Kerala High Court
Tom P.J.@ George vs State Of Kerala on 11 April, 2019
Equivalent citations: AIRONLINE 2019 KER 41
Author: Ashok Menon
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
THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941
CRL.A.No. 260 of 2014
AGAINST THE JUDGMENT IN SC 329/2010 of ADDITIONAL DISTRICT COURT
(ADHOC-III), KASARAGODE DATED 07-06-2013
APPELLANT/ACCUSED:
TOM P.J.@ GEORGE,
AGED 38 YEARS, S/O. JOHNY,
KOTHAKULAM HOUSE, KANHIRANGAD VILLAGE,
VELLAMUNDA, THETTAMALA, WAYANAD DISTRICT,
RESIDING AT MUNDOTTU.
BY ADVS.
SRI.P.K.VARGHESE
SRI.P.P.BIJU
SRI.ROHIT
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019,
THE COURT ON 11.04.2019 PASSED THE FOLLOWING:
Crl.Appeal 260/2014
-2-
JUDGMENT
Ashok Menon, J.
This is an appeal filed by the accused in S.C.No.329/2000 on the file of the Addl.District and Sessions Court, Kasaragod, challenging his conviction and sentence to undergo imprisonment for life and to pay a fine of Rs.25,000/-, in default to undergo rigorous imprisonment for six months more, under Section 302 of the Indian Penal Code, for murdering his wife by clubbing her on her head with MO1 pestle, which according to PW17, the Police Surgeon, who conducted the autopsy, was sufficient in the ordinary course, to cause her death. She had sustained the following seven injuries as detailed in Ext.P9 post-mortem report:
"1. Split laceration 11x4 cm, vertically placed on the back and back aspect of top of head, the lower end being on the occiput. Skull showed a depressed comminuted fracture involving the occipital bone, left temporal and left perietal bone. There was fracture separation of the sagittal suture, right half of the coronal suture and the lambdoid suture. Fracture lines extended downwards to involve the floor of middle cranial fossa and to fragment the petrous temporal bone. Dura was irregularly torn. Crushed brain matter was oozing out and adhering to the scalp hairs around. Brain showed bilateral subarachnoid bleeding, crushing of right parietal lobe and part of the frontal lobe on the right side. Irregular lacerations were seen in the left parietal lobe and left occipital lobe. Cerebellar hemispherus were lacerated. Crl.Appeal 260/2014 -3-
2. Abrasion 0.7x0.5 cm on the nose, 1.5 cm below its upper end.
3. Abrasion 1x0.5 cm on the left side of face, 2 cm below the eye.
4. Contusion 2x1 cm on the chin, 2 cm to the right of midline.
5. Multiple small contusions and superficial lacerations on the inner aspect of lower lip, corresponding to the teeth of upper jaw.
6. Abraded contusion 11x10 cm on the upper part of front of chest, at its right side. Ribs were intact.
7. Contusion 3.5x1.5 cm on the top of left shoulder."
2. The facts of the prosecution case in brief are thus:
The accused and his deceased wife Jolly, along with their three minor children were residing in a rented accommodation belonging to PW18, leased out to the accused as per Ext.P10 lease agreement. The accused had hit the bottle, and made a habit of coming home inebriated and getting into a drunken brawl with his wife. On 01.12.2009 at about 10.00 PM, PW2, the brother-in-law of the deceased, allegedly got a call from PW5, the brother of the accused, informing him that while he was travelling, he received a phone call from the deceased stating that the accused was in a belligerent mood towards her, and had requested him to come home immediately. Since he was travelling, he wanted PW2 to go to his brother's house and have a look into the situation. PW2 immediately rushed to the scene Crl.Appeal 260/2014 -4- of occurrence, accompanied by PW3 and another person named Jose. When they reached the residence of the accused, the front door of the house was ajar and they saw the accused standing with MO1 pestle in his hand. The deceased and her children were found sitting on a mat. PW2 attempted to enter the house, but the accused threatened him with dire consequences, which prevented him and others from entering the house. Then they saw the accused inflicting a blow with MO1 pestle on the back of the head of the deceased. Thereafter, the accused shut the door. Hearing the hue and cry and alarm raised by PW2 and PW3, the neighbours gathered, police was informed, and they reached the house of the accused, opened the door to find him and took him into custody. PW2 took the minor children and dropped them at his house before he accompanied the injured-deceased to the hospital, where she was declared dead.
