Kerala High Court
Suresh Kumar vs State Of Kerala Represented By Its on 18 December, 2012
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934
CRL.A.No. 2499 of 2008 (B)
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SC.1233/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM
CP.104/2007 of J.M.F.C.-II,NEYYATTINKARA
CRIME NO.102 OF 2007 OF VIZHINJAM POLICE STATION
APPELLANT(S)/ACCUSED:
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SURESH KUMAR, S/O.DHARMADAS,
D.S.NIVAS, KOLLAMKONAM, AMACHAL DESOM,
KULATHUMMAL VILLAGE, THIRUVANANTHAPURAM.
BY ADV.SRI.G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.MANU V.
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY ITS
PUBLIC PROSECUTOR AT THE HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.9.2012, THE COURT ON 18-12-2012 DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR &
C.T.RAVIKUMAR, JJ.
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Crl.A.No.2499 of 2008
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Dated this the 18th day of December, 2012
JUDGMENT
Ravikumar, J.
Appellant, the sole accused in S.C.No.1233 of 2007 was convicted under Section 302 of the Indian Penal Code by the II Additional Sessions Judge, Thiruvananthapuram for having murdered his wife Lalitha. For the said conviction, he was sentenced to imprisonment for life and a fine of Rs.50,000/- and in default to undergo simple imprisonment for a period of two years. He was also convicted under Section 382 IPC and for the said conviction he was sentenced to undergo rigorous imprisonment for a period of 10 years. The substantive sentences were ordered to be run concurrently.
2. Shorn off details, the prosecution case is as follows:-
The marriage of the deceased Lalitha with the appellant solemnized on 30.1.2007 was digamy for Lalitha and since the marriage they were residing in `Rohini Nivas' at Pulinkudi in Vizhinjam village. In the intervening night of 26th and 27th February, 2007 between 9 p.m. and 3.30 p.m. the appellant, on account of his hostility towards his wife for not yielding to his demand for selling her ornaments and immovable Crl.A.No.2499/2008 2 properties, attacked and inflicted injuries on her. He caught hold her on neck and hit the head thrice against the wall and caused injuries on her head and body and then left the place snatching away her gold ornaments. On 27.2.2007 at about 5 a.m. the appellant himself telephonically informed PW2 Surendran, the son of the uncle of the deceased, that Lalitha had fallen seriously ill in the previous night and asked him to inform the matter to PW1, the brother of Lalitha, and to fetch a taxi for taking her to hospital. Thereupon, PW1 and PW2 along with the brother and father of PW2 came to `Rohini Nivas' in a taxi. The gate and front door of the said house were lying unlocked and they found Lalitha inside the bedroom in an unconscious stage. Soon, they took her to NIMS Hospital, Neyyattinkara in the said taxi and while taking her to the taxi they noticed injuries and contusions on her body and face as also dropping of urine from her back. At NIMS Hospital Lalitha was examined by PW11 Dr.Eisen Thomas Abraham and he issued Ext.P6 wound certificate noting the cause of injury as 'assault made by her husband'. PW11 referred her to Medical College Hospital, Thiruvananthapuram. Immediately, she was taken to Medical College Hospital, Thiruvananthapuram in the same taxi and admitted there in the Intensive Care Unit on 27.2.2007 itself. PW1 went to Vizhinjam Police Station and lodged Ext.P1 First Information Statement and PW21 Crl.A.No.2499/2008 3 who recorded the same registered Ext.P1(a) F.I.R. on its basis. PW21 went to the scene of occurrence and prepared Ext.P4 scene mahazar in the presence of PW8. Lalitha remained unconscious till she succumbed to the injuries on 4.3.2007. PW20, the then Tahsildar, Neyyattinkara conducted inquest on the body of Lalitha and prepared Ext.P7 inquest report in the presence of PW12. PW21 made requisition to send the body of Lalitha for postmortem and PW14 Dr.Saritha conducted autopsy on the body of Lalitha and issued Ext.P9 postmortem certificate opining that the death was due to head injuries viz., injuries 1 to 3 noted therein. Further it is opined that injuries 1 to 3 could be caused by a hit against the wall or floor by force. Ext.P15 report relating the address of the accused and Ext.P16 report regarding incorporation of Section 302 IPC against the appellant/accused were sent to the court. PW21 also scraped and collected the gore found on the floor, the door and the wall and sent them to the court under Ext.P17. PW22 who was the Circle Inspector of Police, Nemom took over the investigation on 5.3.2007 as he was then holding the additional charge of Circle Inspector, Vizhinjam. PW22 arrested the appellant on 5.3.2007 at about 9.45 p.m. from Kattakkada bus stand. Based on the disclosure statement made by the appellant while in custody PW22 recovered MO2 gold locket, MO3 gold ring and MO4 pair of stud and Jimikki from Crl.A.No.2499/2008 4 Pavithra Jewellery, Aryasala under Ext.P8 mahazar and Ext.P13 appraisal report in the presence of PW6 and recovered MO1 gold chain from M.S. Gold Service, Balaramapuram under Ext.P10 mahazar in the presence of PW15. Thereupon, Ext.P21 report was submitted for adding offences under Sections 382 and 323 IPC. Photographs of marriage and marriage agreement were seized under Ext.P12 mahazar.
