up in the midnight and went for urination and at that time she had fallen on her back and got injured. According to her, presently she is living under the care of the relatives of her father. Construction of the house is not yet complete. Floor was not plastered. At the time of mother's death, PW2 was studying in 7th standard. She denied the suggestion that she was deposing under the influence of police that her mother had cried out to her father not to kill her. She also stated that her mother got injured due to the beating of her father. According to her, police had taken down statements from her and PW2.

11. Evidence of PW3 suffers no infirmity as far as the case against the appellant is concerned. Her presence in the place of occurrence is guaranteed by the fact that she was also there with her father to take her mother to the hospital. She clearly deposed how the quarrel between her father and mother started and what Crl.Appeal No.910/14 -:14:- the appellant had done to her mother. Overt acts are spoken to by this witness. According to her, the appellant had beaten the victim with his hands, with MO2 series wooden log and also hit her head to the wall. Altogether 32 ante-mortem injuries were noted by the Doctor who conducted the autopsy of the victim. The cause of death is head injury. During cross-examination, the defence counsel put a suggestion to PW3 that the appellant had held the hair of the victim and hit the forehead to the wall. In her chief examination, PW3 clearly deposed that her father had hit her mother's back side of head against the wall forcefully. As far as the evidence of PW3 is concerned, there is no serious cross- examination on these vital aspects in her deposition. We do not find any reason to disbelieve PW3. Evidence of PW2 can be believed to the extent that it corroborates the version of PW3. Also, the 313 explanation offered by the appellant clearly admits his presence at the time of occurrence. He also stated that there was quarrel between him and his wife. He further admitted that he had beat his wife 2 to 3 times with his hands. As already stated, medical evidence shows that the death was due to head injury. There is no proof for the involvement of any other person Crl.Appeal No.910/14 -:15:- in the commission of the crime other than that of the appellant herein. He tried to explain that his wife went out for urination in the early morning and that she had fallen down hitting her head backward and sustained injuries on the head. This explanation is found to be false as it is not supported by any evidence. Ext.P7 is the FSL report. It shows that all items except item no.6 contained human blood. MO2 series wooden logs were also stained with human blood. Under these circumstances, we hold that the trial Court is justified in its finding that it was the appellant who inflicted the injuries found on the body of the victim that resulted in her death.

12. The last but most important question to be considered by us is whether the appellant had the mens rea to commit murder as alleged by the prosecution. Prosecution did not prove motive for the crime. Evidence shows that there was no premeditation on the part of the appellant. He was there in the house and a wordy altercation ensued between the appellant and the victim. Of course, she was severely beaten by the appellant. But it can be seen that she was taken to a nearby hospital by the appellant himself. She was attended by a competent Doctor. She Crl.Appeal No.910/14 -:16:- was taken back home after dressing the wounds. PW3 had given her food and water. It is also in evidence that both the appellant and the victim had slept in the same room on that night. It is true that there is omission and negligence on the part of the appellant in not taking his wife to General Hospital, Pathanamthitta as advised by the Doctor. But the circumstances brought out in evidence shows that he had no intention to kill his wife. The beating was indiscriminate and that too on vital parts like head. It clearly shows that he had the necessary knowledge that death would likely result by his acts. That knowledge is an indication of his culpable mental state. Any prudent man must be knowing that infliction of such injuries on a woman may cause death of the victim. Hence, in our view, the offence under Section 302 is not made out. The transgression of the appellant falls only under the second limb of Section 304 of I.P.C.

In the result, the appeal is partly allowed. The conviction and sentence passed against the appellant by the trial Court under Section 302 of I.P.C. is hereby set aside. The appellant is found guilty for offence under Section 304 Part II of I.P.C. and he is sentenced hereby to suffer rigorous imprisonment for seven Crl.Appeal No.910/14 -:17:- years. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                  A.M.BABU

Rp               True copy                          JUDGE

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