D.S.R. No. 2 of 2010 and CRL.A. No. 2194 of 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934 ## **D. S. R. No. 2 of 2010** FOR CONFIRMATION OF DEATH SENTENCE ON ACCUSED LAWARANCE IN S.C.NO.1315/2009 OF I ADDL.SESSIONS COURT, THIRUVANANTHAPURAM COMPLAINANT: --------------------- STATE BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED. RESPONDENT/ACCUSED: -------------------- LAWARANCE, S/O.DIVAKARAN NADAR, AGED 41 YEARS, SOWBHAGYA VEEDU, NEAR R.C.CHURCH, MANALAYAM, VATTIYOORKADA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.T.A.UNNIKRISHNAN ADV. SRI.K.SATHEESH KUMAR ADV. SRI.K.S.PRAVEEN THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 01-03-2013, ALONG WITH CRA. 2194/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ## **----------------------------------------------------** ## **D.S.R. NO. 2 OF 2010 and CRL. APPEAL NO.2194 OF 2010 ---------------------------------------------------Dated this the 1[st] day of March, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The appellant in Crl.A.No.2194 of 2010, namely, Lawarance, was found guilty in S.C.No.1315 of 2009 on the file of the Court of the Additional Sessions Judge, Thiruvananthapuram, for the offence under Section 302 of the Indian Penal Code and he was sentenced to death and to pay a fine of Rupees Two lakhs. The conviction and sentence are challenged by Lawarance in Crl.A.No.2194 of 2010. The DSR is for confirmation of the death sentence. 2. The accused, Lawarance, is the husband of the deceased Valsala. In the marital relationship of Lawarance and Valsala two children, namely, Josheya (PW5) and Jighosh (PW6) were born. Difference of opinion arose between Lawarance and Valsala. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 2 :: Valsala had to shift her residence to the house of her father-in-law and later to the house of her sister-in-law on two occasions due to the cruelty meted out by Lawarance towards her and children. About one month before the date of the incident, Valsala and her children started their residence in the house of Jayakumar (PW10). Jayakumar is the son of the paternal uncle of Valsala. Valsala and her children used to stay in the house of Jayakumar during day time and they used to go to the house of Ratnakaran, the paternal uncle of Valsala during night. The house in which Ratnakaran and family reside is situated near the house in which Valsala and her children were residing. 3. Valsala had shifted her children from the school in which they were studying and admitted them in the school nearby. Even after the shifting of residence, the accused used to meet Valsala and children on public road, in church and at other places and he used to persuade his children to go and reside with him. The accused had even threatened the deceased with dire consequences if she failed to comply with the request to stay with the accused. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 3 :: 4. The prosecution case is that on 10.10.2007 at about 8.45 AM, while the deceased (Valsala) was returning to her rented house after purchasing vegetables and fish, the accused came to the place of incident on a bullet motor bike, intercepted Valsala and inflicted several cut injuries on her using MO1 chopper. As a result of the injuries, Valsala died on the spot. The further case of the prosecution is that the accused abandoned his bike and MO1 chopper at the spot and ran away. Some of the inhabitants of the locality chased the accused and he was caught red handed. The accused was handed over to the police and he was formally arrested by the police. 5. The prosecution alleged that the accused had specific motive for committing the crime. A loan was taken from a cooperative bank by the deceased and the property having an extent of 36 cents, belonging to the deceased, was mortgaged for the purpose of the loan. The deceased was working as a daily collection agent in that co-operative bank. The allegation is that the accused wanted to ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 4 :: avoid payment of the loan amount to the bank and, for that purpose, he compelled his wife Valsala to pretend that she was insane. She refused to do so. The accused stated to the relatives of Valsala that she was insane and it was necessary to take her to a Psychiatrist. The Psychiatrist opined that Valsala had no mental illness and he gave only some vitamin tablets to her. It is also alleged that the accused had illicit relationship with one Pushpalatha. It was also alleged that the accused wanted to take revenge on Valsala, she having refused to return to the matrimonial home. 6. On behalf of the prosecution, PWs.1 to 23 were examined, Exts.P1 to P20 were marked and MOs.1 to 34 were identified. On behalf of the defence, DWs.1 and 2 were examined and Exts.D1 to D3 were marked. As stated above, the court below found the accused guilty of the offence under Section 302 of the Indian Penal Code. On a finding that the case amounts to one under the category of rarest of rare cases, the court below thought that capital punishment should be imposed on the accused. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 5 :: 7. There is no eye witness to the incident. The prosecution sought to prove the incident on the basis of circumstantial evidence. 8. PW1 is the paternal uncle of the deceased. He came to know of the incident and rushed to the spot. He saw the deceased lying dead. A chopper was found abandoned at the place of incident and the motor bike belonging to the accused was also found there. PW1 stated that the deceased left her matrimonial home and started residing in an old house belonging to his son Jayakumar (PW10). PW1 identified MO1 chopper as well as MO2 saree and MO3 blouse worn by the deceased at the time of incident. Ext.P1 First Information Statement was given by PW1 to the Sub Inspector of Police who registered the crime. 9. PW2 Jayaraj is a schoolmate of the deceased Valsala. He saw Valsala and the accused talking to each other on the date of incident and at the place of incident. PW2 passed them and when he reached a few metres, he heard a shriek and he saw the accused ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 6 :: running. The witness also saw that Valsala had fallen to the ground. He identified MO1 chopper and MO4 bag belonging to the deceased. 10. PW3 knew the deceased. The house of PW3 is situated very near to the place of incident. On the date of incident, when he came out of the house to go for work he heard a cry from the place in front of the house of Abdul Kareem. The witness rushed to the place and he saw the deceased lying down after sustaining cut injuries. The witness also saw a person, who was wearing white shirt and black pants, running from the scene of occurrence. The witness and others chased him, who crossed the road and ran towards a saw mill. He came to know that people caught hold of the person who ran away from the scene of occurrence. He identified that person as the accused. He also identified MO5 shirt and MO6 pants worn by the accused. 11. PW4 is a Pastor of C.S.I.Church at Thettikunnu. He is the son-in-law of Thankaraj, whose house is situated very near to ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 7 :: the place of incident. At the time of occurrence, PW4, his wife and other inmates of the house of Thankaraj were in the house of Thankaraj. The witness heard a cry from outside and he saw a lady lying at the place of incident (in between the gate of the house of Abdul Kareem and that of Thankaraj). 12. PW5 is the daughter of the deceased. She was studying in 6[th] standard in B.R.M.H.S., Elavattom. Her brother Jighosh (PW6) was also studying in that school. The witness stated that she, her mother and brother started residing in the house of Jayakumar about three weeks before the date of incident. Earlier, they were residing at Malamugal and she were studying in St. Santhal School at that time. The witness stated that the deceased and the accused were quarreling each other almost every day and the accused used to threaten to kill the deceased. The witness stated that the deceased and her children started separate residence due to the threat made by the accused. On the date of incident the witness had to participate in sports in an school at Bharathannur. Along with the deceased she went to Chullimanoor at about 7 AM and went to ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 8 :: Elavattom in a bus. They reached Elavattom at 8 AM. The witness stated that she saw her father, the accused, at Elavattom. The accused came there on a bullet bike and the accused enquired with the witness as to whether she was ready to go with him. The witness stated that the accused also enquired with her as to whether the deceased was going to the school along with her or whether the deceased was going for her job at Vattiyoorkavu. The witness alighted the bus to go to the school and at that time the accused was waiting near his bike. The witness also stated that on one day the accused inflicted injuries on the deceased alleging that the deceased was insane and she required treatment. 