Kerala High Court
Paul vs State Of Kerala on 29 October, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940
CRL.A.No. 1549 of 2012
AGAINST THE JUDGMENT IN SC 281/2003 of PRL.SESSIONS COURT,
ERNAKULAM DATED 10-12-2012
APPELLANT/ACCUSED:
PAUL, S/O CHANDI,
CHIRAMEL PARAMBIL VEETTIL, CHILAVANNOOR DESOM
ELAMKULAM VILLAGE, PINCODE 682 020
BY ADV. ADV. JAYASHANKAR K (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM PINCODE 682 031
BY ADV. PP.SRI. K.B. UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.10.2018, THE COURT 29.10.2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.1549/2012
-:2:-
JUDGMENT
Shaffique, J.
This appeal is filed by the 1st accused against the judgment dated 10/12/2012 in S.C. No. 281/2003 passed by the learned Principal Sessions Judge, Ernakulam by which the appellant is found guilty under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and hence convicted and sentenced to undergo rigorous imprisonment for life and also held liable to pay an amount of `10,000/ (Rupees Ten thousand only) and in default to undergo imprisonment for six months.
2. The case has the following history as far as trial is concerned: Husband and mother-in-law of the deceased were charge-sheeted for offences under Sections 498-A, 302 read with S.34 of the IPC for causing death of Jessy who is the wife of the 1 st accused and daughter-in-law of the 2 nd accused. The accused were tried by the learned Additional Sessions Judge (Ad hoc - II) and both of them were acquitted vide judgment dated 18 th February 2005. Subsequent to the trial, second accused expired.
3. State challenged the acquittal before this Court in Crl.Appeal No. 1488/2007 and a Division Bench of this Court as per judgment dated 29/03/2012, allowed the criminal appeal in Crl.Appeal No.1549/2012 -:3:- part and set aside the judgment of acquittal in so far as it related to the 1st accused. It was remanded to the trial Court with a direction to dispose of the matter afresh by continuing the proceedings from the stage of examination under S.313 of the Cr.P.C. After trial, the Principal Sessions Judge, Ernakulam passed the above judgment, which is under challenge now.
4. The case of the prosecution is as follows:
The deceased Jessy was the wife of 1 st accused and daughter-in-law of the 2nd accused. 1st accused married Jessy on 31/08/1997. Prosecution allegation is that ever since the marriage, Jessy was subjected to physical and mental cruelty at the hands of both the accused. On 11/10/1998, the 2 nd accused created a scene in their home and due to unbearable harassment, deceased Jessy left the home in search of her husband and found him consuming liquor with his friends. According to the prosecution, the presence of Jessy there irritated the 1st accused and he assaulted her in front of his friends. On the same day, at about 11 hours in the night, the 1 st accused throttled Jessy to death. Prosecution sought to convict both the accused for offences under Sections 498-A, 302 read with Section 34 of the IPC.Crl.Appeal No.1549/2012
-:4:-
5. Prosecution examined PWs 1 to 21 and Exts. P1 to P18 documents were produced and marked. Ext.C1 is the chemical analysis report and MO1 is marked as material object.
6. The learned Counsel appearing for and on behalf of the appellant, Shri.K.Jayashankar argued that the case is fabricated and the appellant is falsely implicated in this case based on imaginary suspicion. In fact, the accused were acquitted by the trial Court vide judgment dated 18/02/2005. This Hon'ble Court remanded the matter with a direction to dispose of the matter afresh by continuing the proceedings from the stage of examination under S.313 of the Cr.P.C. During the course of the trial, second accused, who is the mother of the first accused, expired. The trial Court, on further trial, concluded that the first accused is guilty under Section 302 of I.P.C and convicted him. The trial Court erred in arriving at such a conclusion as the prosecution did not even prove conclusively the cause of death, whether suicide or homicide. There is no evidence in this case to hold the accused as the murderer or even to connect him with the alleged offence. The investigation was not proper. Medical evidence and other scientific evidence show that it is a case of suicide. Blood group of the accused and the deceased were not Crl.Appeal No.1549/2012 -:5:- brought in evidence. There is no evidence to prove that the pillow and frock recovered were that of the deceased. Theirs is a joint- family. There are other women in the house. There are serious discrepancies in the inquest report and post mortem report regarding injuries found on the body of the deceased. The wounds are at least 4 days older from the date of incident. Hence, if at all admitted for argument sake, the accused has no burden to explain those wounds under Section 106 of the Evidence Act. According to the counsel, this is a case of suicide. He relied on the book written by Dr. B.Umadathan and quoted from pages 364-365 to show the symptoms of suicide death. He argued that based on the evidence on record, the only conclusion possible is that the death of Jessy was a suicide. There is no direct evidence in this case. Prosecution failed to prove beyond reasonable doubt the so called circumstances against the accused. Witnesses cited by the prosecution to prove that there was a quarrel in the house of the deceased and that the first accused assaulted the deceased in front of his friends turned hostile. Even the Court below found that no offence of S.498-A is proved by the prosecution. The shawl allegedly used to strangulate the deceased was not recovered from the scene of Crl.Appeal No.1549/2012 -:6:- occurrence. The incident happened in the year 1998 and the site plan was prepared only in 2002. At the time of arrest of the accused, medical examination was conducted. But no report is marked. There is no sign of resistance from the lady. The police constable who did the scene guard is not examined. Last seen together theory cannot be said to be applicable here. The prosecution allegation in the charge regarding the cause of death and the cause of death revealed by the available evidence are not tallying. Motive is not proved by the prosecution. Suspicion however strong cannot take the place of evidence. According to the learned counsel, the appellant is innocent and hence need to be acquitted. He placed reliance on the following proposition/decisions:-
(i) In Hallu and Others v. State of M.P. (AIR 1974 SC 1936), the Apex Court held that, if two views are possible, High Court should not interfere with the order of acquittal.