MO6 shirt and MO7 pant worn by the appellant at the time of occurrence were also recovered based on his disclosure statement under Ext.P11 seizure mahazar in the presence of PW16 and through the court they were sent to Forensic Science Laboratory. PW23 took over the investigation from 18.3.2007. He collected Ext.P6 wound certificate of the deceased Lalitha from NIMS Hospital and got prepared Ext.P14 site plan through PW19, who was the then Village Officer, Vizhinjam. After completing the investigation PW23 laid the final report before the Judicial First Class Magistrate-II, Neyyattinkara. The learned Magistrate committed the case to the Sessions Court, Thiruvananthapuram as per committal proceedings No.104/2007 and then it was made over to the court of the IInd Additional Sessions Judge, Thiruvananthapuram. Since the appellant could not engage a lawyer of his choice a counsel was appointed by the court to defend his case. After preliminary enquiry the learned Additional Sessions Judge Crl.A.No.2499/2008 5 framed charge against the appellant under Sections 302, 382 and 324 IPC. It was read over and explained to the accused/appellant in Malayalam and he pleaded not guilty.
3. To prove the charge against the appellant prosecution examined PWs 1 to 23, got marked Exts.P1 to P24 and identified MOs 1 to 7. After closing the prosecution evidence the accused was questioned under Section 313 Cr.P.C. All the incriminating circumstances put to the appellant were denied by him. Additionally, he stated that on 26.2.2007 at about 9.30 p.m. after taking his supper he went to see the 7th day festival at Mulloor Thottam Srinagar Bhagavathy Temple. It is stated further that when he returned home at about 4.30 a.m. he found the front door of the house lying opened. He called Lalitha and went inside his bedroom and saw his wife lying on the bed. Though he shook to awake her up and sprinkled water on her face she had not opened her eyes. Soon, he went to Pulinkundi junction in search of a vehicle and as no vehicle was available he went near the temple and made a call to PW2 from a shop after putting Rs.1 coin in the coin box. It was also stated that PW2 and others came to the house as per his request and while Lalitha was taken to hospital they suspiciously spoke to him and pulled him by his shirt when they were Crl.A.No.2499/2008 6 inside the car. It was also stated that after they reached NIMS Hospital he went to his house at Amachal and told his mother about the incident and then he and his mother reached NIMS Hospital. He would further state as follows:-
On query by his mother those in the hospital told her that Lalitha was taken to Medical College Hospital and thereupon he and his mother went to Medical College Hospital, Thiruvananthapuram and he, his mother and grandmother saw Lalitha there in Ward No.19. Valsalan, PW1 and PW2 then came to attack him and seeing the same his mother told him to go home along with the grandmother. It was also stated that subsequently he went twice to see Lalitha but she was in the ICU and his mother told him to go home apprehending that quarrel might take place. On 4.3.2007, his sister called him over phone and told him that Lalitha was dead. When he reached there by 2 O' Clock the women there came to beat him and they abused him. He is innocent of the offence. PW4 is the son of Lilli's sister and that he is not a milkman and he is a construction worker.
4. Finding that it was not a fit case for acquittal under Section 232 Cr.P.C. the appellant was asked to enter on his defence.
The appellant got examined his mother as DW1 and the Temple Crl.A.No.2499/2008 7 Committee Secretary of Mullur Thottam Srinagar Bhagavathy Temple as DW2 and through DW2 got marked the programme notice of the said temple for the relevant period as Ext.D1. After evaluating the evidence on record the trial court held that the prosecution has succeeded in establishing the charge against the appellant herein and found him guilty for committing the murder of his wife. It was found that the appellant has committed the offence under Section 382 IPC as well. For the conviction under Sections 302 and 382 IPC the appellant was sentenced as aforesaid. This appeal is filed against the said conviction and sentence.
5. We have heard the learned counsel appearing for the appellant and the learned Public Prosecutor.
6. There was no eye witness in this case and the prosecution relied on circumstantial evidence to fasten culpability on the appellant. The learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. There is delay in the registration of FIR and the oral testimonies of the prosecution witnesses were not credible and conclusive. The further contentions of the appellant are as follows:- Crl.A.No.2499/2008 8
The alleged motive was not proved. No sanctity could be attached to the recovery of MOs 1 to 4 allegedly made under Section 27 of the Evidence Act.
7. The learned Public Prosecutor submitted that the prosecution has succeeded in proving the case against the appellant beyond any reasonable doubt. The circumstances established by the prosecution unerringly point to the guilt of the accused. The credibility of the prosecution witnesses was not shaken despite the lengthy cross examination and that the recovery of MOs 1 to 4 effected in this case undoubtedly fell within the sweep of Section 27 of the Evidence Act. The learned Public Prosecutor further submitted that no circumstances whatsoever were brought out by the appellant inviting an appellate interference either with the conviction or with the sentence.
