Kerala High Court
Anandan S/O. Karutha Kunju vs State Of Kerala on 25 June, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934
CRL.A.No. 634 of 2009 ( )
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SC.612/2004 of ADDL.SESSIONS COURT-I,MAVELIKKARA
APPELLANT/ACCUSED:
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ANANDAN S/O. KARUTHA KUNJU,
KALAPURAYIL VEETTIL, ARUNOOTTIMANGALAM MURIYIL
VETTIYAR VILLAGE.
BY ADV. SRI.JOHN BRITTO
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
THE C.I. OF POLICE, MAVELIKKARA, THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.
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Criminal Appeal No.634 of 2009-D
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Dated this the 25th day of June 2012 Judgment Sasidharan Nambiar, J.
The appellant was convicted and sentenced to imprisonment for life and a fine of Rs.50,000/- and in default, rigorous imprisonment for five years for the offence under Section 302 of the Indian Penal Code in SC No.612/2004 by the Additional Sessions Court-I, Mavelikara.
2. The prosecution case, in short, is that the appellant, his wife the deceased Omana, PW3, the mother of the appellant and PW2, the daughter Aswathi were staying in House No.XV/379 of Thazhakkara Village. In that wedlock, appellant had one more son, who, at the relevant time, was not residing with them. On the evening of 10.03.2003, deceased Omana, along with PW2, had gone with PW4 Santhosh and PW5, his Crl.A.No.634/09 2 friend, to the house of PW6, as the marriage of PW4 with the daughter of PW6 was fixed, to finalise certain aspects of the marriage. PW4, along with the deceased and PW2 returned back to the house of the appellant only during night. PW4 returned to his house. The appellant did not like the deceased going with PW4. He scolded her and also physically manhandled her. Fearing danger, PW2 ran to the house of PW8 Ajitha, where the deceased Omana was employed as a maid and sought shelter. PW2 slept in that house on that night. The appellant, deceased and PW3 alone were in the house on that night. Appellant, with MO1 bamboo stick and MO3 iron rod, beat the deceased wife and also electrocuted her, using a wire and caused her death on that night subsequent to 9 pm and before 4 am. PW3, at about 4 am, went to the house of PW8 and took PW2 back to their house. PW1, the uncle of the deceased, on Crl.A.No.634/09 3 getting information that Omana died, reached the house and found the deadbody of Omana. PW1 furnished Ext.P1 F.I.statement which was recorded by PW13, the Sub Inspector of Police at 10.30 am on 11.3.2003. PW13 conducted the inquest and prepared Ext.P2 inquest report and seized MO2 maxie worn by the deceased on that night and MO3 iron rod and MO1 three pieces of broken bamboo sticks, at the time of inquest. PW13, the Circle Inspector of Police, took over the investigation and prepared Ext.P10 scene mahazar. He sent the body for autopsy. PW12, the doctor conducted autopsy and Ext.P4 is the postmortem certificate. PW13 arrested the appellant on 15.03.2003. Ext.P8 statement of PW2 and Ext.P9 statement of PW3 were got recorded under Section 164 of the Code of Criminal Procedure, by the learned Magistrate. The material objects were sent for chemical analysis and Crl.A.No.634/09 4 Ext.P15 report was obtained from the Forensic Science Laboratory. After completing the investigation, charge was laid before the Judicial First Class Magistrate Court, Mavelikara, who, in turn, committed the case to the Sessions Court. The learned Additional Sessions Judge framed charges for the offence under Section 302 of the Indian Penal Code. When it was read over to the appellant, he pleaded not guilty. The prosecution examined 14 witnesses and marked 15 exhibits and identified 3 material objects. When the appellant was questioned under Section 313 of the Code of Criminal Procedure, his case was that Omana committed suicide and that he did not commit any offence. Finding that this is not a case without any evidence connecting the accused with the offence, he was called upon to enter on his defence and adduce evidence. The appellant did not adduce any evidence. The learned Sessions Judge, Crl.A.No.634/09 5 thereafter, on the evidence, found the appellant guilty. He was convicted and sentenced as stated earlier. The learned Sessions Judge also directed to pay the fine, on realisation, to PW2 as compensation under Section 357 (1)(b) of the Code of Criminal Procedure. The appeal is filed, challenging the conviction and sentence.
