Kerala High Court
Sajeev @ Vavutty vs State Of Kerala on 2 April, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941
CRL.A.No. 1022 of 2015
AGAINST THE ORDER/JUDGMENT IN SC 1/2013 of SESSIONS
COURT,KOZHIKODE DIVISION DATED 30-03-2015
CP 53/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS
-II,THAMARASSERY DATED 31-12-2012
CRIME NO. 297/2012 OF Mukkom Police Station, Kozhikode
APPELLANT/ACCUSED:
SAJEEV @ VAVUTTY, S/O.VELAYUDHAN, C.NO.269/15,
CENTRAL PRISON, KANNUR
BY ADV. MANOJKUMAR . V (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SR.PP. K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2019, THE COURT ON 2.04.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.1022/15
-:2:-
JUDGMENT
Shaffique, J.
This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the Sessions Judge, Kozhikode Division in S.C.No.01 of 2013 arising out of Crime No. 297 of 2012 by which he was found guilty for offence under Sections 302, 324, 309 and 449 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for one year for offence under Section 302 of IPC; also sentenced to suffer rigorous imprisonment for a period of three years with a fine of `10,000/- (Rupees Ten Thousand only) along with a default stipulation of rigorous imprisonment for six months for offence under Section 449 of IPC; again sentenced to undergo simple imprisonment for six months for offence under Section 309 of IPC; and further sentenced to undergo simple imprisonment for six months for offence under Section 324 of IPC. Crl.Appeal No.1022/15 -:3:- All sentences were directed to run concurrently. Out of the fine amount, if realized, `50,000/- (Rupees Fifty Thousand only) was directed to be paid to PW1 who is the mother of the deceased Varsha under victim compensation scheme under Section 357(1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.).
2. Prosecution has the following case against the appellant:-
On 30/08/2012 at about 08.00 P.M, the appellant Sajeev @ Vavutty, who was the husband of the deceased Varsha, due to his suspicion about her chastity and also owing to her unwillingness to be in his company, trespassed into the house in which the deceased, PW1 and PW2 were residing, inflicted fatal injuries on the deceased Varsha and also injuries on PW1 using a knife carried by him and thereafter attempted to commit suicide by inflicting injuries on his own body using the same weapon and thereby caused the death of Varsha instantaneously, grievously injured PW1 in the process and thereafter attempted to end his life.
3. Prosecution examined PW1 to PW20 as witnesses, Crl.Appeal No.1022/15 -:4:- marked documents Exts.P1 to P36 and identified MO1 to MO32 series material objects. During 313 examination, the appellant denied all incriminating circumstances appearing against him and pleaded innocence. He contended that the incident which eventually resulted in the death of his wife, took place due to a sudden fight occurred between them and it was without any premeditation. The deceased sustained stab injuries during scuffle which was an outcome of heat of passion and also upon a sudden quarrel. DW1 and DW2 were examined from the side of the defence.
4. Learned counsel for the appellant, who is appointed from the State Brief panel, Sri.V.Manoj Kumar argued that there is no evidence against the appellant to convict him under Section 302 of I.P.C. Prosecution suppressed the material facts from the Court. How the incident started is not explained. Motive for the crime is not proved by the prosecution. There was no evidence to show that the appellant was having any premeditation or intention to commit the offence. Even according to the prosecution, the appellant and the deceased were cordially Crl.Appeal No.1022/15 -:5:- speaking and there was no quarrel at all. It is pertinent to note that the appellant also got seriously injured and it clearly shows that there was an attack on the appellant. Court below erred in convicting the appellant. Even going by the prosecution allegation, the offence alleged only would fall under Section 304 Part II of IPC. He pleaded to extend benefit of doubt to the appellant and argued for an acquittal. He relied on the decision of the Apex Court in Surinder Kumar v. Union Territory, Chandigarh [(1989) 2 SCC 217] and also on the decision of this Court in Arunkumar v. State of Kerala [2018 (5) KHC 651 (DB)] in which one of us was member, to strengthen his argument that the case at hand would fall only under Section 304 of IPC.
5. On the other hand, learned Senior Public Prosecutor Sri.K.B.Udayakumar argued that the case against the appellant is proved by the pro secution beyond the shadow of reasonable doubt. Court below is absolutely right in convicting the appellant herein. PW1 who is an injured eyewitness and mother-in-law of the appellant categorically deposed the manner in which the appellant chopped his wife to death. He inflicted Crl.Appeal No.1022/15 -:6:- grievous injuries on PW1 also. The act of the appellant was barbaric. He trespassed into the dwelling house of his wife and brutally killed his wife and inflicted serious injuries on PW1. The oral testimony is well corroborated by medical, forensic and other evidence. No interference is needed in the matter. He pleaded to dismiss the appeal as it is without any merit.