8. We will firstly deal with the question whether death of Lalitha was homicide. With respect to the identity of the deceased there was absolutely no dispute. PW14 who was a Lecturer in Forensic Medicine attached to Medical College, Thiruvananthapuram conducted autopsy on the body of Lalitha on 4.3.2007 and she issued Ext.P9 postmortem certificate noting the following ante-mortem injuries:- Crl.A.No.2499/2008 9
"1. Contusion 8x5x1cm on right side of head, just behind the ear extending to right side of neck, its lower extent was 5cm above root of neck and 7cm outer to midline.
Flap dissection of the neck was done under bloodless field. Upper end of right sternomastoid muscle showed contusion 3x2.5x0.2cm underneath injury. Right side of back of tongue and adjoining areas of pharyngeal wall showed contusion 4x2.5x0.5cm. All other neck structures including hyoid bone and cartilages were normal and intact.
2. Contusion 4.5x2.5x0.5cm on left side of back of head just behind ear and 10cm above root of neck.
3. Contusion of scalp 29x25cm 0.3 - 0.7 cm in thickness involving its front, top, sides and back of head. Its front extent was just above root of nose, right extent 6cm behind right ear and left extent was 2.5cm behind left ear.
Brain showed superficial contusions (1) on upper surface of left parietal lobe (11x3cm) (2) on upper outer surface of right temperoparietal lobe (9x8cm) (3) on under surface of left frontal lobe (9x8cm) (4) on under surface of left temporal lobe (10x5cm) and multiple punctate haemorrhages involving both thalamus and basal ganglias.
Subdural haematoma (1.2cm thick) and subarachnoid jaemorrhage seen bilaterally with narrowing of sulci and flattening of gyri.
4. Contusion 4x1x0.7cm on left margin of tongue just behind its tip.
5. Contusion of chest wall 12x10x2.5cm on front of chest across midline upper extent was 4cm below upper end of breast bone.
6. Contusion 5x4x0.3cm on right side of back of trunk Crl.A.No.2499/2008 10 10cm outer to midline and 18cm below top of shoulder.
7. Contusion 9x4.5x1cm on inner aspect of back wall of left side of chest 2cm outer to outer edge of vertebral bodies and involving 3rd to 5th intercostal muscles and soft tissues (seen on dissection). Lung showed contusion 7.5x5x1.5cm on back of lower lobe of left lung.
8. Contusion 5x2x0.7cm on right side of back of trunk 12cm outer to midline and 5cm above top of hip bone.
9. Contusion 8x4.5x1.3cm on left groin, its inner extent was 2cm outer to midline and 2.5cm below pubic bone.
10. Contusions 3 in number 4.5x3.5x0.5cm, 2.5x1.3x0.3cm and 1.5x1x0.1cm placed side by side 1 and 1.5cms apart on inner aspect of right arm, back one being 10cm below apex of armpit.
11. Contusion 1x0.7x0.2cm on outer aspect of right arm 12cm below tip of shoulder.
12. Contusions 2 in number 3x2x0.5cm and 1x0.7x0.2cm, placed side by side, 2cm apart on inner aspect of right arm 3cm above elbow.
13. Contusion 2x1.5x0.4cm on inner aspect of right elbow.
14. Multiple linear abrasions of sizes varying from 0.3x0.1 to 1.5x0.1cms over an area 16x13cm on inner aspect of right thigh in different directions its lower extent was 10cm above knee with multiple contusions of sizes varying from 2x1x0.1 to 4x3x0.5cms over an area 15x13cms seen underneath.
Crl.A.No.2499/2008 11
15. Linear abrasions 2 in number 0.5 and 0.3cm, oblique, 0.2cm apart placed side by side on outer aspect of right thigh 7cm above knee.
16. Multiple crescentic abrasions 16 in number varying in sizes from 0.3x0.1cm to 0.5 - 0.1cm over an area 15x3cm on back of right knee and adjoining areas of back of leg.
17. Abrasions 2 in number 0.5x0.5 and 0.3x0.1cm oblique, 1.5cm apart on outer aspect of left arm, upper back one being 10cm below tip of shoulder.
18. Contusion 1.2x0.7x0.3cm on the front of left arm 8cm above elbow.
19. Linear abrasion 2cm long obliquely placed on outer aspect of left elbow.
20. Abrasion 1x0.5cm on back of left elbow.
21. Contusion 5.5x3.4x0.6cm on front of left thigh 27cms above knee.
22. Contusion 1.5x0.5x0.3cm on front of left thigh 15cm above knee.
23. Multiple contusions of sizes varying from 0.5x0.4x0.3cm - 1x0.7x0.3cm over an area 8.5cm on inner aspect of left thigh lower extent 9cm above knee.
