Santosh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **CRL.A.No.1487 OF 2018** **AGAINST THE JUDGMENT IN SC 796/2017 DATED 06-12-2018 OF ADDITIONAL SESSIONS COURT - IV, KOLLAM** **CRIME NO.1974/2014 OF ERAVIPURAM POLICE STATION , Kollam** ## **APPELLANT/ACCUSED:** **SANTHOSH, AGED 46 YEARS, S/O. NADARAJAN, PAZHANILATH THODIYIL VEEDU, SREE VILASAM NAGAR, 158, VADAKKEVILA CHEERY, VADKKEVILA VILLAGE, KOLLAM 691 010** **BY ADV. SRI.SHIBU JOSEPH** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM 2 THE SUB INSPECTOR OF POLICE, ERAVIPURAM POLICE STATION, KOLLAM 691 011 SRI. RAMESH CHAND PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 0707-2020, THE COURT ON 15-07-2020 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1487 of 2018 ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Criminal Appeal No.1487 of 2018 ----------------------------------------------Dated this the 15[th] day of July, 2020.** ## **J U D G M E N T** The sole accused in S.C. No.796 of 2017 on the files of the Additional Sessions Court-IV, Kollam has come up in this appeal challenging his conviction and sentence in the said case. 2. The accusation in the case in essence is that the accused who is the husband of the victim lady was subjecting the victim lady to cruelty demanding more dowry, and on 17.12.2014, at about 2.30 pm, with the intention of committing the murder of the victim lady, the accused stabbed her with a knife at her left flank and also at her left hand while she was entering into the house. The offences alleged are the offences punishable under Sections 498A and 307 of the Indian 3 Crl.Appeal No.1487 of 2018 Penal Code (the IPC) 3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 17 witnesses as PW1 to PW17 and proved through them 22 documents as Exts.P1 to P22. Among the witnesses examined on the side of the prosecution, PW1 is a relative of the victim lady, PW2 is the victim lady, PW8 is the doctor who examined the victim lady at the District Hospital, Kollam, PW10 is the Sub Inspector of Police attached to the Women Cell, Kollam, PW13 to PW15 are the police officers who have investigated the case and PW17 is the doctor who treated the victim lady at the Medical College Hospital, Thiruvananthapuram. Among the documents, Ext.P1 is the First Information Statement proved by PW1, Ext.P3 is the wound certificate proved by PW8, Ext.P5 is the copy of the petition register at the Women Cell, Kollam proved by PW10, Exts.P9 and P10 are lists of documents proved by PW13, Ext.P13 is the scene mahazar proved by PW15, Ext.P17 is the recovery mahazar proved by PWP15 and Ext.P22 is the case sheet proved by PW17. 4 Crl.Appeal No.1487 of 2018 4. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the accused under Section 498A of the IPC. The court, however, found that the accused is guilty of the offence punishable under Section 307 of the IPC. The accused was accordingly convicted for the said offence and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for three months. As noted, the accused is aggrieved by his conviction and sentence. 5. Heard the learned counsel for the accused as also the learned Public Prosecutor. 6. At the outset, the learned counsel for the accused contended that though the charge in the case is that the accused has committed the offence at 2.30 pm, on 17.12.2014, there is no evidence, not even formal, to prove the time of occurrence. Similarly, it was contended by the learned counsel that the scene of occurrence in the case has not been proved by the prosecution. Placing reliance on the decision of Crl.Appeal No.1487 of 2018 5 this court in **Mohanan v. State of Kerala** [2011 (4) KLT 59], it was argued by the learned counsel that mere production of the scene mahazar or marking of the same through the police officer who prepared the same, is not sufficient to prove the facts stated therein. It was also contended by the learned counsel that unusually the blood stains collected from the scene of occurrence have not been sent for forensic examination. It was further contended by the learned counsel that the specific case spoken to by PW2 is that the occurrence took place when she came back home following the accused from the Women Cell, where both of them were summoned to undergo counselling, whereas Ext.P5 copy of the petition register at the Women Cell would show that there was no counselling at all on the date of occurrence. It was further contended by the learned counsel that there is no evidence in the case as to the information stated to have been received from the accused which