Elamma Kizhakkel Kuruvithadathil; Bijoy Jose So Mathew George v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, ``` ## **`1944`** ``` CRL.A NO. 1075 OF 2006 AGAINST THE JUDGMENT IN SC 637/2005 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## **`APPELLANT/S:`** ``` 1ELAMMA KIZHAKKEL KURUVITHADATHIL, ARAKKUZHA KARA,, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK. 2BIJOY JOSE SO.MATHEW GEORGE KIZHAKKEL KURUVITHADATHIL, ARAKKUZHA KARA,, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK. BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` REKHA,GP ,RAJESH A(SPL GP) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1075 OF 2006 ``` ..2.. ## **JUDGMENT** The challenge in this appeal is to the judgment dated 06.05.2006 passed by the Sessions Judge, Ernakulam in S.C.No.637 of 2005. Accused Nos.1 and 2 are the appellants. 2. The appellants were charged by the Circle Inspector of Police, Muvattupuzha alleging offences punishable under Sections 342, 302, 120B and 511 of 201 read with Section 34 IPC. 3. The court below convicted the appellants/accused Nos. 1 and 2 for the offences under Sections 323 and 342 IPC and sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1000/- each. 4. The relevant facts: - The deceased Dr.Mathew George was a retired Professor. Accused No.1 is his wife. Accused No.2 is his son. In 2003, he was working as the Principal of Sree Narayana ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** College of Teacher Education, Muvattupuzha. He was not in good terms with the other members of his family. The victim left his residence and took asylum in an old age home. His wife and son, accused Nos. 1 and 2 resisted the victim staying in the old age home. They approached the authorities of the old age home and pressurized them to send him out from there. Due to the pressure on the part of accused Nos. 1 and 2, the victim was sent out of the old age home. By the time, the deceased had executed a Will in respect of his assets. On knowing this, the accused tried to manipulate documents to the effect that the deceased was mentally ill. For that purpose, accused Nos. 1 and 2 approached the S.H.Mental Hospital, Painkulam and obtained medicines for the victim as if he was suffering from Paranoid psychosis with intent to administer the same to him without his knowledge. Later, the accused decided to take the victim forcibly to S.H.Hospital, Painkulam. They arranged a vehicle bearing No. KL-7/R 1047, a Tata Sumo car, with the assistance of ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** accused No.3 and on 05.08.2003, accused Nos.1 and 2 tied the mouth and limbs of the deceased and forcibly took him to the hospital in the vehicle. By the time they reached the hospital, Dr.Mathew George had died. Accused Nos.1 and 2 took back the body of Mathew George to their house and made preparations for burying. The college authorities, on getting information regarding these incidents, lodged a complaint before the police alleging that the death of Dr.Mathew George was suspicious. Based on this information Crime No.465 of 2003 was registered by the Muvattupuzha Police. The Police conducted inquest and forwarded the dead body to the Medical College where the postmortem of the dead body of Dr.Mathew George was done. The Circle Inspector of Police, Muvattupuzha conducted investigation and submitted final report against the appellants and the other accused. The accused appeared before the trial Court. Charges were framed against them for the offences punishable under 342, 302, 120B and 511 ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** of 201 read with Section 34 IPC. They pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 21 and Exts. P1 to P24. 6. After closure of the evidence on behalf of the prosecution, the accused were questioned under Section 313 Cr.P.C.. They pleaded innocence. The matter was heard under Section 232 Cr.P.C. The trial Court found that there was evidence against the accused and hence, they were called upon to adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed from both sides, accused Nos.1 and 2 were found guilty of the offences punishable under Sections 342 and 323 IPC and they were sentenced thereunder. 7. Heard Sri.Niresh Mathew, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the Senior Government Pleader. 8. During the course of the proceedings in this ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** appeal, appellant No.1 died. As the sentence impugned was a composite sentence of fine and imprisonment, the appeal as against appellant No.1 shall not abate. Appellant No.2 prosecuted the appeal for and on behalf of himself and the appellant No.1. The following points arise for consideration:- - (i) Whether the prosecution succeeded in establishing the ingredients of the offences punishable under Sections 342 and 323 IPC against the accused/appellants. - (ii) Whether the sentence imposed against the accused requires modification. 9. Dr.Mathew George died on 05.08.2003. According to the prosecution, on the date of death, accused Nos.1 and 2, in their attempt to take the deceased to hospital tied his mouth and limbs and took him forcibly to S.H. Hospital, Painkulam in a vehicle. By the time they reached the hospital at Painkulam, Dr.Mathew George had died. Dr.Mathew George had ``` CRL.A NO. 1075 OF 2006 ``` ..7.. ## sustained the following injuries as is evident from Ext.P12 post-mortem certificate. “1) Abrasion 3x1 cm on the bridge of nose, just above its tip. 2) Multiple linear abrasions over an area 8x6 cm. varying in sizes from 1x0.1 cm to 5x0.2 cm clustered together on the right side of the face just outer to the corner of mouth. 3) Linear abrasion 3x0.3 cm obliquely placed on the right side of the face just below the aia of nose. 4) Crescentic abrasion 1x0.1 cm on the left side of the face 4 cm in front of the tragus of ear. 5) Abraded contusion 4x2x1 cm on the left malar eminence of the face. - 6) Laceration 3x1x0.3 cm on the inner aspect of the right corner of mouth. 7) Laceration 2.5x1x0.4 cm on the inner aspect of the left corner of mouth. 8) Multiple crescentic abrasions over an area 3x1 cm clustered together varying in sizes Exam 0.2x0.1 cm to 0.4x0.1 cm on the right side of the neck 4 cm outer to the midline and 6 cm below the lower jaw. 9) Multiple linear abrasions over an area 5x4 cm varying in sizes from 0.3x0.1 cm to 0.5x0.2 cm on the right side of the neck 6 cm above the collar bone and 8 cm outer to the midline. 10) Multiple linear abrasions over an area 6x3 cm varying in sizes from 3x0.1 cm to 4x0.2 cm on the left side of the neck 5 cm outer to the midline and 4 cm above the root of neck. Flap dissection of the neck was done under a bloodless field and the subcutaneous tissues underneath the Injury No.8. 9 and 10 showed infiltration of blood. The muscles of the neck showed echymosis at many places. Posterior wall of the larynx showed haemorrhage. 11) Contused abrasion 4x2x1 cm on the left side of the forehead just above the outer end of eye brow. 12) On dissection of the scalp tissue showed ``` CRL.A NO. 1075 OF 2006 ``` ..8.. contusion 8x6x1 cm Involving the left temporal region of the head, skull bone was normal. Duramater intact. Brain was congested. 13) Abraded contusion 3x1x1 cm on the back of right shoulder 6 cm above the posterior fold of arm pit. 14) Contusion 5x4x1 cm on the back of right elbow. 15) Abraded contusion 4x2x1 cm over the middle of right collar bone. 16) Abrasion 5x4 cm on the middle of right buttock. 17) Abraded contusion 4x2x0.5 cm on the back of right thigh 15 cm below top of hip bone. 18) Abraded contusion 4x2x0.5 cm on the back of right leg 10 cm above ankle. 19) Abrasion 3xz cm on the right of left knee.” The cause of death was found to be asphyxial death. 10. PW1, an official of the Sree Narayana College of Teacher Education, Muvattupuzha where the deceased was employed at the time of his death gave Ext.P1 FIS. The prosecution examined PWs 3 and 9 to establish that the deceased was not in good terms with Accused No.1. PW3, Sr. Merin of Anjos Sadan , Basalhem, Vazhakulam gave evidence that in the month of July, 2001, Dr. Mathew George reached the old age home stating that he had some problems with other members of his family and that he wanted to stay there for six months. PW8 stated that ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** the deceased stayed in the Anjos Sadan for nine months. Thereafter accused Nos. 1 and 2, his wife and son, came there and demanded them to send him out. PW8 stated that when accused Nos. 1 and 2 protested in permitting him to reside there, he left Anjos Sadan along with his son-in-law. The prosecution relied on the oral evidence of PW3, a teacher of Sree Narayana College, PW4 a marketing agent, PW6 another Lecturer of Sree Narayana College to establish that Dr. George Mathew had no mental decease. The oral evidence of PWs 3,4, 6 and 8 would show that the Dr. Mathew George had no mental illness. PW2 is the driver of Tata Sumo vehicle bearing Regn No. KL-7/R 1047. PW2 gave evidence that on 03.08.2003, accused No.3 had booked the vehicle for taking the father of accused No.2 to S.H. Hospital, Painkulam. According to PW8 on 05.08.2003 at 07.00 AM, he reached the residence of the accused No.3 and proceeded to Muvattupuzha. They reached Muvattupuzha and waited at Muvattupuzha Post Office Junction for some ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** time. Thereafter, accused No.2 came and went to the house at Arakuzha. 