Mohanan M. 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** **TUESDAY, THE 19TH DAY OF NOVEMBER, 2019/28TH KARTHIKA, 1941** **CRL.A.No.370 OF 2016** **[AGAINST THE JUDGMENT IN SC 393/2013 DATED 11-03-2016 OF ADDITIONAL SESSIONS COURT-I, KOZHIKODE** **CRIME NO.255/2012 OF Kunnamangalam Police Station , Kozhikode]** ## **APPELLANT/ACCUSED:** **MOHANAN. M., AGED 53 YEARS,S/O CHANDU, VELLARAMKUNNUMMAL HOUSE,KARANTHUR, KOZHIKODE.** **BY ADVS. SRI.A.RANJITH NARAYANAN SMT.A.SIMI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031, REPRESENTING THE SUB INSPECTOR OF POLICE, KUNNAMANGALAM, KOZHIKODE-673 571.** BY SR.PUBLIC PROSECUTOR MR.K.B.UDAYAKUMAR **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **08-11-2019, THE COURT ON 19-11-2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.370 of 2016 :-2-: ## **J U D G M E N T** ## **N.Anil Kumar,J:** This appeal is against the judgment of conviction and sentence dated 11.3.2016 passed by the Additional Sessions Court-I, Kozhikode in Sessions Case No.393 of 2013, arising out of Crime No.255/2012 of Kunnamangalam Police Station alleging commission of the offences punishable under Sections 307 and 302 of the Indian Penal Code,1860 (hereinafter referred to as 'IPC') whereby the appellant was convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and rigorous imprisonment for a term of 7 years for the offence committed under Section 307 of IPC. Both the sentences were ordered to run concurrently. 2. The prosecution case in brief is that on 16.5.2012 at about 8.30 a.m. the appellant, a 53 year old man had stabbed his wife to death as he was driven by suspicion over her chastity. Crl.Appeal No.370 of 2016 :-3-: The murder happened at the southern margin of NIT campusValiyapoyil road near Valiyapoyil bazar in Chathamangalam amsom desom of Kozhikode Taluk. The appellant inflicted stab injuries on his wife, namely Ambika, with an intention to cause her death and further inflicted stab injuries on PW2 Chandran, who was found chatting with his wife. PW2, who allegedly got a stab injury on his abdomen, drove away on his motorcycle from the occurrence place and later hired an autorickshaw and got himself admitted at the KMCT Medical College Hospital, Manassery as a life saving measure. Since his condition was critical, he was later shifted to Medical College Hospital, Kozhikode for better management. The wife of the accused succumbed to the injuries at 2.40 am. on 21.5.2012 while undergoing treatment. However, PW2 Chandran survived and thereby the accused had committed the aforesaid offences. 3. PW1, the brother of deceased Ambika lodged Ext.P1 First Information Statement before PW14, the then Assistant Sub Inspector of Police, Kunnamangalam Police Station. Crl.Appeal No.370 of 2016 :-4-: Although PW14 went to the Medical College Hospital, Kozhikode to record Ext.P1 statement of the deceased, who was undergoing treatment in the hospital, he could not record her statement as the injured was unconscious then. Hence he recorded statement of PW1 and registered Ext.P8 First Information Report. After lodging the First Information Report, the investigation was handed over to PW15-the Circle Inspector of Police, Chevayur. PW15 proceeded to the spot and prepared Ext.P6 mahazar and recovered MOs.1 and 2 knives from the spot. On the same day itself at about 2 pm., PW15 arrested the accused by Ext.P9 arrest memo. During investigation, he received information that the injured Ambika passed away. Hence he proceeded to the Medical College Hospital and conducted inquest by Ext.P2. He also filed a report before court incorporating Section 302 IPC against the accused. The material objects collected from the occurrence place were forwarded to the court with a request to send the same for Chemical Analysis. After investigation, PW15 filed final report Crl.Appeal No.370 of 2016 :-5-: against the appellant/accused. 4. On committal, the learned Sessions Judge, Kozhikode transferred the case to the Additional Sessions Court for trial and disposal. After having heard both sides, charges under Sections 302 and 307 of IPC were framed against the accused. He denied the charges and claimed trial. 5. In order to prove the prosecution case, PWs.1 to 15 were examined and marked Exts.P1 to P14 and MOs.1 and 2 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. He denied the circumstances appearing in the evidence against him. However, the accused specifically stated that PW2 Chandran stabbed his wife. According to him, he had serious doubt touching the chastity of his wife and he received reliable information that his wife had gone to the Kadampuzha Temple along with PW2 Chandran. The marital dispute was resolved in the Office of the R.S.S. on 15.5.2012 through an amicable settlement. However, on the next day, the accused saw Crl.Appeal No.370 of 2016 :-6-: PW2 chatting with his wife at the scene of occurrence. The accused questioned PW2. While so, PW2 made an attempt to stab him and Ambika intervened and sustained injuries. PW2 Chandran, who was sitting on the motorcycle, fell down and sustained injuries. The learned trial Judge did not deem fit and proper to record an acquittal under Section 232 of Cr.P.C. Hence, the accused was called upon to enter on his defence. However, no defence evidence was adduced. Exhibit D1 was marked on the side of defence when PW2 was cross-examined. 