led to the alleged recovery of MO1 knife, and even assuming that there is evidence in the case as to any such information, the same is of no use to the 6 Crl.Appeal No.1487 of 2018 prosecution, for it was not established that the recovery of the said material object was effected based on the said information. It was also contended by the learned counsel that though the case of the prosecution is that the accused has purchased MO1 knife from Dhanya Super Market, and produced a cash memo along with Ext.P10 property list to prove the said fact, there is nothing to connect the accused with the said cash memo. According to the learned counsel, in the aforesaid circumstances, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt and the accused is certainly entitled, at any rate, to the benefit of doubt. Alternatively, it was also contended by the learned counsel that even if it is found that it is the accused who has stabbed the victim lady as alleged by the prosecution, the facts and circumstances do not make out a case under Section 307 of the IPC. At last, the learned counsel contended that at any rate, the sentence imposed on the accused is excessive and grossly disproportionate to the offence established. 7. Per contra, the learned Public Prosecutor Crl.Appeal No.1487 of 2018 7 submitted that the evidence tendered by the victim lady as PW2 as corroborated by the evidence given by the doctors who examined her at the District Hospital, Kollam and also at the Medical College Hospital, Thiruvananthapuram would establish the guilt of the accused and there is no infirmity at all in the decision of the court below. 8. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 307 of the IPC. 9. Before I deal with the evidence tendered by the prosecution to prove the guilt of the accused and the various contentions raised by the learned counsel for the accused, I must notice that the fact that the accused who is married to another lady was living with the victim lady, the fact that the victim lady has lodged a complaint against the accused before the Women Cell latterly when disputes arose between them, the fact that the accused was summoned on that complaint to the 8 Crl.Appeal No.1487 of 2018 Women Cell and the fact that both of them were sent for counselling are not disputed by the accused. Similarly, the fact that the victim lady sustained injuries in an occurrence took place on 17.12.2014 and she was taken to the District Hospital Kollam as also to the Medical College Hospital Thiruvananthapuram, for treatment of the said injuries are also not disputed by the accused. Though the prosecution cited witnesses other than the victim lady to prove the occurrence, all of them except PW1, a relative of the victim lady, turned hostile to the prosecution. The question, therefore, is as to whether the remaining evidence would make out the guilt of the accused. 10. I shall now deal with the evidence in the case. PW1 is not an eye witness to the occurrence. The only evidence tendered by her is that on 17.12.2014, at about 2.30 pm, the victim lady informed her over telephone that the accused stabbed her and told her that she will die. It is seen that the attempt of the prosecution was to bring the said evidence within the ambit of Section 6 of the Indian Evidence Act. For 9 Crl.Appeal No.1487 of 2018 bringing the said hearsay evidence within the scope of Section 6, it has to be established that the said fact deposed by PW1 is so connected with the fact in issue so as to form part of the same transaction. The statement claimed to have been made by the victim lady to PW1 as deposed by her cannot be said to be an act so connected with the fact in issue so as to form part of the same transaction, for even according to the prosecution, the victim lady talked to PW1 over telephone while she was taken to the hospital in autorikshaw after the occurrence . 11. PW2, the victim lady deposed that the differences arose between them while they were residing together and the accused started torturing her. She deposed that she accordingly lodged a complaint before the Women Cell and the accused was summoned on the said complaint on 10.12.2014. She deposed that the disputes between them have been amicably settled at the Women Cell and they were advised counselling and were directed to be present for the same on 17.12.2014. PW2 deposed that the accused came to the Women Cell on that day and demanded the key of the 10 Crl.Appeal No.1487 of 2018 house and left the Women Cell without her, after giving her a warning that he will teach her a lesson. PW2 deposed that she followed the accused and when she reached home, it was found that the accused has already opened the house. She deposed that when she was about to enter the house, the accused suddenly stabbed her on the left flank and also on her left hand using MO1 knife. She deposed that she then rushed to the nearby road, where one person tied her wounds and sent her in an auto rickshaw to the hospital. She deposed that she went to the District Hospital, Kollam and from there, she was taken to the Medical College Hospital and she underwent an immediate surgery. She deposed that she was in the hospital till 29.12.2014. 