Shaji Sebastian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE A.M.BABU** ## **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **CRL.A.No. 182 of 2010 ( ) --------------------------** ## **AGAINST THE JUDGMENT IN SC 89/2008 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC)-II, KOTTAYAM** ## **APPELLANT/ACCUSED:** ## **--------------------** **SHAJI SEBASTIAN, S/O.AUGUSTY DEVASIA,AYKKARAMMOOTTIL VEEDU, EZHACHERY KARA, VELLILAPPALLY.** ## **BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.S.PRASANTH** ## **RESPONDENT(S)/COMPLAINANT, STATE:** **---------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sab** C.K.ABDUL REHIM & A.M BABU, JJ. --------------------------------------------Crl.Appeal.No.182 of 2010 ----------------------------------------------Dated this the 27th day of June, 2017 ## JUDGMENT ## A.M.Babu.J. The appellant challenges the conviction and sentence on him under section 302 of IPC. He was the accused in S.C No.89/2008 on the file of the court of session, Kottayam division. He was convicted and sentenced by the learned additional sessions judge (adhoc II). 2. The prosecution case goes as follows: It was at 6.30 a.m on 14.6.2006 the incident. The incident was the murder of Mariakutty @ Kathri. The appellant who committed the murder is the son of the deceased. The locale of the crime was the toilet of the south-western bedroom of the house where Mariakutty and the appellant lived. The latter had enmity towards his mother. It resulted in the incident. The appellant with the blunt portion of an axe beat on the head of his mother. He cut on her neck with the blade of the axe. The victim sustained grievous injuries to which she succumbed at 9.15 p.m on 16.6.2006 while managed in the hospital. 3. The first information statement was given by PW1. He is the brother of the appellant and the son of the deceased. Crl.Appeal.No.182 of 2010 2 PW13, sub-inspector of police, recorded the first information statement and registered the FIR. Investigation was conducted. Charge-sheet was filed. The learned magistrate committed the case to the court of session. The learned sessions judge made over the case to the learned additional sessions judge for disposal. After preliminary hearing, the learned trial judge framed charge against the appellant under section 302 of IPC. 4. The evidence consists of the oral testimonies of PWs1 to 13 and the documents marked as Exts P1 to P13 on the side of the prosecution. MOs1 to 4 were also marked. On completion of the prosecution evidence the learned trial judge examined the appellant under section 313 of Cr.P.C. Thereupon both sides were heard. It was found that there was no ground to acquit the appellant under section 232 of Cr.P.C. He was therefore called upon to enter on his defence and adduce evidence. But he did not adduce any evidence on his side. 5. The learned trial judge found the appellant guilty under section 302 of IPC. He was therefore convicted thereunder. He was sentenced to imprisonment for life and a fine of Rs.25,000/-. He was directed to undergo rigorous Crl.Appeal.No.182 of 2010 3 imprisonment for one year in the event of his failure to remit the fine. 6. Heard Adv. Sri. Bindu Sasthamangalam, the learned counsel for the appellant and Smt. Ambika Devi, the learned special public prosecutor for cases involving atrocities against women and children. 7. The prosecution case is a case of matricide. The prosecution examined 13 witnesses. The following witnesses were examined for the following purposes. PW1 has given the first information statement. The same was marked as Ext P1. The case was registered under section 308 of IPC. PWs2 and 3 who are brothers are the neighbors of the appellant as well as PW1. PW3 was examined to prove an extrajudicial confession.PW2 was examined to corroborate the evidence of PW3 on extrajudicial confession. PW4 took the victim in his jeep to the hospital. PW5 witnessed the preparation of Ext P2 scene mahazar. He identified MO1 which was the axe allegedly used by the appellant to kill his mother. PW6 witnessed the inquest. Ext.P3 is the inquest report. He signed it as a witness. PW7 witnessed the arrest of the appellant and also the seizure of MO2 dhoti which was allegedly worn by the appellant at the time of the incident. PW7 Crl.Appeal.No.182 of 2010 4 signed Ext P4 seizure mahazar pertaining to the seizure of MO2 dhoti. PW8 is the medical doctor who prepared Ext.P5 wound certificate. PW9 conducted the post-mortem examination on the corpse of the deceased. The autopsy certificate is Ext P6. PW10 is the village officer who prepared Ext.P7 scene plan. PW11 is the circle inspector of police who filed Ext P8 report for substituting section 302 IPC for section 308 IPC. He conducted the inquest and prepared Ext P3 inquest report. He prepared Ext.P9 property list and forwarded the property and the list to the court as per Ext P10 forwarding note. PW13 conducted the large chunk of the investigation. He recorded Ext P1 first information statement and registered Ext P12 FIR. He seized MO1 axe at the time of preparation of Ext.P2 scene mahazar by him. He seized MO3 polythene bag and MO4 bath towel as well from the scene of occurrence. He arrested the appellant on the date of incident itself. Ext.P13 is the memorandum of arrest prepared by PW13. PW12 is the circle inspector of police who conducted the remaining part of the investigation. He filed the charge-sheet. 8. It cannot be disputed that the death was homicide. That fact was not disputed by the appellant. The evidence of Crl.Appeal.No.182 of 2010 5 PWs 1 to 3 would prove that the death was homicide. PW9 who conducted autopsy gave evidence confirming the said fact. He noted 9 ante-mortem injuries on the dead body of the deceased. PW9 opined that the death was owing to the injuries sustained on the head and neck involving the cervical spine. 9. PWs 2 and 3 are the material witnesses for the prosecution. PW1 who gave the first information statement did not support the prosecution. The only favourable evidence for the prosecution from the deposition of PW1 is his statement that no one other than the appellant and Mariakutty were in their house on the date of incident. Rest of the evidence of PW1 was not favourable to the prosecution. 10. PW3 is the key witness for the prosecution. He is the neighbour of the appellant and PW1. According to PW3, the appellant came to his house and waited for him. PW3 deposed that when he was tapping rubber there, his wife came and informed that the appellant had come to their house. When PW3 reached his house, he said, he saw the appellant in his house. PW3 spoke that he was told by the appellant that the appellant killed his mother. 11. PW2 is the brother of PW3. PW2 spoke that Crl.Appeal.No.182 of 2010 6 himself, PW3 and the appellant went to the house of the appellant and saw Mariakutty lying in a pool of blood. PW2 spoke that the mother of the appellant was breathing still. According to PW3, seeing this, the appellant said that he would be in trouble had his mother not been dead. This evidence of PW2 is also relied on by the prosecution to prove the complicity of the appellant. 12. In Ext.P5 wound certificate the alleged cause of injury is shown as the assault by the son of the patient. PW8 who prepared Ext.P5 spoke to the alleged cause of injury shown therein. But the said statement of the doctor written in the wound certificate was based on what he heard from PW4. PW4 deposed that he gave the said information to the doctor. PW4 did not see the incident. He had only a hearsay knowledge about the incident. He communicated that knowledge to the doctor. Therefore what is written in Ext.P5 wound certificate as the alleged cause of injury cannot be relied on. 13. The learned counsel for the appellant relied on the evidence of Pws 2 and 3 to contend that the extrajudicial confession could not be accepted as such. The confession allegedly made by the appellant was that he killed his mother. Crl.Appeal.No.182 of 2010 7 PW3's evidence in his examination-in-chief suggests that he wanted to confirm it and he confirmed it from the appellant himself. But what PW3 communicated to his own brother PW2 was not that the appellant killed his mother or even that the appellant attacked his mother. PW3 spoke in his examination-in-chief itself that he went to PW2 and told him that something had happened to Mariakutty. The evidence of PW2 was also almost in the same line. PW2 deposed that he was told by PW3 that PW3 was told by the appellant that something had happened to the mother of the appellant. Had there been a confession as deposed by PW3, the communication to PW2 by PW3 would definitely have been that the appellant killed his mother. In the circumstance, the evidence of PW3 cannot be accepted without a pinch of salt unless sufficiently corroborated. Such corroboration is wanting for the prosecution. 14. The evidence of PW2 is also not very much in favour of the prosecution. His evidence is that the appellant when saw Mariakutty breathing stated that the appellant would be in trouble had she not died. It would suggest that the appellant did want to hide his guilt. It is very difficult to believe that such a person would make a confession of his Crl.Appeal.No.182 of 2010 8 guilt to PW3 who is not proved to be a person on whom the appellant had reposed confidence. 15. There is something more in the evidence of PW2 to discuss. He deposed that he was told by the appellant that Mariakutty was beaten and she lay there and that the religious obsequies should be performed. This statement of PW2 itself was proved to be an omission amounting to contradiction within the meaning of the explanation to section 162 of Cr.P.C. Even the statement of PW2, which is proved to be a material omission, does not suggest who did beat Mariakutty. 16. For the reasons aforesaid, it is not at all safe to find a person guilty on the strength of the evidence of Pws 2 and 3. The trial court has taken the evidence of PW2 also as evidence for extrajudicial confession. But the deposition of PW2 does not contain any evidence for an extrajudicial confession. 17. The learned special public prosecutor submitted that the doctrine of res geste contained in section 6 of the Indian Evidence Act would be attracted. Section 6 of the Evidence Act also does not come to the aid of the prosecution since it is not possible to accept that the appellant confessed to PW3. Crl.Appeal.No.182 of 2010 9 18. The learned special public prosecutor pressed section 106 of the Indian Evidence Act into service. Section 106, Evidence Act, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. But the prosecution failed to prove that the murder of Mariakutty was especially within the knowledge of the appellant. What is available in evidence is only the statement of PW1 that his mother and the appellant were residing in the same house. That much is quite insufficient to attract section 106 of the Evidence Act. 19. The learned counsel for the appellant has relied on the decision of the apex court in **Sahadevan vs. State of Tamilnadu [AIR 2012 SC 2435]** . The apex court holds that an extrajudicial confession is a weak piece of evidence. We place reliance on the said decision. 20. The learned special public prosecutor has relied on two decisions of the apex court. One of the decisions is **Trimukh Maroti Kirkan v. State of Maharashtra [(2006)** **10 SCC 681].** It holds that in view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house, namely, the accused therein, to give a cogent explanation as to how the crime was committed when Crl.Appeal.No.182 of 2010 10 it was committed in secrecy in the house. The apex court has stated also that the initial burden to establish the case would undoubtedly be upon the prosecution. In the present case the prosecution was not successful in discharging its initial burden. Therefore the reported decision does not come to the aid of the prosecution. 21. The other decision relied on by the learned special public prosecutor is **Gura Singh v. State of Rajasthan [AIR 2001 SC 330].** It has been held that an extrajudicial confession, if voluntary, being not obtained by coercion, inducement et cetera, can form the basis of a conviction. It is also held that corroboration is required only by way of abundant caution. This decision is also not helpful to the prosecution. It is so because the extrajudicial confession relied on by the prosecution is not acceptable for reasons already given. 22. We find the evidence quite insufficient to find the appellant guilty under section 302 of IPC. The trial court convicted him solely based on the evidence of PW2 and PW3. It is seen that it is impossible to convict the appellant on the basis of the evidence produced by the prosecution. The appeal deserves to be allowed. Crl.Appeal.No.182 of 2010 11 23. The appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted of the charge for which he was tried. He shall be released from prison forthwith if his detention is not required in connection with any other case. sd/- C.K.ABDUL REHIM, JUDGE sd/- A.M BABU, JUDGE sab