Rajan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934 CRL.A.No. 1228 of 2008 ( ) -------------------------SC.533/2006 OF SESSIONS COURT,THODUPUZHA CP.14/2006 of J.M.F.C.-II, PEERUMEDU APPELLANT(S): ------------ RAJAN,C.NO.2126, CENTRAL PRISON,TRIVANDRUM BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): -------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR** & **C.T. RAVIKUMAR, JJ. ========================== CRL.APPEAL No.1228 OF 2008 ==========================** Dated this the 20[th] day of September, 2012 ## **JUDGMENT** ## **Sasidharan Nambiar, J.** Appellant, the first accused in S.C.No.533 of 2006, on the file of the Sessions Court, Thodupuzha, was convicted and sentenced to imprisonment for life for the offence under section 302 of Indian Penal Code, for murdering his wife Asha, on 13.6.2005, between 12.30 p.m and 1.40 p.m. Appellant-Rajan, Asha, the wife and second accused Kasthuri, the mother of the appellant, were admittedly residing in the house situated at Kumily village near to the local committee office of CPI(M). Prosecution case is that, on the morning of 13.6.2005, PW4 Nassar, who is working in a hotel situated near to the house of the appellant, and PW2 Ravi Chandran, who is having a **Crl.A.1228/08** 2 shop near to the house of the appellant, heard the cry of the wife of the appellant from his house. PW2 and others went to the house of the appellant to enquire about it. Appellant sent them back stating that they need not interfere in his family matters. PW2 and others at that time found deceased Asha lying in a cot. By 1.40 p.m, appellant came to the shop of PW2 and informed him that his wife is lying motionless and sought his help to find out what happened. Because of the previous incident, PW2 was not prepared to accompany the appellant. Appellant, thereafter, went to the local committee office of CPI(M) where PW1 Muraleedharan, the office secretary, was present and informed that his wife is lying motionless. PW3, Zeenath, a member of CPI(M), was there in the party office. PW1 sent her to the house of the appellant to find out what happened. PW3 and PW2 along with others, went to the house of the appellant. They found the body of Asha lying in a cot. PW3 verified the pulse of the deceased and found that no pulse could be read. Appellant then went out; took a jeep and took the wife to the hospital where she was pronounced dead. PW1 lodged Ext.P1 F.I. statement, at 4.30 p.m,. on 13.6.2005, **Crl.A.1228/08** 3 which was recorded by PW8, Sub Inspector, who registered the crime after preparing Ext.P4 F.I.R. PW9, the Circle Inspector of Police took over the investigation. He submitted the requisition and PW7, the Deputy Tahsildar conducted the inquest and prepared Ext.P3 inquest report. PW9 furnished the necessary requisition and PW10 Dr.Rajeev conducted autopsy on the body of deceased Asha and prepared Ext.P6 post mortem certificate finding that the death was caused due to the combined effect of throttling and smothering. PW9 also prepared Ext.P5 scene mahazar. On 15.6.2005, he arrested the appellant. After completing the investigation, charge was laid for the offence under sections 302 and 114 r/w section 34 of IPC as against the appellant and his mother, the second accused. Learned Judicial First Class Magistrate, Peermed committed the case to the Sessions Court. Both the accused were defended by a counsel of their choice. 2. When charge for the offence under section 302 IPC as against the appellant and under section 109 r/w section 302 IPC as against the second accused were framed and read over, they pleaded **Crl.A.1228/08** 4 not guilty. Prosecution examined 10 witnesses and marked 6 exhibits and identified 4 material objects. After closing the prosecution evidence, accused were questioned under section 313 of Code of Criminal Procedure. Appellant denied the incriminating incidence put to him and additionally, contended that he is innocent and he was employed as a tailor in the shop of one Dhanam. On the morning of the day when Asha died, he had gone for his work at 9 a.m. By noon, Kuttu came to his shop and informed that people had gathered near his house. Appellant immediately went to the house. He found his wife lying unconscious, in a cot. He fetched a jeep and took her to the hospital. After examination, doctor pronounced her dead. Appellant is a member of C.P.I. The workers of CPI(M) had placed boards and sticks on the way leading to his house and the office of CPI(M). Appellant had requested to remove them. For that reason, the case is foisted against him. Second accused contended that she was not in the room, as she left the room in the morning and returned only later. The learned Sessions Judge though called upon the accused to enter their defence and adduce evidence, defence did not adduce any evidence. **Crl.A.1228/08** 5 3. Learned Sessions Judge, on the evidence, found that death of Asha was caused by smothering and throttling. Learned Sessions Judge also found that appellant was found along with the deceased by PW2 in the morning and when PW2 along with others went there to enquire on hearing the cry, they were sent out and evidence of PW4 proves that he heard the cry of the deceased from the