6. Evidence adduced in this case, in brief, are as follows:
PW1 is the mother of the deceased and mother-in-law of the appellant. She is cited as an injured eyewitness. PW2 is the brother of the deceased. He deposed about the strained relationship between the appellant and the deceased. PW3 is cited to show that on receiving information about the incident, he rushed to the place of occurrence and had seen PW1 lying unconscious with bleeding on the veranda of the house and inside the house, the appellant was walking from kitchen to room with MO1 weapon in his hands. He had also seen the deceased lying in a pool of blood. PW4 is an attestor to Ext.P2 scene mahazar prepared by PW19 the Investigating Officer. PW5 is an autorickshaw driver who deposed that PW1 hired his auto at Crl.Appeal No.1022/15 -:7:- 01.30 P.M. on the day in which the incident took place and he went to PW1's house by 02.00 P.M. Three women got into his autorickshaw and one of them asked PW5's mobile from him and from that mobile phone she contacted PW1 and told her "Vavootty is there at Poolapoyil and Varshamol need to be taken care of". PW6 is the person who informed the matter to PW16 over phone. Ext.P12 GD Entry was made based on the information received from PW6. PW7 is an attestor to Ext.P3 inquest report of the deceased. PW8 is the photographer who took photographs of the deceased and videographed the same.
Ext.P24 series are the photographs and Ext.P25 is the CD. PW9 is the owner of the house which was rented out to PW1 where the incident happened. PW10 is the Doctor who conducted the autopsy of the victim and he issued Ext.P4 post-mortem certificate. PW11 is the Doctor who examined the appellant on 30/08/2012 at 09.53 P.M and issued Ext.P6 wound certificate. PW12 is the Junior Resident Medical Officer, Forensic Medicine, Kozhikode who examined PW1 for collecting hair and blood in dried gauze pieces for sending for DNA profile. Ext.P7 is issued by Crl.Appeal No.1022/15 -:8:- him. PW13 is the Medical Officer, Shanthi Hospital, Omassery. He examined PW1 and issued Ext.P8 wound certificate. PW14 is the Scientific Assistant, FSL, Wayanad, who collected MO26 to MO28 items from the place of occurrence and handed it over to the Investigating Officer over the label of which she had signed. Ext.P9 is the report prepared by her. PW15 is the then Village Officer, Neeleswaram who issued Ext.P10 scene plan. PW16 is the then A.S.I. of Police, Mukkom Police Station who was the in charge SHO on 30/08/2012. He entered the relevant GD entry about the incident on receiving a telephonic message at 08.20 P.M. Ext.P12 is the GD entry and Ext.P11 is the suo motu FIR registered by him in connection with this case. PW17 is the CPO who is an attestor to Ext.P13 seizure mahazar for the notebook. Ext.P14 is the notebook. He is also an attestor to Exts.P15 to P18 as well. Ext.P19 is the mahazar prepared for the seizure of dress of the appellant/accused. MO7 is the jeans, MO8 is the shirt , MO29 is the belt and MO30 is the undergarment of the accused so seized. MO22 is the wrist watch of the appellant. MO31 is the blood- stained photo seized. MO32 series are the blood-stained currency Crl.Appeal No.1022/15 -:9:- notes. MO24 and MO25 are the photographs and CD seized. PW18 issued Ext.P24 ownership certificate of the house in which the incident took place. The house is in the name of Sajida M.C. PW19 is the Investigating Officer who conducted major part of the investigation. He prepared Ext.P3 inquest report, Ext.P2 scene mahazar, Ext.P1 mahazar for seizure of dresses of the deceased, Ext.P19 mahazar for the seizure of the dress of the appellant, Ext.P25 arrest cum inspection memo, Ext.P26 intimation memo, Ext.P27 remand report, Ext.P22 mahazar prepared for the seizure of dress of PW1, Ext.P28 report adding Section 449 to the FIR, Ext.P29 report showing name and address of the accused, Ext.P30 report adding Section 309 of IPC, Ext.P11 series property list, Ext.P33 series forwarding note and identified MO1 to MO32 series. PW20 completed the investigation and laid the charge- sheet. He proved inter alia Ext.P34 FSL report, Exts.P35 and P36 call data details of the appellant and the deceased.
7. Court below is of the view that the death of Varsha was a homicide and that the appellant herein committed it and that too with the necessary culpable mental state which would Crl.Appeal No.1022/15 -:10:- bring it under the definition of murder under Section 300 of IPC and also during the process, he had inflicted injuries on PW1. All the above is done after trespassing into their dwelling house. Thereafter, he attempted to commit suicide. We have to decide whether the said findings of the trial Judge is backed with legal evidence.
8. Coming to the nature of death, immense evidence is available to conclude that the death of Varsha was a homicide. In addition to oral testimonies of witnesses including eyewitness, Ext.P3 inquest dated 31/08/2012 read with the evidence of PW10 the Doctor who conducted autopsy of the victim shows that the death was homicidal. Ext.P4 is the post-mortem certificate issued by PW10. PW10 in his evidence deposed that he had noted the following injuries on the corpse of the victim during autopsy:
"1. Incised wound 15x2-3x3-3.5 cm, transverse on back and right side of neck. Back left end 4 cm above left shoulder. There were 3 side cuts. First one 5 cm, second one 11 cm, and third one 14 cm away its back left end. Front end showed three tailings. Each 3.5 cm, two at lower edge and one at upper edge. All commenced 2.5 cm away the front end at lower and upper margins. The same site showed a skin tag connecting upper and lower margins. The wound was Crl.Appeal No.1022/15 -:11:- directed at its edges transversely at back portion towards left down and towards front at its right half. In depth muscles, blood vessels and nerves seen cut, and it reached the space between second and third cervical vertebrae. The depth at back left end and front right end were shallow (1-1.5 cm). There was a superficial incised wound 3.5cm, 0.5 cm above its upper edge, and 4 cm right to midline.