24. Abrasion 1x0.5cm on front of left knee.
25. Contusion 3x2x0.5cm on inner aspect of left knee.
26. Multiple cresentic abrasions 6 in number of sizes varying from 0.4x0.1 - 0.6x0.1cm over an area 3.5x3cm on back of left knee."
Crl.A.No.2499/2008 12 PW14 opined that the cause of death of Lalitha was the head injuries viz., injury Nos.1 to 3, noted as such in Ext.P9 postmortem certificate and that those injuries could be caused by a hit against a wall or floor by force. PW14 deposed that injury Nos.5 to 9 could be caused by kicking on the body and injury Nos.16 and 26 could be caused by finger nail in a scuffle. Injury Nos.12 and 13 could be caused by holding forcibly on the inner aspect of the right arm. At this juncture, it is to be noted that the defence was also not having a case that Lalitha had committed suicide. The ante-mortem injuries found on the body of Lalitha as noted above and the nature of the injuries would undoubtedly rule out a suicidal death whilst they would suggest occurrence of a scuffle and sustenance of such injuries in that scuffle. We also find no reason to disagree with the opinion that Lalitha died due to the head injuries viz., injury Nos.1 to 3, referred as such in Ext.P9 postmortem certificate, sustained by her. The nature and the number of injuries sustained by Lalitha on her body, as deposed by PW14 and evident from Ext.P9, would reveal that they were not self made. It is also to be noted that the evidence of PW14 was not seriously challenged by the defence. The evidence of PW14 with Ext.P9 would reveal the cause of death as sustenance of head injuries 1 to 3 and the nature of the injuries and the fact that they were inflicted on a vital part would make Crl.A.No.2499/2008 13 us to hold that those injuries were sufficient in the ordinary course of nature to cause death. In the circumstances, there can be no doubt that Lalitha's death was a case of homicide.
9. The next question is whether the appellant is responsible for uxoricide. To fasten him with the culpability for the homicidal death of Lalitha prosecution relied on circumstantial evidence. It is not in dispute that the appellant and the deceased alone were residing in `Rohini Nivas' and the homicide had occurred in the secrecy of that house in the intervening night of 26th and 27th February, 2007 between 9 p.m. and 3.30 a.m. PW1, who is the brother of the deceased Lalitha is the first informant. As noticed hereinbefore, one of the contentions of the appellant is that there was a delay in the registration of Exts.P1(a) F.I.R and that it is fatal to the prosecution. It is in evidence that Lalitha was taken to NIMS Hospital by PW1, PW2 and the father and brother of PW2 and on being referred to Medical College Hospital she was immediately taken to Medical College Hospital, Thiruvananthapuram and was admitted there in the Intensive Care Unit. PW1 was the first informant and no question was put to him in that regard during his cross examination. The incident occurred in the intervening night of 26th and 27th February, 2007 and Lalitha was Crl.A.No.2499/2008 14 hospitalized on 27.2.2007 and she could not regain her consciousness till she succumbed to the injuries on 4.3.2007. Ext.P1 F.I. Statement was lodged by PW1 on 2.3.2007. Taking into account the critical stage of the deceased Lalitha PW1 or any of her relatives could not be found fault with for not going to the police station of the locality concerned to inform about the incident. If at all there is any delay on the part of hospital authorities in appropriately intimating the incident to police that cannot by itself be a ground to doubt the prosecution case. Being members of the grief-stricken family due to such an unfortunate incident for PW1 and the others it might not occur immediately to them that they should give information. Ext.P1 F.I. Statement was lodged on 2.3.2007 and based on it Ext.P1(a) F.I.R. was registered on 2.3.2007 itself. No question relating delay in sending F.I.R. to the Magistrate was put to the Investigating Officer. There is no indication of fabrication and there was also no such case for the defence. In the absence of any indication of fabrication the court could not have rejected the prosecution case. We have no hesitation to hold that in the case on hand there was no delay with respect to F.I.R. that could be termed as fatal to the prosecution.