3. The learned counsel appearing for the appellant vehemently argued that though PWs 4 to 6 were examined as eye witnesses, their evidence cannot be believed as they did not have any opportunity to witness the incident. It was argued that though PW4 deposed that he got a telephone call from PW7, the brother of the appellant, who informed him that the appellant is manhandling Omana and therefore, PW4 along with PWs 5 and 6 reached the house and witnessed the incident, that evidence is artificial and cannot be believed. It was argued that PW7 denied the Crl.A.No.634/09 6 case that he had contacted PW4 over phone and therefore, the very basis for PWs 4 to 6 to reach the house on the night is proved to be false. It was also argued that if the evidence of PWs 4 to 6 is to be believed, they witnessed the appellant inflicting the injuries on Omana and they claimed that they could not take the injured to a hospital as the drivers of the autorickshaws refused to take her from the house of the appellant. It was argued that the evidence of PW4 establish that there was a hartal on the next day which started at 12 midnight and if PWs 4 to 6 had witnessed any such incident, they could have informed the police over phone especially when it is admitted by PWs 4 to 6 that there is phone connection to their houses. In such circumstances, it was argued that the evidence of the eye witnesses is to be discarded. The learned counsel argued that PWs 2 and 3 turned hostile to the Crl.A.No.634/09 7 prosecution and though Ext.P8 statement of PW2 recorded under Section 164 of the Code of Criminal Procedure was relied on by the learned Sessions Judge, the evidence of PW2 shows that she had gone to the Magistrate for recording the statement, while she was in the custody of the relatives of her mother and she was tutored by them to disclose the facts stated therein and therefore, when PW2 denied witnessing the very incident, based on Ext.P8 statement, it cannot be found that appellant inflicted the injuries on the deceased and death of Omana was not suicide. The learned counsel also argued that similar is the evidence of PW3 and she had no case that she witnessed the appellant inflicting injuries on the deceased and even in Ext.P9 statement recorded under Section 164 of the Code of Criminal Procedure, she had no case that she witnessed the incident and in such circumstances, her Crl.A.No.634/09 8 evidence also cannot be relied on. It was pointed out that though PW10, a neighbour was examined, she also turned hostile to the prosecution and did not depose that she witnessed the incident. The learned counsel also argued that though the evidence of PW12 with Ext.P4 postmortem certificate establish that the deceased Omana died due to the combined effect of the injuries and the electrocution and his evidence shows that the other ante mortem injuries found on the body of the deceased could have been caused in the attempt to save her life by beating with a wooden stick and it corroborates the case of the appellant that it was a case of suicide. It was vehemently argued that when and Omana attempted to commit suicide by electrocution, if the appellant tried to save her by hitting with a bamboo stick, though the attempt was futile, he cannot be convicted for the offence under Section 302 Crl.A.No.634/09 9 of the Indian Penal Code.
4. The learned Public Prosecutor pointed out that PW2 turned hostile as her mother is no more and she was living with her father at the time when evidence was recorded and the fact that she did not support Ext.P8 statement recorded by the learned Magistrate, does not show that the facts stated in Ext.P8 are not true. The learned Public Prosecutor argued that the evidence of PW3 that she was not residing along with the deceased and the appellant on that night, cannot be true as the evidence of PWs 1 and 2 on that aspect was not challenged in cross examination. It was also argued that the evidence of PW3 establish that she had gone to the house of PW8 before sunrise and brought PW2 back to the house and she had also deposed that there was a quarrel between the deceased and the appellant on that night and in such circumstances, when only the Crl.A.No.634/09 10 appellant could unveil what really transpired therein and he did not disclose the true facts and falsely stated that Omana attempted to commit suicide, the prosecution case is to be accepted. It was argued that there is no reason to disbelieve the evidence of PWs 4 to 6 and the evidence of PW4 that it was through the appellant and the deceased Omana the marriage proposal of the daughter of PW6 emanated and PW4 along with the deceased Omana, PW2 and PW5 had gone to the house of PW6 on the evening of 10.03.2003 were not disputed and in such circumstances, when during night, PW4 received a phone call from PW7, the brother of the appellant, informing that appellant is attacking Omana, it is quite normal that PW4 sought the assistance of PWs 5 and 6 and reached the house of the appellant with them and witnessed the incident. It is, therefore, argued that the evidence of PWs 4 to 6 conclusively Crl.A.No.634/09 11 prove that it was the appellant, who inflicted the injuries on the deceased and also caused her death by electrocution. The learned Public Prosecutor also argued that apart from alleging that the deceased committed suicide, the appellant did not explain as to how the deceased sustained the injuries and at the time of his examination under Section 313 of the Code of Criminal Procedure, he had no case that he found the deceased attempting to commit suicide by electrocution and therefore, in order to save her, he inflicted the injuries on the deceased with a stick or iron rod and thereby Omana sustained the injuries. The learned Public Prosecutor pointed out that the antemortem injuries recorded in Ext.P4 postmortem certificate by PW12, with his evidence, establish that injury No.10 is the result of electrocution and the other injuries could not have been caused due to a fall or could have been Crl.A.No.634/09 12 caused in the attempt to save the deceased and therefore, it is a clear case of homicide and not suicide. It is, therefore, argued that there is no reason to interfere with the conviction or the sentence.
