Martin, S/o Poulose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 27TH DAY OF NOVEMBER 2017 / 6TH AGRAHAYANA, 1939** **CRL.A.No.140 of 2014 (D)** **AGAINST THE JUDGMENT IN SC 277/2012 of SPECIAL C. IDAMALAYAR INVN & Vth ADDITIONAL DISTRICT COURT, ERNAKULAM, DATED 13-06-2013 CP No.12/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA CRIME No.1311/2009 OF TRIKKAKKARA POLICE STATION, ERNAKULAM** ## **APPELLANT/ACCUSED:-** **MARTIN, S/o POULOSE, CONVICT No.1106, CENTRAL PRISON, VIYYUR** ## **BY ADV. R. KRISHNAKUMAR (CHERTHALA)(STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:-** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN & WELFARE OF W & C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.11.2017. THE COURT ON 27.11.2017 DELIVERED THE FOLLOWING:** Crl.Appeal No.140 of 2014 2 ## **JUDGMENT** ## **Somarajan, J.** Appeal against the judgment of conviction and order of sentence passed under Section 302 IPC against the appellant/accused in Sessions Case No.277/2012 of Vth Additional Sessions Court, Ernakulam, dated 13.06.2013. 2. A young lady met with a sad death in the hands of her husband while she was living in her house along with him and two minor children, in the early morning of 07.09.2009 at 1.45 a.m. The prosecution case is the following: The accused inflicted several cut injuries on the neck of the victim by using MO1 knife, then he went to the house of his brother situated nearby and disclosed the commission of offence before the brother's son (PW1) and informed that he had locked the room wherein the body of injured is lying. He asked PW1 to take his two minor children out of the house without showing the dead body and went away from the place stating that he is going to surrender before the police. He has also handed over the key of that Crl.Appeal No.140 of 2014 3 room. PW13, his elder brother, on getting information, went to the house of the victim, opened the room using the Key and found the dead body lying inside the room. Thereon PW1 went to the police station in a bicycle and gave First Information Statement before PW10. 3. The prosecution has examined PW1 to PW15, identified MO1 to MO6 and marked Exhibits P1 to P16. 4. There is no eye witness to the alleged incident. The prosecution hence heavily relied on the circumstantial evidence. 5. PW1 is a sterling witness who had given Exhibit P1 FIS disclosing the entire episode which he had experienced on the alleged day. According to him, the accused came to his house on the ill-fated night at 1.45 a.m and made a voluntary confession that he had killed his wife. He also informed that the body is lying in his bedroom and that he had locked the bedroom. He made a request to PW1 to take his two children who are sleeping in the nearby room without showing the body of the victim. FIS was given by 3.00 a.m. on the same day, within one hour from the time in which the accused made an extra judicial confession before PW1, admitting the crime committed by him by killing his wife. Nothing was brought out during his crossexamination and even no suggestion was put up to show any ill motive, hatredness or enmity. On the other hand, he is a very close Crl.Appeal No.140 of 2014 4 relative of the accused, being the son of his elder brother. There is nothing to doubt about the veracity of the witness and genuineness of his oral testimony. The confession was made by the accused voluntarily and hence relevant under Section 32 of the Evidence Act. 6. The oral evidence tendered by PW1 and the extra judicial confession are relevant under Section 32 of the Evidence Act. The commission of offence voluntarily admitted by the accused stood as supported by the FIS registered on the very same night at 3.00 a.m., ie. just after one hour of the alleged incident and it was received by the concerned Magistrate without any delay. What is spoken by PW1 is fully tallying with the First Information Report and hence gives sufficient corroboration. 7. PW4 is the younger daughter of the deceased. She was aged only 10 years at the time of alleged incident. She is not an eye witness to the alleged incident, but she had spoken the presence of her father during the night time in her house and the strained relationship between her father and mother. According to her, by 10.00 p.m. on the night father came to the bedroom wherein she along with her elder sister used to sleep and sat on the bed for a while and sang a song and then left to his bedroom. She had also deposed that nobody else was there in the house on the ill-fated night, except two minors, herself and her elder sister. PW13 is the first person who came to the Crl.Appeal No.140 of 2014 5 place of occurrence and opened the door and found the dead body of the victim. The oral evidence tendered by PW1, PW4 and PW13 would show that nobody else was there in the place of occurrence, the bedroom, wherein the dead body of the deceased was found, except the accused, her husband. Then it is upon the accused to speak what happened to his wife during the odd hours of ill-fated day within the secrecy of their bedroom. 8. The Apex Court in **Trimukh Maroti Kirkan v. State of Maharashtra** (2006 KHC 1469) settled the application of Section 106 of the Evidence Act and the circumstance which would attract its application. Paragraph 12 of the abovesaid judgment is extracted below for reference: “12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirlahd v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2003 (11) SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost Crl.Appeal No.140 of 2014 6 impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b.) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.” Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S.106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” ## 9. The Apex Court in **State of West Bengal v. Mir Mohammad Omar and Others** [2000 (8) SCC 382], in paragraphs 31 to 34 held thus: Crl.Appeal No.140 of 2014 7 “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when S.114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. Crl.Appeal No.140 of 2014 8 34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.” 10. Earlier, this principle was approved and followed in **Balram Prasad Agrawal v. State of Bihar and Others** (AIR 1997 SC 1830). Then again in **Ram Gulam Chaudhary and Others v. State of Bihar** (2001 (8) SCC 311) this principle was applied and followed. Hence the absence of proper explanation by the accused, during his examination under Section 313 Cr.P.C. would act as an additional link pointing towards the guilt of the accused. 