A.P. Moideen v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 ``` ``` CRL.A NO. 161 OF 2017 ``` ``` AGAINST THE JUDGMENT DATED 26.12.2016 IN SC NO.336/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-I, MANJERI ``` ``` CP NO.38/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI APPELLANT/ACCUSED NO.1: ``` ``` A.P.MOIDHEEN, AGED 67 YEARS S/O.AHAMMED KUTTY, CHAKKAYIL HOUSE, AREEPPARA THENHIPPALAM AMSOM, MALAPPURAM. ``` ``` BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, TIRURANGADI, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADVS. SMT.AMBIKA DEVI.S., SPL.GP [ATROCITIES AGAINST WOMEN & CHILDREN] ``` ``` THIS CRL.A BY HAVING BEEN FINALLY HEARD ON 29.11.2021, ALONG WITH CRA(V).NO.469/2017, THE COURT ON 09.12.2021 DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 ``` ``` CRA(V) NO. 469 OF 2017 AGAINST THE JUDGMENT DATED 26.12.2016 IN SC NO.336/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-I, MANJERI CP NO.38/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI ``` ## **`APPELLANTS / VICTIMS:`** - **`1 MUJEEBRAHIMAN A.P., AGED 31 YEARS, S/O. BEEFATHIMA (DECEASED), CHAKKALAYIL HOUSE, AREEPPARA,THENIPPALAM, MALAPPURAM DISTRICT.`** - **`2 ABBAS MANGAT, AGED 48 YEARS, S/O. ALAVI, EDAPARAMBATH HOUSE,CHENAKALANGADI P.O., THENIPPALAM, MALAPPURAM DISTRICT. [DELETED]`** - **`THE 2ND APPELLANT IS DELEATED FROM PARTY ARRAY AS PER ORDER DATED 10.07.2017 IN CRL.M.A. NO.3389 OF 2017.`** ``` BY ADVS. SRI.V.ANAS SRI.A.ABDUL RAQUIB SRI.VARUN V GOPAL ``` ## **`RESPONDENTS/ACCUSED/STATE:`** - **`1 A.P.MOIDEEN, AGED 67 YEARS, S/O. AHAMMED KUTTY, CHAKKALAYIL HOUSE, AREEPPARA, THENIPPALAM, MALAPPURAM DISTRICT. (UNDERGOING SENTENCE IN CENTRAL PRISON, KANNUR)`** - **`2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA`** ``` BY ADVS.K.M.FIROZ SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHI ``` ``` THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 29.11.2021, ALONG WITH CRA.NO.161/2017, THE COURT ON 09.12.2021 DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal No.161 of 2017 &3 Crl.Appeal (V) No.469 of 2017 ``` ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -------------------------------------- Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 -------------------------------------- Dated this the 9[th] December, 2021 ``` ## **`JUDGMENT`** ## **`Vinod Chandran, J.`** ``` The simmering anger against the wife and her family exploded on seeing the wife's brother; which eventually led to the husband beating the wife to death in the presence of the brother. The accused alleged that it is the brother, who is responsible and he was not even present in the scene of occurrence. ``` ``` 2. The accused was charged under Ss.324, 302 and 201 of the Indian Penal Code [for brevity, 'the IPC']. In the trial, the prosecution proffered 12 witnesses, marked 15 documents and produced 3 pieces of wooden frames marked as MO1 series. The accused was found guilty under S.302 and acquitted under Ss.324 and 201 IPC. The accused was sentenced to ``` ``` Crl.Appeal No.161 of 2017 &4 Crl.Appeal (V) No.469 of 2017 ``` ``` undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence of one year. ``` ``` 3. Sri.Firoz K.M., appearing for the appellant-accused, argued that PW1 cannot be believed. There is admittedly a history of enmity of the husband with the wife and her people and conveniently the accused was framed for the murder of the wife. The animosity against the husband had percolated down to even their own children. PW1's testimony is tutored and has glaring inconsistencies. There is no solid proof that MO1 is the weapon used. The witnesses are not sure as to whether the weapon used was a window frame or a door frame. Curiously, none of the witnesses speak of the weapon having broken into pieces when the alleged assault was committed; which is the state of the weapon produced. MO1 was seized on 27.01.2016, two days after the incident and the same was not sent for chemical examination; obviously because there was no blood stains found on it. The overall circumstances coupled ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 5 ``` ``` with the inconsistencies in the ocular testimony makes it clear that the guilt of the accused has not been established beyond reasonable doubt. As an alternate plea, the learned Counsel would contend that Exception 4 under S.300 has to be applied. Admittedly, there is no premeditation and the accused, if at all has committed the crime, did it in a fit of anger. The accused is a septuagenarian afflicted with cancer. It is the fervent plea of the learned Counsel that Exception 4 be applied and the accused, even if found guilty, sentenced under Part- II of S.304. The learned Counsel relies on Surinder Kumar v. Union Territory, Chandigarh [1989 (2) SCC 217],Johny v. State of Kerala [2010 (1) KHC 585 and Haridas v. State of Kerala [2012 (1) KHC 148]. ``` ``` 4.Smt.S.Ambikadevi,learnedSpecial Government Pleader (Atrocities against Women and Children), would contend that the presence of the accused is established, while under S.313 the accused takes a plea that he was not available at the time of ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 6 ``` ``` occurrence. His specific contention that he was with his sister has not been proved. PW1 to PW4 speak of the presence of the accused in the scene of occurrence. The ocular testimony of PW1 and the testimonies of PW2 to PW4, who came to the scene of occurrenceimmediatelyaftertheincident, established the crime as having been committed by the accused. The victim succumbed to the injuries only on the next day of the day of assault and hence the delay in seizure of the weapon MO1. There is also evidence to show that both the scene of occurrence and the weapon were washed by the accused, as spoken of by PW4, his daughter-in-law. Hence, there was no scientific examination carried out. The learned Special Government Pleader would assert that there is no reason to apply Exception 4, since there was no provocation and there was no quarrel which could reasonably persuade this Court to apply the said Exception. ``` ``` 5. Sri.A.Abdul Raquib supports the learned ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 7 ``` ``` Special Government Pleader and further argues that there is clear testimony of attempt to destroy the evidence by washing the premises and the weapon and hence there should be a conviction and sentence under S.201 IPC. ``` ``` 6. PW1 is the brother of the deceased, who also gave First Information Statement [for brevity, 'FIS']. His evidence in Court was in tune with the FIS. On 26.01.2016 at 11 O'Clock in the morning, PW1 approached the house of his sister, where she was staying with her family, to invite his sister and family to the wedding of his nephew, son of his elder brother. His elder brother and son were both abroad and he had come to his sister's house on the specific direction given by his elder brother, over telephone. When PW1 approached the house of his sister, he saw the accused sitting in the front room. Seeing PW1, the accused asked him not to step inside and threatened that both himself and his sister would be finished, if he dares to step inside. Then the ``` ``` Crl.Appeal No.161 of 2017 &8 Crl.Appeal (V) No.469 of 2017 ``` ``` accused stepped down to the verandah and from the door frames stacked on the side of the verandah, he picked up one and beat PW1. PW1's left hand was disabled and he warded off the strike with his right hand. Seeing this, PW1's sister came from inside the house, when the accused turned on her. Abusing her and questioning as to why she came there, the accused clobbered the head of his wife repeatedly after shouting that he will kill her. The victim's head broke and bled and she fell down unconscious. ``` ``` 7. PW1 also deposed that the accused was inimical towards his wife and her family. The cause for such enmity was the denial of the wife to transfer 10 cents of land standing in her name to the name of the accused. The residential building of the accused and deceased was standing in a land of 27 cents extend, given by the father of the deceased. Seventeen cents was in the name of the accused and 10 cents in the name of the deceased. PW1 also deposed that the accused and the deceased were not on talking ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 9 ``` ``` terms and the accused prohibited the deceased from visiting her parents or siblings. The deceased used to come to her family house only when the accused was not available. PW1 also said that his sister had often spoken about the threat of the accused to kill her. Accused was also inimical towards his elder brother-in-law for reason of the said person having not provided a suitable employment abroad, when the accused was taken abroad. PW1 withstood the cross- examination and stuck to his version. He also marked MO1 series, which was the wooden frame used to first beat PW1 and then clobber the deceased. MO1 was in three pieces. ``` ``` 8. PW2 is the son, who came to the scene of occurrence immediately after the incident. He spoke of the enmity of his father with his maternal family and the animosity, the accused harboured against his wife. The accused was also angry with his elder brother-in-law. The antecedents of the accused and the volatile circumstances that existed in the house ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 10 ``` ``` were spoken by PW2, fully corroborating the version of PW1. PW2 speaks of the incident, the crime proper, as narrated to him by PW1; which is hearsay. But the version as spoken of by PW1 to PW2 is quite in tandem with the FIS and his evidence before Court; adding to the credibility of PW1's testimony. In addition, PW2 speaks of having heard a cry and on emerging from inside the house, seen his mother lying on the floor bleeding and with her head broken. At that time, his father was standing over his mother with a wooden window frame in his hands. PW1 was seen hanging on to the hands of the father, the accused. Kadeeja, his elder sister-in-law, tore the scarf of his mother and tied the wound. Himself, his brother, his sister-in- law and PW1 took the injured mother first to TMH Hospital, then to MIMS Hospital and later to the MCH, Kozhikode. He also spoke of the presence