2. Incised wound 3x1x4cm, vertical, lower end showing squaring, at back of left aspect of neck, 3 cm outer to midline, upper end at root of neck.
3. Incised wound, oblique, 5x1cm on back of top of right shoulder, whose lower inner end 5 cm below top of shoulder and 5 cm outer to midline back. Wound was 3 cm deep. The wound edges directed towards left and slightly towards front aspect.
4. Two superficial incised wounds, both parallel and one above the other. Obliquely placed at root of back of neck. The upper injury was crossing midline 3.5 cm long, the other injury was 0.5 cm below it and commenced at middle portion of previous injury. The lower injury was also 3.5 cm. Both were directed down and left.
5. Incised wound 2x1x1.5 cm on back aspect of right side of head, vertical, lower end showing squaring 1.5 cm behind mastoid. Edges were vertical and directed towards left.
6. Incised wound 3x1x2 cm, transverse, with squaring at front end, located on right side of neck, 1 cm below tip of mastoid edges directed downwards and to front.
7. Incised wound 3.5x1 cm, transverse, on right side of face at back aspect of zygomatic arch, involving tragus of ear and pinna, passing just underneath canal of ear. The front Crl.Appeal No.1022/15 -:12:- end showed fish tailing (upper 2mm, lower end 5mm). The wound was directed left, front and downwards. It was 4.5 cm deep.
8. Multiple superficial incised wounds over an area 3x1.2 cm on right jaw border, 4cm behind chin. There were two tailings, ascending vertically upwards, from its either end (back 1.6 cm on front 2 cm).
9. Superficial incised wound 1.4 cm, transverse on right cheek, 3 cm in front of mastoid and at level with ala of nose. There was a tailing for 0.8 cm from its front end.
10. Incised wound 3x0.5x0.3 cm on right cheek, transverse, front sharp end was 1.5 cm outer to right corner of mouth. Back end showed fish tailing (0.2x0.2 cm each) and was 1 cm in front of tailing of previous injury. Edges of this injury was directed down and towards left.
11. Incised wound 2x0.5x0.3 cm, transverse on right cheek, 1.5 cm above jaw border and 2 cm outer to tip of chin.
12. Superficial incised wound 0.60x0.1x0.2 cm on back of right side of head, 2.5 cm above root of ear and 1.5 cm behind it.
13. Superficial incised wound 4.5x0.6x0.5 cm oblique on back of left of neck, right upper end 3 cm below occiput. Left lower end was 2 cm above left end of injury No.1
14. Incised wound 4.2x1x2.5 cm, transverse on back of upper portion of right arm, 7 cm below tip of shoulder. The wound directed towards left. Showed squaring at inner back end.
15. Incised wound 2.5x1.2x3cm, transverse, front to back at top of tip of right shoulder. Underneath acromioclavicular joint showed cut separation.Crl.Appeal No.1022/15 -:13:-
16. Incised wound 1x0.5x.0.8 cm on left corner of mouth, directed backwards and downwards.
17. Superficial incised wound, 9.5 cm, oblique on front of root of neck, lower left end at middle of left collar bone and the upper right end conflecent with injury No.1 at its lower margin, 5 cm behind the front end of it.
18. Superficial incised wound 2.5x0.5 cm, transverse on right intraclavicular area 2.5 cm below collar bone, 4 cm right to midline. Edges directed upwards and back.
19. Superficial incised wound 4x0.5 cm transverse 1.5 cm above previous injury, just below collar bone and 2.5 cm right to midline.
20. Superficial incised wound 5x0.5 cm, transverse at front of root of neck right end 2 cm right to midline. The edge was directed upwards and back.
21. Superficial incised wound, transverse 2x0.5 cm on left front of chest, 3.5 cm below inner end of collar bone.
22. Incised wound 4x0.3 cm transverse on left infraclavicular fossa, inner end 3cm left to midline. There was a tailing 7 cm at its outer end reaching the front of tip of left shoulder.
23. Incised wound 2x1x2cm, vertical on left front of chest upper blunt end 4 cm below middle of left collar bone, the edge was directed to right.
24. Incised wound 2cm, transverse on top of left shoulder, 5 cm inner to tip of shoulder. There was a tailing 2 cm towards root of neck from its inner end.
25. Superficial incised wound 2x0.5 cm on left side root of neck, front end 6 cm above middle of collar bone.
26. Incised wound 2x1x0.5 cm, transverse, directed to left Crl.Appeal No.1022/15 -:14:- on outer aspect of right shoulder 3 cm below tip.
27. Incised wound V shaped, 4 cm showing superficial avulsion deflected upwards, it was 1 cm inner to previous injury and at front of tip of right shoulder.
28. Tick shaped injury 4x0.5 cm on outer aspect of right shoulder 0.5 cm below previous two injuries.
29. Abrasion 3x0.5 cm on back of inner aspect of left elbow.
30. Incised wound, vertical, 3.5x1x0.5 cm on front aspect of outer border of right wrist, lower square end at root of thenar eminence.