5. The fact that Omana, the wife of the appellant sustained the injuries noted by PW12 in Ext.P4 postmortem certificate was not disputed at the time of evidence. There are 19 ante mortem injuries noted in Ext.P4 and Injury No.10 is reported to be the injury evidencing the electrocution. Its description reads :
"Hand parchment like abrasion on the inner aspect of left breast, two marking 1x0.5 cm and separated by a space of 1.5 cm situated 3 cm inner to nipple at 9'o clock position. The deeper tissues at periphery appeared pale."
Injury No.14 is a lacerated wound front of right leg 2x0.5 cm, transverse, bone deep with open fracture of tibia Crl.A.No.634/09 13 underneath 9 cm. below knee. Injury No.19 is an injury caused to the head. The description reads :
"Scalp contusion on right side of scalp and back of scalp over a total area of 18x18 cm, skull intact, subdural and subarachnoid haemorrhages seen on both cerebral haemispheres, the brain congested and moderate flattening of gyri seen."
The evidence of PW12 which is not challenged on that aspect, conclusively establishes that Omana died to the combined effect of multiple injuries sustained to the body and also by electrocution.
6. Then the question is whether it is a case of suicide or homicide and if homicide, whether it was caused by the appellant as found by the learned Sessions Judge. Though it was elicited at the time of examination of PW12 that the other injuries except injury nos.10 and 19 could have been caused on a fall, with a view to putforth a theory that those injuries were Crl.A.No.634/09 14 caused in the attempt to save the deceased or due to a fall, PW12 deposed that those injuries cannot be caused by a single fall, even if the body rolled after falling. The very fact that Injury No.9 resulted in subdural and subarachnoid haemorrhages on both cerebral haemispheres, resulting in the congestion of brain, establishes that the injury could have been caused only by a hit on the head with an iron rod or a bamboo stick or other similar material with that much force. Injury No.14 could not have been caused by a fall, even if due to electrocution, the deceased had fallen on the ground, as it resulted in open fracture of tibia below the right knee. There is absolutely no explanation for the remaining injuries, except Item No.10 which is the injury caused due to the electrocution, if it was a case of suicide. If there was an attempt to save her from electrocution, the attempt Crl.A.No.634/09 15 would only be to cut off the power supply by severing or disconnecting the wire and not to hit on the head or legs of the deceased. On the evidence, the learned Sessions Judge rightly found that it was not a case of suicide, but homicide. Moreover, the appellant has no case even at the time when he was questioned under Section 313 of the Code of Criminal Procedure that he found his wife attempting to commit suicide by electrocution and in order to save her, he beat her on her head or leg. If the attempt was to disconnect the electric connection, the appellant would only attempt to disconnect the wire and would not have hit on her head, resulting in subdural and subarachnoid haemorrages or on her leg, causing the fracture of tibia. In such circumstances, it is definitely a case of homicide.