3. PW1 is the eldest son of the deceased and the accused. He was just 5 years old at the time of occurrence, and nine when examined before the Court. After testing his capability Voir Dire, the learned Crl.Appeal 260/2014 -5- Sessions Judge found him competent to testify, and proceeded to examine him on oath. He testifies that he was woken up by the noise and saw his father hit his mother with MO1. He also testifies about PW2 reaching the scene of occurrence and taking him home along with his siblings. PW4 is the father of the deceased, who was away from Kerala, and got a call from the deceased at about 8.30 PM informing him about her apprehension about the accused, and he informed others at home.
4. After the police arrived, Ext.P2 inquest report was prepared with PW2 and PW6 as witnesses. Ext.P3 scene mahazar was prepared with PW8 and PW9 as witnesses. MO1 pestle was seized as per Ext.P3 mahazar. The accused was taken to the police station and PW10, the Head Constable and PW11, the Police Inspector, attached to Rajapuram Police Station, testified about the seizure of MO2 shirt and MO3 loin cloth worn by the accused at the time of his apprehension. The body of the deceased was photographed by PW12 photographer and Ext.P5 series are the photographs taken. The body was taken to Pariyaram Crl.Appeal 260/2014 -6- Medical College for autopsy by PW13, Woman Police Constable attached to the Police Station. Ext.P6 is the ownership certificate certified by the Head Clerk at the Grama Panchayat Office indicating that the house, where the incident occurred, belongs to PW18. PW15 Village Officer prepared Ext.P7 site plan. PW2, who gave Ext.P1 F.I.statement was recorded by PW16, the S.I. of Police and who registered Ext.P8 F.I.R. at about 8.00 AM on the following day as Crime No.139/09 under Section 302, I.P.C.
5. PW19 is the investigating officer, who conducted the entire investigation and filed final report. After collection of MO4 and MO5 dress worn by the deceased and MO6 blood stained soil taken from the scene of occurrence together with MO1 pestle, he produced the property before the Magistrate as per Ext.P12 property list, accompanied by Ext.P13 forwarding note requesting examination of the material objects at the Forensic Science Laboratory. He formally arrested the accused after keeping him under surveillance at the police station as per Ext.P11 Crl.Appeal 260/2014 -7- arrest memo. He also got the scene of occurrence photographed and Ext.P14 series are those photographs. The police got Ext.P16 intimation from the hospital, where the deceased was taken.
6. The F.S.L. report is Ext.P15, which confirms the detection of human blood on all the material objects, except MO4 and MO5 dress worn by the deceased.
7. After the closing of the prosecution evidence, the accused was questioned under Section 313, Cr.P.C. The accused stated in his explanation to the query put to him under Section 313, Cr.P.C. that PW2 and his henchmen had entered his house and created a ruckus, as a result of which his wife got killed. The learned Sessions Judge found that it is not a fit case for acquittal under Section 232 of Cr.P.C.; and asked the accused to enter his defence. No defence evidence was adduced. Thereafter, the Court convicted and sentenced the accused as stated above.
8. We heard the learned Counsel for the appellant and the learned Senior Public Prosecutor Sri.S.U.Nazar. Perused the records.
Crl.Appeal 260/2014-8-
9. The learned Counsel for defence points out to certain infirmities in the prosecution case, which according to him is sufficient to interfere with the conviction. The learned Counsel points out that according to the prosecution case, PW2 got the information about the quarrel between the accused and the deceased from PW5, who too testified about the passing over the information to PW2. However, PW2 testifies that the deceased herself had called him to convey about her apprehension. He has not testified about getting any information from PW5, which according to the learned Counsel is fatal to the prosecution case. It is true that PW2 did testify about being informed by the deceased, but no question was put to him in cross-examination whether any intimation was received from PW5. Without having put the question to him, it is not sufficient to disbelieve him. The fact that there is some discrepancy about how PW2 got the information is however not fatal to the prosecution, because he and PW3 testified regarding the occurrence and they are eye witnesses.