11. On reaching there, accused No.2 went inside the house and and after sometime, as he had not seen accused No.2, PW2 rang the calling bell. Accused No.2 opened the door and asked PW2 to bring the vehicle to the courtyard. He found an old man lying in the hall with his hands and legs tied. PW2 further gave evidence that accused Nos.2 and 3 together lifted the man and laid him on the seat. Then an aged lady came with a cover in her hand and sat on the front seat. PW2 identified the aged lady as accused No.1. Thereafter, the vehicle was taken to the hospital. On reaching the hospital, a stretcher was brought and the man was taken to the strecher. The prosecution could establish that Dr. George Mathew was brought to the hospital on 05.08.2003 by accused Nos. 1 and 2. It has also come out in evidence that he was taken to the hospital by accused No.1 after getting his legs tied. It has further come out in evidence that the deceased was ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** taken to the hospital against his will by using force. The injuries noted in Ext.P12 is sufficient to hold that the victim was taken forcibly to the hospital. So, the evidence of PW2 is sufficient conclude that the deceased was taken to the hospital in a vehicle with his hand and legs tied. There is convincing evidence to show that the deceased was wrongfully confined. It has also come out in evidence that accused Nos. 1 and 2 voluntarily caused hurt to the victim in their attempt to take him to the hospital against his will. Therefore the conviction under Sections 323 and 342 r/w 34 of IPC against accused Nos. 1 and 2 requires no interference. The same is confirmed. 12. The learned counsel for the appellant submitted that the sentence imposed is exorbitant. The trial Court sentenced accused Nos. 1 and 2 to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1000/- each. 13. The incident occurred on 05.08.2003. The proceedings in this case continued for more than 19 years ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** causing immense mental pain, trauma and anguish to the accused. Accused No.1, who is no more, is the wife of deceased. Accused No.2 is his only son, who is now aged 45. He still remains unmarried. ## 14. In **Gurmugh Singh v. State of Haryana** [(2009) 15 SCC 635], the Apex Court narrated the factors to be considered before awarding appropriate sentence to the accused in paragraph 24, which read thus : - “24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: - a) Motive or previous enmity; - b) Whether the incident had taken place on the spur of the moment; - c) The intention/knowledge of the accused while inflicting the blow or injury; - d) Whether the death ensued instantaneously or the victim died after several days; - e) The gravity, dimension and nature of injury; - f) The age and general health condition of the accused; - g) Whether the injury was caused without pre- ``` CRL.A NO. 1075 OF 2006 ``` ..13.. meditation in a sudden fight; - h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; - i) The criminal background and adverse history of the accused; - j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; - k) Number of other criminal cases pending against the accused; - l) Incident occurred within the family members or close relations; - m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while ``` CRL.A NO. 1075 OF 2006 ``` ..14.. ## convicting and sentencing the accused." 15. In **Singh K.P. v. State of N.C.T. of Delhi** (2015 KHC 4640), the Apex Court, after taking into account the prolonged proceedings in the trial and appeal for nearly 17 years, reduced the sentence of two years' imprisonment imposed on the appellant therein to 7½ months being the period of imprisonment already undergone by him. The offence alleged in that case was punishable under Section 8 of the PC Act, 1988. 16. In **Vinay and others v. State of Karnataka and another** (2015 KHC 4296), the Apex Court reduced the sentence of imprisonment for a period of three months under Section 326 IPC read with Section 34 and 427 IPC to the period already undergone by the appellant therein. 17. In the instant case, the appellants/accused had no motive to inflict injuries on the victim. The incidents allegedly occurred in their attempt to take the victim to a hospital. No weapon was used by any of the accused. ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** The surviving appellant, accused No.2, has no criminal antecedents as per the materials placed before the Court. 18. Accused was arrested in the crime on 06.08.2008 and he remained in confinement till 20.09.2003. He is entitled to set off for the period of detention undergone, being 45 days. 19. Taking into account all these circumstances, I am of the view that the sentence imposed on the appellant/accused No.2 requires interference. In the result, the appeal is partly allowed. - (i) The judgment convicting the appellants/accused - Nos.1 and 2 under Sections 323 and 342 is confirmed. - (ii) The sentence imposed on appellant No.2/accused No.2 is modified as follows:- - (a) Sentence passed against Appellant No.2/accused No.2 is confined to the period of imprisonment he has already undergone. - (b)He is sentenced to pay a fine of Rs.1000/-/ . ``` CRL.A NO. 1075 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** In default of payment of fine, he shall undergo simple imprisonment for a period of one month. - (c) Appellant No.1/accused No.1 is no more and the question of imposition of sentence against her does not arise. The fine imposed against appellant No.1 is recoverable from the assets if any she has left. **Sd/K. BABU, JUDGE** kkj