7. Though the learned Sessions Judge relied on the evidence of PWs 4 to 6 who deposed that they Crl.A.No.634/09 16 witnessed the appellant inflicting the injuries on the deceased after reaching there on that night, we find it difficult to believe the said evidence. PW4 deposed that on that evening, he, along with PW5, the deceased and PW2, had gone to the house of PW6 as PW4 had decided to marry the daughter of PW6. In the night, PW4 received a message from PW7, the brother of the appellant that appellant is attacking his wife. If it is true, in the normal human behaviour, PW4 will not seek the help of PW6, his would be father-in-law, to be there. If the evidence of PWs 4 to 6 are to be believed, when they reached the house and attempted to persuade the appellant to take the deceased to the hospital, he was not prepared and resisted the attempt. According to them, they sought an autorickshaw, but, as the autorickshaw drivers were not prepared to come to the house of the appellant, that attempt also failed. If we Crl.A.No.634/09 17 are to believe the evidence, they returned to their respective houses, without doing anything further, to provide medical help to the injured. Even though there is telephone connection in each of their houses, they did not inform the police. Even though PW5 is a taxi driver, no attempt was made to take the injured in the taxi car, if they did not get an autorickshaw. If the evidence is true and they witnessed the appellant manhandling his wife and threatening that she will be killed on that night and prevented them to give medical assistance to the injured, in the ordinary human behaviour, they would have, atleast informed the police about the incident. The very fact that they claim that they did not do anything in that regard and simply went back to their houses and slept on that night, casts serious doubt regarding their evidence that they reached the house and witnessed the incident. If so, Crl.A.No.634/09 18 that portion of their evidence cannot be relied on. Still, the fact that the evidence of PWs 4 to 6 that they witnessed the incident, is found to be not trustworthy, does not mean that there is no evidence to prove that it was the appellant who committed the homicide.
8. Though PW2, the daughter of the appellant turned hostile and deposed that she did not witness the injuries being inflicted on the deceased by her father, it is clear from her evidence that she is not deposing the truth. One could understand the attempt of a minor daughter to save her father, even though he committed the murder of her own mother, as she is left with only her father and he was then taking care of her. Even though PW2 turned hostile, she admitted that she had gone with her mother and PW4 to the house of PW6 on that evening and after reaching back home during night, appellant quarrelled with her mother. It was also Crl.A.No.634/09 19 admitted by PW2 that on that night, as the appellant attacked her mother, she ran away from the house and sought asylum in the house of PW8. Though PW8 also turned hostile to the prosecution, she also admitted that PW2 came to her house after 10.30 pm. on that night, saying that her father is illtreating her mother and PW8 advised her not to return to the house on that night. PW8 also deposed that by about 4 am, PW3 came to her house and took PW2 back to their house. Though PW3 turned hostile to the prosecution and deposed that she was not residing in that house along with the appellant, we find that the evidence of PWs1 and 2 on that aspect was not even challenged in cross examination. The evidence of PW2 is that PW3 is also residing with the appellant. Though PW3 expressed ignorance about the incident, she also admitted that on the night of 10.03.2003, there was quarrel between the Crl.A.No.634/09 20 appellant and his wife and PW2 had gone to the house of PW8. Unless the father is manhandling the mother and the minor daughter finds that it is not safe to stay in the house, PW2 would not have run away from the house at the dead of night and sought shelter in the house of PW8. So also PW3, the grandmother would not have allowed PW2 to leave the house on that night. PW3 admitted that she had gone to the house of PW8 in the early morning on 11.3.2003 and taken PW2 back to the house. Though PW2 deposed from the box that the facts stated in Ext.P8 statement recorded under Section 164 of the Code of Criminal Procedure were given by her as directed by PW4 and others and PW3 had deposed that she had not given Ext.P9 statement, the evidence of PW3 shows that she had gone to the Magistrate and disclosed the facts known to her voluntarily to the Magistrate. Therefore, though PW3 Crl.A.No.634/09 21 turned hostile and denied Ext.P9 statement, we have no hesitation to hold that Ext.P9 is the true version of the facts stated by PW3. But, when PW3 turned hostile and denied the facts seen in Ext.P9 statement, Ext.P9 cannot be relied on as it is not a substantive evidence. Similarly, we find that the facts stated in Ext.P8 statement by PW2 cannot be wholly true, as even according to the prosecution, PW2 had gone to the house of PW8 seeking shelter and could not have witnessed the incident which transpired therein thereafter. As PW2 deposed that she stated the facts as disclosed to her by the relatives of her mother, Ext.P8 also cannot be relied on as it is also not a substantive evidence. But the evidence of PWs 2 and 3 on other aspects, is clearly trustworthy and can be relied on.
