Jaimon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **CRL.A.No. 647 of 2015** **AGAINST THE JUDGMENT IN SC 312/2012 of ADDL. SESSIONS COURT-II(SPECIAL), KOTTAYAM DATED 27-02-2015** **AGAINST THE ORDER/JUDGMENT IN CP 52/2012 of J.F.C.M.COURTI,CHANGANACHERRY** ## **APPELLANT/ACCUSED:** **JAIMON, C.NO.9921, CENTRAL PRISON, TRIVANDRUM-12** ## **BY ADV. JENCY MICHAEL (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE DGP,HIGH COURT OF KERALA. ERNAKULAM** **BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018 THE COURT ON 04.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.647/2015 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the appellant against the judgment of conviction and order of sentence passed by the Second Additional Sessions Judge – II (Special), Kottayam in S.C. No. 312 of 2012 by which he was found guilty for offences under Sections 302 and 309 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of one year rigorous imprisonment for the offence u/s 302 and further to undergo simple imprisonment for one year for the offence u/s 309 of IPC. 2. The prosecution case is that on 11/01/2012 at 11 p.m., the appellant with an intention and knowledge to commit murder of his wife Mini due to prior animosity, committed murder of the said lady while she was sleeping with the appellant along with their children at the western room of a newly built up building situated at Ambalakkodi bhagom in Kurichy village and that the appellant throttled her neck causing suffocation resulting her Crl.Appeal No.647/2015 -:3:- death. Thereafter the appellant attempted to commit suicide by hanging himself on the bar of a well situated at the courtyard of the said house and thereby committed the aforesaid offences. 3. Prosecution examined PWs 1 to 15 as witnesses, marked documents Exts. P1 to P16 and identified MO1 to MO9 series as material objects. On 313 examination, the appellant denied all incriminating evidence and pleaded innocence. Defence adduced no evidence. 4. Adv.Jency Michael was engaged to appear on behalf of the appellant. 5. The learned counsel for the appellant argued that the appellant is innocent in this case. He had no intention nor knowledge to commit the offence. He was taking care of his wife well. PW1 is a tutored witness. Ext.P2(a) is fabricated by police to create evidence against him. Motive is not proved by the prosecution. Alleged call made to the father of the appellant PW10 is not proved. Call record details are not sufficient as the particular mobile number was not proved to be that of the appellant. According to the learned counsel, the appellant is falsely implicated. The trial Court erred in finding the appellant Crl.Appeal No.647/2015 -:4:- guilty and hence the appellant need to be acquitted. 6. On the other hand, the learned Public Prosecutor argued that the guilt of the appellant is proved by the prosecution beyond the shadow of reasonable doubt. PW1 is none other than the daughter of the appellant. She deposed that she saw her father throttling her mother. Her version need not be disbelieved. PW10 is the father of the appellant. He categorically deposed that his son called him over phone at around 2 a. m. on 12/01/2012 and told him that he committed the offence. Again he called him before entering into the police station and sought directions. Exts.P2 and P2(a) are the diary writings of the appellant. In it, he wrote that he killed the deceased. His handwriting was identified by his father. Medical and other available evidence clearly points to the guilt of the appellant. The trial Court rightly held him liable for murder of his wife and hence no interference is called for. 7. PW1 is the daughter of the appellant and the deceased and she was cited as an eye-witness by the prosecution. 8. PW2 is an attestor to Ext.P1 inquest report. MO1 to MO5 had been marked through him. 9. PW3 is the mother of the deceased. Exts.P2 and P2(a) -:5:- Crl.Appeal No.647/2015 were marked through her. 10. PW4 is the then Vicar of St. Mary's Church, Thuruthy and Ext.P3 marriage certificate of the appellant and the deceased is marked through him. 11. PW5 is an attestor to Ext.P4 scene mahazar. He identified MO6 series plastic coir seized by the police from the place of occurrence. 12. PW6 is an attestor to Ext.P5 mahazar relating to MO4 gold chain. 13. PW7 is the then Village Officer of Kurichy who prepared Ext.P6 scene plan on 16.02.2012. 14. PW8 is the lecturer and Assistant Police Surgeon of Forensic Medicine attached to Medical College Hospital, Kottayam and issued Ext.P7 post-mortem certificate of the deceased dated 12/01/2012. He also examined the appellant on 12/01/2012 at 12.30 p.m., and issued Ext.P8 certificate. 15. Ext.P7 post-mortem certificate reveals the following ante-mortem injuries:- “ _1. Crescentic abrasion with convexity facing upwards 0.5 x 0.3 cm on right side of front of neck, 4 cm, outer to midline and 6.5 cm above collar bone._ Crl.Appeal No.647/2015 ## -:6:- _2. Crescentic abrasion with convexity facing upwards, 1x0.2 cm, on right side of front of neck 4 cm outer to midline and 4 cm below angle of jaw bone._ _3. Abrasion 0.3x0.2 cm on right side of front of neck 2 cm outer to previous injury No.2_ _4. Abrasion 0.2x0.1 cm on right side of front of neck 1 cm outer to previous injury no.2 and 4.5 cm below jaw bone._ _5. Abrasion 0.3x0.1 cm on right side of front of neck 5 cm outer to midline and 0.5 cm below previous injury no.4._ _6. Contusion 1 x 0.8 x 0.3 cm on right side of front of neck 4.5 cm outer to midline and 4.5 below angle of jaw bone._ _7. Contusion 1 x 0.5 x 0.4 cm on right side of front of neck 4.5 cm outer to midline and 1 cm below previous injury No.6._ _8. Contusion 0.5x0.5x0.2 cm on right side of front of neck 5.5 cm outer to midline and 0.5 cm below previous injury no.7._ _9. Abrasion 1 x 0.5 cm on right side of front of neck 2 cm outer to midline and 6.5 cm below angle of jaw bone._ _10. Abrasion 2 x 1 cm on front of neck in midline, 6 cm below chin._ _11. Abrasion 1.5x0.5 cm on front of neck in midline, 1 cm below previous injury no.10._ _12. Abrasion 1.8x1 cm on left side of front of neck 3 cm outer to midline and 3.5 below angle of jaw bone._ _13. Contusion 2 x 1 x 0.3 cm on left side of front of neck_ _7.5 cm outer to midline and 6 cm below jaw bone._ _14. Contusion 4.5 x 3 x 0.5 cm on left side of neck overlying jaw bone, 5 cm outer to midline._ _15. Linear abrasion 1.5 x 0.3 cm, horizontal, on left side of front of neck 3.5 cm outer to midline and 8 cm below angle of jaw bone._ Crl.Appeal No.647/2015 -:7:- _16. Multiple small abrasions of varying sizes from 0.3x0.1 cm to 0.2 x 0.1 cm over an area 2 x 0.6 cm on left side of front of neck, 3 cm outer to midline and 6 cm below angle of jaw bone._ _17. Abrasion 0.3x0.1 cm on left side of front of neck 6.5 cm outer to midline and 3 cm below jaw bone._ _18. Abrasion 0.5x0.5 cm on left side of neck 6 cm outer to midline and 0.8 cm below previous injury no.17._ _19. Abrasion 0.4x0.2 cm on left side of front of neck 7 cm outer to midline and 3 cm below previous injury no.18._ _20. Contusion 0.5x0.3cm x 0.2 cm on left side of neck 1.5 cm below ear lobule. ”_ 16. PW9 is the Medical Officer attached to Medical College Hospital, Kottayam. He examined the appellant on 12/01/2012 at 2.30 p.m., and issued Ext.P9 wound certificate. 17. PW10 is the father of the appellant and he was cited by the prosecution to prove the extra-judicial confession allegedly made by the appellant. 18. PW11 is the Civil Police Officer of Chingavanam who was on sentry duty at the police station on the night of 11/01/2012. He is an attestor to Ext.P10 body mahazar by which MO7 to MO9 series and Ext.P2 were seized from the appellant. 19. PW12 is the Scientific Assistant attached to FSL Unit, DCRB, Kottayam. He collected three materials from the scene of crime and filed Ext.P11 report. Crl.Appeal No.647/2015 -:8:- 20. PW13 is the Nodal Officer of Bharati Airtel Company, Kerala Circle. He produced Ext.P12 series call details and other details relating to mobile number 9633153061. 21. PW14 is the S.I. of Police, Chingavanam. He suo motu registered Ext.P13 FIR on 12/01/2012 at 4.15 a.m. He prepared Ext.P10 body mahazar of the appellant and seized MO7 to MO9 series along with Ext.P2. He effected the arrest of the appellant as per Ext.P14 series documents. 22. PW15 is the C.I. Of Police, Changanacherry. He conducted the investigation and laid charge-sheet. He prepared Ext.P1 inquest report and identified MO1 to MO5. He prepared Ext.P4 scene mahazar, as per which MO6 series plastic coir was seized. Ext.P15 is the property list. As per Ext.P5 seizure mahazar, he seized MO4 gold chain. Ext.P16 is the FSL report. 23. On going through depositions of witnesses and perusal of records, it can be seen that the prosecution proved the following and the trial Court relied on the same to hold the appellant guilty: (i) The evidence of PW1 daughter, PW3 mother of the deceased and PW10 the father of the appellant would show that Crl.Appeal No.647/2015 -:9:- the appellant and the deceased used to quarrel usually. (ii) Though a child witness, the testimony of PW1, the daughter of the couple, who was an eye-witness would indicate that her father and mother usually quarrel with each other and they quarrelled on the date of incident, by evening. It is her version that after the quarrel, she and her sister slept in the cot and her parents slept on the floor of the room as usual. While so, she heard cry of her mother Mini. When she woke up, she saw her father throttling the neck of her mother. She cried aloud. Her father scolded her for crying. Then he left the room and it is PW1's version that she heard an unusual sound from the well. When she rushed to the well, she found her father inside the well. She cried aloud and asked her father to come out of the well and he came out. Thereafter, she found her father laying with her mother for sometime and then went outside. She sat at the side of her mother crying and calling her. She was aged 9 years at the time of incident and her younger sister was aged 7 years. (iii) Deposition of PW10 who is the father of the appellant to whom, soon after the commission of the offence, the appellant allegedly made an extra-judicial confession reveals that that it Crl.Appeal No.647/2015 -:10:- was second marriage for both the appellant and the deceased. Ext.P3 is the marriage certificate produced by PW4 Vicar of the St. Mary's Church, Thuruthy. They were married for about nine years. It is his deposition that there were frequent quarrel between the appellant and the deceased. There was a police case lodged against the appellant by the deceased. He advised them not to quarrel anymore and have a good life by taking care of the children. It is his version that on 12/01/2012 at around 2.15 a.m., the appellant made a phone call from his mobile phone to his mobile phone and told the following:- "വഴകണ�യപ��ൾ ശബ� ഉണ�ക�ത�ര�ക�ൻ കഴത�ൽ ഞ�ൻ പ�ട�ച ഞഞക�. അപ��ൾ മര�ച പപ�യ� എന വ�ച�ര�ച# ഞ�ൻ ക�ണറ�ൽ . . തങ� കയർ ഞപ�ട� ത�ഞഴ വ*ണ കട�കൾ പറഞപ��ൾ കയറ� വന. മ�ന� അപ��ൾ മര�ചത�യ� മനസ�ല�യ�. ഇന� എന�ണ ഞചപ4ണഞതന# മകൻ എപന�ട# പച�ദ�ച.” He directed the appellant to surrender before police. On reaching the courtyard of Chingavanam Police Station, the appellant again contacted him and sought advice. He identified the handwriting in Exts.P2 and P2(a) as that of his son, the appellant herein. (iv) Ext.P2 is a diary which the appellant maintains, to record his wages, each day and Ext.P2(a) is written by the Crl.Appeal No.647/2015 -:11:- appellant in his own handwriting. The handwriting in Ext.P2(a) was identified by PW10, father of the appellant, as that of the appellant, his son. In Ext.P2(a), it is recorded that:- " ഞ�നവഞ7 (എഞ8 പമ�ഞ7) ഞഞക�ഞക�ന. എന�ക�ന� ജ*വ�കണ. ഞ�ന� പപ�കന. ഒന�ഞനകറ�ച� ഞ�ൻ ച�ന�കന�ല. മര�പച പറ. മ�ന�യഞട സ�മ# (idea) പA�ണ�ഞ8 . അകതണ# (v) Deposition of PW8 who conducted the post-mortem of the deceased and issued Ext.P7 post-mortem certificate would show that there were 20 ante-mortem injuries on the body of Mini and the death was manual strangulation. (vi) Deposition of PW9 was that there is ligature mark on the neck of the appellant and it is a clear sign of attempt of hanging which he clearly describes in Ext.P9 wound certificate of the appellant. 24. We don't find any error on the part of the trial Court in arriving at the conclusion that the appellant is the person who caused the death of his wife Mini. 25. Of course, it is settled law and as held by the Apex Court in _**Surya Narayana v. State of Karnataka**_ [(2001) 9 SCC 129], that the evidence of a child witness is not required to be Crl.Appeal No.647/2015 -:12:- rejected _per se_ ; but the court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction, based thereon. Having gone through the evidence of PW1, there is no material omission or contradiction to discard the said evidence. That apart, the evidence of PW1 is corroborated by the evidence of PW10, father of the appellant. The accused had made an extra-judicial confession to PW10 on the very same day at 2.15 a.m, stating that he was responsible for death of his wife but it was not deliberate. He was only trying to prevent her from screaming. The aforesaid evidence is further supported by the entry in Ext.P2(a), wherein he admits that he was responsible for the death of his wife. 26. The only question that remains to be decided is whether the appellant had the intention to commit the murder of his wife. 27. Close scrutiny of the available evidence would show that the appellant had no intention to murder his wife. It can be gathered from the attending circumstances. The evidence of PW1 would show that the moment he thought that his wife is dead, he Crl.Appeal No.647/2015 -:13:- went outside and tried to commit suicide by hanging. He fell into the well. His daughter called him and he came out of the well and thereafter lied down with the deceased for sometime. Later, he called his own father and narrated the entire incident and on his advice, he went to the police station to surrender and in fact surrendered. He in fact told his father that it was never intended. All these conduct, in our assessment, are not that of a preplanned murderer. It is true that he throttled her. The death is caused by him. But, in the light of the totality of evidence and attending circumstances, the case at hand does not come within the sweep of S.300 of the I.P.C. 28. The facts involved in the case apparently disclose that though the couple was quarrelling, he had no pre-meditation to commit murder. As per his extra-judicial confession, he only tried to prevent her from screaming, but incidentally, he was throttling her. We find several injuries on her neck and the post-mortem certificate reveals that death was on account of throttling. Once we have ruled out a pre-meditated murder, the question is whether his actions would be punishable for culpable homicide not amounting to murder and to be penalized u/s 304 Part I or Crl.Appeal No.647/2015 -:14:- Part II. In so far as the evidence indicates that he has no intention to cause death, it would only be appropriate to convict and sentence him u/s 304 Part II of the I.P.C. In the result, the appeal is partly allowed. The conviction and sentence of the accused under Section 302 of I.P.C. is hereby set aside. The appellant/accused is convicted under Section 304 Part II of I.P.C. and is sentenced to undergo rigorous imprisonment for 8 years. Conviction and sentence under S.309 of I.P.C. is confirmed. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge