K.K. SASI v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 CRL.A.No. 1066 of 2007() -----------------------SC.165/2004 of SESSIONS COURT, KALPETTA .................... APPELLANT(S): ACCUSED: ---------------------- K.K.SASI, S/O.KUNHUKUNHU, 44 YEARS, WORKING AS A KOOLIE, ANAKKARA, WAYANAD. BY ADV. SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): --------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **Crl. Appeal No.1066 of 2007** ------------------------------- **Dated this the 3[rd] day of December, 2011** ## **J U D G M E N T** ## Basant, J. In this appeal, the appellant assails the verdict of guilty, conviction and sentence imposed on him under Section 302 of Indian Penal Code. He has been sentenced to undergo imprisonment for life. 2. This is a case of Uxoricide. The appellant on account of some difference of opinion with his wife who allegedly was not obeying him caused the death of his wife, by inflicting serious injuries on the person of his wife with M.O.3 chopper. She succumbed to the injuries before she reached the hospital. 3. The crime was registered on the basis of Ext.P1 First Information statement lodged by PW.1, the sister of the deceased who was residing close to the scene of the crime. The incident took place on 15.2.2004 at about 1.45 p.m. The investigation was completed by PW.18 who filed the final report/charge sheet. 4. The learned Magistrate committed the case to the Court of Sessions after observing all legal formalities. The learned Crl.A.No.1066 of 2007 2 Sessions Judge took cognizance of the offence alleged against the appellant and framed charges against him. He denied the charges. Thereupon, the prosecution examined Pws.1 to 18 and proved Exts.P1 to P12. M.Os.1 to 11 were also marked. 5. The learned Sessions Judge came to the conclusion that the prosecution has succeeded in proving the offence under Section 302 of Indian Penal Code against the appellant. Accordingly, the learned Judge proceeded to pass the impugned judgment. 6. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court. We deem it unnecessary to re-narrate the oral and documentary evidence relied on by the prosecution. The learned counsel has taken us in detail through the oral evidence of Pws.1 to 18 and the contents of Exts.P1 to P12. The charge framed and the answers given under Section 313 Cr.P.C. have also been read to us. 7. PWs.1 and 2 are eye witnesses to the occurrence. They are the sister of the deceased (PW.1) and her daughter PW.2. PWs.3 and 4 are independent neighbours who are Crl.A.No.1066 of 2007 3 residing near the house in which the deceased and the appellant were occupying. PWs. 3 and 4 had come to the scene of the occurrence immediately on hearing about the incident. They had seen the deceased lying with injuries and the appellant moving away from the scene of the crime with M.O.3 chopper. Pws.5 and 6 are children of the deceased wife in her earlier marriages. Pws.5 to 7 are examined to prove the alleged motive. The deceased wanted to go the house of PW.6 who was undertaking the construction of a residential building. The appellant did not approve that and that allegedly operated as the motive. 8. The learned counsel for the appellant does not strain to contend that the oral evidence of PWs.1 to 4 cannot be accepted. We have gone through the evidence. We find the evidence of PWs.1 to 4 to be eminently acceptable. The only theory propounded by the accused is that the deceased could have inflicted the injuries on herself. PW.16, the doctor, who issued Ext.P10 postmortem certificate appears to have acceded to the suggestion that an insane person can inflict those injuries Crl.A.No.1066 of 2007 4 on herself. Less said about this theory the better. There is not a modicum of suggestion even to remotely indicate that the deceased was insane or that there was anything abnormal in her behaviour or conduct. The theory that the injuries described in Ext.P10 could have been self inflicted has to be rejected outright as grossly perverse. 9. The evidence of PWs. 1 and 2 of what they perceived is eminently supported by the evidence of PWs.3 and 4 of what they perceived when they reached the scene immediately after the commission of the crime. The evidence of PW.1 is further supported convincingly by Ext.P1 FI statement lodged before the police by her at 3.10 p.m. on 15.2.2004 which gives a detailed narration of the sequence of events. The evidence of PWs. 1 to 4 get further supported and corroborated by the evidence of recovery of M.O.3 chopper by the investigating officer on the basis of the information furnished by the accused to PW.8 in the course of his confession statement (Ext.P11). 10. Called upon to explain the challenge, the learned Crl.A.No.1066 of 2007 5 counsel for the appellant only submits that the evidence of PW.16 and Ext.P10 do not convincingly show that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death. The learned counsel, in these circumstances, submits that the prosecution has not at any rate succeeded in proving that the offence of murder defined in Section 300 IPC has been established. The counsel argues that only an offence of culpable homicide not amounting to murder defined under Section 299 IPC has been established. Consequently, the conviction should have been entered only under Section 302(1) IPC, contends the learned counsel for the appellant. 11. We have considered this contention anxiously. We have gone through Ext.P10 postmortem certificate and the oral evidence of PW.16. It is true that the Doctor had not given any specific opinion on the sufficiency of the injuries in the ordinary course of nature to cause death. The learned counsel for the appellant submits that in the absence of such crucial evidence, the conviction under Section 302 IPC is not justified. Crl.A.No.1066 of 2007 6 12. We find no merit in this contention. The injuries suffered by the deceased described in Ext.P10. The fatal injuries on the neck described as injuries 1 to 3 are extracted by us below:- 1. An oblique incised wound 1 cm x 3 bone deep on the scalp above right ear. 2. Another large incised wound 12 x 8 x 4 cms. Below the right ear. Cervical vertibrae fractured. Spinal cord intact. 3. Another wound below the other, about 8 x 3 x ½ cms. on the neck. PW.16 has given the opinion that the death was due to cardiac respiratory arrest due to hemorrhage and shock. 13. The law on the point is very clear. If the injuries inflicted can justifiably lead to a conclusion that the intention of the offender was to cause the death of the deceased, the offence would squarely fall under clause firstly of Section 300 of Indian Penal Code. The injuries described in Ext.P10 inflicted with M.O.3 must eloquently declare to the court that the intention of the appellant was to cause such injuries which were necessarily fatal. From the nature of the injuries, the manner of infliction Crl.A.No.1066 of 2007 7 and the nature of the weapon used, it is absolutely safe to come to a conclusion that the intention of the appellant was to cause the death of the deceased. Clause firstly of Section 300 squarely applies. 14. It is of course true that the Doctor did not state specifically whether the injuries described in Ext.P10 extracted above are sufficient in the ordinary course of nature to cause death. In the instant case, the injury was suffered and the deceased succumbed to the injuries immediately thereafter. Whether the injury is sufficient in the ordinary course of nature to cause death is certainly not one to be left exclusively in the domain of expert opinion. The Court is fictionally assumed to be the expert of experts. Even in the absence of specific evidence, it will amount to abdication of jurisdiction, if the court refuses to come to appropriate conclusion by looking into the nature of injuries and totality of circumstances. It is the duty of the Court to decide whether the injuries suffered by the deceased are sufficient in the ordinary course of nature to cause death. No court is a prisoner of the opinions expressed by an expert nor Crl.A.No.1066 of 2007 8 can it be held that the omission on the part of the expert to tender specific evidence on such an aspect must lead the court to throw its hands up in helplessness and concede to an accused any benefit which is not legitimately and legally due to him. Not a semblance of doubt is left in our mind, going by the nature of injuries described and the consequence which ensued, that the injuries inflicted on the neck of the deceased by the appellant with M.O.1 are sufficient in the ordinary course of nature to cause death. 15. We are perturbed to note that the expert did not volunteer evidence on this aspect of the matter. It is more shocking that the prosecutor did not specifically elicit information on this aspect. The learned Sessions Judge also unfortunately had not elicited specific information on this aspect. Sections 299 and 300 of Indian Penal Code have remained on the statute book for such a long period of time that we find these omissions/inadequacies in the conduct of the trial to be shockingly unsatisfactory. But that dissatisfaction notwithstanding, we are not persuaded to concede to the Crl.A.No.1066 of 2007 9 accused the benefit of any non-existent doubt for want of such evidence on the part of the expert. We come to the conclusion that the injuries described in Ext.P10, extracted above, are so imminently dangerous that the conclusion is irresistible that the offender had intended to cause the death of the deceased. Therefore, the offence falls under clause firstly of Section 300 IPC. If not, at any rate, the offence must be held to fall under clause thirdly of Section 300 IPC as the injuries declare eloquently that they are sufficient in the ordinary course of nature to cause death. Even in spite of the inadequacy in the evidence of PW.16, that conclusion does appear to us to be eminently reasonable. 16. The learned counsel for the appellant relies on the decision reported in **Pundalik v. State of Maharashtra** (2010 KHC 4287). We are unable to locate any declaration of law on the crucial aspect canvassed by the counsel. The course followed by the Supreme Court in the facts situation of a given case cannot lightly be assumed to be declaration of law binding under Article 141 of the Constitution. We confirm that the Crl.A.No.1066 of 2007 10 conviction under Section 302 IPC is absolutely justified as the offence proved would amount to the offence of murder under clause firstly as also clause thirdly of Section 300 IPC. No other contentions are raised. We are satisfied that the appeal deserves to be dismissed. 17. In the result, this appeal is dismissed. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.**