Raghavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **CRL.A.No. 1879 of 2011 (D) ---------------------------** **AGAINST THE JUDGMENT IN SC 189/2010 of SESSIONS COURT, WAYANAD DATED 04.06.2011** **APPELLANT(S):** **------------** **RAGHAVAN, S/O.CHOONDAN, C.NO.9605 KANNUR.** ## **BY ADV. ADV.FARIDIN.A.S (STATE BRIEF)** **RESPONDENT(S):** **--------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY ADV. SMT.PRAICY JOSEPH, SPL. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.T.SANKARAN & A.HARIPRASAD, JJ. -------------------------------------Crl. Appeal No.1879 of 2011 ------------------------------Dated this the 25[th] day of May, 2016** ## **JUDGMENT** ## **A.Hariprasad, J.** The appellant was tried, convicted and sentenced for uxoricide and for causing disappearance of evidence. The learned Sessions Judge found him guilty under Section 300 IPC and sentenced him under Section 302 IPC and also under Section 201 IPC. The prosecution case in short is that on 19.11.2009 at 7.30 pm, the appellant brutally assaulted his wife Chandrika with bamboo and areacanut sticks with an intention to kill her and also with the knowledge that by such act death would be the result. She suffered multiple injuries including fractures and succumbed to the injuries at about 10.30 pm on the same day. Thereafter, he hanged her body on a tree, which was about 40 metres away from their house so as to cause the disappearance of evidence and thereby committed the said offences. After committing the case to the Court of Sessions, the learned Sessions Judge framed charges for the aforementioned offences. **Crl. Appeal No.1879 of 2011** **2** 2. Ten witnesses were examined on the side of the prosecution and Exts.P1 to P15 and MO.s 1 to 11 were marked. After hearing the appellant under Section 313 Cr.P.C, he was afforded an opportunity to adduce defence evidence, which he did not avail of. 3. We heard Sri.Faridin A.S., the State Brief appointed in the matter and Smt.Praicy Joseph, the learned Public Prosecutor appearing for the State. Sri Faridin has ably defended the appellant. 4. Learned counsel for the appellant mainly contended that the court below erred in convicting the appellant under Section 302 IPC for the reason that the prosecution case, if at all believed fully, will fall under Exception (1) to Section 300 IPC and therefore, the conviction should have been under Section 304 IPC. 5. Learned Public Prosecutor would contend that the evidence in this case would clearly show that the appellant, with the intention and knowledge required under Section 300 IPC has committed the offence and therefore, the finding of the court below is perfectly justifiable. We shall go through the evidence for appreciating these rival contentions. **Crl. Appeal No.1879 of 2011** **3** 6. The prosecution mainly relied on the testimony of PWs.1 to 4 and 6 to establish the guilt of the appellant. It is to be noted that this is a case wherein only circumstantial evidence was adduced by the prosecution to insinuate him. PW-1 is the sister of the deceased. It is come out in evidence that the appellant and deceased were having a child aged 3 years at the time of incident. Their elder child was not alive at the time of incident. It is also come out in evidence that both the appellant and the deceased were in the habit of drinking. Learned counsel for the appellant contended that both the appellant and the deceased belonged to tribal community in Wayanad. It is the prosecution case that deceased's sister Saraswathy was leading a promiscuous life and the deceased also used to go with her to a nearby town. The appellant was annoyed of her behaviour and there were quarrels between the appellant and the deceased on account of this issue. PW-1 deposed that the appellant used to beat the deceased after consuming liquor. It is also the evidence adduced by the above mentioned witnesses that the relatives of deceased and neighbours were reluctant to get involved in their affairs as the appellant used to scare them away and behave very **Crl. Appeal No.1879 of 2011** **4** rudely. All the above witnesses have deposed that they used to stay away from the house of the appellant and deceased even if they hear loud cries at the time when the appellant beat the deceased on many earlier occasions. PW-1 is not an eye witness to the incident. But her testimony would indicate that there were frequent quarrels between the appellant and the deceased. 7. PW-2 Shobha is yet another sister of the deceased. She also deposed that the appellant used to fight with his wife alleging that she used to wander with her sister Saraswathy. On the fateful night also, there were disputes and noisy quarrels between the couple as spoken to by this witness. 8. PW-3 is a neighbour. It is his version that on the night of occurrence he heard loud cry of the deceased seeking help. But he did not go to the appellant's house because he was also afraid of appellant's behaviour. It is clear from PW-3's evidence that he heard the appellant calling out the name of deceased on many times. Later, she was found dead hanging from a tree. PW-4 is the husband of PW-2. This witness also deposed in tune with the other witnesses. He narrated the prosecution case that there were marital discords **Crl. Appeal No.1879 of 2011** **5** between the appellant and the deceased. There were consequential fights between them. PW-6 is a person residing in the locality. Apart from the recovery of MO-1, under Section 27 of the Evidence Act, he proved the attitude of the accused towards his wife and spoke about the fights occurred between them. PW-6 also deposed that during the night of occurrence, he heard a loud cry from the deceased for help from her house and he also did not go there to help out the deceased fearing bodily injury at the hands of the appellant. In spite of cross examination on these witnesses, we do not find any reason to disbelieve the version spoken to by them regarding the family disputes prevailed between the appellant and the deceased. The prosecution would contend that the incident was at 7.30 pm on 19.11.2009. It has come out through medical evidence that the deceased must have died at about 10.30 pm on the same day. Therefore, there are enough materials available on record to hold that there was a long fight between the appellant and deceased. 9. The testimony of the witnesses mentioned above would clearly show that the deceased was last seen in the company of the appellant. PW-5 is the auto driver in whose **Crl. Appeal No.1879 of 2011** **6** autorikshaw they came from Vaduvanchal to their house. These witnesses unequivocally proved that the appellant and the deceased were together in the house at the time of occurrence. Therefore, in the absence of any satisfactory explanation from the defence side, it may not be possible to hold that the deceased died due to some cause other than the one alleged by the prosecution. The defence case of suicide is also improbabilized by the prosecution evidence. 10. Most important testimony is that of PW-7. Ext.P4 is the postmortem certificate. PW-7 was the Assistant Professor Forensic Medicine, Medical College Hospital, Calicut. He alongwith another doctor conducted the autopsy of the deceased. In Ext.P4, PW-7 has noted 36 antemortem injuries. He testified that injuries Nos.4, 6, 8 and 9 and 12 to 35 are possible with MO-1 bamboo stick. PW-7 deposed that antemortem injuries must have caused neurogenic shock to the victim. According to him, the cause of death was due to violent manipulations of the fractured bones during the violence which resulted in the neurogenic shock. Despite cross examining this witness, nothing worthwhile could be elicited to discredit his testimony. Ext.P4 couple with the oral **Crl. Appeal No.1879 of 2011** **7** evidence adduced by PW-7 would categorically show that the appellant brutally attacked the deceased by using MO-1 and caused multiple fractures on both upper limbs and ribs which caused the neurogenic shock. The injuries proved through this witness would show that the theory of suicide is an impossibility as her both limbs were fractured. 11. The prosecution has proved recovery of MO-1 bamboo stick properly. Ext.P10 is the confession of the accused which lead to the recovery of MO-1. It was properly proved through the investigating officer PW-10. That apart, testimony of PW-6 also reinforce the credibility of the recovery of MO-1 under Section 27 of the Evidence Act. These circumstances also lead to the guilt of the accused. 12. The learned counsel for the appellant contended that even if prosecution witnesses are believed, this is a case falling under Exception (1) in Section 300 IPC. Exception (1) deals with a situation where the offender deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation. There is absolutely no evidence to hold that the deceased gave any provocation to the appellant. There is no suggestion made to **Crl. Appeal No.1879 of 2011** **8** any of the prosecution witnesses to infer so. There is no statement by the appellant at the time of examination under Section 313 Cr.P.C. to hold so. It is well settled that the benefit of this Exception can be claimed only if it is shown that the provocation was such as would, in the circumstances, have caused a reasonable man to lose his self control. That apart, it must not be a pre-meditated act on the part of the accused who claims the benefit of Exception (1) to Section 300 IPC. It is also well settled that the benefit of Exception (1) to Section 300 has to be established either by the accused himself or it should be discernible from the totality of the prosecution evidence. We do not find any reason to hold that the appellant has established any material to claim the benefit of Exception (1) to Section 300 IPC. 13. Learned counsel for the appellant relied on **Bonda Devesu v. State of Andhra Pradesh [1996 (7) SCC 115]** to contend that the appellant being a member of the scheduled tribe and hailing from a community with lot on deprivations, his case should be considered leniently. The facts in the said decision are clear to justify placement of the guilt of the appellant therein under Exception (1) to Section 300 IPC. It is **Crl. Appeal No.1879 of 2011** **9** clear from the facts that the accused in that case acted on a sudden provocation. But in this case, even if the appellant had a complaint that his wife was leading an infamous life, the evidence would show that he came with her in an autorkshaw during the evening and the incident took place only at 7.30 pm. Further it lasted till 9.30 pm. All these factors when put together will dis-entitle the appellant to claim the benefit of Exception (1) to Section 300 IPC. Therefore, we are unable to accept the defence argument in this regard. This is a case in which all the circumstances proved by the prosecution form an unbroken chain and they, together, lead only to the guilt of the appellant. Further, the judicial evidence is clear that the appellant, after the death of the victim, hanged her from a tree. There are enough materials in the prosecution evidence to rule out the possibility of suicide. Considering the entire facts and circumstances and the evidence in detail, we are of the view that the court below has correctly found that the appellant is guilty of murder and causing disappearance of evidence. Hence the conviction entered by the trial court is legal. The sentence imposed by the court below is also legal and proper. We do not find any **Crl. Appeal No.1879 of 2011** **10** reason to interfere either in the conviction or in the sentence. Hence the appeal is dismissed, confirming both the conviction and sentence. SD/- **K.T.SANKARAN JUDGE** SD/- **A.HARIPRASAD JUDGE** JV