31. Incised wound 2x1 cm bone deep transverse on dorsum of middle portion of proximal phlanx of right thumb. There was another small incised wound 0.5 cm, 2mm below previous injury.
32. Incised superficial wound 1.2 cm on dorsum, root of right index finger.
33. Incised wound 2x1.2 cm dorsum of right hand, 2 cm above root of ring finger, transverse, with fracture metacarpal bone underneath and cut injury to tendons.
34. Incised wound 3.5cm, oblique on dorsum on right hand, upper square portion was at middle of wrist and lower end towards 1st web space. Tendons showed cut injuries.
35. Abrasion 'U' shaped 7x5 cm on right side of abdomen, at top of front portion of hip bone.
36. Scratch abrasion 1.5 cm transverse on right shin, 3 cm below knee.
37. Abrasions 3x2 cm, inner aspect of left elbow.
38. Incised penetrating wound, transverse 3.5 cm on left chest, 6 cm below axilla, blund end towards back. In depth it Crl.Appeal No.1022/15 -:15:- produced a cut fracture of 4 th rib underneath, it penetrated 4 th left inter costal space 12 cm outer to midline and penetrated upper lobe of left lung (wt-150 gm) which was collapsed. Hemothorax of 200ml present. Total minimum depth of this wound was 6 cm.
39. V shaped avulsed incised wound 4x2x1 cm on front middle aspect of left arm.
40. Superficial incised wound 12x0.5 cm, oblique on back and outer aspect of left arm, upper back end 19 cm below tip of shoulder. There was another similar injury 7 cm long, upper back half portion was in parallel and 0.5 cm behind previous injury and lower end was 1.5 cm below previous injury.
41. Incised wound 7x2.5x1.2 cm on dorsum of left forearm, 8 cm below elbow, underneath the muscles seen cut.
42. Superficial incised wound 2 cm transverse on inner border of left forearm, 9 cm above wrist.
43. 2 small incised wound each 0.4 cm each at bridge of nose."
9. According to him, the death was due to haemorrhagic shock due to multiple cut injuries. Varsha died on account of the injuries sustained to the neck and chest i.e., injury nos. 1 and 38 in Ext.P4. It is his opinion that these injuries are fatal and that the person who sustained it would die within minutes. These injuries are sufficient in the ordinary course of nature to cause death. The injuries could be caused using MO1 and MO2 as weapons of offence. Hence it is proved by the prosecution beyond doubt that Crl.Appeal No.1022/15 -:16:- the death of Varsha was a homicide.
10. Next question is whether the appellant herein is the one who caused the injuries on the deceased. To decide the question, it is necessary to look into, inter alia, the evidence of PW1 who is cited by the prosecution as eyewitness to the incident. PW1 is none other than the mother of the deceased and PW2 and the mother-in-law of the appellant. She is an injured eyewitness, according to the prosecution. She deposed that herself, Varsha who is her deceased daughter and PW2 Vishnu, her son were residing at the rented quarters of one Moitheen Master during the relevant period. On 26/06/2010, her daughter Varsha got married to Sajeevan who is the accused/appellant herein as per religious rites. Initially, their relationship was cordial. But later, the appellant began to entertain suspicion on Varsha. Varsha went to study B.Pharm course in Thiruvananthapuram after the marriage and the expenses for the same was met by the appellant herein. The appellant went to the hostel in which Varsha was staying and created problems there. So, Varsha had to give up the study in between and she had Crl.Appeal No.1022/15 -:17:- returned from Thiruvananthapuram to PW1's house. She did not go to the appellant's house. It is her version that the appellant had come on a full moon day and created issues. He had beaten Varsha and kicked on her abdomen and that resulted in abortion as she was pregnant. A police complaint was lodged against the appellant in connection with the incident. Husband and brothers of PW1 warned the appellant not to make quarrel. The appellant had not come thereafter. Varsha started working at Ernakulam and she worked there for two months. During Onam days in the year 2012, the appellant had come to PW1's house. At that time, Varsha and PW2 were also there. On the Onam day, the mother and two younger sisters of PW1 also came to PW1's house. They came on 29/08/2012. They left from the house next day noon in an autorickshaw named 'Ambadi' which PW1 had hired. Varsha came and she went to a medical shop for purchasing ointment. After sometime, from the mobile phone of the autorickshaw driver, mother of PW1 called PW1 and told "Bavootti is there at Poolappoyil, so take care Varshamol." PW1 went to the road right then but she could not find the appellant there. PW1 came back Crl.Appeal No.1022/15 -:18:- to her house. PW2 went for a cinema in the afternoon. PW1 took a bath and sat there. At 05.00 P.M., PW2 came back after the movie. The appellant contacted PW1 twice and asked whether Varsha had come home. PW1 replied to the appellant that Varsha was not there in the house, fearing the assault of the appellant. PW1 informed that to her son PW2. PW2 contacted the appellant but the call was disconnected by the appellant. PW2 went to a shop to buy groceries. After sometime, an autorickshaw came in front of the house and stopped near the gate. PW1 went out to see who it was and she saw the appellant in the autorickshaw. PW1 asked the appellant as to why he had come. He replied that he had come to meet Varsha. The appellant stood at the courtyard for sometime. After sometime, Varsha reached there in an autorickshaw. Both the appellant and Varsha entered the house and sat in the veranda. They conversed for sometime. PW1 went to the kitchen and called over phone PW2 and asked him to come. It is the version of PW1, that PW1 had told her that she should not allow the appellant to enter into the house and let him stand outside. Varsha gave tea and snacks to the appellant. As Crl.Appeal No.1022/15 -:19:- the appellant asked Varsha to accompany him to his house, she refused by saying that the appellant would beat her. PW1 was standing at the dining hall looking and listening to the conversation that was going on between the appellant and Varsha. Varsha plainly told the appellant that even if she die, she would not accompany the appellant to his house. The appellant told Varsha that if she was not ready to accompany him, she should give him a compensation of `1,00,000/- (Rupees One Lakh only) for the expenses he had incurred in connection with the marriage. Varsha replied that after selling the landed property, she would give the money. As the conversation between both of them were going on, the appellant received a call in his mobile phone. The appellant went out to the road and talked over phone. There is a Mosque just in front of the house of PW1. As the person on the other end asked where he was, he replied that he is at his wife's house. He entered into the house again while continuing the call. His face was changed and it reflected an angry mind. Appellant told that it was his sister who called him. Varsha asked PW1 to bring 'ഓണപപ്പായസസ' (a sweet light meal in Kerala) to the Crl.Appeal No.1022/15 -:20:- appellant. She went to the kitchen to bring payasam and switched on the electric stove. At that time, she heard a sound of breaking of glass and a groaning "കക". PW1 rushed to the veranda. It is her version that her daughter Varsha came running to the kitchen with blood pumping out from the right side of her neck and fell on PW1's foot. Varsha was not able to speak. The appellant rushed behind Varsha with the knife. The appellant sat over Varsha and cut her neck using the knife. PW1 tried to prevent the appellant but he inflicted injuries on the right side of the nose of PW1 with knife. PW1 further deposed that she had seen the appellant inflicting injuries on Varsha multiple times using the knife. The appellant tried to hit PW1 with a stool. PW1 ran out to save herself crying aloud saying "മകളളെ ളകപ്പാല്ലുനന." PW1 fell on the step of the house and became unconscious. The incident, according to her, happened around 08.00 - 08.30 P.M. Light was on in the house. She identified the dresses and chappals worn by the appellant, deceased and herself on the date of incident. They were marked as MO3 series to MO14 series, MO16 and MO18 series to MO20. She also identified MO1 Crl.Appeal No.1022/15 -:21:- and MO2 knives used by the appellant. MO15 is the mobile phone of PW1. MO17 is the mobile phone and MO17(a) is the back cover of the phone used by the appellant. It is her further version that the appellant had attacked PW1 with the intention to kill her. MO21 is the spectacle worn by PW1 at the time of incident. During cross-examination, the case of the defence was specifically put to the witness. Exts.D1, D1(a) and D1(b) were marked through her. The cross-examination virtually admitted the presence of the appellant at the place of occurrence. PW1 was asked regarding omission as to the going of Varsha to Ernakulam for job while giving statement to police. Defence put a suggestion that the deceased was an actress in albums and serials which PW1 denied. Further, a suggestion was put to PW1 that the appellant had come on his foot and not in any autorickshaw which she denied. She was suggested with the defence version of the story that the appellant had played some recorded conversations from his mobile phone at the hearing of Varsha and she got angry and that she had thrown tea glass at the appellant with anger saying "നക നകൾപപ്പികസ ഇനല്ലേടപ്പാ" which had hit on the Crl.Appeal No.1022/15 -:22:- appellant and had broken by hitting against the wall. Then, Varsha inflicted a stab on the abdomen of the appellant and there was bleeding. Thereafter, Varsha ran to the kitchen and the appellant had followed her. Varsha gave the second blow on the appellant at the neck and a deep injury was caused to him. Blood pumped out from the neck of the appellant. There was a scuffle and in that scuffle, somehow injury was sustained to Varsha. The appellant who was calm in his stature, following the above occurrence, reached a state in which he was not able to understand what he was doing. The injuries on PW1 was caused during scuffle from somebody somehow. All the above suggestions were denied specifically by PW1.
11. PW2 is the brother of the deceased, son of PW1 and brother-in-law of the appellant. He deposed that during the relevant time, himself, PW1 and the deceased were residing in a quarters at Nedukandam, Poolappoyi. The appellant was the husband of his sister Varsha. The appellant was in the habit of physically beating Varsha due to suspicion. It is his version that he had witnessed on a Vishu day, the appellant beating Varsha. Crl.Appeal No.1022/15 -:23:- At that time, Varsha was pregnant. The appellant scolded, beat and kicked at the abdomen of Varsha then. Due to the same, the foetus was aborted. A complaint was lodged to Mukkom police in connection with the same. After the said incident, the appellant was asked not to come to the house of Varsha. Thereafter, Varsha started working at Ernakulam. In 2012, three days prior to Onam, Varsha came back home. Sheeba, Sheena, Padmini who are the younger sisters of PW1 and the mother of PW1 were also there. Next day evening, they left the place. On the date of incident, i.e., 30/08/2012, he went for a movie at 10.00 A.M. In the evening at 06.00 - 06.30, he came back. At that time, PW1 alone was there in the house. After taking bath, he had gone to the market for purchasing groceries at Omassery. By the time the film show was over, the appellant had contacted him over phone so as to know whether Varsha was available in the house. It is his version that he had disconnected the phone by telling that he didn't want to hear anything. Two times the appellant called. After PW2 reaching the quarters, the appellant had contacted PW1 also. PW1 handed over the phone to PW2. He did not venture to speak Crl.Appeal No.1022/15 -:24:- anything instead disconnected the call. It is his further version that on his way to Omassery for purchasing goods, PW1 contacted him over phone and told him that the appellant had come to the house. PW2 asked whether Varsha had reached. PW1 replied that she had come. Then PW2 asked PW1 not to allow the appellant to enter into the house. The appellant is known as Bavootti. He went to a hotel for dining and at that time PW1 called him over phone. Without listening to what she had stated, PW2 told her that he would buy curry. His friend Fahad called him and told him that there was some issue at PW2's home. He told PW2 to reach soon. As he reached his house in his bike, he saw many people gathered in front of the house. Police vehicle was also there. The appellant was in the police vehicle. His mother was taken to hospital. He came to know that his sister was no more. He identified MO9 to MO14 in Court. During cross- examination, he denied the suggestion put by the appellant that there was an affair for Varsha before her marriage and that one marriage proposal was broken due to the said fact and that Varsha had attempted to commit suicide by cutting her veins on Crl.Appeal No.1022/15 -:25:- hand. He also denied the case of the defence that the abortion took place without the consent of the appellant. He stated that the marriage between the appellant and the deceased was an arranged one. Exts.D2, D2(a), D2(b) and D2(c) were marked through him. He also denied the suggestion that Varsha acted in some albums and tele serials. He denied the suggestion that MO1 and MO2 knives were used in their house.
12. PW3 Abdul Razak deposed that he is a resident of Poolappoyi and runs a ration shop. He is also a PWD contractor. He is the one who arranged the quarters to PW1 and her children. It is under the ownership of Asharaf. The quarters is taken care of by PW3. Six months prior to the death of Varsha, PW1 and her children started residing in the said quarters. He identified the appellant as the husband of the deceased. PW1 and the wife of PW3 were classmates. On 30/08/2012 at 04.30 - 05.00 in the evening, PW3 had seen the appellant near his ration shop situated at Poolappoyi junction. He noted a red coloured cover in folded form in appellant's hands. The appellant tried to stop an autorickshaw but it did not stop. By about 08.00 P.M., he got an Crl.Appeal No.1022/15 -:26:- information that a murder took place at the quarters and people were gathered over there. He went there in his bike and found PW1 lying unconscious on the step of the quarters with bleeding. He looked through the window on the western side and saw the appellant walking from kitchen to the bedroom with a blood- stained knife in his hand. The main door was closed from inside. There was light in the veranda and inside the house. He went towards the back side of the house and looked inside and found Varsha lying in a pool of blood. The door of the kitchen was closed. There was only two doors for the quarters to come in and out. He took PW1 to hospital. Aboobaker and one policeman was also with him. PW3 is an attestor to Ext.P1 mahazar prepared for the seizure of dress of the deceased. MO3, MO18, MO19 and MO20 were identified. He also identified MO23 plastic cover the appellant was holding in the evening near his ration shop. During cross-examination, he denied the suggestion by the defence that he had not seen the appellant with MO23 plastic cover as alleged. He also denied the suggestion that he had not reached the place as alleged. Ext.D3 is marked through him.
Crl.Appeal No.1022/15-:27:-
13. PW16 is the then A.S.I. of Police, Mukkom Police Station. He suo motu registered Ext.P11 FIR. PW6 informed PW16 over phone the matter and he caused Ext.P12 GD entry for the same. Immediately he rushed to the spot along with three policemen. He had found PW1 lying unconscious with bleeding injury on her face, in the veranda of the house. On inspection, he found that both the doors of the house were locked from inside. It is his version that as he peeped through the window on the rear side, he had seen the appellant/accused moving from kitchen to the bedroom of the house. The deceased was lying in the kitchen in a pool of blood. He knocked the door but there was no response. Therefore, he broke open the door and entered in. Inside the house, he saw the appellant carrying MO1 with him. He asked the appellant to drop the knife down, which he obeyed. It is his version that, on asking, the appellant had told to PW16 that the appellant and his wife were not in good terms and he need to say a lot of things and that he was forced to do it. The appellant was found with injuries on his neck. He was taken to hospital. He arranged scene guard and went to the police station and Crl.Appeal No.1022/15 -:28:- registered the crime. Besides the knife found in the hands of the appellant, he had also found another knife over the red-coloured cover which was placed on the window. He identified MO1 as the knife in the hands of the appellant and MO2 as the knife found over the red cover. In cross-examination, he denied the suggestion that the doors were not closed from inside. He also discarded the suggestion put by the defence counsel that the appellant was found in a pool of blood in the bathroom of the house in a drowsy state. He admitted that there was blood on the body and dress of the appellant. He also denied the suggestion that MO1 was not in the hands of the appellant. He admitted that there is no mention about MO2 in Ext.P11. He also denied the case that the appellant had not spoken anything to PW16. He also denied the suggestion that people had entered into the house before PW16 reaching there.
14. Coming to the appreciation of evidence available, certain facts are either undisputed or admitted by the appellant herein. The fact of marriage between the deceased and the appellant, the fact that the deceased and the appellant were Crl.Appeal No.1022/15 -:29:- living separately, the fact that the deceased, PW1 and PW2 were residing in the quarters arranged by PW3 which is the place of occurrence, that the appellant was present at the time of incident and at the place of occurrence are admitted. He further admitted that he was injured and was inside the house while the dead body of the victim was lying inside, in a pool of blood. He has a definite case that on grave and sudden provocation and on the heat of passion owing to total loss of self control, the incident happened. He dispute and deny the prosecution case of injuries being inflicted by him on the deceased and PW1. He has a case that the deceased and PW1 received injuries from somebody else during a scuffle.
15. The defence has a further case that it was the deceased who inflicted injuries first on the appellant. They relied on Ext.P5 wound certificate of the appellant/accused issued by PW10 to show that the appellant has deep bleeding wounds on his body including his neck. The deceased was the aggressor. To see the veracity of the said argument, it is necessary to look into Ext.P5 certificate and the evidence of PW10. PW10 deposed that Crl.Appeal No.1022/15 -:30:- he had noted the following injuries on the appellant:
"1. Incised wound 1.5 cm vertical, on front midline of lower aspect of abdomen. Upper end was blunt and lower sharp. Right edge showed over hanging for 1.2 cm.
2. Incised wound 2 cm oblique, on left half of front of abdomen 4 cm outer to umbilicus. Upper right inner end was blunt and the other end sharp. Right edge showed over hanging for 1 cm.
3. Incised wound 5x0.5x0.3 cm transverse front of left forearm 7 cm above wrist. Another incised wound 2.5x0.2x0.1 cm present 0.2 cm above and parallel to the above injury.
4. Neck showed following incised wound at front aspect.
a) Incised wound 1.5x0.2 cm transverse, on left aspect of front of neck, 1 cm outer to midline and 2.5 cm above inner end of collar bone.
b) Incised wound 1.8x0.2 cm on front midline of neck, slightly oblique and 5 cm above sternal notch. Left end showed a tailing for 1 cm and was 0.8 cm above previous injury.
c) Incised wound 1.5x0.2 cm transverse on right aspect of front of neck, whose left end was 0.2 cm away previous injury.
d) Two incised wounds in crossing position (X) on front of neck at adam's apple each 3.5 cm, the confluent portion showed eversion for an area 1.2x0.5 cm.
e) Incised wound 2x0.1 cm transverse, on front of neck 0.5 cm above adam's apple.
f) Incised wound 2x0.1 cm transverse, on left aspect of Crl.Appeal No.1022/15 -:31:- front of neck, its inner end was at midline and 0.3 cm above previous injury.
5. Abrasion 1.2 cm dorsum of left thumb at inter phalangeal joint.
6. Abrasion 1.2 cm dorsum of left middle finger on proximal inter phalangeal joint."
16. PW10 in his evidence deposed that all the injuries on the appellant except two minor ones (injury nos. 5 and 6) were self inflicted. They are superficial sharp cut injuries preferably by sharp single edged knife. Those injuries could be caused using MO1 and MO2.
17. On a perusal of the evidence placed before us, we are of the view that the evidence of PW1 is categoric and credible. PW1 who is the mother of the deceased is an injured eyewitness. It is a guarantee that she was present at the place of occurrence. The motive for the crime, though assumes not much relevance in this case as direct evidence is available, is also proved by the prosecution. The appellant was seen by PW3 on 30/08/2012 in the evening around 04.30-05.00 near the ration shop of PW3. MO23 red-coloured cover was also found in his hands. Later it was recovered with MO2 knife over it from the place of occurrence by PW16. It is in evidence that the appellant was Crl.Appeal No.1022/15 -:32:- there in the house during the relevant time and that he had a conversation with the deceased at the veranda and tea and snacks were served to him by the deceased. There was an argument between the appellant and the deceased. Thereafter PW1 heard a cry and what she saw was her daughter rushing into the kitchen with bleeding injury on her neck and falling down at PW1's feet. The appellant followed her with MO1 knife on his right hand and thereafter he sat over the victim and stabbed her indiscriminately. As many as 43 ante-mortem injuries were noted on the corpse of Varsha. During the attempt to save her daughter, PW1 also sustained injuries on her nose from the appellant with MO1 knife. The appellant also allegedly tried to hit PW1 with a stool. PW1 out of fear for life, ran out and fell unconscious in the veranda with bleeding. PW3 deposed that he had seen PW1 on the veranda with bleeding injuries. He also stated that both the front and back doors of the house were closed and the appellant was seen moving from kitchen to bedroom with MO1 blood-stained knife on his hand. The deceased was lying in a pool of blood in the kitchen area. PW16 also Crl.Appeal No.1022/15 -:33:- deposed in tune with the same evidence. All these evidence corroborate the version of PW1. Evidence of PW1, PW2 and PW3 also throw sufficient light regarding the presence of the appellant in the locality prior to the incident and his seeking occasion to meet the deceased. Admittedly, he is not residing with the deceased and her family. He is residing somewhere else. It is also in evidence that they were having matrimonial dispute due to the physical assault done by the appellant on the deceased owing to his suspicion. MO1 and MO2 are stated to be not utensils in the house of PW1. MO1 was in the hands of the appellant. MO1 is stained with human blood. The explanation of the appellant and the case he put forward during cross-examination proved to be false in the light of the evidence of PW1, who is the injured eyewitness. PW1 need not falsely implicate an innocent person by sparing the actual murderer of her only daughter. Evidence of PW3 and PW16 clearly corroborates the version of PW1 as they are indicative of the subsequent conduct of the appellant after the commission of the crime. Nothing is brought out in evidence to shake the version of PW1 regarding the overt acts committed Crl.Appeal No.1022/15 -:34:- by the appellant in killing the deceased and in inflicting injuries on PW1. Medical evidence fully corroborates the oral evidence. The act of the appellant is brutal. He was prepared to kill his wife and planned it. At the 'right' moment, he executed his intention. 39 injuries out of the 43 are incised wounds. This is nothing else but murder under the first and second limb of Section 300 of IPC which is punishable under Section 302 of the same Code. The learned trial Judge is fully justified in holding that the appellant is the one who committed the overt acts that caused injuries on the deceased which led to her sad demise and his act amounts to murder.