of PW3 when his sister-in-law was tending to the injured mother. ``` ``` 9. PW3 is the neighbour of the deceased, who rushed to the spot on hearing the cries from the ``` ``` Crl.Appeal No.161 of 2017 &11 Crl.Appeal (V) No.469 of 2017 ``` ``` neighbouring house. She also spoke of having seen the accused standing with a wooden frame in his hands and the deceased lying supine on the floor with a bleeding wound on her head. She joined Kadeeja, the daughter-in-law of the victim, to tie the wound with the scarf of the latter. She also spoke of the presence of PW1, PW2, another son of the deceased and PW4, the wife of PW2. PW4, the wife of PW2, also corroborated the version of PW2 and PW3, having come to the scene of occurrence immediately after the incident. She too attested the presence of her father-in-law, who later was seen cleaning the blood from the scene of occurrence and also the wooden frame. She identified MO1 series as the wooden frame, which she found the accused washing. She also spoke of intermittent disputes between the father-in-law and mother-in-law, with whom she was also staying. She does not speak of having seen the father-in-law standing with the alleged weapon, but on the latter aspects she corroborates the eye-witness and other ``` ``` Crl.Appeal No.161 of 2017 &12 Crl.Appeal (V) No.469 of 2017 ``` ``` witnesses who came to the scene immediately after the crime. ``` ``` 10. PW5 is the inquest witness, who marked Ext.P2 inquest report and PW7 the Scientific Assistant, who gathered samples from the scene of occurrence. PW8, Village Officer prepared Ext.P4 sketch and PW9, a home-guard witnessed the handing over of sample packets by the Scientific Expert to the C.I. of Police as per Ext.P5 mahazar. PW10 witnessed Ext.P6 scene mahazar and the seizures made from the scene. PW11 witnessed the sample collection by the Doctor who conducted postmortem and marked Ext.P7 mahazar. PW12 is the Investigating Officer. ``` ``` 11. The learned Counsel for the appellant had strenuously argued regarding the inconsistency as to whether the weapon used was the wooden frame of window or door and that there was no scientific evidence available. Admittedly, there were wooden frames stacked on the side of the verandah of the accused. PW1's evidence is that the accused picked up ``` ``` Crl.Appeal No.161 of 2017 &13 Crl.Appeal (V) No.469 of 2017 ``` ``` a wooden frame to beat him and when his sister tried to interfere, the accused turned on her with the very same frame. We do not think the eye-witness or those who came there after the incident should be called upon to specify whether the weapon used was a door frame or a window frame. ``` ``` 12. The incident happened on 26.01.2016 and the death was in the afternoon of the next day. The seizure of the weapon hence occurred after more than 24 hours, within which time as spoken of by PW4, the accused had washed the blood, off the frame. It is to be noticed that there was no recovery under S.27 and that there was only a seizure. The seizure made is of three broken pieces from the many other wooden frames stacked in the verandah. The fact that none spoke of the wooden frame having broken during the assault is not very relevant. There would also be no trace of blood on the weapon, since it was washed clean. In the totality of the circumstances, we are of the opinion that the eye-witness testimony of PW1 and the ``` ``` Crl.Appeal No.161 of 2017 &14 Crl.Appeal (V) No.469 of 2017 ``` ``` testimony of the witnesses, who immediately came to the scene of occurrence, can be believed. The eye- witness has spoken of the accused having clobbered his wife with a wooden frame. Two witnesses, who came to the spot immediately thereafter, the son of the accused and a neighbour, saw the accused standing with a wooden frame in his hands and the deceased lying on the floor, bleeding profusely from a wound on the head. The seizure of a wooden frame from among the many stacked is not very significant in finding the guilt of the accused. ``` ``` 13. As far as the scientific evidence is concerned, obviously there is little to go on. The circumstances also would inform us that there was little likelihood of any samples being recovered from the scene of occurrence. The death occurred after more than 24 hours and the seizures were after that. The Police too had visited the scene of occurrence after the death and the scene of occurrence was a residential house occupied by a number of persons. ``` ``` Crl.Appeal No.161 of 2017 &15 Crl.Appeal (V) No.469 of 2017 ``` ``` 14. The learned Counsel for the appellant had made a fervent plea for converting the sentence to one under S.304 IPC. Surinder Kumar[supra] was urged to contend that if there is a sudden quarrel, in which the accused caused injuries to the deceased, the number of injuries caused cannot be decisive insofar as the application of Exception 4 to S.300. Merely on the basis of the number of injuries, it cannot be said that the accused had acted in a cruel and unusual manner. Johny[supra] was a case in which the deceased went to the house of the accused to question an obscene incident created by the