Crl.Appeal 260/2014-9-
10. The most important witness is PW1, who is none other than elder son of the accused. Though he was just 5 years old, he has categorically testified about his father hitting his mother with MO1 pestle. The learned Counsel for the appellant has testified that he cannot be believed, because he is a child witness and also because in his cross-examination he has stated that usually he goes to sleep at 8.30 PM and therefore, there is little opportunity for him to witness the occurrence and what he has testified before the Court is only the result of tutoring by PW2. The learned Counsel also points out to the cross-examination of PW1 where he has stated that PW2 was there in his house before he went to sleep. Whether PW2 had reached the house of the deceased at 8.30 PM prior to PW1 going to sleep or he reached thereafter, is not very material because PW1 categorically says that he was woken up by the noise of his parents quarreling, and thereafter, he saw his mother being hit by his father. We cannot brush aside this testimony of a son against his father. The evidence of PW1 in this case was spontaneous and Crl.Appeal 260/2014 -10- with confidence. His intelligence was tested by the learned trial Judge and he was found to be fit enough to testify. The deposition of a child may require corroboration, but in case the deposition inspires evidence of the Court and there is no embellishment or improvement thereon, the Court may rely upon its evidence [see State of M.P. v. Ramesh, (2011) 4 SCC 786]. In the instant case, PW1 has in his statement categorically stated about his father inflicting a blow on his mother with MO1. His evidence remains unshaken in cross-examination. A child, who sees the traumatic incident of his mother being attacked by his father or anyone else, would not be able to forget such an incident and we cannot believe that his testimony is just an imagination of a child.
11. The learned defence Counsel has taken exception to the testimony of PW2, who admits that it was the police who came and opened the door to apprehend the accused. As the doors were closed, there was little possibility of PW2 and PW3 witnessing the occurrence, is the argument advanced by the learned Counsel. Crl.Appeal 260/2014 -11- Testimony of both PW2 and PW3 in unison states that when they arrived, the door of the house was left open, and they even attempted to enter the house, but they were intimidated of dire consequences by the accused, who was holding MO1 pestle. Frightened, they did not enter the house and soon thereafter the accused hit the deceased on the back of her head. It is only consequent to that, the accused shut the door.
12. The learned Counsel appearing for the appellant also argues that there is delay in recording the F.I.Statement as well as registration of F.I.R. The police got information at night, and Ext.P16 intimation from the hospital was sent to the police station at 11.45 PM, and they had even reached the scene of occurrence immediately. There was no reason for them to wait till 8.00 PM on the following day for recording the statement of PW2, is the argument of the learned Counsel. The accused was arrested only at 5.30 PM on the next day. If all these infirmities add up, it would definitely weaken the prosecution case, argues the learned Counsel. The fact that there was delay in Crl.Appeal 260/2014 -12- registering the F.I.R. is not very fatal to this case. The police had apprehended the accused from the scene of occurrence. PW2, who gave the first information, had accompanied the deceased to the hospital. It is only thereafter that the statement was recorded in the morning. PW19, the investigating officer, has not been confronted with this question in cross-examination so as to afford him with an opportunity to explain about this delay. PW16 is the Sub Inspector, who registered the F.I.R. after recording the F.I.S. of PW2. He admits that the night duty policemen had gone to the scene of occurrence at night. But he came to the police station only on the following day at 8.00 AM to record the statement of PW2.
13. This cannot be pointed out as a series infirmity to throw out the prosecution case at the threshold. Ext.P16 shows that the intimation was prepared at the District Hospital at 11.45 PM on the 1 st of December 2009. When it reached in police station is not spoken to by anyone. No questions were put to PW19 or PW16 in the cross-examination. Hence, the argument Crl.Appeal 260/2014 -13- that the police did not act on Ext.P16 to register an F.I.R. is not very material.
14. Having given our anxious consideration to all those aspects pointed out by the learned counsel, we do not find that the basic accusation made against the accused has been in any way affected by these infirmities. There is oral testimony of PW1 to PW3, who have testified regarding witnessing the occurrence. There are no valid reason to reject their testimony. The prosecution has also been able to prove that the accused used to have constant bickerings with the deceased. The scientific evidence also would unflinchingly point out towards the guilt of the accused. All these put together, we find that the learned Sessions Judge was justified in his conclusion finding the accused guilty. There is absolutely no reason for us to interfere and upset the finding of the trial Court. The sentence is also commensurate with the act of the accused.
Crl.Appeal 260/2014-14-
In the result, the appeal is dismissed and conviction and sentence awarded by the Court below are confirmed. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
dkr JUDGE