18. Another allegation against the appellant is that during the course of the same transaction, the appellant had inflicted injuries on the nose of PW1 and due to which she became unconscious and fell on the steps of the veranda of the house. PW13 is the Doctor who examined PW1 and he is the issuer of Ext.P8 wound certificate regarding the same. He deposed that he noted the following injuries on PW1:
"Two incised wound on the root of nose."Crl.Appeal No.1022/15 -:35:-
19. Evidence of PW1 would show that the appellant used MO1 knife, a dangerous weapon to inflict injuries on the nose of PW1. Evidence of PW13 would show that PW1 had suffered two incised injuries on the nose, though the measurement of the injuries are not mentioned. PW1 also has a case that the appellant had tried to hit her with a stool. But stool is not produced nor it finds a mention in Ext.P2 scene mahazar. On analysing the evidence, it can be gathered that prosecution neither proved the nature of the injuries nor the intention of the appellant behind his deeds so as to bring the acts of the appellant on PW1 under the head of attempt to commit murder under Section 307 of I.P.C. The injury does not even prove to be qualified as one of grievous hurt as defined under Section 320 of I.P.C. Utmost, the minor injuries noted on PW1 would bring the case only under the head of simple hurt using dangerous weapons or means which is punishable under Section 324 of I.P.C. We don't find the argument of the learned counsel for the appellant in this regard as a valid one. The Court below is justified in its conclusion on that point.
Crl.Appeal No.1022/15-:36:-
20. As far as offence under Section 449 of IPC is concerned, it is proved beyond reasonable doubt that though the appellant had entered into the dwelling house of PW1 and the deceased lawfully, he remained there unlawfully and attacked the deceased and PW1 with MO1 knife. His intention is evident from his acts. There is no doubt about the fact that the appellant herein committed house trespass with the intention of committing murder of the victim. It is immaterial as to when the appellant developed the intention to commit murder. Assuming that he did not have a plan to commit murder at the time of entering the house, the moment he unlawfully remained in the house with the plan or intent to kill and do overt acts leading to the death of the inmates, the only necessary inference is that he committed an offence enumerated under Section 449 of I.P.C. In the facts and circumstances of the case, the said offence is also proved against the appellant beyond doubt.
21. Another question is whether there was any attempt on the part of the appellant to commit suicide. Evidence of PW10 and Ext.P5 would show that the appellant is found with injuries on Crl.Appeal No.1022/15 -:37:- his person as detailed earlier. It is within his special knowledge as to how he suffered such injuries which, he has to explain under Section 106 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). Here assumes the relevance of the 313 explanation of the appellant. According to him, the moment he realized that his wife is no more, he went to the bathroom of the house and attempted to commit suicide. Of course, it is settled law that based on 313 explanation alone, nobody should be convicted. But the Apex Court in a number of decisions reiterated that the explanation so given by the accused could be considered as a circumstance. In the case at hand, the appellant admitted that he had attempted to commit suicide but the manner in which he tried is not explained by him. He does not have a case that he tried to kill himself in a particular manner. Under such circumstances, the explanation given by the appellant admits his intent to suicide which is evident from the injuries noted on his body. It is immaterial whether the injuries were actually caused or were minor or major. The relevant factor is the intent of the person. Hence, evidence available would show that the appellant Crl.Appeal No.1022/15 -:38:- attempted to end his life by inflicting injuries on his person as alleged by the prosecution.
22. This is a case in which a husband resorted to a brutal and barbaric way of settling scores with his young wife who joined him in marriage. She was mercilessly inflicted with fatal injuries by the appellant by trespassing into her dwelling house causing her death. In the process, injuries were inflicted on PW1, who is appellant's own mother-in-law. He attempted to commit suicide finally. All offences stand proved as held by the trial Court. No interference is required in the matter.
The appeal lacks merit and hence deserves dismissal and we do so.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge