JEEVAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** ## **CRL.A.No.1169 OF 2015** **AGAINST THE JUDGMENT IN SC 469/2011 DATED 05-03-2015 OF IV ADDITIONAL SESSIONS COURT, THODUPUZHA.** **CP 29/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, THODUPUZHA.** **CRIME NO.541/2011 OF THODUPUZHA POLICE STATION, IDUKKI.** ## **APPELLANT/ACCUSED :** **JEEVAN, AGED 35 YEARS, S/O.PAULOSE, PAREPUTHENPURAYIL VEEDU, PLANTATION BHAGAM, EAST KALOOR KARA, KUMARAMANGALAM VILLAGE** **BY ADV. SRI.JOY C. PAUL.** ## **RESPONDENT/RESPONDENT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY SPL.G.P. SMT.AMBIKA DEVI S,** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.1169 of 2015 **2** A.HARIPRASAD & N.ANILKUMAR, J J. -------------------------------------- Crl.Appeal No.1169 of 2015 -------------------------------------- Dated this the 3rd day of October, 2019 ## J U D G M E N T ## A.HARIPRASAD, J Aggrieved by the conviction and sentence awarded by the Court of Sessions, Thodupuzha in S.C No.469 of 2011, the sole accused has come up in appeal. The Sessions Court framed the following charge against him : “ That you at 10.45 a.m. on 17.3.2011 at the south west end of the property of Kallinkakudiyil Syamalan which on the northern side of the steps leading from the road on the northern side of Crl.Appeal No.1169 of 2015 **3** Thakarapillil house wherein Wilson is residing with his family and bearing No.I/19C of Kumaramangalam panchayat and situated on the southern side of Chirappady – Perumamkandam road, East Kaloor, Kumaramangalam Village, intentionally and knowingly caused the death of Lissy, W/o CW1 George alias Vakkan, S/o Ulahannan, Pareputhanpurayil, East Kaloor by cutting on the neck and other parts of the body with a chopper and also amputating left leg below the knee and thereby committed an offence punishable u/s.302 IPC and within my cognizance.” 2. The Sessions Judge examined 12 witnesses on the side of prosecution and relied on 16 documents. On the side of defence, two witnesses were examined and 4 documents were exhibited. MO's 1 to 9 are the material objects. After analysing the evidence, the trial court came Crl.Appeal No.1169 of 2015 **4** to a conclusion that the appellant is guilty of the offence of murder and liable to be punished under Section 302 I.P.C. Thereafter, he was sentenced to undergo imprisonment for life and also directed to pay a fine of Rs.5,00,000/- (Rupees five lakhs only). The Sessions Judge also imposed three years default sentence, if the appellant failed to pay the fine amount. 3. Heard the learned counsel for the appellant and the learned Special Public Prosecutor for the State. 4. Prosecution case, in brief, is as follows : Deceased Lissy was the wife of PW1. The appellant nurtured hostility towards her for the reason that she along with PW2 complained about the continued presence of the appellant in the house of PW2, which according to them caused disturbance to PW2 and her family. The appellant has a case that PW2 and himself were in love earlier and when Crl.Appeal No.1169 of 2015 **5** the accused was diagnosed with renal problems, she opted out from the relationship and married another person. On this basis, there were hostilities between the appellant on one hand and PW2 and deceased Lissy on the other. On 17-03-2011, at about 10.45 a.m, while deceased was grazing her cattle in the property of one Syamalan, the appellant approached her with MO4 chopper and inflicted several cut injuries on her neck and other parts of body. Besides, he had chopped off her left leg below knee and thereby he committed a gruesome murder. 5. PW1 is the husband of deceased Lissy. He is an auto rickshaw driver by profession. He deposed that normally he used to go out with his auto rickshaw at 8.00 a.m. At about 10.45 a.m., PW2 called him over phone and informed that the appellant had inflicted serious cut injuries on the deceased with a chopper and she was lying in a pool of blood. PW2 wanted PW1 to come immediately to the place of incident and take her Crl.Appeal No.1169 of 2015 **6** (victim) to a hospital. On getting the information, PW1 rushed to the place along with another person. They came arranging a jeep for taking the injured to a hospital. Ext.P1 is the FIS given by PW1. The testimony of PW1 tallies with the averments in Ext.P1. PW1, when came to the place of occurrence found his wife drenched in a pool of blood. He called her name, but she did not respond. He found her left leg severed from the body. It has come out in evidence that the cut off leg of the deceased was kept on the varandha of PW2's house. Along with the injured, the leg was also taken to the hospital. But the doctor declared Lissy dead when she was brought to hospital. The chappal, bath towel and night dress worn by the deceased were identified by PW1 as MO's 1 to 3. Despite cross examination of this witness, no material could be elicited by the defence to prove that he was uttering a falsehood. Considering the normal human conduct, we are unable to believe that PW1 was falsely implicating the appellant in this Crl.Appeal No.1169 of 2015 **7** case. 6. PW's 2 and 3 are the crucial witnesses in this case. They are eye witnesses to the incident. PW2 Sowmya is a friend of deceased Lissy. On 17-03-2011 they together came to a property belonging to one Syamalan for grazing their cattle. Lissy was sitting on an earthen wall. At that time, PW3 Bindu, along with her children, came there and they started a conversation. After some time, the appellant walked in front of PW2 and approached the deceased. PW2 went home. Later, she heard the distress cry of the deceased. She found the appellant chopping on the neck of deceased Lissy with MO4 chopper. She was scared and immediately called PW1 over phone and informed him about the incident. She also went to an adjacent construction site for gathering people to help the victim. She stated that the left leg of the deceased was severed by the accused by chopping off with MO4. Crl.Appeal No.1169 of 2015 **8** 7. PW3 Bindu also testified almost in similar lines. PW3 would say that the appellant was hiding MO4 chopper behind his body and on reaching by the side of deceased, he immediately flashed MO4 chopper in order to inflict cut injuries on her neck. PW3 also corroborated the testimony of PW2. Despite cross-examination on these two witnesses, no material could be brought out to establish that these two witnesses are lying and the appellant had no involvement in the incident. Emphatic statements by these witnesses were correctly relied on by the trial court to find that the appellant was responsible for the horrendous murder of Lissy. 8. PW4, an auto rickshaw driver, came along with PW1 and helped him to take the deceased to a hospital. Although he deposed about the events happened after the incident, his testimony becomes reliable despite cross-examination and it is in support of the eye witnesses on account of the incident. Crl.Appeal No.1169 of 2015 **9** 9. PW5 is a witness to Ext.P2 inquest report. 10. PW6 is a witness to Exhibit P3 scene mahazar. At the time of preparing scene mahazar, the material objects MO's 1 and 2 were recovered. 11. PW7 is a witness, who proved the recovery of MO4 chopper and the dress materials worn by the appellant at the time of the incident. Ext.P4 is the mahazar prepared for effecting recovery under Section 27 of the Evidence Act. This witness in chief examination as well as in cross examination clearly deposed that the articles were recovered at the instance of the appellant and he pointed out the items concealed in his fire wood shed. There is no reason to disbelieve this witness. His testimony clearly show that the accused was aware of the concealment of material objects relevant in this case. This witness derives support from the testimony of the investigating officer also. Therefore, the prosecution Crl.Appeal No.1169 of 2015 **10** succeeded in proving recovery of material objects leading to the discovery of relevant facts to prove its case. 12. PW8 is a witness to Ext.P5 mahazar through which the dress worn by the accused was seized. 13. PW9 is the Doctor, who conducted post-mortem examination on the body of deceased Lissy. In the trial court's judgment, the contents in Ext.P7 post-mortem certificate have been extracted. Except injury numbers 3 and 4, all other injuries are very serious in nature. 14. PW10 deposed that all the injuries noted by him on Ext.P7 post-mortem certificate could be caused with MO4 chopper. According to him, cause of death was due to multiple wounds sustained on her neck and severance of left lower limb. On going through the nature of injuries, there cannot be any doubt that the major injuries, each by itself, could have lead Crl.Appeal No.1169 of 2015 **11** to the death of the victim. 15. PW11 is the Additional S.I, who was the S.H.O on 17-03-2011 and registered Ext.P1 F.I.S and Ext.P8 F.I.R. 16. PW12 is the Investigating Officer. He deposed the facts relating to each stage of the investigation. He proved recovery of chopper and other material objects as disclosed by the appellant. As mentioned earlier, his testimony corroborates the testimony of PW7. PW12 stated that blood stained dress materials, MO4 chopper and the blood sample taken at the time of post-mortem were sent to the Forensic Science Lab, Thiruvananthapuram, for analysis and obtained Ext.P14 F.S.L report. On a perusal of Ext.P14, it is seen that 9 items were sent up for analysis. It includes the dress materials and the chopper. 9th item is the blood stained gauze taken at the time of post-mortem examination. The report shows that human blood stains appeared on item Nos.1 to 8 and sample human Crl.Appeal No.1169 of 2015 **12** blood in item No.9 was subjected to test. It revealed that all the blood samples belong to 'Group O'. In the post-mortem report, it has came out that the blood group of deceased Lissy was 'O'. Therefore, the prosecution has reinforced its contention that MO4 chopper was used by the appellant to murder Lissy. On a careful examination of the evidence on record, and after going through the impugned judgment, we find no reason to believe that the appellant was not guilty of murder. 17. We have to examine the case of the appellant, regarding his state of mind at the time of the incident. He has a claim that he is entitled to get the benefit of Section 84 I.P.C. In order to establish this case, two witnesses were examined and produced four documents. DW1 is the father of the appellant. According to his testimony, the appellant is a patient suffering from renal problems and he had been undergoing treatment from his 12th year onwards. He also deposed that the appellant was having Crl.Appeal No.1169 of 2015 **13** mental disorder on account of the renal problem. But in cross examination, he stated that no document could be produced to show that the appellant was treated for any mental illness. He would say that some documents were given before the jail authorities to show that fact. We do not find any material in the records to show that he was undergoing treatment for any mental illness. DW1 in cross-examination admitted that the appellant picked up a quarrel with deceased Lissy on account of some family issues. We are unable to find from the testimony of DW1 that the appellant was having a state of mind, which can be qualified as legal insanity, thereby that he was incapable of knowing the nature of the act done by him. 18. DW2, Dr.Jayakumar, Head of the Department of Nephrology in Kottayam Medical College. He had occasion to treat the appellant. He deposed that steroids were administered to the appellant as part of treatment for his renal problem. Although he deposed that in some patients Crl.Appeal No.1169 of 2015 **14** such drugs may cause slight mental issues, in cross-examination, he said that he had no information regarding the appellant taking any treatment for mental illness. Testimony of DW2 would only show that the appellant was having kidney related ailments but the case that he was unaware of the consequences of his actions at the time of commission of crime cannot be inferred from the testimony of DW's 1 and 2. Similarly, the documents produced on the side of the appellant will only show that he has been undergoing treatment for renal disorders. The trial court rightly rejected the plea of the appellant claiming benefit under Section 84 I.P.C. The evidence tendered by PW's 2 and 3 would clearly show that the accused with a determined mind approached the deceased and inflicted multiple injuries on her neck, which is the most vital part in a human body and also in a diabolic manner the accused chopped off her left leg and placed it on the varandha of the house of PW2. The prosecution had succeeded in Crl.Appeal No.1169 of 2015 **15** proving that the accused intentionally committed murder of Lissy and he had no unsoundness of mind at the time of commission of offence enabling him to claim the benefit of Section 84 I.P.C. 19. On reconsideration of the entire materials on record and also on evaluation of the legal principles, we find no reason to find fault with the conviction awarded by the trial court on the appellant for an offence of murder under Section 302 I.P.C. Hence, we confirm the conviction. 20. In the matter of substantive sentence, we cannot show any leniency, having found that the appellant is liable to be convicted for an offence of murder, a life imprisonment is the minimum sentence that can be awarded. We are confirming the life imprisonment awarded on the appellant. However, the learned counsel for the appellant contended that the appellant is hailing from a financially weak family background and imposition of Rs.5,00,000/-(Rupees five lakhs only) as fine is beyond Crl.Appeal No.1169 of 2015 **16** comprehension. Further, three years default sentence is also imposed on him. Having regard to the health condition of the appellant, and his background, we reduce the fine to Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, he shall undergo rigorous imprisonment for a period of one year. 21. Learned counsel for the appellant relying on a decision in Ashok Rai v. State of U.P and Others (2014(5) SCC 713) contended that this Court can give a direction to the Government to consider commutation of the appellant's sentence or for premature release of him. Considering the materials on record relating to the appellant's health condition, we are of the view that the appellant should be given adequate treatment by the jail authorities. Further, if the appellant's health condition is very grave, we direct the jail authorities to place the matter before the State Government for considering commutation of sentence on medical grounds, if the law Crl.Appeal No.1169 of 2015 **17** permits the same. The conviction and sentence is confirmed but the fine amount is reduced as above. With these modifications, the criminal appeal is disposed of. All pending interlocutory application will stand closed. A. HARIPRASAD, JUDGE. N.ANILKUMAR, JUDGE amk