13. PW6 Jighosh is the son of the deceased. He stated that the accused used to manhandle and harass his mother while they were residing at the matrimonial home at Malamugal and that they left that house only fearing the attack of the accused. On the date of incident, the deceased and PW5 Josheya left the house early, since Josheya had to participate in sports. The witness stated that on that day the wife of PW10 took him to the bus stop. When the witness ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 9 :: was standing in the bus stop, the accused came to that place on a bullet bike and enquired whether the witness was ready to accompany him. The witness refused. The deceased also offered to take the witness to school on his bike. But he refused stating that the school bus would come immediately. The accused left the place on the bike. Within about four minutes the accused came to that place after taking a round over the area and on seeing the witness and the wife of PW10 he left the place. When PW6 was going to the school in the school bus, he saw his father stopping the vehicles by showing his hands and crossing the road to go to the side of a mill. By about noon, PW10 and others came to the school, took PW6 and then went to the other school where PW5 was available. PWs.5 and 6 were taken to the house of PW10 and only at that time he knew about the death of his mother. The witness identified the shirt and pants (MO5 and MO6) worn by the accused on that day. In cross examination, to a specific question as to why his father and mother were quarreling each other, he narrated in detail about the incidents relating to the taking of a loan, the demand made by the accused to the deceased to pretend insanity, about the threat made ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 10 :: by the accused to the deceased to inflict injury on her and about the circumstances which led to the deceased and her children to leave the matrimonial home. The witness also stated that after a few days the accused took the deceased and children to his house. He also stated that they have to leave the house on two occasions and on the third occasion, they had gone to the house of PW10. 14. PW7 (Rajeevan) stated that the deceased is the daughter of his paternal uncle. On the date of incident, he saw the accused on his bike at Karinkada Junction. The accused enquired with the witness as to whether the children of the deceased had gone to school. The accused asked the witness whether he was ready to assist the accused in his business of sale of tender coconuts. Thereafter, the accused rode his bike to Gandhi Nagar. The witness went to the school at Chullimanur for his work. While going to Chullimanur, he saw the deceased carrying in her hand a red bag containing vegetables and fish. She stated that she was going back after taking her daughter (PW5) to school. When the witness was taking a tea from a tea shop at Chullimanur Junction, he came to ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 11 :: know that one lady was lying dead at a place near Kakkottukuzhi. The witness went to that place. He found the deceased lying dead. He also found MO1 chopper at that place. The bike belonging to the accused was also found there. 15. PW9, the Secretary of Vattiyoorkavu Service Co-operative Bank, stated that the accused had taken a loan from the bank mortgaging an extent of 36 cents of land belonging to the deceased. As on 2003, the balance amount payable was `99,141/- together with interest. The witness stated that notice was issued demanding payment. PW9 stated that the deceased was working as a collection agent in the bank. 16. PW10 (Jayakumar), the son of the paternal uncle of the deceased, stated that the deceased and her children started residing in his house about a month back complaining that the accused was trying to kill the deceased. There was a further complaint that the accused was having illicit relationship with another woman and the deceased apprehended that if she stayed with her husband, she ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 12 :: would be done away with by him. Three days before the incident, the accused enquired about the deceased with the father of the witness. On coming to know that the deceased had gone to church, the accused went to the church along with PW10. PW10 stated that the accused threatened the deceased with dire consequences. On the date of incident, the accused came to the house of PW10 and enquired about the whereabouts of the deceased. Thereafter, the accused left the place on his bullet bike. The witness came to know of the murder of the deceased at about 9.15 AM, when he reached the place of his employment. He immediately came to the scene of occurrence and saw the deceased lying dead at that place. 17. PW11 (Joseph) is a tapping labourer and a public activist. He knew the accused and the deceased. PW11 stated that on the date of incident, when he was preparing rubber sheets at the residence of Shoukkath, he saw the deceased going with a red bag in her hands. On hearing a hue and cry, he went to the place of incident. The witness also stated that about one week back, the deceased had told him that her husband (accused) was having illicit ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 13 :: relationship with another woman and that the accused was trying to kill the deceased. The witness also stated that the deceased requested him to intervene in the matter and talk to the accused. 18. PW12 (Xavier), who is the uncle of the accused, stated about the atrocities committed by the accused to the deceased while they were residing together. The accused alleged that the deceased was insane. The witness did not think the allegation to be true. However, on the compulsion of the accused, the deceased was taken to a doctor. The doctor, after examining the deceased, stated that she was not having any mental illness. The witness also stated that the deceased was complaining about the illicit relationship of the accused with one Pushpalatha and about the ill-treatment and threat made by the accused to the deceased. 19. PW15, a blacksmith by profession, identified MO1 chopper and stated that it was made by him for a price of Rupees one hundred, out of which the accused paid only Rupees seventy. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 14 :: 20. PW18, the father of the deceased, also narrated the incidents which led to the deceased being taken to a Psychiatrist. He also stated that the deceased complained to him about the illicit relationship of the accused with another woman. PW18 identified MO7 diary and MO8 letter and stated that the diary and the letter contained the handwriting of the deceased. In the diary and in the letter, various acts of cruelty on the part of the accused were narrated by the deceased. 21. PW19, the Associate Professor of Forensic Medicine, Medical College Hospital, Kottayam, conducted the postmortem examination and issued Ext.P8 postmortem certificate. The antemortem injuries found on the body of the deceased, as noted in the postmortem certificate, are the following: “1. Incised wound 15.5x3x7 cm., involving the right cheek, crossing the midline through the lower attachment of nasal septum after cutting it, to the left side to a point 2.5 cm. outer to ala of nose. The lower margine was 1.5 cm. above the lip margin. Maxillary ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 15 :: antra were and cavities were found cut open and exposing the palatal bone. Edges of the bones showed fragmentation. 2. Incised wound 8.5x1.5x5 cm. partially transecting the vertebral column, horizontal on the back of neck, 6.5 cm. below occiput lower border of first cervical vertebra and adontoid was found cut cleanly. Hairs were also found cut cleanly. Wound was found terminated in the spinal canal. Dura was intact. 3. Incised wound 5x1.8x0.5 cm. oblique on the right side of neck, the lower outer end, 5 cm. outer to midline and 2 cm. above the top of shoulder with two tailing 1.5 cm. and 0.8 cm., 0.6 cm. apart and extending outwards from the lower margin. Air present in the right ventricle. Frothy blood present in the inferior venacava. 4. Incised wound 2x0.5x0.5 cm. oblique on the left side of back of head, the lower inner end 2 cm. outer to midline and 3 cm. below occiput. Brain showed a thin film of subarachnoid bleeding. Sulci narrowed and gyri flattened. 5. Incised wound 5x1.5x3 cm. on the top of left ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 16 :: shoulder 4 cm. inner to tip collar bone underneath was found cut partially with fragmentation of the edges. 6. Incised wound 13x5x5x0.6 cm., curved reflecting a flap of skin 5x4.7 cm. backwards and inwards on the back and outer aspect of right forearm the upper end 10 cm. below elbow. Muscles underneath were found cut partially. The lower margin contused, the lower end 11 cm. above wrist (the outer limb was longer 8.3 cm. and the inner limb 4.7 cm.)” PW19 deposed that death was due to multiple injuries noted in the postmortem examination and that the injuries could be caused by a weapon like MO1 chopper. The doctor also stated that injury Nos.1 and 3 and the combined effect of injury Nos.2 and 4 are independently sufficient enough in causing death in the ordinary course. 22. After considering the evidence in the case, the court below held that the circumstances established by the prosecution were the following: ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 17 :: “(i) That the victim was found in the company of accused on the alleged day, time and place of occurrence just before the alleged incident. (ii) Just after the alleged incident the accused was found running away from the occurrence place. (iii) The accused was chased after and caught by those who rushed to the occurrence place and handed over to the police. (iv) The victim was found lying in the occurrence place in a pool of blood after receiving several blows and at the time the accused was found running away from the occurrence place. (v) Accused alone was found in her company just before the incident and nobody else was found in their company or nearby places. (vi) M.O.25 Bike owned by the accused found stationed very near to the occurrence place and no plausible explanation forwarded by the accused regarding its presence in the occurrence place. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 18 :: (vii) Accused was found proceeding towards the occurrence place on his Motorcycle in and around the time of occurrence. (viii) M.O.1 is the chopper sold to the accused by P.W.15 about 5 to 6 months back and it is belong to the accused. (ix) M.O.1 chopper was found lying in the occurrence place with bloodstains. (x) The bloodstain found in M.O.1 chopper found to be 'A' group of human blood and it is the blood group of the deceased. (xi) No explanation forwarded by the accused with respect to the bloodstain found in M.O.1 chopper. (xii) Another Chopper was found kept in the rexine pouch attached over to the petrol tank of the motorcycle owned by the accused found stationed at the occurrence place besides a knife and iron chisel and a stained shirt. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 19 :: (xiii) Accused was doing sale of fresh tender coconuts on roadside and M.O.1 chopper found to be a one used for cutting tender coconuts. (xiv) Accused was actually chasing after the victim on the alleged day till the time of alleged incident. (xv) Just after the incident the accused was caught red handed by those who chased after him and handed over to the police. (xvi) The victim was subjected ill-treatment by her husband and tortured her physically and mentally while she was residing along with him at Malamukal. (xvii) Earlier she opted to seek asylum for her residence to the house of his Father-in-law as well as to the house of her sister-in-law on two occasions on the ground of ill-treatment, threat and torture exerted on her by her husband. (xviii) The motive behind the crime also established by the prosecution and she had left the house of accused about one month back to the alleged ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 20 :: incident and started to live in a vacant house owned by P.W.10. (xix) The victim was actually under fear of death and she was put in fear of death by the accused and she used to stay in the said house owned by P.W.10 only during day time and used to sleep in the house of her Uncle P.W.1 during night time fearing death in the hand of her husband. (xx) The medical evidence tendered supports the prosecution case and all the injuries sustained are possible with a weapon like M.O.1.” 23. We are of the view that the court below correctly identified the circumstances which were proved in the case. The proved circumstances established a complete chain of events which points only to the guilt of the accused. No other hypothesis other than the guilt of the accused is possible from the circumstances which were proved in the case. The nature of injuries, the number of injuries, the nature of the weapon used for inflicting injuries and the manner in which the weapon was used to inflict blows on the deceased ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 21 :: would clearly establish that the accused inflicted the injuries with an intention to murder the deceased. The accused is a vendor in tender coconuts. He has to use a chopper like MO1 for the purpose of his business. A vendor of tender coconuts would be so proficient in using a sharp edged weapon like MO1 and such a person would be proficient in using that weapon with great speed. The accused was quite aware of the consequences of using a weapon like MO1. 24. On a complete re-appraisal of the evidence on record, we concur with the view taken by the court below that the accused committed the offence under Section 302 of the Indian Penal Code. We, therefore, confirm the conviction of the accused under Section 302 of the Indian Penal Code. 25. As regards sentence, we are of the view that the court below was not justified in awarding capital punishment to the accused. Taking into account the principles laid down in **Bachan Singh** v. **State of Punjab** ((1980) 2 SCC 684), **Swamy Shraddananda** v. **State of Karnataka** ((2008) 13 SCC 767), ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 22 :: **Machhi Singh** v. **State of Punjab** ((1983) 3 SCC 470) and **Aloke Nath Dutta** v. **State of West Bengal** ((2007) 12 SCC 230), we are of the view that in the facts and circumstances of the present case, death penalty is not warranted. The case on hand does not come in the category of rarest of rare cases. It is true that the accused murdered his wife in a brutal manner on a public road in broad daylight. It is also true that he made all preparations for committing the offence and he roamed around on his motor bike to locate the victim for committing the murder. The injuries sustained by the victim and the weapon used for commission of the offence would clearly indicate that the intention of the accused was to murder his wife. 26. The accused has two children, a daughter and a son, who were examined as PW5 and PW6 before the court below. It has come out in evidence that the children of the accused are staying in an orphanage at present. That the accused had love and affection towards his children is clear from the evidence. Even on the date of incident, he made a request to PW5 and PW6 to accompany him to his house. The accused offered to take his son to school on his ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 23 :: bike. These offers made by the accused to his children were within a period of one hour before he committed the offence. In the chief examination of Josheya (PW5) she stated that at 8 AM when she alighted at Elavattom along with her mother, the accused came there on his bike. Josheya stated in evidence thus: “®æK ÎÞxß ÈßVJß ÉM ÉMçÏÞæ¿ÞM¢ æºÜïáçKÞ ®çKÞ¿í çºÞÆߺîá. ¾ÞX æºÜïáKßÜïæÏKá ÉùEá.å©¿æÈ ÉM ®çKÞ¿á ÉMæÏ §×í¿ÎçÜï ®Ká çºÞÆߺîá. ¾ÞX §×í¿¢ ÄæKÏÞæÃKá ÉùEá.” ## In cross examination, PW5 Josheya stated thus: “ÉMçÏÞæ¿ÞM¢ ÄÞÎØßAáçOÞZ ÉM ®çKÞ¿í ØíçÈÙJßW ¦Ãá æÉøáÎÞùßÏßGá{{Äí. ............. ®æa ÉÀÈ µÞøcJßW ÉMÏᢠ¥NÏᢠdÖißAÞùáIÞÏßøáKá. ¥ÄßÈáU ØìµøcB{ᢠæºÏñá ÄKßøáKá.” ## Jighosh (PW6), son of the accused, stated in chief examination thus: “¾ÞX Bus stop_W ÈßWAáçOÞZ ÉMåBullet_W ÕøáKÄí µIá.å®æa ¥¿áJá ÕKá ÕàGßçÜAí ÕøáçKÞ ®Ká çºÞÆߺîá. ¾ÞX §æÜïKá ÉùEá.å¥çMÞZ ÉM ÉùEá Øíµâ{ßW ÉMÏáæ¿ èÌAßW æµÞIÞAÞ¢ ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** **==> picture [38 x 10] intentionally omitted <==** èÌAßW µÏùâ ®Kí.å¾ÞX µÏùßÏßÜï.åØíµâZ ÕIß §çMÞZ ÕøáæÎKá ÉùEá.å¥ÄßÈáçÖ×¢ ÉMÏáæ¿å Mobile phone_W Õß{ßAÃæÎKá ®çKÞ¿á ÉùEá.” In cross examination, Jighosh was asked a pointed question “ ” ÉMçÏÞ¿á çÆ×c¢ ©çIÞ §çMÞZ , to which, he answered thus: “¥NÏáæ¿ µÞøc¢Õºîá çÈÞAáçOÞZ çÆ×c¢ ©Ií.”. At the time of examination of PW5 and PW6 before Court in June 2010, they were aged 14 and 15 years. They are destitutes now. They lost their mother as a result of the offence committed by their father. The question is whether these two children should lose their father also by way of executing a death penalty. We have no hesitation in our mind to hold that this is not a fit case at all to give capital punishment to the accused, particularly, taking into account the plight of his innocent children. It has come out in evidence that an extent of 36 cents belonging to the deceased was mortgaged to a co-operative bank for taking a loan. Nobody knows whether these two children will be able to retain the property. Instead of hanging the accused in execution of a death penalty, the State would think of protecting ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 25 :: these two helpless children by taking steps to salvage the property which belonged to their mother and which was mortgaged to Vattiyoorkavu Service Co-operative Bank. 27. As rightly held by the court below, the evidence of DW1 and DW2 would not support the case put forward by the accused nor does it absolve the accused from the criminal liability. In the result, - (1) We answer the DSR against the prosecution and we set aside the sentence imposed by the court below on the accused. - (2) We confirm the conviction of the appellant in Crl.A.No.2194 of 2010 under Section 302 of the Indian Penal Code. - (3) We alter the sentence to a sentence of imprisonment for life and to pay a fine of `25,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months, instead of the sentence awarded by the court below. - (4) The appellant/accused would be entitled to set off under Section 428 of the Code of Criminal Procedure. ## **D.S.R. NO. 2 OF 2010 and CRL.APPEAL NO.2194 OF 2010** :: 26 :: A copy of this judgment shall be forwarded by the Registry to the Secretary, Service Co-operative Bank, Vattiyoorkavu. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/