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2002 DIGILAW 505 (KER)

K. Kunhaman @ Kunhiraman v. State of Kerala

2002-07-25

K.A.MOHAMMED SHAFI, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan, J. This is an unfortunate case where a fourteen year old girl had to depose that her father had killed her mother and also the brother of the accused deposing of the extra judicial confession made by the accused. Unfortunate girl lost her mother and had the misfortune to see her father punished for imprisonment for life. 2. Prosecution case is that on 9.7.1997 at about 10.30 A.M. accused killed his wife Bhargavi by hitting her with a granite stone on the head and face. It was on a bandh day. P.W.16 Sub Inspector of Police, Rajapuram went to the place of occurrence, the courtyard of house number K.B.P. II-355 of Kodam Village which belonged to the accused and recorded Ext. P1 F.I. statement given by P.W.1, neighbour of the accused. P.W.17 C.I. of Police, Vellarikundu conducted investigation and filed the charge against the accused under Section 302 I.P.C. before the Judicial First Class Magistrate committed the case to Sessions Court, Kasargod. 3. On the side of the prosecution P.Ws. 1 to 17 were examined and Exts. P1 to P8 and M.Os 1 to 13 were marked. P.W.17 conducted the inquest and P.W.11 Assistant Surgeon, District Hospital conducted post-mortem and issued Ext. P2 certificate. He opined that death was due to subdural haematoma and injuries 1 to 4 could be caused by M.O.1 granite stone which was recovered by P.W.17 from the courtyard of the accused. After closing the prosecution evidence, accused was questioned under Section 313 of the Code of Criminal procedure and he denied all the incriminating evidence adduced against him and stated that he was suspecting one Narayanan Maniyani as the person who killed his wife. Accused was found guilty on the basis of the extra-judicial confession made before P.Ws 1 and 3 and also on the basic of circumstantial evidence and other attendant circumstances. The version of the daughter who was examined as P.W.8 was that she went to school on the day of occurrence at 9 A.M. leaving her parents at house. P.W.8 has got two other daughters. They were all at school at the time of occurrence. She deposed that when she went to school parents were alone in the house and nobody else was there. She also deposed that father used to go for work. On that day he did not go for any work. P.W.8 has got two other daughters. They were all at school at the time of occurrence. She deposed that when she went to school parents were alone in the house and nobody else was there. She also deposed that father used to go for work. On that day he did not go for any work. On the fateful day at about 11.30 A.M. her uncle brought her and sisters back from the school to the house only to witness the drastic scene of her mother lying dead in the courtyard. 4. P.Ws 1 and 2 are neighbours of the accused. P.W.1 is the mother-in-law of P.W.2 P.W.1 who gave Ext.P1 F.I.statement deposed that Bhargavi, wife of accused was murdered by the accused. Both P.Ws 1 and 2 deposed that on the day of occurrence at about 10 A.M. accused came to heir house in a perplexed mood and told them that he killed his wife and that he did not go to his house. He demanded an umbrella and stated that he was going to the police station. Umbrella was not given. Later he went towards eastern side and towards western side of the house. P.W.1 then went to the house of one Kunhitheeyan brother of the accused to inform the incident. They went to the house of Kunhitheeyan and brought him to the house. P.W.2 followed them to the house and saw Bhargavi lying dead on the courtyard. She also noted injuries on the head and noted M.O.1 stone lying near the body. They deposed two days prior to the occurrence one Narayan Maniyani came to the house of accused and wanted a match box from the deceased. On that matter accused believed that deceased had some illicit connection with Narayan Maniyani. Complaint was that deceased had given a match box to Narayan Maniyani while accused was not in the house. They further deposed, on that day Kunhitheeyan took Bhargavi and her children to his house and on the next day they were brought back to the house. P.W.1 deposed accused had suspicion about the chastity of the deceased. 5. Complaint was that deceased had given a match box to Narayan Maniyani while accused was not in the house. They further deposed, on that day Kunhitheeyan took Bhargavi and her children to his house and on the next day they were brought back to the house. P.W.1 deposed accused had suspicion about the chastity of the deceased. 5. P.W.3 Narayanan one of the brothers of the accused deposed that on the day of occurrence at about 10 A.M. accused came to his house and told him that he killed his wife and asked him to bring his children and further told him that he was going to police station. His wife and mother were also present when the accused told him that he had killed his wife. On hearing the news mother made a hue and cry. P.W.3 immediately went to the house of Kunhitheeyan his elder brother. On the way wife of Kunhitheeyan told him that they also got information from one Gopalakrishnan regarding the incident stating that they saw the deceased lying dead on the courtyard and M.O.1 stone lying nearby. Matter was later informed to the Panchayat Member and to one Kannan. P.W.4 wife of P.W.3 deposed that at about 10 A.M. accused came to their house and told her husband that he had killed his wife and asked him to bring their children from school to their house and accused had told him he was going to police station. P.W.1 immediately went to the house of Kunhitheeyan brother of the accused. P.W.4 also went to the house of the accused and found Bhargavi lying dead on the courtyard. M.O.1 stone was also found lying near the deadbody. She also deposed that accused had quarrel with his wife saying that she had illicit contacts with one Narayan Maniyani. 6. P.W.5 son of P.W.2 deposed that at about 10 A.M. on the day of occurrence when he was rearing his cow, P.W.1 came and told him that accused killed his wife and asked him to inform brother of the accused. He immediately went to the house of the brother of the accused and informed the matter. Later he came to the house of the accused and found body of the deceased lying in the courtyard. He immediately went to the house of the brother of the accused and informed the matter. Later he came to the house of the accused and found body of the deceased lying in the courtyard. He also deposed that two days prior to the day of occurrence accused had quarrel with the deceased at their house alleging that Bhargavi had some intimacy with Narayan Maniyani. P.W.6 Kunhitheeyan is the elder brother of the accused. He deposed that at about 10.45 A.M. on the day of occurrence Gopalakrishnan came to his house and informed him about the incident. Immediately he and Gopalakrishnan went to the house of the accused and found Bhargavi lying dead in the courtyard. He also deposed that accused had suspicion about the chastity of his wife and one day prior to the occurrence accused took her to her house for some treatment and subsequently he went to the house with the son of his sister. From that day onwards accused was suspicious about her chastity and he made quarrel with the deceased in that house. Later as per the request of the accused, P.W.6 and his another brother brought Bhargavi back to his house. Two days prior to the incident, accused quarrelled with the deceased alleging that she gave a match box to Narayanan Maniyani while he was not in the house. P.W.8 is the elder daughter of the accused. She deposed that she had seen her parents alone at the house when she went to the school. 7. We may indicate that the court below has placed considerable reliance on the oral evidence of P.W.3, brother of the accused to whom accused had confessed that he had killed his wife. P.W1 neighbour had also deposed that accused had confessed to him that he had killed his wife. However, trial court did not place much reliance on the evidence of P.W.1 regarding the extra judicial confession made by the accused and believed the evidence of P.W.3 brother of the accused with regard to the confession made by the accused. We may however indicate P.W.4 wife of PW3 had also corroborated the evidence of P.W.3 and stated the accused had come to their house and told her husband that he had killed his wife and that he was going to police station. According to P.W.1, accused told him ... and further stated. We may however indicate P.W.4 wife of PW3 had also corroborated the evidence of P.W.3 and stated the accused had come to their house and told her husband that he had killed his wife and that he was going to police station. According to P.W.1, accused told him ... and further stated. We have indicated wife of P.W.3 had also deposed in terms of the evidence of P.W.3 The apex court in a recent decision in Guru Singh v. State of Rajasthan (2001 (2) SCC 205) held that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. The court also held it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend upon the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The court held that before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is also required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. 8. We are of the view the principle enunciated by the apex court is squarely applicable to the facts of this case. In this case confession was made at the earliest point of time, that too to the brother of the accused. Since confession had been made immediately after the occurrence and it is not alleged to have been procured under any undue influence, coercion or pressure, we are of the view such a confession can be accepted even without corroboration. But in this case the statement made to P.W.3 has been fully corroborated by the evidence of P.W.4, his wife. Since confession had been made immediately after the occurrence and it is not alleged to have been procured under any undue influence, coercion or pressure, we are of the view such a confession can be accepted even without corroboration. But in this case the statement made to P.W.3 has been fully corroborated by the evidence of P.W.4, his wife. She also stated that accused came to their house and told her husband that he had killed his wife and asked him to bring the children from the school to their house and that he was going to police station. Defence could not bring to record any circumstances which could be the basis for discrediting the testimony of P.Ws 3 and 4. The evidence tendered by P.Ws 3 and 4 is trustworthy and reliable and unbiased. The evidence given by P.W.1 with regard to the confession would also corroborate the evidence of P.Ws 3 and 4. The trial court though not give much credence to extra judicial confession made to P.W.1. since he did not mention the same in the statement given to the police. 9. We have already indicated there was no eye witness to the occurrence. Therefore we have to examine the circumstantial evidence relied on by the prosecution so as to establish to guilt. P.W. 1 and 2 are the neighbours of the accused. They deposed that accused was suspicious about the chastity of the deceased. Two days prior to the occurrence one Narayan Maniyani came to the house of the accused. It was not to the liking of the accused. They also deposed that the accused had suspicion about the chastity of the deceased and used to quarrel with her. Similar suspicious circumstance was also pointed out by P.W.6 who is none other than the brother of the accused. P.W.8 daughter of the accused had also deposed about the quarrel between the accused and the deceased with regard to the incident occurred two days prior to the date of the incident. She had also deposed that accused to assault the deceased regularly. Evidence of the abovementioned witnesses would show that the accused was suspicious about the chastity of the deceased. Defence has completely failed to bring on record any circumstance discrediting the testimony of the above mentioned witnesses with regard to their version that the accused was suspicious on the chastity of the deceased. Evidence of the abovementioned witnesses would show that the accused was suspicious about the chastity of the deceased. Defence has completely failed to bring on record any circumstance discrediting the testimony of the above mentioned witnesses with regard to their version that the accused was suspicious on the chastity of the deceased. We find from the evidence available in this case particularly the evidence of P.W.8 that on the fateful day accused did not go for any work. P.W.8 daughter of the accused deposed that accused used to go for work before 8 O’ clock in the morning and on the day of occurrence when she went to the school accused was in the house. It was also deposed by P.W.8 that accused and deceased alone were in the house at the time of occurrence. The mere fact that the accused husband was seen in the company of the deceased does not by itself prove that accused is guilty of the offence, but as held by the apex court in Dhananjaya Reddy v. State of Karnataka (2001) (4) SCC 9) the said circumstances can be used against the accused if there are other circumstantial evidence linking him with the ghastly action committed in murdering the wife. We are of the view evidence of P.Ws 1, 2, 3 and 4 would establish accused was in the company of the deceased immediately prior to the occurrence. Secondly accused owes no explanation with regard to the incident since he was seen last with the company of his wife. No explanation is forthcoming from the side of the defence. Defence could not successfully prove the case suggested that it was Maniyani who killed his wife. P.W.1 neighbour of the accused has also identified M.O.2 shirt and M.O.12 is the dhothi recovered by P.W.14 from the body of the accused when he surrendered before the police station. P.W.1 identified M.Os 3 and 4. M.Os 2,4 and 12 were recovered from the body of the accused. Ext. p8 report shows that M.Os 2,4 and 12 contained human blood and that the accused had no explanation about the presence of blood on those articles. This is also one of the circumstances which leads us to the conclusion that the accused is guilty of the offence. M.Os 2,4 and 12 were recovered from the body of the accused. Ext. p8 report shows that M.Os 2,4 and 12 contained human blood and that the accused had no explanation about the presence of blood on those articles. This is also one of the circumstances which leads us to the conclusion that the accused is guilty of the offence. We are of the view, after analysing the evidence, the prosecution has established various circumstances explained above beyond reasonable doubt and those circumstances taken together lead to no other inference except to the guilt of the accused. Accused had the intention to case the death of the deceased or that he had the knowledge that death would happen due to his act. Prosecution has succeeded in establishing the fact that the accused was inmical towards the deceased due to suspicion about her chastity. Hitting with M.O.1 on the head or face, in the ordinary course would certainly cause the death of the victim. So it can be presumed that the accused caused the injuries with intention to kill the deceased with the knowledge that death would be the result. The court below was therefore right in convicting the accused under Section 302 I.P.C. Conviction and sentence passed by the court below are confirmed and appeal is dismissed.