12. PW8 is the doctor who examined the victim lady at the District Hospital, Kollam at 3.07 pm on 17.12.2014. Ext.P3 is the wound certificate issued by PW8. PW8 deposed that on examination of the victim lady, he found “stab wounds over left flank measuring 4 x 1.5 cm and on her left forearm measuring 4.5 x 105 cm” and she was referred to the Medical 11 Crl.Appeal No.1487 of 2018 College Hospital, Thiruvananthapuram. PW8 deposed that it was alleged by the victim lady at the time of examination that the injuries have been inflicted by her husband by stabbing her using a knife. PW8 has opined that the injuries noted could be caused by stabbing with MO1 knife. PW8 has also opined that the injuries sustained by the victim lady could lead to internal bleeding and consequential death. PW17, the doctor who treated the victim lady at the Medical College, Thiruvananthapuram, deposed that on 17.12.2014 when the victim lady was brought to the hospital, it was found that there was a stab wound on her left flank region penetrating into the abdomen and she was subjected to emergency laparotomy. He also deposed that even the left kidney of the victim lady was damaged on account of the injury sustained by her on her left flank. PW17 also deposed that the injury suffered by the victim lady is sufficient, in the ordinary circumstances to cause death. 13. It is relevant to mention that the only material brought out in the cross-examination of PW2 by the learned counsel for the accused is that PW2 had some psychiatric 12 Crl.Appeal No.1487 of 2018 ailments and the suggestion put to PW2 by the learned counsel for the accused during her cross-examination which was stoutly denied by her was that the injuries were self inflicted. Merely on account the fact that the victim lady was suffering from psychiatric ailments earlier, that by itself is not sufficient for a court to hold that the injuries suffered by her are self inflicted or that the evidence tendered by the victim lady is not reliable or acceptable. In other words, I am of the view that the prosecution has established beyond doubt, through the evidence of PW2 herself, that it is the accused who has inflicted injuries on her, as alleged by the prosecution. 14. I shall now consider the contentions of the accused. True, in a prosecution of this nature, it is necessary to prove the time of occurrence, especially when charge framed against the accused refers to the time of occurrence. As rightly contended by the learned counsel for the accused, the only witness examined on the side of the prosecution to prove the occurrence namely, PW2 has not deposed about the time of occurrence. It has, however, come out from the evidence of 13 Crl.Appeal No.1487 of 2018 PW8, the doctor who examined the victim lady at the District Hospital, Kollam, that the victim lady was brought before him for examination at 3.07 p.m. In other words, the evidence tendered by PW8 would indicate that the occurrence was at about the time alleged by the prosecution. The learned counsel for the accused could not point out the prejudice, if any, caused to the accused on account of the omission on the part of PW2 in deposing about the exact time of occurrence. In the circumstances, I am of the view that the omission aforesaid on the part of PW2 is of no consequence. Similar is the position as regards the scene of occurrence as well. True, the investigating officer in the case who prepared the scene mahazar did not specifically state in his evidence the exact particulars of the scene of occurrence. But, as noted above, it is not established that any prejudice has been caused to the accused on account of the same, especially when the victim lady as PW2 has categorically stated in her evidence that the accused has stabbed her when she was about to enter into the house. As regards the contention that the blood stains collected from the 14 Crl.Appeal No.1487 of 2018 scene of occurrence were not sent for forensic examination, it is to be mentioned that in the absence of any case for the accused that had the said blood stains been compared with any other blood stains, the same would have come to his aid, the inaction on the part of the investigating agency in sending the blood stains, is of no consequence. Ext.P5 would show that there was a complaint by the victim lady before the Women Cell; that the accused was summoned on the said complaint; that the dispute between the accused and the victim lady was conciliated and they were referred for counselling on 03.12.2014. Ext.P5 does not indicate that there was any proceedings thereafter at the Women Cell, nor does it indicate that the victim lady and the accused were present at the Women Cell on the date of occurrence. Merely for the reason that there is no entry in Ext.P5 on the date of occurrence as regards the complaint lodged by the victim lady against the accused, it cannot be said that both of them did not go to the Women Cell on that day. I do not therefore, find any merit in the argument advanced by the learned counsel for the accused 15 Crl.Appeal No.1487 of 2018 based on the entries in Ext.P5 petition register at the Women Cell. 15. Coming to the contention raised by the learned counsel for the accused as regards the cash memo appended to Ext.P10 list of documents, as rightly contented by the learned counsel for the accused, the same does not indicate in any manner that the accused has purchased the knife referred to therein nor does it indicate that MO1 knife is one covered by the said cash memo. It is all the more so since the staff of the shop who issued the cash memo was not examined. Similarly, PW15 has not stated, while giving evidence, the exact information given by the accused which led to the recovery of MO1 knife. The relevant evidence reads thus:- "തടർന� പത�യ� ച��ദ�� യ�യത�ൽ കത� ട **�** �യ� അമ ത�മസ�കന വ�ട�ന പ�ന�ൽ ഒള�പ�ച വച�ടണ� എനപറഞ അറ�വ�ച,ൽ പത� ന��ച� ആന��ച വഴ�ച� സഞര�ച� ട **�** �യ� അമ ത�മസ�കന TR.35/1053 നമർ ശ�വ�ല�സ� നഗർ 154 നമർ വ�ട�യലത�. ട� വ�ട�യ� പട�ഞ�റവശ� അടകളച��ട� ച�ർന shed ൽ ന�ല�ടപ�യ� concrete slab നട **�** �ൽ ന�ന� പത� എടത ഹ�ജറ�ക **�** കത� തടസറയട സ�ന�ദ�ത�ൽ മഹസർ പക�ര� ബനവസ�യലടത" 16 Crl.Appeal No.1487 of 2018 What is admissible under Section 27 of the Indian Evidence Act is the information as relates distinctly to the fact thereby discovered. In other words, the investigating officer should have clearly indicated in his evidence the exact information given by the accused which led to the recovery, and the evidence aforesaid, according to me, is not sufficient to contend that the accused has given any information to the investigating officer. Insofar as it is found that the prosecution has established beyond doubt through the evidence of PW2 herself that it is the accused who has inflicted injuries on her as alleged by the prosecution, the findings aforesaid in favour of the accused are not of any consequence. 16. The issue remaining to be considered is as to whether the proved facts would make out a case under Section 307 of the IPC. Section 307 reads thus: “ **307. Attempt to murder** .—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender 17 Crl.Appeal No.1487 of 2018 shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. **Attempts by life-convicts.** —When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” From the proved conduct of the accused in stabbing at the left flank of the victim lady in such a manner as to cause damage to her internal organs, according to me, intention or at least knowledge that if he by that act caused death, he would be guilty of murder, can be readily inferred. The argument advanced by the learned counsel for the accused in this regard is, therefore, rejected. 17. Coming to the arguments concerning the proportionality of the sentence, insofar as there is nothing on record to indicate that the accused was previously convicted for any offence and having regard to the circumstances under which the offences are committed, the age of the accused and also the fact that he has two children to be looked after, I am of the view that rigorous imprisonment for a period of three years and the same amount of fine as imposed by the court below would serve the ends of justice. 18 Crl.Appeal No.1487 of 2018 In the result, the appeal is allowed in part confirming the conviction of the accused and altering the sentence to three years rigorous imprisonment. The impugned judgment will stand confirmed in all other respects and will stand modified accordingly. Sd/- **P.B.SURESH KUMAR JUDGE** YKB