9. The evidence of PWs 2, 3 and 8 establish that on the night of 10.03.2003, the appellant had Crl.A.No.634/09 22 manhandled the deceased and out of fear, PW2, the minor daughter of the appellant ran away from the house and sought shelter in the house of PW8. PW3, being the mother of the appellant, in order to save him, suppressed the real facts and expressed ignorance before the court. It is clear that only the appellant, the deceased and PW3 were there in that house on that night when the incident occurred inside the four walls of the house. As the appellant was residing with the deceased wife, he has a duty to explain as to what really transpired within the four walls of that house on that night. True, the burden to prove the case is on the prosecution. But, when the murder was committed within the four walls of the house, where the husband and wife were residing, the nature of the evidence to be let in by the prosecution cannot be of the same degree as in other cases. The burden would be comparatively Crl.A.No.634/09 23 lighter. Section 106 of the Indian Evidence Act casts a corresponding duty on the appellant in such a case to explain what transpired and on his failure to do so, definitely, an inference against the appellant is necessarily to be drawn. Appellant cannot keep quiet by not offering any explanation. Even though the appellant, at the time of being questioned under Section 313 of the Code of Criminal Procedure, stated that Omana committed suicide, he had no case that he found the deceased attempting to commit suicide by electrocution and in order to save her, he inflicted the injuries. Honourable Supreme Court, in State of West Bengal v. Mir Mohammad Omar (2000) 8 SCC 382), taking note of the provision of Section 106 of the Evidence Act held :
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as Crl.A.No.634/09 24 though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of Crl.A.No.634/09 25 reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court shall have regard to the common course of natural events, human conduct etc, in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction, the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
Crl.A.No.634/09 26
We have already found that the injuries noted in Ext.P3 postmortem certificate by PW12 could not have been caused in an attempt to save her from electrocution. On the other hand, the injuries on the skull and the fracture caused to the tibia, establish that those injuries were intended to be inflicted, either to prevent the deceased from escaping from electrocution or for accelerating her death due to electrocution. In such circumstances, on the evidence, we have no hesitation to uphold the finding of the learned Sessions Judge that the appellant caused the injuries on the deceased by hitting with MO1 wooden stick and MO3 iron rod and caused her death by those injuries and also by electrocution. The fact that Ext.P15 certificate of chemical analysis does not show that blood was not detected in MOs 1 and 3 cannot be taken as a ground to hold that the injuries were not inflicted with those weapons, as while inflicting those Crl.A.No.634/09 27 injuries, it is possible that blood did not come into contact with the weapons. From the nature of the injuries inflicted, it is clear that appellant with the intention to cause the death of his wife, caused her death by inflicting those injuries and electrocution. None of the exceptions provided under Section 300 of the Indian Penal Code applies to the facts of the case. Hence, conviction of the appellant for the offence under Section 302 of the Indian Penal Code is perfectly legal and warrants no interference.
10. Then the only question is regarding the sentence. The sentence awarded was imprisonment for life and a fine of Rs.50,000/- with a direction to pay the fine as compensation to PW2 on realisation. On the facts of the case, we find that the fine Rs.50,000/- is excessive and it is reduced to Rs.10,000/-. The sentence is modified to that extent.
Crl.A.No.634/09 28
11. The appeal is allowed in part. The conviction of the appellant for the offence under Section 302 of the Indian Penal Code and the substantive sentence of imprisonment for life are confirmed. The sentence of fine is reduced to Rs.10,000/- and in default, rigorous imprisonment for one year. The appellant is entitled to get set off as provided under Section 428 of the Code of Criminal Procedure for the period he has been in custody, subject to the orders passed by the appropriate authority under Section 432/433 of the Code of Criminal Procedure.
M.Sasidharan Nambiar, Judge P.Bhavadasan, Judge sta Crl.A.No.634/09 29