10. PW1, the brother of deceased Lalitha deposed that on Crl.A.No.2499/2008 15 27.2.2007 at about 5 a.m. the appellant telephonically informed PW2 Surendran, his uncle's son, that Lalitha had seriously fallen ill in the previous night and asked PW2 to inform that matter to him (PW1) and to fetch a taxi to take Lalitha to hospital. He would further depose that on being informed he along with PW2 and brother and father of PW2 went to `Rohini Nivas' in a taxi. According to him, when they reached there, the gate and door of the house were lying unlocked and when they went inside the bedroom they found Lalitha in an unconscious stage. He deposed that injuries and contusions on the body of Lalitha were noticed and urine was being dropped from her back when she was being taken to the taxi. She was referred to Medical College Hospital from NIMS Hospital and was admitted in the ICU and she could not regain her consciousness till she succumbed to the injuries, going by the evidence of PW1. He would also depose that while being taken to hospital Lalitha was having only a silver anklet as ornament on her body and in fact, at the time of her marriage she was given a gold chain, a pair of stud and jimikki and a gold ring besides 25 cents of land. It was also deposed that the marriage of Lalitha with the appellant was her second marriage and that after the marriage the appellant and the deceased were residing in that rented house where the homicidal death had occurred. During the cross examination of PW1 it was brought out Crl.A.No.2499/2008 16 that when he and others reached `Rohini Nivas' in the taxi the appellant was not there and that he had not come to the hospital till she breathed her last. PW1 had also identified MOs 1 to 4. The defence did not dispute the marriage and no serious challenge was put against the fact that at the time of marriage she was given a pair of gold stud and jimikki, a gold chain and a gold ring. It is evident from the tenor of the cross examination that the suggestion was that she had sustained injuries in a scuffle with a thief when he attempted to snatch away her gold ornaments while the appellant was away to see the 7th day festival at Mulloor Thottam Srinagar Bhagavathy Temple. There was no serious dispute with respect to the identity of MOs 1 to 4.
11. PW2 Surendran is the son of the uncle of the deceased. He would depose that on 27.2.2007 at about 5 a.m. he received a telephone call from the appellant asking him to inform PW1 that Lalitha had fallen ill at about 9.30 p.m. on 26.2.2007 and to remove her to a hospital. He would also depose that thereupon he intimated the matter to PW1 and he along with PW1 and his father and brother came to the house wherein the appellant and the deceased were residing. PW2 deposed that when they reached there the gate and the front door of the house were lying unlocked and they got inside and went to the Crl.A.No.2499/2008 17 bedroom and found Lalitha on her cot lying in an unconscious stage. Even after sprinkling water on her face she had not regained her consciousness and immediately she was taken to hospital in the taxi in which they came to that house. He also deposed that he had noticed injuries and contusions on the body of Lalitha and also dropping of urine from her back while being taken to the taxi. He would further depose that she was taken to NIMS Hospital and from there she was taken to Medical College Hospital, Thiruvananthapuram and was admitted in the ICU. He would also depose that Lalitha had not regained her consciousness till she breathed her last on 4.3.2007. It is further deposed that when they came to the house the appellant was not there and he had not attended even the obsequies. At the time of marriage the deceased Lalitha was given three sovereigns and 25 cents of land and he identified MO1 gold chain, MO2 gold locket, MO3 gold ring and MO4 pair of stud and jimikki as the ornaments which were given at the time of marriage. PW3 Vinod is the driver of the taxi in which PWs 1 and 2 along with others came to `Rohini Nivas' on being informed by the appellant. He would depose that he had attended the marriage of the deceased Lalitha with the appellant and that PW2 hired his taxi on 27.2.2007 and at about 5 - 5.30 a.m. when they reached the rented house of the appellant the gate of the compound was not locked. He Crl.A.No.2499/2008 18 deposed that PWs 1, 2 and the father of PW2 entered the house and in his taxi Lalitha was taken to NIMS Hospital and he too, had noticed contusions and injuries on her face and lower chin. Blood stains were also seen on the back of her body and urine was falling from his back drop by drop. He would depose that from there in his taxi Lalitha was taken to Medical College Hospital, Thiruvananthapuram and according to him, the appellant was not there in the house when they reached there. He deposed that he had attended the funeral ceremony of the deceased and he had not seen the appellant there at the time of funeral. PW5 Saraswathy is a neighbour of the appellant and the deceased. She had turned hostile to the prosecution. However, it is evident from her evidence that she had witnessed the removal of a person in a taxi by three others from the house where the appellant and the deceased were residing. Thus, the evidence of PWs 1 to 3 would reveal that in the early morning of 27.2.2007 they all reached the house of the appellant wherein he was residing with his wife and they could not find the appellant therein and the gate and the front door of the house were kept open. The evidence of PW1 that he found Lalitha inside the bedroom in an unconscious stage and contusions and injuries were found on her face and body were all corroborated by the evidence of PW2. The absence of the appellant spoken of by PW1 was also Crl.A.No.2499/2008 19 corroborated by PW2 and PW3. PWs 2 and 3 also corroborate the evidence of PW1 that the appellant was not there and naturally he had not accompanied Lalitha in the taxi when she was taken to NIMS Hospital and then to Medical College Hospital, Thiruvananthapuram on 27.2.2007 and also that he had not participated in her obsequies. The evidence of PW1 that at the time of marriage Lalitha was given MOs 1 to 4 gold ornaments also corroborated by the evidence of PW2. Both PWs 1 and 2 identified MOs 1 to 4. PW6 Sreenivasan is the owner of Pavithra Jewellery, Aryasala. He would depose that the appellant came to his Jewellery with a pair of gold stud and jimikki, one gold ring and one gold locket and that he purchased them. He would further depose that after two days police came to his Jewellery along with the appellant and seized the