Gousjan @ Houjan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 CRL.A.No. 1163 of 2004() -----------------------SC.541/2001 of I ADDL. SESSIONS COURT, KOLLAM .................... APPELLANT: ACCUSED --------------------------------- GOUSJAN @ HOUJAN, S/O. MEHABOOBKAN, SHEEBA MANZIL, KOMALAMKUNNU, PUNALUR. BY ADV. SRI.S.RAJEEV SRI.K.V.VINODKUMAR RESPONDENT: RESPONDENT: -------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.B.KOSHY & K.HEMA, JJ.** ------------------------------------------- Crl.A.No.1163 of 2004 ------------------------------------------Dated this the 27[th] day of March, 2008 ## JUDGMENT ## KOSHY, J. The appellant, who is the accused in crime No.71/98 of Punalur Police Station, stands convicted for the offence punishable under Sections 302 and 449 IPC. He was sentenced to undergo imprisonment for life and pay fine of Rs.1,00,000/under Section 302 IPC and he was also sentenced to undergo rigorous imprisonment for 5 years under Section 449 IPC. There was also a direction for undergoing the sentence concurrently. 2. According to the prosecution, the deceased, 19 year old girl was living with her sister. The accused is a close relative of the deceased and he was also the driver of the car owned by CW18, the father of the deceased. It has come out in evidence that the mother of the deceased was employed in America. It has also come out in evidence that earlier, father was also employed in America and the house was looked after by PW4, CRL.A.1163/2004 2 sister’s husband of the deceased with the assistance of the accused. PW4 also deposed that during that period his wife had gone to Thiruvananthapuram for studying beautician course. At the relevant day on 10.2.1998, father and sister of the deceased, CW18 and CW12 respectively, had gone to Kottayam for purchasing textile in connection with the textile business conducted by them in Punalur and at 10.30 a.m., the accused committed trespass into their house and tried to commit rape on the deceased and when she resisted with a knife, the accused inflicted severe injuries on head, face, arm, neck, chest etc. and at about 1 p.m., Sherin alias Sheema succumbed to the injuries. At that time other than she, only 2½ year old child of her sister was present in the house. On hearing the cry, PWs 2 and 3, brothers of PW4, and their mother reached the place. PW9 also accompanied them. He came to that place for purchasing gunny bags from PW3. The doors were closed from inside. PWs 2 and 3 saw the accused inflicting injuries on the deceased through kitchen window. PW2 kicked open the door and the accused ran out from the house. PWs 5 and 6, father and mother of the CRL.A.1163/2004 3 accused, also came to the spot and found Sheema with injuries. The accused was lying on the door of the kitchen with blood stain. The washing machine was on the dyning hall and the knife was on the top of the washing machine. MOs 1 to 4 were the clothes of the accused and the deceased. It is the case of PWs 2, 3 and 9 that they saw the accused inflicting injuries on the deceased through the window of the kitchen door. Sheema was taken to the Government Hospital, Punalur by the mother of the accused (PW6) and a neighbour of the deceased (PW7). PW6 and PW7 stated to a specific question that they do not know how the incident occurred and they also stated that they do not inquire how the incident occurred. PWs 2, 3 and 9 saw the incident but they did not take the injured to the hospital. But later in an autorickshaw the deceased was taken to the hospital by PW6 etc. PW4 who was in the shop was informed the matter by PW2 and he also went to the hospital. PW4 intimated the matter to PW1. PW1 furnished First Information Statement before the police at 4.15 P.M. on the same day. It reached the court only on 12[th] morning. It is contended that even though the incident CRL.A.1163/2004 4 occurred at 10.30 A.M., PWs 2, 3 and 9 did not take the injured to the hospital. The incident also occurred near the police station at Punalur town. But they did not go to the hospital even though they asserted that they saw the incident and they are relatives. They did not inform the police. It is quite unnatural. It is further argued that the first information was given to Police by PW1 who got the information from PW4, who is also not an eye witness. Why PW4 himself did not inform the matter to the police was not explained. It cannot be accepted the undue delay in registering the FIR and forwarding the same to the court is a ground for disbelieving the prosecution case. It is the duty of the police to record the FI statement and register the FIR and sent it to court promptly. The delay in registering the FIR and despatching the same is not explained. In such circumstances, the court must be careful in analysing the evidence. 3. The defence of the accused was that the vehicle of the father of the deceased was in the work shop of PW10 and he was in the workshop at the relevant time and he is innocent. He further stated that she was in love with the deceased and the CRL.A.1163/2004 5 witnesses who deposed against him was enmical because of the above affair. PWs 2, 3 and 9 are eye witnesses who saw the part of the incident through window slated that she resisted his attempt when he stabbed her by using a knife. The accused was also injured. Immediately on arrest he was taken to the hospital and Ext.P8 shows that he had sutured wound on the left wrist joint. The evidence of PW14, a lady doctor shows that the accused was treated by her husband and Ext.P10 certificate is with respect to a treatment on 10.2.1998, issued by her husband. It is stated that he got the injury when he was in the workshop while removing the engine. But the evidence of PW10, workshop owner, shows that he never went to the work shop on 10[th] . The car of the father of the deceased was repaired only at 5 O' clock on 9[th] and thereafter, the accused never came to the workshop. The suggestion put forward by the accused was that he got injury at the workshop cannot be accepted. Further, the driver also stated that there was no occasion to remove the engine of the car on 10[th] . From the evidence of PW10, it is clear that the accused was not in the work shop on the date of CRL.A.1163/2004 6 occurrence. If the alibi pleaded is not proved it is well settled law that it will boomerang on the accused himself. The Apex Court in **Rajesh Kumar vs. Dharamvir and others (1997 SCC** **(Crl.) 591)** held that defence of alibi shall be proved with absolute certainty excluding the presence of the accused at the time of the incident. The Apex Court in **Binay Kumar Singh vs.** **State of Bihar (1997 SCC (Crl.) 333)** held that strict proof is required to prove alibi. Here, alibi is not proved by the accused. However, merely because the accused did not prove his defence, he cannot be convicted. The burden is on the prosecution to prove the charges with certainty. Now, we will consider the evidence adduced on behalf of the prosecution to find out whether it has adduced evidence to prove the guilt of the accused beyond reasonable doubt. 4. PW11 doctor conducted the postmortem and issued Ext.P6. She noted the following injuries. 1). Incised penetrating wound 1.7x0.5 cm vertical on the right side of front of neck, its lower blunt end 2.5 cm. above the middle of collar bone. Its upper end was cleanly cut. The CRL.A.1163/2004 7 sternomastoid muscle, and the internal jugular vein were cleanly cut, the chest cavity penetrated through the apex and the apex of right long cleanly cut (1.5x0.5x0.5 cm). The wound was directed downwards for a total minimum depth of 4 cm. 2). Incised penetrating wound 1.5x0.5 cm obliquely placed on the right side of back of chest its lower inner sharply cut end 65 cm below the root of neck in the middle. It upper cutter end was blunt. The chest cavity was seen penetrated through fifth intercostal space, (3.5x1.5 cm) and the right lung at the interlobar fissure cleanly cut. (1.5x0.5x0.4cm). The wound was directed downwards and forwards for total minimum depth of 5.5 cm. Right chest cavity contained 1.5 litres of fluid blood and right lung was collapsed. 3) Incised wound 1x0.5x1 cm. on the right side of face 4 cm. in front of the middle of ear. 4) Incised wound 3x1x2 cm vertical on the right side of face 3 cm. in front of the lobule of ear. CRL.A.1163/2004 8 5). Incised wound 2x0.5x1.5 cm obliquely placed on the right side of back of neck, its upper outer blunt end 1cm. below and 5 cm. behind lobule of ear. 6) Incised wound 2.5x0.5x0.3 cm horizontal on the under chin in the middle 2.5 cm. behind the tip of chin. 7). Incised wound 3x0.2x.2 cm horizontal on left cheek. 8) Incised wound 2x.5 x1cm horizontal on the left side of face overlying jaw bone and 4 cm. outer to midline. 9) Incised wound 1.5x0.5x1 cm vertical on the left side of neck 2 cm. below lobule of ear. 10) Incised wound 3x0.5x0.5 cm horizontal on left side of front of neck 4.5 cm. below lobule of ear with a tailing 5 cm. long directed forwards and upwards. 11) Incised wound 3.5x0.5x.3cm horizontal on the back of left ear lobe 2 cm. below its top. 12). Incised wound 1.5x0.5x0.5 on the left side of back of head 0.5 cm. behind root of ear in line with injury No.11. CRL.A.1163/2004 9 - 13) Incised punctured wound 1x0.5x2.5 cm on the left side of back of head 4.5 cm. below and 3 cm. behind lower end of ear lobe. Its upper end was blunt and lower end sharply cut. - 14) Incised wound 1x0.2x0.2 cm. on the back of right wrist. - 15) Incised wound 1.7x0.5x0.5 cm. on the back of right hand - 2.5 cm. above the root of forefinger. - 16) Incised wound 1.5x0.5x0.5 cm. on right palm 2 cm. above root of thumb. - 17) The horizontal incised wounds 1x1.5 cm.x1 cm., 1x0.5x0.5 cm. and 1.5x1x0.5 cm. on the front of forefinger, middle finger and ring finger of right hand respectively 0.5 cm. below the corresponding root. 18) Incised wound 0.5x0.2x0.2 cm. on the front of chest in the middle 4 cm. below the lower end of breast bone. 19) Incised wound 1x0.5x0.5 cm. on the inner aspect of left wrist. 20) Two incised wounds 3.5x1.5x0.5 cm. and 2x1x0.5 cm. oblique, parallel to each other 1.5 cm. kapart on the inner aspect CRL.A.1163/2004 10 of left forearm the lower inner end of the former being 2 cm. above wrist. 21) Incised wound 1.5x0.2x0.2 cm. on the back of left wrist. 22) Two incised wounds 2x0.5x0.5 cm. and 2.5x0.5x0.5 cm. oblique parellel to each other 1 cm. apart on the inner aspect of left forearm the latter being 12 cm. below elbow. 23) Incised wound 1x0.5x0.5 cm. on the back of left forearm 14 cm. below elbow. 24) Two incised wounds, each being 1x0.2x0.2 cm. side by side 1 cm. apart on the top of left shoulder. 25) Incised wound 1x0.5x0.5 cm. on the left side of front of chest 4 cm. below the middle or collar bone. 26) Abrasion 1.5x1 cm. on the outer aspect of left ankle. 5. According to PW11, the death was due to the penetrating injuries sustained to the chest injury Nos.1 and 2 in Ext.P6 and doctor also stated that the injuries were independently fatal. Injury Nos.14, 17 and 19 to 25 are defensive injuries. The blood group of the accused was 'O+' as certified by PW13. CRL.A.1163/2004 11 6. PW15 is the doctor who issued Ext.P11 wound certificate of the deceased. She found 13 injuries on her. According to PW15 there are following injuries on her. 1) Incised penetrating wound 1.7x0.5 cm. vertical on right side of front of neck. - 2) Incised penetrating wound 1.5x0.5 cm. obliquely placed on the right side of back of chest. - 3) Incised wound 1x0.5x1cm. on the right side of face. - 4) Incised wound 3x1x2 cm. vertical on the right side of face. - 5) Incised wound 2x.5x1.5 cm. obliquely placed on the right side of back of neck. - 6) Incised wound 2.5x.5x3 cm. horizontally placed on the under chin on the middle. - 7) Incised wound 3x.2x.2 cm. horizontal on left cheek. - 8) Incised wound 2x.5x1 cm. horizontal on left side over mandible. - 9) Incised wound 1.5x.5x.1 cm. vertical on the left side of neck. CRL.A.1163/2004 12 10) Incised wound 3x.5x.5 cm. horizontally placed on the front of neck. 11) Incised wound 3.5x.5x3 cm. horizontally placed on the back of right ear. 12) Incised wound 1x.2x.5 cm. on the back of right wrist. 13) Incised wound .5x2x.2 cm. on front of chest in middle 4 cm. below the lower end of blunt bone. According to her, the patient was in shock and patient was referred to Medical College Hospital, Thiruvananthapuram” 7. Now we will consider the evidence of PWs 2, 3 and 9. PWs 2, 3 and 9 were not only relatives but also the immediate neighbours and PWs 2 and 3 are brothers of PW4. They were in the nearby shop. They saw their mother (CW2) running towards the house of the deceased. They followed her. Since all the doors were locked, they looked through the window and they saw the accused inflicting injuries with the knife and the deceased trying to resist him. Since the summary of the evidence is recorded in the trial court judgment, we are not reiterating the same. Their evidence would clearly show that the accused was CRL.A.1163/2004 13 caused the murder of the deceased. PW4 was in the shop. He came there only on getting the information. He informed PW1 and went to the hospital. In cross examination, no suggestions were put forward to PWs 2 and 3 regarding the involvement of PW4 in the incident and their evidence is practically not challenged. No case is made out in the 313 statement or no suggestion was even put forward to any of the witnesses suggesting the involvement of PW4 in the incident. Except he is husband of the sister of the deceased, absolutely no allegations are made against PW4 and therefore, evidence given by PWs 2 and 3 cannot be ignored as they are relatives of PW4. PW9 is a person who came there for purchasing gunny bags from the house of PW3. His evidence cannot be brushed aside as a chance witness. He used to collect old gunny bags from PW3. He also gave evidence similar to PWs 2 and 3. So evidence of PWs 2, 3 and 9 are very cogent and clear against the accused. It is true that the father, CW18 or sister, CW12 of the deceased ought to have been examined. But admittedly they were not in the place and went to Kottayam and there was no suggestion put forward CRL.A.1163/2004 14 by the defendants that they were near in the locality and there were no allegations against them. Since there are eye witnesses, prosecution examined only direct eye witnesses. The mother of PWs 2 and 3 was also reached the place and she also accompanied her in the autorickshaw to the hospital along with PW6 and PW7. But she was not examined due to old age. Mother of the accused, PW6 who accompanied the deceased to the hospital and deposed that she did not inquire regarding how the incident occurred. Ext.P16 analysis report of the FSL regarding the knife recovered from the place of the incident shows that it contain 'O' group blood and other items 1 to 9 contain human blood. Even though the blood group of the accused was 'O' group and the blood of the deceased was not examined, that alone cannot connect the accused with the incident. But all other evidence coupled with the falsity of defence taken by the accused proves the guilt of the accused. We are of the opinion that prosecution was able to prove conclusively that the accused is guilty. We also agree with the conclusions made by the trial court judge and we see no ground to interfere with the conviction CRL.A.1163/2004 15 and sentence. However, we reduce the fine amount of Rs.1,00,000/- to Rs.10,000/-. If there is any default in payment of fine, he shall undergo imprisonment for another six months. The criminal appeal is dismissed subject to the above modification regarding the amount of fine. **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** csl