latter. Admittedly, a physical altercation ensued and the accused went inside the house, came back with a chisel and stabbed the deceased thrice. The Court felt that judging the conduct of the offender, keeping in mind the compelling circumstances, Exception 4 to S.300 was applicable and sentence was imposed under Part-I of S.304.Haridas[supra] dwelling upon the aspect of premeditation found on ``` ``` Crl.Appeal No.161 of 2017 &16 Crl.Appeal (V) No.469 of 2017 ``` ``` facts that there was a sudden quarrel, a sudden fight and the overt act was committed when passions were running high. ``` ``` 15. We do not find the application of any of these precedents in the facts of this case. The animosity of the accused towards the deceased, his own wife, was a long standing one and there were also threats levelled against her life, as spoken of by the brother-in-law itself. The accused was also inimical to the wife's family and the strained relationship between the husband and wife was spoken of by the other inmates of the house, their son and daughter-in-law. The animosity was simmering inside the accused for long against his wife and her family. It cannot also be said that there was absolutely no premeditation, judging the immediately prior actions of the accused. When the brother-in-law came to the house, with all good intentions, to invite his sister and family to the marriage of a nephew, the accused stopped him from entering into the house. The accused ``` ``` Crl.Appeal No.161 of 2017 &17 Crl.Appeal (V) No.469 of 2017 ``` ``` did not stop with that, but attacked the visitor with a wooden frame lying on the verandah, shouting that if he entered the house, both the brother-in-law and the wife would be finished off; which by itself revels his clear intention. Seeing the attack on her brother, the wife of the accused came from inside the house in an attempt to stop the accused. The accused then turned against his wife and being unhappy with her intervention, brutally clobbered her to death. The words spoken before; disclose his intention and the brutal manner in which the wife was beaten, that too on the head with a wooden frame, caution us from applying the Exception. We find the action of the accused to be squarely with the intention of causing death as defined under Firstly of S.300. There was neither a quarrel nor was there any reason to find anypassionatefighthaving erupted. The premeditation is very clear from the words spoken by the accused to his brother-in-law, PW4. The husband also turned against the helpless wife without any ``` ``` Crl.Appeal No.161 of 2017 &18 Crl.Appeal (V) No.469 of 2017 ``` ``` provocation to mercilessly beat her to death. We are convinced that the eye-witness testimony as corroborated by the testimony of the other witnesses, who came to the scene of occurrence, immediately after the crime, proves the guilt of the accused beyond reasonable doubt and there is no hypothesis of innocence discernible from the facts of the case. ``` ``` 16. Ext.P3 postmortem report showed the following antemortem injuries: ``` ``` “1. Sutured wound, transverse, front to back on top of head 3.5 c.m. left to midline; front end 12 c.m. above left orbit. Fissured fracture involving left side of skull over left temporal bone passed upwards reached behind left frontal eminence, then through front of left parietal eminence and merged with posterior 1/4th of sagital suture and reached lambda. Brain showed generalized edema; subdural haemorrhage found on right fronto temporo parietal lobe 8x6x0.8 c.m.; bilateral basi frontal lobes showed contusion-4x3x0.3 c.m. on left and 3x3x0.3 c.m. on right. Contusion 3x2x0.2 c.m. on at top aspect of left ``` ``` Crl.Appeal No.161 of 2017 & Crl.Appeal (V) No.469 of 2017 ``` ``` 19 ``` ``` parieto occipital lobes. Right splenoid bone showed fissured fracture over its sinus. ``` ``` 2. Contused abrasion 4x1.5 c.m. oblique at top of middle of forehead to right half forehead at front hair line; upper left end 7 c.m. above root of nose. ``` ``` 3. Abrasion 0.3x0.3 c.m. back of right forearm 6 c.m. below elbow. ``` ``` 4. Contusion 2x2 c.m. inner aspect of right arm 6 c.m. above elbow. ``` ``` 5. Superficial lacerated wound 0.8x0.5x0.3 c.m. at web space between root of thumb and index finger of left hand. ``` ``` 6. Contusion 1x1 c.m. dorsum proximal phalanx of left middle finger. ``` ``` 7. Abrasion over an area 2x1 c.m. bridge and left ala of nose.” ``` ``` The first injury indicated above showed the brutal manner in which the victim was beaten on the head. The opinion as to cause of death is also the traumatic brain injury due to blunt force. ``` ``` Crl.Appeal No.162 of 2017 is rejected. Crl.Appeal (V) No.469 of 2017 is also rejected, since we do not find any reason to interfere with the ``` ``` Crl.Appeal No.161 of 2017 &20 Crl.Appeal (V) No.469 of 2017 ``` ``` acquittal ordered by the Sessions Court regarding the offences under S.324 and S.201 IPC. The appeals stand dismissed, confirming the conviction and sentence passed by the Trial Court. ``` ``` Sd/- ``` ``` K.VINOD CHANDRAN, JUDGE Sd/- ``` ``` C.JAYACHANDRAN, JUDGE ``` ``` sp ```