said gold ornaments after preparing Ext.P8 mahazar and he identified MOs 2 to 4 as the gold locket, gold ring, pair of stud and jimikki seized from his Jewellery. PW7 is the proprietor of M.S. Gold Service and he would depose that the appellant came to his shop for selling a gold chain and that he purchased the same. He would also depose that subsequently police came to his jewellery along with the appellant and MO1 gold chain was seized from his shop. PW8 Padmasanan is the owner of the rented house whereon the appellant and the deceased were residing. He is a retired Village Officer and he Crl.A.No.2499/2008 20 deposed that the father of the appellant took the residential house in question on rent by executing a lease agreement and thereafter the appellant and the deceased were residing in that house. True that, according to him, the appellant's mother was also residing there. However, his evidence to that effect was not corroborated by any other witness. He was an attesting witness to Ext.P4 scene mahazar and he would depose that he had seen blood stains in the room and also on the eastern wall of the room and western floor. PW11 Dr.Eisen Thomas Abraham was the Casualty Medical Officer attached to NIMS Hospital, Neyyattinkara and he deposed that on 27.2.2007 at about 7.10 a.m. he examined one Lalitha at NIMS Hospital brought by her brother Robinson (PW1). He further deposed that she was brought to the hospital in an unconscious stage. There were injuries on her face, left side of head and there were contusions on the left side of head and they were noted in Ext.P6 wound certificate besides noting the cause of injuries as `assault made by her husband'. He would depose that the alleged accident was recorded based on the information furnished by PW1 and that Lalitha was referred to Medical College Hospital. PW13 was a goldsmith in Pavithra Jewellery at the relevant point of time and he would depose that he attested as a witness to Ext.P8 mahazar under which MOs 2 to 4 series were seized. He also deposed that MOs 2 to 4 Crl.A.No.2499/2008 21 were recovered from Pavithra Jewellery by the police and at that time the appellant was also present. PW15 was a salesman in M.S. Gold Service, Balaramapuram at the relevant point of time and he would depose that he was an attesting witness to Ext.P10 mahazar under which MO1 gold chain was recovered by the police from M.S. Gold Service in the presence of the appellant. PW16 is the attesting witness to Ext.P11 mahazar under which MO6 shirt and MO7 pant were recovered from the house of the appellant by the police in the presence of the appellant. PW18, the then Assistant Director, Zerology Division of Forensic Science Laboratory, Thiruvananthapuram prepared Ext.P13 forensic analysis report and Ext.P13 would reveal that MO7 pant contained blood stains but it was insufficient for determination of its origin. The evidence of PW11 and 14 respectively with Exts.P6 and P9 would tally with the case of the prosecution that no weapon was used to inflict injuries on the body of the deceased Lalitha and that injury Nos.1 to 3 could be caused by a forcible hit against the wall or floor.
12. The evidence of PWs 1 and 2 would reveal that the appellant and the deceased alone were residing in `Rohini Nivas' where homicidal death of Lalitha had occurred. Their evidence that they had reached the said house in a taxi in the early morning of 27.2.2007 and Crl.A.No.2499/2008 22 removed Lalitha firstly to NIMS Hospital and then to Medical College Hospital, Thiruvananthapuram in the said taxi and that they found injuries on the face and head of Lalitha were corroborated one another and their evidence gained support from the evidence of PW3. It has also come out in evidence that when they reached `Rohini Nivas' the gate and the door of that house were lying opened, that the appellant was not seen there, that they removed Lalitha to NIMS Hospital and later to Medical College Hospital, Thiruvananthapuram and that the appellant was not there along with them when they moved Lalitha to NIMS Hospital and later to Medical College Hospital, Thiruvananthapuram. As noticed hereinbefore, the marriage with Lalitha was admitted by the appellant and he admitted that he and Lalitha were residing in the rented house at Pulinkudi as husband and wife. There is also no serious dispute regarding the fact that at the time of marriage Lalitha was given a gold chain, a gold locket, a gold ring, a pair of stud and jimikki and 25 cents of land. The appellant stated during his examination under Section 313 Cr.P.C. that at about 5 a.m. on 27.2.2007 he telephonically informed PW2 that Lalitha had fallen ill at about 9.30 p.m. on the previous night and sought to take her to hospital. More importantly, the appellant would admit during his examination under Section 313 Cr.P.C. that the deceased was lying Crl.A.No.2499/2008 23 unconscious and injuries and contusions were found on her head and face. The appellant did not seriously dispute the fact that a silver anklet alone was there on the body of Lalitha when she was taken to the hospital. More importantly, in his statement under Section 313 Cr.P.C. he disclosed that he did not know anything about the fact that Lalitha was taken to Medical College Hospital, Thiruvananthapuram and till she breathed her last on 4.3.2007 she had not regained her consciousness. The evidence of PWs 1 to 3 that the appellant had not participated in the obsequies of Lalitha is virtually admitted by the appellant himself. Thus, the evidence on record would reveal that the appellant and the deceased alone were residing in `Rohini Nivas' and the homicidal death of Lalitha had occurred there in the intervening night of 26th and 27th February, 2007. When once it is established that the appellant and the deceased, the husband and the wife, alone were residing in a house and that the homicidal death of the wife had occurred in that house, the appellant was bound to offer explanation as to how the death of his wife had occurred. In that context, it is apposite to refer to the decision of the Hon'ble Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra ((2006) 10 SCC 681) wherein it was held thus:
Crl.A.No.2499/2008 24
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
21. In a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. (See State of T.N. v. Rajendran ((1999) 8 SCC 679 para6); State of U.P. v. Dr.Ravindra Prakash Mittal ((1992) 3 SCC 300 para 39 : AIR para 40); State of Maharashtra v. Suresh ((2000) 1 SCC 471 para 27); Ganesh Lal v. State of Rajasthan ((2002) 1 SCC 731 para 15) and Gulab Chand v. State of M.P. ((1995) 3 SCC 574 para 4)."