6. The learned trial Judge, after assessing the entire evidence on record, concluded that the accused had taken a false defence of chastity and rather, it was a clear case of murder. The court below further concluded that the accused made an attempt to commit murder of PW2. Accordingly, the trial court found the accused guilty of the offences punishable under Sections 302 and 307 IPC and convicted and sentenced as above. 7. The learned counsel for the appellant Sri.A.Ranjith Crl.Appeal No.370 of 2016 :-7-: Narayan contended that MO1 knife allegedly used by the accused for committing the crime had neither his finger prints nor contained blood belonging to the deceased or PW2. Thus, it was argued that the scientific evidence lacking in material particulars and prosecution evidence, ocular and circumstantial suffering from non-curable lacunae cannot form the basis of conviction and the conviction based on preponderance of probabilities cannot be sustained. Further, there was no motive for the accused to commit murder of his own wife. According to him, the deceased was a woman of immoral character and some altercation took place between the deceased and the accused on this count. Consequently, some doubt arose which lingered in the mind of the accused touching the chastity of his wife. To canvas this point, it was submitted that during crossexamination, PW2 fairly stated the compromise talk between the parties on 15.5.2012 at the office of the RSS and consequent settlement thereof. It was further submitted that the occurrence was not a case which could be covered under Section 302 of Crl.Appeal No.370 of 2016 :-8-: IPC, rather it was a case which could be covered under Section 304 Part I of IPC. 8. Per contra, the learned Senior Public Prosecutor Sri.K.B.Udayakumar submitted that the prosecution has succeeded in proving the offences against the accused beyond reasonable doubt. According to the Doctor, who conducted the postmortem on the body of the deceased, the cause of death was found to be due to the injuries on chest and neck. Elaborating on the submission, the learned Senior Public Prosecutor argued that the accused had taken a false defence that could not be proved by him. On the fateful day, the accused inflicted injuries on his wife and PW2 as well. It is an admitted position that the accused and deceased were man and wife. The learned Senior Public Prosecutor submitted that the was investigation conducted in a fair manner based on direct evidence and medical evidence. 9. The suspicion of chastity persuaded the accused to inflict severe injuries to his wife. PW2 also suffered serious Crl.Appeal No.370 of 2016 :-9-: injuries in the process. Before proceeding further on the factual matrix involved in the case, we would like to advert on the medico-legal aspects. On 16.5.2012, PW7 Dr.Ajay Kumar, Assistant Professor of General Surgery, Medical College Hospital, Kozhikode examined Ambika with the history of alleged assault by a knife by her husband. PW7 issued Ext.P3 Accident Register-cum-Wound Certificate noting the following injuries:- - “1. Incised wound 1x0.5x4 cm. right side of neck extending up to vertebral column. 2. Incised wound 1x0.5cm left side of chest extending up to and puncturing right ventricle. 3. Incised wound 1x0.5x4cm left side of abdomen. 4. Incised wound 1x0.5x4cm., left groin.” He testified that injury No.2 is sufficient to cause death in the ordinary course of nature and injuries would be caused by MO1 weapon. Crl.Appeal No.370 of 2016 :-10-: 10. Immediately, after the occurrence, PW2 went to K.M.C.T Medical College Hospital, Manassery for treatment. On 16.5.2012 at 9.30 am, PW8 Dr.Ahamed Shihabuddin, Casualty Medical Officer of the hospital examined PW2 at 8.30am and issued Ext.P4 Accident Register-cum-Wound Certificate noting the stab wound 7x2x3cm of the right lower abdomen. PW8 testified that PW2 was admitted in the surgical ward and was discharged on 24.5.2012. According to PW8, the grievous injury sustained to PW2 could be caused by MO1 knife. 