house and evidence of PWs 1, 2 and 3 prove that appellant by 1.45 p.m first went to PW2 to seek his help as deceased was lying unconscious and when he refused help, appellant went to the CPI(M) office to report that his wife is lying motionless and as directed by PW1, PW3 along with PW2 and others went to house of the appellant. When PW3 verified the pulse and found that pulse cannot be read, appellant took a jeep and took her to the hospital from where the doctor pronounced her dead and the evidence conclusively establish that it was the appellant who committed the murder. Appellant was accordingly convicted and sentenced for the offence under section 302 as stated earlier. Second accused was acquitted. Appellant preferred **Crl.A.1228/08** 6 the appeal, challenging the conviction and sentence, from prison. Adv. C.Rajendran, later, filed vakalath for appellant and argued the appeal. 4. The argument of the learned counsel appearing for the appellant is that prosecution did not establish that the death was due to either smothering or throttling. Inviting attention to Ext.P6 post mortem certificate, especially, the non-fracture of the hyoid bone and the cartilages, the learned counsel argued that it is not a case of death caused by throttling and smothering. The learned counsel argued that when post mortem findings did not conclusively establish that death was due to throttling and smothering, the viscera contents should have been examined at the laboratory and it was not even attempted to, and when the death need not necessarily be due to throttling and smothering, conviction of the appellant for the offence under section 302 of IPC is not sustainable. Relying on “The Medical Jurisprudence and Toxicology by Dr.Subramanyam, 2011 edition, pages 351 and 354, the learned counsel argued that in the case of **Crl.A.1228/08** 7 throttling, there should be fracture of hyoid bone and thryroid cartilage and when Ext.P6 establishes that there was no fracture of hyoid bone and thryroid cartilage, the finding of the learned Sessions Judge that the death was due to throttling and smothering, cannot be sustained. The learned counsel further argued that even without an intention to kill, if the appellant pushed the wife grasping her neck and she died, if the appellant had not intentionally pressed the throat of his wife in sudden quarrel, he cannot be convicted for the offence under section 302 IPC. It was argued that when appellant had no intention or mens rea to murder the wife, even if the prosecution case is to be accepted, the offence will not come under section 302 of IPC and he could only be convicted under section 304 Part II IPC and the conviction is unsustainable. 5. Learned Public Prosecutor, on the evidence, submitted that post mortem findings are conclusive to prove that the death was caused by smothering and throttling. It was pointed out that the evidence of PW10 the doctor, who conducted autopsy and the **Crl.A.1228/08** 8 findings conclusively prove that the death was caused by throttling and smothering and the evidence of PW10 was not challenged in cross-examination and when the nails were found bluish and air passages contained blood stained frothy fluid and the lungs were congested and oedematous, in the light of the evidence of PW10, it can only be found that the death was caused by the combined effect of throttling and smothering. Learned Public Prosecutor also pointed out that when the evidence of PW10 that injury Nos.2 and 3 inflicted on the neck, are sufficient in the ordinary course of nature to cause death was not even challenged and when appellant has no case that those injuries were accidentally inflicted by him, it is clear that those injuries which are sufficient in the ordinary course of nature to cause death, were intentionally inflicted, in any case, clause thirdly of section 300 squarely applies and the offecnce could only be under section 302 of IPC. Learned Public Prosecutor also pointed out that from the evidence, it is clear that the appellant caused the death of his wife by throttling and smothering with the intention to cause her death. There is no reason to interfere with the conviction and **Crl.A.1228/08** 9 sentence. 6. The evidence of PW10 with Ext.P6 post mortem certificate conclusively establish that death of Asha was caused by throttling and smothering. Ext.P6 with the evidence of PW10 establish the following ante-mortem injuries. 1. Abrasion 0.5x0.1cm curved on the right side of face 4cm outer to midline overlying the lower jaw. 2. Abrasion 2x0.6cm, obliquely placed on the left side of neck, 4cm outer to midline and 1cm below the lower jaw. 3. Abrasion 0.8x0.1cm, curved on the right side of neck, 3.5cm outer to midline and 7cm below the lower jaw. 4. Abrasion 0.8x0.3cm curved on the right side of face, 1.5cm outer to the ala of nose. Flap dissection of neck was done under bloodless field. Subcutaneous tissue and muscles of the neck underneath injuries number 2 and 3 showed infiltration of blood. All the other neck structures including the hyoid bone, thyroid cartilage, other bones and cartilages, blood vessels, muscles and nerves were normal and intact. Air passages contained blood stained frothy fluid. Lungs were congested and oedematous. **Crl.A.1228/08** 10 Ext.P6 also shows that conjunctivae were congested and finger nails were bluish. 