In the said decision the Hon'ble Supreme Court held that in circumstances where homicidal death of wife occurred in a house where the husband and wife alone were residing, the husband had to offer Crl.A.No.2499/2008 25 explanation as to how the death had occurred and failure to offer explanation or giving a false explanation would be an additional link in the chain of circumstances in a case of circumstantial evidence. In the said circumstances, there is little doubt that the appellant who was residing along with his wife in `Rohini Nivas' had to offer an explanation as to how death of Lalitha had occurred. While being questioned under Section 313 Cr.P.C. the appellant stated that at about 9.30p.m. on 26.2.2007 after taking his supper he went to Mullur Thottam Srinagar Bhagavathy Temple to see the 7th day festival and came back house only at about 3.30 a.m. in the morning. Further it was stated by him that he found the front door of the house lying opened and when he went inside he found his wife lying on the bed unconsciously in the bedroom. It was further stated by him that though he sprinkled water on her face there was no response from her and that she went to Pulinkudi junction in search of a vehicle and went near the temple and made a phone call to PW2 from a shop and informed him about the fact. We have already adverted to the statement additionally made by the appellant at the time of his examination under Section 313 Cr.P.C. Evidently, the explanation furnished by the appellant at the time of his examination under Section 313 Cr.P.C. would suggest that at the relevant point of time he was not there in the house and at about Crl.A.No.2499/2008 26 9.30 p.m. on 26.2.2007 he went to see the 7th day festival at Mullur Thottam Srinagar Bhagavathy Temple and returned home only at about 3.30 a.m. in the next day morning viz., on 27.2.2007. When such an explanation was furnished by the appellant in his examination under Section 313 Cr.P.C., the appellant had to prove the same in view of the provisions of Section 106 of the Evidence Act. In this context, it is only apposite to refer to the decision of the Hon'ble Supreme Court in Haresh Mohandas Rajput v. State of Maharashtra reported in AIR 2011 SC 3681. Though the appellant furnished such an explanation he had miserably failed to prove the same. In such circumstances, it can only be taken that the appellant had offered only a false explanation. The liability of the appellant to offer an explanation for the homicidal death of Lalitha occurred at `Rohini Nivas' where he and Lalitha alone were residing cannot be disputed in the light of the decision of the Supreme Court in Trimukh Maroti Kirkan's case (supra). In the light of Haresh Mohandas Rajput's case (supra) and in view of the provisions under Section 106 of the Evidence Act the appellant had to prove the explanation which had offered. The failure on the part of the appellant to prove the same would constrain us to hold that it was a false explanation from the part of the appellant and therefore, in the light of the decision of the Supreme Court Trimukh Maroti Kirkan's Crl.A.No.2499/2008 27 case (supra) offer of a false explanation would act as an additional link in the chain of circumstances against the appellant. The plea of the appellant is certainly a plea of alibi. The plea of alibi postulates the physical impossibility of the presence of the accused at the place of occurrence at the relevant time by reason of his presence elsewhere. Strict proof is required to prove the plea of alibi and undoubtedly, the entire burden is on the accused once he took such a plea. If a plea of alibi is set up, then it must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned during the occurrence. The evidence of DW1, the mother of the appellant, would reveal that she was not present in the house in question at the relevant time and her evidence regarding the absence of the accused at the relevant point of time is only hearsay evidence. As regards the evidence of DW2, he deposed that he got no acquaintance with the appellant. Going by Section 103 of the Indian Evidence Act the burden of proof as to any particular fact lies on the person who wishes the court to believe its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. At any rate, it is not the burden of the prosecution to prove that the accused was absent in the house. In this case, the appellant Crl.A.No.2499/2008 28 could not prove that he was absent in the house at the relevant point of time.
13. Though the appellant attempted to raise challenge against the recovery of MOs 1 to 4 which were the gold ornaments belonging to the deceased and found missing from the body of the deceased, the evidence of PWs 6, 7 and 15 would reveal that MOs 1 to 4 were recovered under Exts.P8 and P10 mahazars respectively from Pavithra Jewellery and M.S. Gold Service. PWs 1 and 2 identified MOs 1 to 4 as the said gold chain, gold locket, gold ring and a pair of stud and jimikki belonging to the deceased that were given at the time of her marriage with the appellant. Evidently, MOs 1 to 4 were recovered from the shops of PWs 6 and 7 within a couple of weeks from the date of occurrence. The evidence of PWs 6 and 7 as also PWs12 and 15 would reveal that MOs 1 to 4 were recovered from Pavithra Jewellery, Aryasala and M.S. Gold Service, Balaramapuram in the presence of the appellant and PWs 6 and 7 identified that those respective ornaments which were recovered from the respective shops were brought to them by the appellant. The evidence of PW22 that MO2 to MO4 were recovered based on the information furnished by the appellant in the disclosure statement proved by him, also was not shaken by the Crl.A.No.2499/2008 29 defence. In this context, it is also to be noted the fact that those ornaments were given to the deceased Lalitha at the time of her marriage with him was not seriously disputed by the appellant. In such circumstances, when no plausible explanation from the part of the appellant as to how those ornaments reached the hands of PWs 6 and 7 immediately after the murder, it has to be held that murder and the robbery have been proved as integral part of the same transaction. In such circumstances, the presumption rising from illustration (a) of Section 114 of the Evidence Act is that the appellant not only caused the death of Lalitha but also committed robbery of her ornaments. In the contextual situation obtained in this case it is apposite to refer to the decision of the Hon'ble Apex Court in Mukund alias Kundu Mishra and another v. State of Madhya Pradesh (AIR 1997 SC 2622). Going by the said decision once the missing ornaments from the body of a deceased were found on the information furnished by the concerned accused and if such recovery was made immediately after the incident, such recovery, based on illustration (a) to Section 114 of the Indian Evidence Act, would connect the accused concerned not only with the robbery but also with the commission of the crime. The evidence as discussed above would thus reveal that the prosecution has succeeded in establishing the existence of a chain of circumstances Crl.A.No.2499/2008 30 which is so complete and conclusive and also they unerringly point to the guilt of the appellant and they would show that in all human probability the act must have been done by the appellant and none else. In view of the evidence on record we find no reason to disagree with the finding of the trial court that the appellant was responsible for the homicidal death of Lalitha.
14. The next question is what is the offence committed by the appellant ? The evidence of PW11 and PW14 with Ext.P6 wound certificate and Ext.P9 postmortem certificate would reveal that the deceased Lalitha had sustained injuries on her head besides the various other injuries found on the head and face. Head injuries 1 to 3 sustained by Lalitha was the cause of her death and the nature of those injuries would undoubtedly reveal that they were sufficient in the ordinary course of nature to cause death. Those injuries could not be said to have been inflicted accidentally and those particular injuries were intentionally inflicted by the appellant. In the said circumstances, clause thirdly of Section 300 IPC would apply. No exceptions under Section 300 IPC is applicable in this case. It be so, we have to hold that the appellant was rightly found guilty for the offence punishable under Section 302 IPC by the trial court.
Crl.A.No.2499/2008 31
15. The evidence as discussed above would also make us to concur with the finding of the trial court that the appellant had committed the robbery after preparation for causing death of Lalitha. The prosecution has succeeded in establishing that the gold ornaments were snatched away from Lalitha by the appellant after inflicting serious injuries on her which were sufficient in the ordinary course of nature to cause death and that those injuries ultimately caused her death and those ornaments were removed from out of the possession of Lalitha with dishonest intention and that they were sold by the appellant to PWs6 and 7. In the said circumstances, it can only be found that all the ingredients to attract the offence under Section 382 IPC were also proved against the appellant. In such circumstances, the conviction of the appellant under Section 382 IPC also can be said to be only legal.
16. The only question now remaining to be answered is what is the sentence to be awarded to the appellant for the commission of the aforesaid offence. Obviously, for the conviction under Section 302 IPC the trial court awarded only the lesser sentence of life imprisonment to the appellant. When that be so, there is no reason to interfere with the sentence imposed against the appellant under Section Crl.A.No.2499/2008 32 302 IPC. Evidently, the appellant was imposed with the sentence to undergo rigorous imprisonment for a period of 10 years and the substantive sentences imposed against the appellant were ordered to be run concurrently and therefore there is no need to interfere with the sentence imposed against the appellant for the conviction under Section 302 IPC.
In the result, the appeal is dismissed. The conviction and the sentence of the appellant under Sections 302 and 382 IPC are confirmed. The substantive sentences shall run concurrently as has been ordered by the trial court. The appellant would be entitled to set off for the period of detention he had already undergone in terms of Section 428 Cr.P.C. subject to the orders if passed by the competent authority under Section 432 or 433 of Cr.P.C.
Sd/-
M.SASIDHARAN NAMBIAR Judge Sd/-
C.T.RAVIKUMAR Judge TKS