11. MO1 knife was found lying in the bedroom near to the dead body. PW2 and PW3 had identified MO1 knife. PW3 also identified MO2 bed sheet and MO3 nighty which were recovered from the place of occurrence. PW5 is the vendor of MO1 knife. It was found to be stained by human blood of 'O' group. The nighty and the bed sheet recovered from the body were also found to be stained by the same blood group as that of the victim. PW5 had identified MO1 knife on Crl.Appeal No.140 of 2014 9 the day in which the alleged incident has happened, i.e on 07.09.2009. The alleged incident has happened during night time, ie. 1.45 a.m. on 07.09.2009. He identified MO1, a “Glare” company make steel knife, sold to the accused on the previous day, i.e. on 06.09.2009. There is some inconsistency in between the time spoken by PW5 with respect to the time of sale of MO1 knife between 7.00 and 7.30 p.m. and the time in which the accused was found present in their house when PW4 returned from the church, and the same may not have much relevance as what is spoken by PW5 and PW4 are only approximate time. The fact that the accused purchased MO1 knife on the previous day of the date on which the alleged offence has committed, would show the preparation made by him just few hours before the commission of the offence and is relevant under Section 8 of the Evidence Act and hence stood as a strong incriminating circumstance against the accused and gives sufficient corroboration to the oral testimony of PW1 regarding the extra judicial confession alleged to have been made by the accused voluntarily. 12. The recovery of MO4 cream colour pants is also relevant, though it will not come under the purview of Section 27 of the Evidence Act, as it was recovered from the house of accused which was concealed by the accused on the side of a fridge kept in the kitchen. No search was conducted by the investigating officer within Crl.Appeal No.140 of 2014 10 the house of accused and victim and if such a search was conducted it could be possible for the investigating officer to detect MO4 pants stained by blood. Hence, it was really within the reach of investigation when it was recovered based on the alleged disclosure statement. But, the fact that it was kept inside the house of accused and was identified by PW3 as the one recovered from the house of the deceased and the oral evidence tendered by PW4, identifying the above said MO4 pants, as the one worn by the accused just few hours before the alleged incident and its identity and colour as cream colour pants would be relevant as it is proved by the prosecution that MO4 pants is belonged to the accused and it was the one worn by him just before the commission of offence. It was found to be stained by the very same human blood of 'O' group belonged to the victim and hence supplies another additional link pointing towards the guilt of accused as no explanation was forwarded by the accused during his examination under Section 313 Cr.P.C., how and under what manner it was stained by human blood of 'O' group, the blood group of the victim. 13. The motive behind the crime is also spoken by PW4, the younger daughter of the deceased, PW1 and PW13, besides the sister of the victim PW11. The accused used to pick up quarrel with the victim and there were frequent threat that he would kill her doubting Crl.Appeal No.140 of 2014 11 her chastity (infidelity). PW4 had deposed that there were frequent quarrel in between her mother and father, the victim and the accused. The actual guilty consciousness - _mensrea_ for the commission of offence may not be discernible to the prosecution invariably in all cases as it is sometimes known to the accused alone. When there is a strained relationship, frequent quarrel, especially doubting the chastity of wife, it would satisfy the motive behind the crime. 14. The medical evidence adduced also fully and completely supports the prosecution case as injury Nos. 1, 2, 3 and 7 which are fatal, on the neck of the victim, is possible by the user of MO1 knife. PW6, the Doctor who conducted post-mortem examination on the body of the victim and issued Exhibit P4 post-mortem examination report, supports the prosecution case as the death is due to exanguinating hemorrhage due to slash injury sustained to neck and the prosecution has explained each and every ante-mortem injuries sustained by the victim. The ante-mortem injuries noted are the following: “i. Incised wound of 11x8 cm on the front of neck showing four small side cuts - three on left and one on right, cutting the underlying skin, strap muscles, thyroid cartilage leaving serrated impression on cut margin of thyroid cartilage. Further down through intervertebral space between C2 and C3 vertebrae through spinal code almost cutting through para spinal muscles. Cut ends of vessels and nerves were Crl.Appeal No.140 of 2014 12 visible at sides of neck. ii. Stab injury 3x2x5 cm almost transverse on front of lower part of neck, placed 4cm above jugular notch. iii. Incised wound 1x1 cm superficial over left side of neck, 1 cm behind lower margin of (i). iv. Curved abrasion 2cm long on the under aspect of lower jaw, 2.5cm behind chin prominence. v. Abrasion 3x1 cm on the back aspect of right hand, in web space between forefinger and middle finger. vi. Multiple pin head sized abrasion 13x8 cm over inner aspect of right forearm. vii. Incised wound 3x1 cm over the inner aspect of base of left thumb cutting underlying soft tissues up to bone.” 15. It was also brought to our notice by the appellant that there is slight difference with respect to the alleged recovery of MO4 pants. PW3, who is the witness to the recovery, had advanced a case that the pants was kept on the side of the fridge in a plastic cover. But PW12 did not say anything about the plastic cover. But no question was put up in that behalf to PW12 and hence we cannot find any inconsistency. 16. From the above said discussions, we are of the view that there is no reason for any interference to the finding of guilt of accused under Section 302 IPC and the conviction made thereunder as it would come under the first and second limbs of Section 300 IPC. 17. The sentence awarded, being a lesser one, does not call for any interference by this Court. Hence, appeal fails, deserves only Crl.Appeal No.140 of 2014 13 dismissal and we do so. In the result, appeal is dismissed confirming the finding of guilt of accused for the offence under Section 302 IPC and the conviction and sentence thereunder. **Sd/A.M.SHAFFIQUE JUDGE Sd/P.SOMARAJAN JUDGE** DMR/-