(ii) Arun Bhakta v. State of West Bengal (AIR 2009 SC 1228), State (Delhi Administration) v. Gulzarilal Tandon (AIR 1979 SC 1382), Jagta v. State of Haryana (AIR 1974 SC 1545) and Pohalya Motya Valvi v. State of Maharashtra [(1980) 1 SCC 530] have been cited for the proposition that Crl.Appeal No.1549/2012 -:7:- burden of proof lies on the prosecution to prove that chain is complete. Conviction on the basis of circumstantial evidence is permissible only when all facts established are consistent with the hypothesis of guilt of the accused alone.
(iii) Asokan v. State of Kerala (1982 Crl.L.J.173) and Mohinder Singh v. The State (AIR 1953 SC 415) had been cited to emphasise the elementary principle that the prosecution must prove its whole case and initial burden of proof is always on the prosecution.
(iv) Bhagwan Singh v. The State of Haryana (AIR 1976 SC 202) had been cited to bring home the proposition regarding the extent of admissibility of evidence of hostile witness.
(v) Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra (AIR 2008 SC 1184) and Shantabai and Ors. v.
State of Maharashtra (AIR 2008 SC 1571) have been referred, which dealt with the aspect of disparity in blood stains found on the recovered article and clothes of the victim.
(vi) In Jethalal v. State (AIR 1968 Gujarat 163 (V.55 C
22), Shambhu Nath Mehra v. State of Ajmer (AIR 1956 SC
404) and Joydeb Patra and Others v. State of West Bengal (AIR 2013 SC 2878), the Apex Court held that the facts must be Crl.Appeal No.1549/2012 -:8:- within special knowledge of accused, otherwise, onus is not on him.
7. On the other hand, the learned Public Prosecutor argued that the case is proved by the prosecution beyond the shadow of reasonable doubt. As per the mahazar, there is no shawl in the room. The specific case of the prosecution is that the appellant inflicted injuries on the person of the deceased and killed her by throttling around the neck with his hands. The ocular, medical and other scientific evidence prove the prosecution version regarding the cause of death and the involvement of the appellant in the death of his wife, beyond reasonable doubt. The trial Court is justified in holding that the appellant is guilty and hence this Court may be pleased to uphold the conviction and sentence passed by the trial Court, for the furtherance of justice.
8. We heard both the counsel and perused the records.
9. There is no doubt that the propositions cited above are well settled. But each case has to be decided based on its own facts and circumstances.
10. As admitted by both parties, there is no eyewitness in the case. Prosecution relies on circumstantial evidence to prove Crl.Appeal No.1549/2012 -:9:- their case. The definite case of the prosecution is that, on 11/10/1998, during night time, the appellant and the deceased were in their home and there was a quarrel between them. The appellant beat the deceased with his hands and physically abused otherwise also. She was throttled around her neck by the appellant with his hands and that resulted in her death. On the other hand, the appellant has a specific case that Jessy committed suicide and appellant is innocent.
11. The prosecution version and the defence story point to two possibilities. One of homicide and the other of suicide. The main question to be determined is whether the Court below is justified in convicting the appellant by finding that the materials available prove beyond reasonable doubt that the appellant committed murder of the deceased as alleged by the prosecution. The conclusion in this case had to be drawn from circumstantial evidence.
12. PW1 is the brother of the deceased. He lodged Ext.P1 F.I. Statement and based on that information, on 12/10/1998, Ext.P1(a) FIR was registered.
13. It is admitted fact that the appellant was living with his wife in a joint-family and a separate bedroom was allotted to Crl.Appeal No.1549/2012 -:10:- them. The alleged incident occurred in the privacy of the bedroom of the appellant and it happened during midnight.
14. Evidence of PW7 to PW9 shows that on the date of incident, Paul, PW7, PW8 and PW9 had consumed liquor at the house of PW7 and the deceased Jessy reached there by 7 p.m. It is admitted by the appellant also. It is also in evidence that the appellant abused Jessy physically in front of them and both the appellant and Jessy went together in appellant's auto. This improbabilize the explanation of the appellant that he was thoroughly intoxicated and was unable to walk on his own.
15. The definite case of the defence is that Jessy was depressed as she did not bear any child and she was unhappy with the drinking habit of Paul. But the unchallenged version of PW10, the mother of Jessy indicates that Jessy became pregnant once and the foetus was aborted. Nothing is brought out in evidence to show that Jessy was medically unfit to give birth to a child thereafter. Also, both PW1 and PW10 categorically deposed that Jessy was not under any circumstance to end her life on her own. These aspects are not even challenged in the cross- examination of these witnesses. Nothing is brought in evidence to show that Jessy was having motivation or circumstances which Crl.Appeal No.1549/2012 -:11:- compel her to commit suicide.
16. Ext.P5 inquest report proved through PW1 shows that death of Jessy, wife of the appellant, was an unnatural death. Ante-mortem injuries seen on the body of the deceased were described in columns 7 and 8 of Ext.P5. They include swelling on the middle of the forehead, abrasion on the left cheek and injuries on the neck. PW1 Freddy, who is the brother of the deceased, deposed that he noted those injuries on the dead body of his sister while he was in the hospital. He is an attestor to Ext.P5. According to PW1 and PW10, the appellant and his relatives lied to them regarding the death of Jessy and none of the people from their side participated in the cremation of Jessy. This version is not denied by the defence in cross-examination.
17. Coming to the medical evidence, Ext.P9 post-mortem certificate is proved through PW16, Dr. Siva Sudan. The following ante-mortem injuries were noted in Ext.P9.
"1. Contusion 3x3x0.5 cm on the forehead in midline, 4 cm above the root of nose.
2. Abrasion 1x0.2cm vertical on left side of face, 3 cm on front of lobule of left ear.
3. Abrasion 0.8 cm x0.3 cm almost horizontal on right side of neck, 2.5 cm to right of midline and 2.5 cm below the jaw bone. Underneath the sterno thyroid muscle was found bruised over on area 2x 1.5 cm. The right superior Crl.Appeal No.1549/2012 -:12:- horn of thyroid cartilage was found fractured with infiltration of blood around.
4. Abrasion 1.5x0.2 cm almost vertical on front of right lower chest, 24 cm below the right collar bone and 8 cm to right of midline.
5. Contusion 2.5x2x0.5 cm on outer aspect of left arm, 8 cm below the tip of shoulder.
6. Abrasion 1x0.2 cm on the back of inner aspect of left elbow.
7. Contusion 1.5x1.5x2cm on the back of right forearm 15 cm above the elbow.
8. Arc like healing abrasion 3x0.1 cm on front of chest with its convexity towards right side, 10 cm below the right collar bone and 1 cm to right of midline (covered with easily removable black scab)"
18. PW16 opined that the post-mortem findings are consistent with death due to blunt force applied to neck. According to PW16, injury nos. 2, 3, 4 and 6 could be caused if that portion of the body came into contact with a rough hand. It is his version that injury no.3 would not have been caused by tying a shawl around the neck in a ligature strangulation. Injury no. 3 could not be self-inflicted. It is his opinion that absence of injuries on the back side of the neck is important because in the case of suicide by hanging, possibility of having such injury on the back side of the neck is also highly probable. Here, there is no abrasion on the back side of the neck of the deceased. Suggestions put forth by the defence counsel about the possibility of suicidal Crl.Appeal No.1549/2012 -:13:- death is negated by PW16 during his thorough cross-examination. Also, no suggestion was put to the Doctor by the defence that Jessy met with death on account of any natural cause.
19. PW15, Dr. Sasi, collected nail clippings from the body of both the deceased and the appellant and also collected blood samples of the deceased. The defence tried to put a case that the presence of human blood, as per Ext.C1 chemical analysis report, in the nail clippings taken from both the accused and the deceased was on account of an attempt by the deceased and the appellant to untie the noose around her neck. PW15, by completely negating that possibility, deposed that once the ligature was fastened firmly around the neck, the victim would become unconscious and he or she would not be able to lift his/her upper limbs to loosen the ligature. It is relevant to note that during 313 examination of the appellant, he stated that his brothers (PWs 2 and 3) untied the shawl alleged to have been used by Jessy to commit suicide. Appellant has no case that he untied the shawl which was tied around the neck of the victim. These evidence, as rightly held by the learned Sessions Judge, improbabilize the version of defence.
20. It is seen that blunt force is applied on the neck of the Crl.Appeal No.1549/2012 -:14:- deceased and it led to her death. No shawl is recovered from the scene of occurrence. The specific case of the appellant is that his wife committed suicide. But the evidence only points to the hypothesis put forth by the prosecution and it negates the defence version. It is admitted by the appellant that at the time of incident he and his wife were together in the bedroom of the house. It is in evidence that the appellant and the deceased were last seen together in their bedroom by inmates of house and thereafter she was not seen alive. No specific contention is made by the appellant as to how the deceased sustained the injuries. As held by the learned Sessions Judge, the circumstance of the case at hand compells our prudence also to bring in S.106 of the Evidence Act to the situation which requires the appellant herein to explain what is within his special knowledge and nobody else. Burden is upon him to explain what happened to his wife during the time they were together in their bedroom at the relevant time.
21. The subsequent 313 statement of the appellant assumes importance here. In the subsequent 313 statement made by the appellant, he presented his case in detail. He contended that he is innocent. He and his wife Jessy were living a Crl.Appeal No.1549/2012 -:15:- happy married life. Jessy had dejection and objection about his drinking habit. Jessy was also desperate for not having children. He admitted that, on 11/10/1998, he consumed alcohol along with PWs 7 to 9 at the house of PW7. At about 7 p.m. Jessy came there in search of him and he went with her. He was heavily drunk. Jessy, in fact, supported him as he was finding it difficult to walk under the influence of alcohol. He had a separate bed room in his house. Jessy took him to the bed room and laid him on a cot. At that time his mother (A2 in the case) came to the room and there was an altercation between the deceased and his mother. Since he was in an intoxicated condition, he could not separate them. His mother beat him and he sustained injuries on the lip. He fell fast asleep. He got up for urinating in the early morning and at that time only he saw Jessy hanging by a shawl tied to the railings in the window. On hearing his cry, PWs 2 and 3 came to his room. They untied the shawl and body of Jessy was laid on the bed. Thereafter, she was taken to General Hospital, Ernakulam.
22. According to the appellant, his wife committed suicide at around 1.30 a.m. by hanging on the window grill of their room. PWs 2 to 6, 12 and 14 are brothers and sisters-in law of the Crl.Appeal No.1549/2012 -:16:- appellant. PWs 7 to 9 are neighbours. All of them, including the occupants of the matrimonial home, turned hostile to the prosecution. PW2, brother of the appellant, deposed that he heard Paul crying "അയ " and when he reached their bedroom, he found Jessy hanging on the window grill of the room with her churidar shawl as ligature. No shawl is recovered from the scene of occurrence. In fact, there are inconsistencies in the depositions of PWs 2 to 6. It is evident that PWs 2 to 6, who are close relatives of the appellant, introduced for the first time, a 'story of suicide' in the Court which they never had earlier. On a close reading of the depositions of these witnesses, it can be seen that at 1.30 a.m., when they reached the bedroom in which the death happened, they saw the deceased lying down near the window. Only PW2 deposed that he saw the deceased hanging. The depositions of these hostile witnesses when taken as a whole and assessed based on other available evidence would throw light to probabilise the prosecution version and of course, not the defence version.
23. Interestingly, the version of the appellant in his subsequent 313 statement was not at all put forward to the witnesses during cross-examination. He did not have such case at Crl.Appeal No.1549/2012 -:17:- any point of time during the trial. According to the learned Public Prosecutor, the case in 313 is newly developed to explain away the clinching evidence that stand against the appellant.
24. Where can a woman find refuge when she meets her death by the hand of her own husband to whom she cleaved in full trust by leaving her relatives? This is a case in which a helpless young wife is murdered at the hands of her own husband who was supposed to nurture and take care of her. The cunning explanation given by the appellant shows that he is prepared to lie to any extent to hide his guilt and it reveals that his unrepentant heart is not moved an inch even after passing of years. The prosecution proved the case against the appellant beyond reasonable doubt. The trial Judge is justified in convicting the appellant. We don't find any space for leniency.
In the result, the appeal is dismissed.
Sd/-
A.M.SHAFFIQUE Judge Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge