Sunil Kumar 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** **MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941** ## **CRL.A.No.1219 OF 2015** **AGAINST THE JUDGMENT IN SC 1017/2013 DATED 20-05-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT-I, ALAPPUZHA.** **CP 43/13 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, CHERTHALA** **CRIME NO.530/2013 OF Aroor Police Station** ## **APPELLANT:** **SUNIL KUMAR, C.NO.119, CENTRAL PRISON, TRIVANDRUM-12.** **BY ADV. SMT.P.RAJATHA** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF KERALA** **SMT.S.AMBIKA DEVI, SPECIAL PUBLIC PROSECUTOR FOR WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1219 of 2015 ..2.. ## **JUDGMENT** A.Hariprasad, J. This appeal is preferred by the accused in S.C.No.1017 of 2013 before the first Additional Sessions Judge, Alappuzha who has been tried and convicted for an offence under Section 302 of IPC alleging that on 03.06.2013 at 10.45 pm. the appellant, due to enmity towards his wife-Rekha for making preparations to take him to a de-addiction centre for stopping his alcoholic habits, stabbed her on abdomen and back with MO1 scissors while she was asleep along with him in a locked bed room in her family house. When she jumped out of the bed, the appellant stabbed her again on back several times causing the fatal injuries. 2. In order to establish guilt of the appellant 12 witnesses were examined by the prosecution and 16 documents were marked. The defence evidence consist testimony of DW1 and Ext.D1. Material Objects are MOs.1 Crl.A.No.1219 of 2015 **==> picture [22 x 9] intentionally omitted <==** to 9. After considering the evidence on record the learned Sessions Judge found the appellant guilty of an offence of murder under Section 300 of IPC and convicted by invoking Section 302 of IPC imposing imprisonment for life and also a fine of Rupees one lakh with a default sentence, if fine was not remitted. 3. Heard Smt.Rajatha P.Jacob, the learned counsel for the appellant and Smt.S.Ambika Devi, learned Special Public Prosecutor for Women and Children. 4. Ext.P1 is the First Information Statement lodged by PW1-Ratheesh. He is the brother of deceased Rekha. Recitals in Ext.P1 would show that, on 03.06.2013 at about 10.45 hours, the appellant stabbed his sister with MO1 scissors and hit her with MO2 weight, used by PW1 for weight lifting as part of his regular exercise. In the assault, she died. Indisputably, the appellant married deceased on 03.05.2012 according to their customary rites. It is seen from the averments in Ext.P1 that the Crl.A.No.1219 of 2015 **==> picture [22 x 8] intentionally omitted <==** appellant was prone to heavy drinking and that fact was known to the deceased's family even prior to their marriage. PW1 stated in Ext.P1 that after marriage the appellant made his sister's life miserable on account of his addiction to liquor and he sold out all her gold ornaments. There were frequent fights between the appellant and deceased. The deceased, PW1 and her family members decided to take the appellant to a de-addiction centre. On the fateful night after dinner all of them went to sleep. The appellant and deceased were allowed to occupy the sole bed room in the house. They went into the room at about 10 pm. and locked from inside. After some time, at about 10.45 pm., PW1 heard a loud cry from the bed room apparently from his sister. Shortly, she opened the door and fell on her back. While she was lying on PW1's lap, she informed him that the appellant stabbed her with MO1 scissors. Then he saw bleeding injuries on her belly and back. The appellant was holding MO2 weight at that Crl.A.No.1219 of 2015 **==> picture [22 x 8] intentionally omitted <==** time and he was hitting with it on his head. By that time nearby persons came rushing. She was taken to Moham Hospital, Eramalloor in a vehicle owned by PW3-Aji. PW1 stated in Ext.P1 that she was conscious at the time of admission to hospital. She repeated from the vehicle as well as from the hospital that the appellant inflicted the injuries seen on her body. Although it was decided to remove her to a hospital with better facilities, she died before the ambulance could be procured. 5. PW1 when examined supported all the recitals in Ext.P1 to the hilt. His testimony is fortified by the testimony of PWs.2, 3 and 4. PW1 deposed that the appellant did not like the deceased questioning his drinking habits. On the previous day of the incident, according to PW1, there was a fight between the deceased and appellant. Local persons informed PW1 that the appellant assaulted the deceased. Then they decided to take the appellant to a de-addiction centre. The deceased Crl.A.No.1219 of 2015 ..6.. fervently believed that the appellant would behave properly, if he was treated in a de-addiction centre and she earnestly wanted to save her marital life. On the previous day, the appellant and deceased reached family home of PW1 and he took the deceased to a nearby hospital for treating ailment on his leg. It is come out in evidence that on the date of incident the appellant had not consumed liquor. PW1, in support of his averments in Ext.P1, deposed that at 10.45 pm. he heard a shriek from the bed room and his sister was crying for help as the appellant was stabbing her with a scissors. As stated in Ext.P1, she opened the door and fell down and thereafter also she reiterated that the appellant was responsible for causing the injuries on her body. At that time, PWs.3 and 4 came there. They also heard the deceased insinuating the appellant for causing physical injuries. PW1 identified MO1 scissors. According to him, that was used for hair cutting by him and his father and it was a gadget used by Crl.A.No.1219 of 2015 **==> picture [22 x 8] intentionally omitted <==** the family for a long time. He also identified MO2 weight made of iron used by him for doing exercise. He identified the dress materials worn by the deceased, blood stained bed sheet, pillow covers, etc. 6. Even though PW1 was cross-examined at length we find no dent or discredit in his evidence. He adhered to the versions in Ext.P1 and the deposition in chiefexamination. Minor contradictions were elicited from this witness, but interestingly that was not put to the Investigating Officer, who was examined as PW12. The case tried to be developed by the defence counsel through suggestions that the appellant had gone to nearby houses nude and he was causing nuisance in the locality on account of his mental illness are refuted by PW1. According to him, the appellant had no signs of any unsoundness of mind. 7. PWs.2, 3 and 4 rendered support to the testimony of PW1. PW4 is the person who came to the Crl.A.No.1219 of 2015 ..8.. place of occurrence immediately after the incident. He was talking to one Biju at about 10.45 pm. on 03.06.2013. At that time, he heard a distress cry from the house of PW1. He could identify that it was a lady's voice. She was pleading for mercy and requesting not to hurt. On hearing the cry, he along with Biju rushed to the house of PW1. At that time, his father opened the door and they went inside the hall. They saw PW1 supporting the deceased and later lying her down on the floor. At that time, deceased told PW2 that the appellant inflicted the injuries on her belly and back with a scissors. PW2 also accompanied her to the hospital. From PW3's vehicle, as well as from the hospital, she reiterated the fact that the appellant was responsible for stabbing her. In crossexamination no serious challenge could be made regarding this version. 8. PW3-Aji is also a neighbour who took the victim along with PWs.1 and 2 to the hospital immediately after Crl.A.No.1219 of 2015 **==> picture [22 x 9] intentionally omitted <==** the incident. He also heard the cry of the victim at 10.45 pm. on 03.06.2013. The victim was saying from his vehicle that the appellant had stabbed her. This witness also supports the evidence of PW1 and his testimony goes in consonance with the prosecution case. On an evaluation of the testimony of PWs.1 to 4 we find there are enough materials to implicate the appellant in the alleged offence of stabbing the deceased. 9. PW5 is a witness to Ext.P2 scene mahazar. Material Objects in this case, including the scissors and the weight (MOs.1 and 2) and the dress materials, were recovered from the room where the appellant and his deceased wife were sleeping during the night on 03.06.2013. PW5's testimony corroborates with that of PW12, the Investigating Officer who prepared the scene mahazar on the next day and recovered the material objects from the room. Crl.A.No.1219 of 2015 ..10.. 10. PW6 is a witness to Ext.P4 inquest report which was prepared by PW7-Additional Tahsildar, Cherthala. Inquest was done on 04.06.2013 at about 10.15 am. The testimony of PWs.6 and 7 would show the regularity of the inquest on the body of the deceased. 11. PW8 is the Junior Superintendent of Taluk Office, Cherthala. He was the Village Officer, Ezhupunna on 25.7.2013. He prepared the site plan in accordance with Ext.P2 scene mahazar. There is no serious challenge about this document. 12. PW9 is the Forensic Expert who conducted autopsy on the body of the deceased on 04.06.2013. Ext.P6 is the postmortem certificate. Antemortem injuries noted on Ext.P6 are as follows:- ## _“B. INJURIES (Ante mortem)_ _1. Abrasion 1x1cm over the back of the left elbow._ _2. Four discoid contusions of sizes 1.5x1cm, 1.5x1.5cm, 1x1cm and 1.2x1cm in an arched_ Crl.A.No.1219 of 2015 ..11.. _pattern over an area 7 x 6cm on the inner aspect of right arm, its lower extent 5cm above the elbow. 3. Abrasion 0.5 x 0.1cm on the front of right leg, 16cm below the knee._ _4. Multiple small abrasions over an area 2x1cm on the front of the left leg, 20cm below the knee. 5. Multiple small abrasions over an area 5x1cm vertically placed on the outer aspect of the left leg, 5cm above the heel._ _6. Incised penetrating wound 0.7x0.2cm entering into the abdominal cavity, oblique, on the front of left side of abdomen, its inner lower end is 2cm outer to midline and 15cm above the pubic symphysis. Both edges of the wound appeared cleanly cut. The wound edges showed gaping. The margins were approximated and measured again and were found to be 0.9cm long. This injury perforated the anterior abdominal wall. The dimension on the inner aspect of the anterior abdominal wall was 0.5x0.2cm. The anterior abdominal wall was 2.9cm thick. The root of the mesentery showed an incised wound 0.4x1cm. There was dense infiltration of blood around._ _7. Incised wound 1.2x2cm, muscle deep on the left side of back of trunk, horizontal, its inner end 4cm outer to midline and 10cm above top of hip bone. The lower margin of this wound was ragged_ Crl.A.No.1219 of 2015 ..12.. _and abraded._ _8. Incised wound 0.5 x 0.1 x 1cm, horizontal, on the left side of back of trunk, its inner end 3cm outer to midline and 4cm above the top of hip bone. From the outer end of this injury was a superficial incised wound 3cm long, running horizontally outwards._ _9. Incised wound 1 x 0.3cm, muscle deep on the right side of back of trunk, horizontally oblique, its upper inner end being 4cm outer to midline, and 14cm above top of hip bone. The upper border was ragged and abraded in appearance._ _10. Incised penetrating wound 0.9 x 0.2cm, on the right side of back of trunk, entering into the abdominal cavity, oblique, its upper inner end being 6cm outer to midline and 12cm above the top of hip bone. From its outer end there was a superficially tailed, downward and outward directed, incised wound 1x0.1cm with an underlying abraded contusion 1 x 1cm. The track of the wound was directed downwards and inwards, piercing the muscles at the back below the 12[th] rib and terminated by making a clean incision 0.6 x 0.1cm involving the full thickness of the abdominal Aorta, 2cm above its bifurcation. The peritoneal cavity and pelvis collectively contained about 1000ml of clotted and fluid blood._ Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** _A retroperitoneal hematoma measuring 8x7x1cm was seen at the back across the midline, predominantly involving the left half._ _11. Paired incised penetrating wounds 0.8 x 0.1 x 3cm and 0.4 x 0.1 x 3cm, one being oblique and above the other, separated by 1.8cm, over the lower inner quadrant of left buttock._ _12. Paired incised penetrating wounds 1 x 0.1 x 0.2cm and 0.9 x 0.1 x 0.2cm, one being oblique and above the other, separated by 1.5cm, over the upper outer quadrant of left buttock, 5cm below the top of hip bone.”_ 13. As per Ext.P6, the opinion as to cause of death is that the deceased died of incised penetrating wound sustained to the abdomen. When examined, PW9 deposed that injury Nos.6 and 10 are very serious in nature and those injuries could have been the cause of death. No serious cross-examination is seen done on this aspect. 14. The learned Special Public Prosecutor pointed out that the victim was a lady weighing only 35 kg. and was having only 151 cms. height showing that she was a Crl.A.No.1219 of 2015 **==> picture [28 x 8] intentionally omitted <==** short statured woman. Injury No.6 inflicted on the front of her belly and injury No.10 inflicted from the backside were deep injuries which caused peritoneal bleeding. Testimony of PW9 coupled with Ext.P6 clearly show that the cause of death was the injury suffered by the victim by using MO1 scissors. All the witnesses emphatically and credibly deposed that the appellant used MO1 to stab the deceased. Ext.P15 forwarding note and Ext.P16 FSL report would show that the material objects were sent for chemical analysis. Ext.P16 analysis report would show that MO1 scissors contained blood. But, since the quantity was insufficient, the origin and group of blood could not be determined. 15. PW10 is the Doctor who saw the deceased first in point of time at Moham Hospital, Eramalloor. In Ext.P7 the history of alleged cause of injury noted by PW10 is that the victim suffered stab injuries at the hands of her husband (appellant). PW4 along with another person Crl.A.No.1219 of 2015 **==> picture [28 x 8] intentionally omitted <==** informed this fact to the Doctor which is reiterated in the testimony of PW4. Ext.P7 would show that at the time of admission of the victim to hospital she was in a confused state and disoriented. In fact, she was admitted to the hospital at 11.10 pm. on 03.06.2013 and immediately thereafter she succumbed to the injuries. PW10 candidly admitted that opinion as to cause of injury noted in Column No.18 in Ext.P7 was a mistake as he had wrongly written cardiac arrest due to mental shock. He repeatedly deposed before the court that it was a mistake on his part as he was handling a murder case for the first time. Even without his explanation, this entry can only be seen as a wrong entry. Firstly, that is entered in a wrong column. Secondly, ' _shock_ ', the deceased must have suffered, as per 'Mosby's Medical Dictionary' could be _“an abnormal condition of inadequate blood flow to the body's peripheral tissues, with life-threatening cellular dysfunction, hypotension and oliguria.”_ It is seen from the postmortem report that Crl.A.No.1219 of 2015 ..16.. the peritoneal cavity of the deceased was having nearly 1 litre of blood collected due to the severe injury Nos.6 and 10 described in Ext.P6. 16. PW11 is the Police Officer, who recorded the FIS and conducted the initial investigation in the crime and later it was taken over by PW12 the Circle Inspector of Police. PWs.11 and 12 emphatically deposed that the crime scene was guarded by posting sufficient police constables without giving a chance to any one to disturb the scene. 17. PW12 deposed the steps taken by him in the course of investigation. He arrested the accused, prepared the scene mahazar and sent a request to conduct the inquest. He collected evidence and other articles and they were sent for chemical analysis and obtained the records. After concluding the investigation he filed a charge sheet. In spite of cross-examination on these two witnesses we find no dent or discredit to discard their testimony. Crl.A.No.1219 of 2015 **==> picture [28 x 8] intentionally omitted <==** 18. The learned counsel for the appellant contended that non-examination of father or mother of the deceased, who were admittedly present in the house, is a serious flaw in the prosecution case. According to her, only the close-friends of PW1 were examined in this case. It is argued that father and mother would have been the natural witnesses in this case. Per contra, the learned Public Prosecutor contended that PW1 has emphatically deposed about all the incidents and his testimony is supported by PWs.2 to 4 to the hilt. PWs.2 to 4 cannot be described as interested witnesses because they are not only friends of PW1, but also they reside in the nearby locality and they are the natural witnesses at the time and place. We find no reason to give any benefit to the accused on the ground of non-examination of the father and mother of the deceased. The evidence adduced by the prosecution would take us unhesitatingly to a conclusion that the appellant had inflicted the fatal injuries on the Crl.A.No.1219 of 2015 ..18.. deceased as alleged by the prosecution. 19. Another serious contention raised by the learned counsel for the appellant is that the prosecution has a consistent and definite case that the appellant was a habitual drunkard. According to the defence case, the appellant was in the habit of disturbing persons living in his neighbourhood by walking into their house without clothes. All these suggestions are denied by the material prosecution witnesses. According to them, except his drinking habit, there was no mental problem for him. To prove that the appellant was having unsoundness of mind prior to the incident, DW1, his own brother, was examined. On going through his testimony, we find that he has no definite case that the appellant was having unsoundness of mind at the time of commission of the offence. What is important under Section 84 of IPC is that the accused who claims the benefit under the Section must have been suffering from unsoundness of mind and Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** he was incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. There is no direct evidence adduced by the appellant to establish this case. No materials in the prosecution evidence would suggest that the appellant was a person of unsound mind. What can be gathered from the prosecution evidence is that the appellant was a habitual drunkard and he must have had some withdrawal syndrome. That state of mind cannot be extended so as to claim the benefit under Section 84 of IPC. Therefore, we find that the learned Sessions Judge rightly repelled the claim of the appellant raised under Section 84 of IPC. 20. From the appeal memorandum, we find that the appellant has tried to develop a case that he should be given the benefit under Section 85 of IPC. In order to attract Section 85 of IPC, it must be established that a person, who at the time of doing an act, was by reason of intoxication incapable of knowing the nature of his act or Crl.A.No.1219 of 2015 ..20.. that he was doing what was either wrong or contrary to law. This benefit can be claimed only when it is established that the intoxicating substance was administered to him without his knowledge or against his will. When a person voluntarily consumes alcohol, as in the case of the appellant herein, the benefit under Section 85 of IPC cannot be extended. Therefore, we reject that contention also. 21. The learned counsel for the appellant relying on Ext.P5 contended that item No.3, a package containing the scalp hairs of the victim was sent back to the court without analysing. Similarly, she said that MO1 scissors and other material objects did not contain sufficient quantity of blood to identify the origin and group. It is therefore argued that the chemical analysis report and the forwarding note produced by the prosecution cannot be relied on to find that there was proper analysis of the articles sent. We find it difficult to accept this contention Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** only for the reason that item No.3 was returned to the court. Blades of the scissors were having blood. But due to efflux of time probably there might not have been sufficient quantity to clearly analyse the group and origin, which apparently does not enure to the benefit of the appellant. Since there is no serious challenge regarding PW12's collection of samples, submission of forwarding note for sending it to the chemical examiners' lab, moreover it was forwarded to the Magistrate's court having jurisdiction, we find no reason to discard the forwarding note and chemical analysis report on some flimsy technical reasons. 22. The learned counsel for the appellant argued that wife's insistence on the appellant to go for deaddiction cannot be a motive for murder. It is also contended that since this case being one resting on the circumstantial evidence, the motive must have been specifically pleaded and proved. It is true there is no Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** direct evidence to find that the appellant stabbed the deceased as alleged by the prosecution. But, the circumstances in this case unerringly prove that the appellant must have the assailant because of the special features revealed from the facts. It is borne out from reliable evidence that on 03.06.2013 both the appellant and deceased had gone to bed in a closed room. At 10.45 hours in the night the inhabitants of the house and the witness outside the house heard the distress cry of the deceased seeking help and alleging that her husband had stabbed her. PW1 switched the lights on and when the deceased opened the door and fell on her back, PW1 held her and she uttered that the appellant was responsible for infliction of the injuries. Those who rushed to the house of PW1 also heard the same story. The incident took place in a room, wherein the appellant and deceased alone were present. There is no reason to think that some other person would have inflicted the injury on the deceased. Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** Therefore, we find there are enough materials borne out from the circumstances to implicate the accused in the crime. It is a settled principle of law that, the prosecution has to establish, in a case resting on circumstantial evidence, that in all probability the accused himself must have committed the crime and no one else could have committed the crime. Moreover the circumstances forming a long chain should be an unbroken one. In this case the prosecution evidence is so perfect and they form an unbroken chain with the only hypothesis possible is that the accused committed the crime. Therefore, the decision relied on by the learned counsel for the appellant in **Pandala Veera Reddy v. State of A.P. and others** [AIR 1990 SC 79] cannot be of any help to the appellant in this case. 23. The learned Special Public Prosecutor contended that, though nobody has seen the act of appellant stabbing the deceased, when the bed room was opened Crl.A.No.1219 of 2015 ..24.. she informed PW1 in the presence of other witnesses that the appellant himself stabbed her with MO1 scissors. She repeated saying so in the vehicle as well as in the hospital. It is therefore contended that this statement made by the deceased to the witnesses certainly will amount to a dying declaration under Section 32 of the Evidence Act. Relying on **Ashraf & another v. State of Kerala** [2015 (3) KHC 578] it is argued by the learned Public Prosecutor that it is not necessary that the dying declaration must be recorded by a Magistrate or a Police Officer or a Doctor. It can be made to any person including a close relative of the deceased. Only condition that is required is that, the person, to whom dying declaration is made, must be satisfied that the declarant was in a fit state of mind to give a declaration. In the present case we undoubtedly accept the evidence of PWs.1 to 4 to find that the deceased was in a fit state of mind to name her assailant immediately and even from the hospital. The Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** deposition by the witnesses certainly will fall under Section 6 of the Evidence Act as it can be accepted under the principle of _res gestate._ 24. On going through the entire evidence we find that the learned Sessions Judge has correctly appreciated the evidence and the materials on record clearly indicate the involvement of accused in the crime and we have no other go but to accept the prosecution case that he had intentionally committed murder of his wife by stabbing with MO1 scissors. The theory put forward by the defence that he was of unsound mind at the time of commission of offence is not probabilised by any material in the evidence. Therefore, we find no reason to apply the principle under Section 84 of the IPC. Since the appellant has a definite case that he is a person addicted to drinking we find no reason to invoke Section 85 of IPC as well. 25. The learned counsel for the appellant contended that, if at all, this Court finds that the appellant has Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** committed the act, it should not be considered as murder as it can only be culpable homicide not amounting to murder falling under Section 304 Part II of IPC. To substantiate this contention, a decision reported in **Elavarasan v. State represented by Inspector of Police** [(2011) 7 SCC 110] is also cited. On going through the facts, we find absolutely no similarity with the facts in this case. Moreover, overwhelming evidence in the records would clearly show that this is not a case falling within the ambit of culpable homicide, not amounting to murder. The appellant had intentionally caused death of his wife by repeatedly stabbing with MO1 scissors and therefore it falls within the main limb of Section 300 of IPC. 26. We find no reason to interfere with the conviction and sentence awarded in S.C.No.1017 of 2013 by the First Additional Sessions Judge, Alappuzha. Crl.A.No.1219 of 2015 **==> picture [28 x 9] intentionally omitted <==** In the result, this appeal is dismissed confirming the conviction and sentence. Sd/- **A.HARIPRASAD, JUDGE** Sd/- **N.ANIL KUMAR, JUDGE** skj