7. Though post mortem findings do not show that there was fracture of hyoid bone or thryroid cartilage, absence of fracture of hyoid bone is not an indication to hold that death was not caused by throttling. 8. The Hon'ble Supreme Court considered this aspect in **Ponnusamy v. State of Tamil Nadu (AIR 2008 SC 2110)** and held:- “20-21. It is true that the autopsy surgeon, PW17, did not find any fracture on the hyoid bone. Existence of such a fracture lead to a conclusive proof of strangulation but absence thereof does not prove contra. In Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition, pages 307-308, it is stated :- "The hyoid bone is 'U' shaped and **Crl.A.1228/08** 11 composed of five parts : the body, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn, which can be felt more easily, lies behind the front part of the strip-muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and one for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body. They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed. Our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification. From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns. Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only. While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the **Crl.A.1228/08** 12 application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures : in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green." It was further held: “24. A bare perusal of the opinion of the learned Author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases.” From the evidence of PW10 which was not challenged and the findings in Ext.P6, prosecution conclusively proved that death of Asha was caused by throttling and smothering. 9. The fact that the deceased Asha was living along with the appellant and his mother, in the same house, was not disputed. **Crl.A.1228/08** 13 Though the learned counsel appearing for the appellant argued that the evidence of PWs 1 to 4 are not trustworthy or reliable and as appellant is a member of CPI and the prosecution witnesses are workers of CPI(M) and hence, they falsely deposed against the appellant, on the evidence, we cannot agree. Though PW1 was the office secretary of CPI(M) and PW3 an active worker of that party, when PWs 2 and 4 were examined, defence had no case that they were party workers or even sympathisers. The house of the appellant was admittedly very near to the CPI(M) local committee office, Chenkara, Kumily. So also, it is not disputed that the shop of PW2 and the shop where PW4 was working, were close to both the CPI(M) office and the house of the appellant. It was PW1, the office secretary of CPI (M) who lodged Ext.P1 FI statement. What is stated in Ext.P1 and what was deposed by PW1 from the witness box is the same facts. There was no contradiction. PW1 did not claim that he had any personal knowledge on how Asha died. His evidence, as well as his version in Ext.P1 FI statement, was that when he came to the office by 11 a.m., it was disclosed to him that some cry was heard from the **Crl.A.1228/08** 14 house of the appellant earlier and PW2 and others have gone there to enquire and the appellant sent them back stating that they need not interfere in his family matters. Evidence of PW1 is that later by 1.45 p.m, appellant came to the office and informed that his wife is lying motionless. PW1 did not even attempt to claim that he had gone there or found the appellant doing anything on the deceased. We find no reason to discard the evidence of PW1, as argued by the learned counsel. 10. PW2 deposed that on that morning as he heard the cry of the wife of the appellant from the house of the appellant, he along with some others, had gone there by 11 a.m and appellant sent them back stating that they need not interfere in his family matters. Though PW2 deposed that he advised the appellant that he should behave properly with his wife, it is a new case disclosed for the first time from the box and it was not disclosed when his statement was recorded by PW9 during investigation. But that does not mean that PW2 did not go to the house of the appellant as claimed by him or **Crl.A.1228/08** 15 appellant did not approach him later and informed that his wife is lying motionless. But for that reason, the entire evidence of PW2 cannot be discarded. PW2 is not a member of CPI(M). No reason was shown why PW2 falsely depose against the appellant. On appreciation of the entire evidence of PW2, we find his evidence reliable to the extent of his version that he heard the cry of the deceased from the house of the appellant and hence, along with others, he went to the house of the appellant and were sent back by the appellant and later, appellant came to his shop and informed him that his wife is lying unconscious and along with PW3, he went there and found the motionless body of Asha. 11. PW3 is admittedly a member of CPI(M). According to PW3, she had been there in the CPI(M) office when appellant came there to inform that his wife was lying motionless. That evidence of PW3 is corroborated by PW1. The evidence of PW1 is that when appellant came there and reported that his wife was lying motionless, he sent PW3 along with others to verify. The evidence of PW2 **Crl.A.1228/08** 16 corroborates the evidence of PW3 that along with PW2 and others, she had also gone to the house of the appellant and then the body of Asha was found in a cot and PW3 examined the pulse of Asha and found that pulse cannot be read. The evidence of PW3 is that thereafter, the appellant went out of the house and fetched a jeep and took Asha to the hospital. On a careful scrutiny of the evidence of PW3, we find no reason to discard her evidence. 12. The evidence of PW4, who is an employee of the hotel, prove that he also heard the cry of the deceased from the house of the appellant on the morning and also by about 12.30 p.m. PW4 is not a member of CPI(M). It was brought out that from the shop of PW4 one could hear the talk from the house of the appellant. From the evidence, it is clear that PW4 is deposing the truth. He did not attempt to exaggerate or even to implicate the appellant. PW4 is also a trustworthy and natural witness. We find no reason to disbelieve him. **Crl.A.1228/08** 17 13. From the evidence, as rightly found by the learned Sessions Judge, it is absolutely clear that at the time, when Asha was murdered, by throttling and smothering, there was only the appellant apart from the deceased in the house. In such circumstances, appellant has definitely a duty to disclose what happened to the wife as he was last seen with the deceased alive. The attempt of the appellant while questioning under section 313 of Code was that he was not there in the house at all. His case is that he had gone for tailoring work at 9 a.m and when it was informed to him by Kuttu that people had gathered near to his house, he returned to the house. According to the appellant, he took the wife to the hospital and the doctor, on examination, found her dead. The evidence of PWs 1 to 4 conclusively establish that the case of the appellant is false. The evidence establish that appellant was there in the house from the very morning and he had ill-treated the wife and hearing the cry of his wife, PW2 and others came to the house to enquire about it and appellant sent them back and while so, they found deceased Asha lying in a cot. The evidence also establish that appellant continued **Crl.A.1228/08** 18 the ill-treatment even thereafter, he later came to the shop of PW2 and to the office of the CPI(M) by 1.45 p.m, and for getting himself satisfied that his wife is no more. Though learned counsel appearing for the appellant vehemently argued that there was no intention on the part of the appellant to cause the death of his wife and that is why he approached PW2 and the CPI(M) office seeking their help, on the facts, we cannot agree. If the attempt of the appellant was to save the life of his wife, he will never go to the shop of PW2 or CPI(M) office and instead, would have taken the deceased to the hospital at the earliest. He has no case that he sought the help of PW2 or the workers of CPI(M) available in the office, to get a vehicle to take the wife to the hospital. On the other hand, the evidence of PWs 2 and 3 establish that appellant came to them and he fetched a jeep only after PW3 found the deceased dead. The attempt was not to save the life of the wife; but to make sure before wife is taken to the hospital that the wife is no more. In such circumstances, it is clear that the intention was to cause her death and the throttling and smothering was done with the intention to cause her death. Hence, clause firstly of section **Crl.A.1228/08** 19 300 of Indian Penal Code is attracted. 14. The evidence of PW10 even otherwise establish that the injuries 2 and 3 caused on the neck are independently sufficient in the ordinary course of nature to cause death. That evidence of PW10 was not challenged. In such circumstances, when the death was caused by those injuries and those injuries are sufficient in the ordinary course of nature to cause death, and it is clear that appellant intended to inflict those injuries and were not accidentally inflicted, clause thirdly of section 300 IPC is attracted. There is no evidence whatsoever to support the submission that the injuries were inflicted accidentally without the intention. In such circumstances, even if clause firstly of section 300 is not applicable, which is not the case herein, when those injuries are proved sufficient in the ordinary course of nature to cause death and those particular injuries were intentionally inflicted, clause thirdly of section 300 of Indian Penal Code applies. When none of the exceptions to section 300 is attracted, the offence committed is punishable under section 302 of Indian Penal Code. Appellant was **Crl.A.1228/08** 20 sentenced only to imprisonment for life. In such circumstances, we find no reason to interfere with the conviction or the sentence. Confirming the conviction and sentence, the appeal is dismissed. **M.SASIDHARAN NAMBIAR (JUDGE)** **C.T. RAVIKUMAR** **(JUDGE)** **spc/** **Crl.A.1228/08** 21 **M.SASIDHARAN NAMBIAR & C.T. RAVIKUMAR, JJ.** **CRL.A.1228/2008** **JUDGMENT** **20[th] September, 2012** **Crl.A.1228/08** 22