11. On the request of PW15 the investigating officer, PW9 Dr.Cyriac Job, Professor and Head of Forensic Medicine, Government Medical College, Kozhikode conducted postmortem on the body of the deceased, Ambika on 21.5.2012 and issued Ext.P5 postmortem certificate noting 16 antemortem injuries. The details of the injuries are noted in paragraph 15 of the impugned judgment. According to PW9, the victim died due to injury to the chest and neck, particularly with reference to Crl.Appeal No.370 of 2016 :-11-: injury Nos.1,2,3 and 16. The details of injury Nos.1, 2, 3 and 16 in Ext.P5 postmortem certificate are extracted as hereunder:- - 1.Sutured wound 14cm, transverse on the front and right side of neck extending from a point 3cm left to midline 1cm above collor bone(surgically modified). 2. Sutured wound 7cm on the right side front of chest parallel and 3cm below injury no 1 (surgically modified). 3. Sutured wound 21cm long on the left side of chest 2.5cm left to midline and 19cm below colar bone. The left intercostals space between 5 and 6 was cut. The pericardium underneath was sutured and the right ventricle underneath was also sutured (1cm long). There was healing wound on the interventricular septum. xxx xxx xxx xxx xxx xxx 16. Dissection of the neck was done in a bloodless field in layers. The neck tissues were infiltrated with blood. Right jugular vessels and vertibral vessels were sutured. Phenephric nerve was repaired surgically.” 12. On going through the evidence let in by PWs.7 and 8, it is clear that the victim and PW2 sustained grievous injuries on 16.5.2012. No doubt, injuries were grievous in Crl.Appeal No.370 of 2016 :-12-: nature and were sufficient to cause death to the victim and PW2. The victim succumbed to the injuries later. PW2 underwent treatment as an inpatient and was discharged from the hospital later. 13. PW2 is the injured witness, who sustained injuries in the occurrence along with the deceased Ambika. He was the Zonal Secretary of Bharatiya Mazdoor Sangh, a labour wing of the Bharatiya Janata Party in the area. He testified before court that on 16.5.2012 at about 8.30 a.m. while he was going to the place of work on his bike, he saw Ambika standing by the side of the road. On seeing Ambika, he stopped the vehicle and talked to her casually. While so, he saw the accused coming to the scene of occurrence in an autorickshaw. Suddenly, he asked the autorickshaw driver to stop the autorickshaw and alighted the place where PW2 and Ambika stood. Then the accused shouted at PW2 and questioned the relationship between PW2 and Ambika. According to PW2, the accused became violent and asked PW2 to take Ambika along Crl.Appeal No.370 of 2016 :-13-: with him. Seeing the violent nature of the accused, Ambika requested PW2 to leave the place. As requested by Ambika, when PW2 was about to leave the place on his motor cycle, the accused suddenly hit him with a knife on his abdomen. When he turned the vehicle he saw the accused stabbing Ambika on her neck. He left the place and drove the motor cycle towards Dayapuram. Since he had sustained serious injuries he felt uneasy after some time and therefore, he stopped the motor cycle. He could notice blood oozing out of the wound. He boarded an autorickshaw and went to KMCT Medical College Hospital, Manasssery. 14. PW2 further testified that two days prior to the occurrence, the accused made a phone call and enquired as to whether he had gone to Kadampuzha along with his wife Ambika. He politely replied to the accused that he did not go to Kadampuzha along with Ambika as stated by the accused. Dissatisfied with his answer, the accused pursuaded him to come to Karanthoor for verification of the incident. As desired Crl.Appeal No.370 of 2016 :-14-: by the accused, according to PW2, he went to Karanthoor along with his friends Sivanandan, Manoj and Saneesh. When PW2 reached Karanthoor, the accused was personally present as suggested by him. However, he left the place immediately and came back to the spot along with one Surendran and verified the identity of PW2 in the presence of Surendran. On seeing PW2, Surendran told that he did not see the accused along with Ambika at Kadampuzha. According to PW2, he tried his level best to clear the doubt of the accused. Then the accused expressed his regret for the incident and left the place along with his friends. 15. PW13 testified before court that on the date of occurrence at about 8 am, he took the accused in his autorickshaw to Valiyapoyil. He further stated that as instructed by the accused, he stopped the vehicle near the scene of occurrence and the accused suddenly alighted from the autorickshaw. While so, PW13 could find a man and woman engaged in talking on the side of the road. After alighting the Crl.Appeal No.370 of 2016 **==> picture [27 x 9] intentionally omitted <==** passenger as requested by him, he returned from the place of occurrence. 16. PW3 is an autorickshaw driver, who saw part of the occurrence. On 16.5.2012 at 8.30 am while he was standing on the side of the autorickshaw stand at Valiyapoyil, after parking his autorickshaw in the stand, he heard a commotion. He noticed many persons running towards the direction where the commotion took place. PW3 also ran towards the scene of occurrence where he could find the accused running away from the scene of occurrence. With the help of others, he took the injured to the hospital. PW3 turned hostile to the prosecution. However, he identified the accused before court as the person running away from the scene of occurrence. PW3 testified that he saw the injured lying on the road. He extended help to take her to the hospital without any delay. Though PW3 turned hostile to the prosecution, the fact that the deceased sustained injuries and the accused ran away from the spot are clearly brought out in evidence. Crl.Appeal No.370 of 2016 :-16-: 17. PW4 is another eye witness to the occurrence. He also stated that on seeing a lady lying on the road with bleeding injuries, he rushed to the spot along with others where he could find the accused withdrawing a knife from the body of the lady. He further stated that when the accused made attempt to stab the lady again, the persons who gathered there prevented the accused from doing so. He also went along with PW3 to the hospital. 18. PW6 is a shop vendor, who allegedly sold MOs.1 and 2 to the accused. He stated that on 16.5.2012, the accused came to the shop and purchased MOs.1 and 2 from his shop. According to him, on the next day, the accused along with the Police came to the shop and verified the same. 19. No evidence has been adduced by the defence to rebut the opinion of PW9, who conducted postmortem examination on the body of the deceased, that injury Nos.1 to 3 were sufficient in the ordinary course of nature to cause the death of a person and further the injuries were caused by MO1 Crl.Appeal No.370 of 2016 :-17-: knife. PW2 also sustained injuries in the very same transaction. Opinion of PW.9, if corroborated by ocular evidence, becomes a very important piece of evidence in criminal trial. It is not only an opinion, but an expert opinion, based on the factual condition of the deadbody, which could only be disbelieved in a case where cogent and strong grounds of rebuttal by a counter medico-legal opinion are produced. Opinion of PW9 is corroborated by the evidence of PWs.7 and 8 as well. In the case at hand, there is nothing on record to show that the injuries sustained to the deceased was on account of the act committed by PW2 as alleged by the accused. On a perusal of the entire facts and circumstances of the case, including the evidence of PWs.2,3,4,5 and 13, we do not find any reason to discard the medico-legal opinion given by PW9. We are in full agreement with the finding of the learned trial Judge that it was a case of death due to injury Nos.1 to 3 sustained to the deceased. The death was homicidal in nature. 20. Inquest proceedings of the deadbody was Crl.Appeal No.370 of 2016 :-18-: conducted by PW15 immediately after registering Ext.P8 FIR. In Ext.P2 inquest report, in column Nos.7 and 8(a), PW15 noted the fatal injuries on the body of the deceased. Column No.11 in Ext.P2 pertains to the apparent cause of death. PW15 noted that the deceased died as a result of the stab injury inflicted by a knife. It is admitted by the accused in his statement under Section 313 Cr.P.C. that the deceased sustained injuries on account of the overt act alleged to have been committed by PW2. He further admitted that there is some difference of opinion between him and the deceased on account of suspected infidelity. According to him, he did not stab the deceased whereas when he questioned the act of PW2 in maintaining an unholy alliance with his wife, PW2 made an attempt to assault him and while so, by mistake, the deceased sustained stab injury. In fact, there was an indirect admission on the part of the accused that some altercation took place between PW2 and the accused at the occurrence place. 21. In the above backdrop of the case, it is necessary Crl.Appeal No.370 of 2016 :-19-: to analyse the oral evidence of PW2. He explained in detail how injuries were sustained to him on the date of occurrence. Law is well-settled that the testimony of an injured witness hold more credence. Normally he would not shield the real culprit. Thus, the injury sustained to PW2 is best assurance of his presence at the spot. Nothing is brought out in evidence to reject his evidence on the basis of major contradictions and v. discrepancies. In **Abdul Sayeed State of Madhya Pradesh** [(2010)10 SCC 259], the Supreme Court, while dealing with the evidentiary value of the injured witness, has held as follows:- “.......Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.....” **==> picture [36 x 56] intentionally omitted <==** 22. Judged by the above standards, we are of the view that the evidence tendered by PW2 is reliable and can be acted Crl.Appeal No.370 of 2016 :-20-: upon. On a perusal of the entire evidence, we are of the view that the accused has taken a false plea stating that PW2 made an attempt to assault him on the date of occurrence. PWs.2, 3 and 4 supported the prosecution case. The identity of the assailant was proved beyond doubt. The accused stabbed his wife on the belief that she was unchaste and she succumbed to the injuries later. In view of the direct evidence and circumstantial evidence adduced by the prosecution, we are of the view that the prosecution has succeeded in proving the real motive of the accused to commit the murder of his own wife. While so, PW2 also sustained serious injuries. The burden of proof lies on the accused to show as to how deceased and PW2 sustained injuries in his presence. In order to discharge the burden, the accused had taken a false plea to save himself. 23. Following circumstances give irresistible conclusion of the guilt of the accused. 1. Accused and deceased were man and wife. 2. The accused doubted the chastity of his wife. Crl.Appeal No.370 of 2016 :-21-: 3. The accused questioned PW2 when he was talking with his wife Ambika. 4. The deceased and PW2 sustained injuries in the presence of the accused at the occurrence place. 5. MO1 contained human blood as per Ext.P14 report cum certificate of chemical analysis. 6. Cause of death was found as stab injury sustained to the deceased. 7. The death was homicidal in nature. 8. PW2 sustained grievous injury which was sufficient in the ordinary course of nature to cause death. 9. The conduct of the accused in not taking the deceased to the hospital points a finger of doubt upon him. 10. The accused left the place of occurrence immediately after the occurrence. 11. The deceased was taken to the hospital by PWs.3 and 4. 24. Going by the entire evidence in this case, it is very clear that the injuries sustained to the deceased are sufficient in the ordinary course of nature to cause death. There is nothing on record to show that the injuries were caused accidentally or negligently. Now we come to the second limb of the argument Crl.Appeal No.370 of 2016 :-22-: of the appellant that the case is covered under Section 304 Part I of IPC. No single circumstance or mitigating circumstance is placed on record, which would show that the intention of the accused was not to commit murder of the deceased or the offence was committed under a grave or sudden provocation even if we accept the statement of the accused under Section 313 Cr.P.C. that the accused questioned while his wife was talking to PW2 at the occurrence place. The statement of the accused itself does not inspire confidence. Had the appellant been innocent as contended by him, he would have certainly taken the deceased to the hospital immediately and lodged complaint against PW2 before the Police. Yet another circumstance which points a finger of doubt against the accused is that though he was fully aware that the condition of the deceased was critical and was struggling for life with bleeding injuries, he somehow opted to escape from the occurrence place. Hence, by no stretch of imagination, it could be accepted that PW2 made an attempt to assault the accused and while so, Crl.Appeal No.370 of 2016 :-23-: by mistake, PW2 stabbed the deceased. Hence, the case of the accused is neither covered under Section 304 Part I of IPC nor under Section 304 Part II of IPC. The accused failed to furnish any explanation as to under what circumstances his wife and PW2 sustained serious injuries and his wife succumbed to the injuries. 25. Put shortly, we are satisfied from the forensic evidence that the accused attacked the deceased in the presence of PW3 at the occurrence place. We are also satisfied that the accused was carrying dangerous weapons from the beginning with an intention to inflict injuries on the deceased and PW2. All the acts of the accused would squarely fall within the first category of Section 300 IPC as these acts were done with the intention of causing death. The victim also died within a short time with the injuries suffered by her. For all the foregoing reasons, we are of the view that the trial court has rightly convicted and sentenced the accused under Section 307 and 302 of IPC. This appeal is without any Crl.Appeal No.370 of 2016 :-24-: merit and is liable to be dismissed and is accordingly dismissed. The judgment and order of conviction of the trial court are confirmed. Sd/- **A.HARIPRASAD** , **Judge** sd/- **N.ANIL KUMAR, Judge** MBS/