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2006 DIGILAW 594 (KER)

Sambasivan v. The State Of Kerala

2006-09-12

K.S.RADHAKRISHNAN, V.RAMKUMAR

body2006
JUDGMENT K.S. Radhakrishnan, J. 1. Samban @ Sambasivan, the accused, and Usha, the deceased, husband and wife, were living separately due to strained marital relationship. Wife was residing alone in Oliyanikkal house at Manimaruthumchal, belonging to her husband. Prosecution case is that on 20/11/2002 at about 6.45 p.m with the intention and knowledge of committing murder of his wife, the accused came to Oliyanikkal house compound. Usha, at that time, was taking bath in the "marapura". Accused who was hiding behind a teak tree near the "marapura", on the side of a well, charged in and stabbed on her chest, abdomen and back with a knife inflicting fatal injuries and pulled her down to the pond nearby and left the place by swimming across a river and surrendered before Adimali police station on the same day at 10.30 p.m. Neighbouring house owners gathered around after hearing the hue and cry of Usha and found her lying naked in the nearby pond and crying for help. A lungi was brought from a nearby house for her to wear and she was taken to Baselious Hospital, Kothamangalam and later to Medical Trust Hospital, Ernakulam. While undergoing treatment at the hospital she died on 05-12-2002. 2. The Head Constable of Oonnukal police station reached the hospital and recorded the statement of the brother of the deceased on 21/11/2002 on receiving information from the Medical Trust Hospital. On the basis of the F.I statement, F.I.R was prepared and crime No. 155 of 2002 was registered for an offence punishable under S.307 IPC. The accused was arrested on 22/11/2002 at 10.30 a.m and on the basis of the information furnished by him the knife used for the offence was recovered from a pond near the place of occurrence. Subsequent to the death of the victim accused was charge sheeted for the offence under S.302 IPC and produced before court. On pleading not guilty to the charge, prosecution was called upon to adduce evidence. On the side of the prosecution PWs 1 to 20 were examined and Exts. P1 to P21 documents were marked. MOs 1 to 5 were also marked. The accused was questioned under S.313 of the Code of Criminal Procedure. He denied all incriminating circumstance and evidence. He denied having committed any offence. On the side of the prosecution PWs 1 to 20 were examined and Exts. P1 to P21 documents were marked. MOs 1 to 5 were also marked. The accused was questioned under S.313 of the Code of Criminal Procedure. He denied all incriminating circumstance and evidence. He denied having committed any offence. The Trial Court after considering the oral and documentary evidence found that the accused had inflicted the injuries on the deceased which is sufficient in the ordinary course of nature to cause death. Therefore the accused was convicted for the offence punishable under S.302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs 5,000/- in default of which to undergo imprisonment for six months. 3. Prosecution relied upon the evidence of PWs 2, 3, 4, 5, 8 and 10 who were neighbours of the deceased, to establish its case. PWs 2, 3, 4 and 5 turned hostile to the prosecution. However, PW 8 fully supported the prosecution case which was corroborated by the evidence of PW 10 who had seen the accused swimming across a river and moving away from the scene of occurrence allegedly after accomplishing his mission. Prosecution has also alleged motive for the commission of the offence and also placed reliance on the evidence of PW 19 and also on the information furnished by the accused leading to the recovery of MO 1. 4. Sri Biji Mathew, the learned counsel appearing for the accused, submitted that the prosecution has not succeeded in proving the guilt of the accused on the basis of circumstantial evidence. Counsel submitted that the prosecution has failed to establish the chain of circumstances to prove the guilt of the accused beyond reasonable doubt. Counsel also submitted that the evidence of PWs 8 and 10 is not reliable. PWs 2, 3 and 4 who are neighbours of the deceased turned hostile to the prosecution and PW 5 who allegedly sold MO 1 to the accused also did not support; the prosecution. Counsel also submitted that no reliance should have been placed on the dying declaration made by the deceased to PW 8 especially when PWs 2, 3 and 4 had given inconsistent versions. Counsel also submitted that PW 10 is only a chance witness who gave conflicting statements to the police as well as to the court. Counsel also submitted that no reliance should have been placed on the dying declaration made by the deceased to PW 8 especially when PWs 2, 3 and 4 had given inconsistent versions. Counsel also submitted that PW 10 is only a chance witness who gave conflicting statements to the police as well as to the court. Counsel also submitted that no proper recovery was effected and the story put up by the investigating officer cannot be believed. In any view of the matter, counsel submitted that there is no legal evidence to the connect the accused with the offence. Counsel submitted that the pond from where MO 1 was recovered was also accessible to public and the chance of planting MO 1 knife cannot be ruled out. Counsel submitted that there is no evidence to show that the weapon used to inflict injuries on the deceased is the one that was recovered and it does not tally with the injuries sustained by the deceased. Counsel submitted that in any view of the matter the injuries inflicted were not sufficient in the ordinary course of nature to cause death. Learned Public Prosecutor on the other hand contended that there was motive for the commission of the offence. Evidence of PW 8 is reliable. Evidence of PW 8 is corroborated by PW 10. Counsel submitted that knife was recovered on the information furnished by the accused. Prosecutor submitted that medical evidence shows that the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature. 5. Motive for the crime Evidence in this case would show that the marital relationship between the accused and the deceased was not cordial and they were living separate. PW 1, the brother of the deceased, had deposed about their strained relationship. Earlier, the accused and the deceased were living together. Accused lost his right palm in an attempt to catch fish by a country blasting and the expenses for the medical treatment of the accused were met by PW 1. Accused started quarrelling with the deceased and the deceased returned to her parental house. Later she returned to the husband's house and started living there. Accused then forcibly took the child for which the deceased had filed a complaint and sought custody of the child. Accused started quarrelling with the deceased and the deceased returned to her parental house. Later she returned to the husband's house and started living there. Accused then forcibly took the child for which the deceased had filed a complaint and sought custody of the child. PW 19 deposed that he came to know of the criminal case pending in the Magistrate court and Family court between the accused and the deceased. OP No 436 of 2002 is the case filed by the deceased before the Family Court, Ernakulam against the accused. An order of prohibitory injunction was also sought against the accused from taking away the child from the school in which he was studying. Petition was also filed seeking production of the child in court. Search warrant was sought for on 24/10/2002. Criminal complaint was also filed by the deceased in the Oonnukal Police Station which was registered as crime No. 21/02 under S.498(A) of the Indian Penal Code. Ext. P21 is the copy of the FIR in that case. The allegation in the complaint was that the accused was demanding more dowry and ornaments and was harassing her mentally and physically. Ext. P21(a) is the police investigation report in the said case. Police charge sheeted the accused under S.498(A) and 506(i) of the Indian Penal Code. Final report was submitted before court on 08/04/2002. Exts. P22 and P23 are the F.I.R and final report respectively in respect of the complaint preferred by the deceased in the police in connection with the missing of the child. Ext. P23 also contains the F.I. statement. 6. The evidence of PWs 1 and 19 coupled with the documents marked as Exts. P20, P21, P21(a), P22 and P23 would prove that criminal cases were pending against the accused initiated at the instance of the deceased and they were on inimical terms. Motive, however strong, is not a substitute for proof. But the fact that criminal cases were pending between the parties and the marital life of the accused and the deceased was a strained one and the fact that the deceased had filed criminal complaint against the husband alleging demanding of dowry etc. are all circumstances which lend support to the evidence adduced by the prosecution. Plea of motive generally lends corroboration to the prosecution case if evidence adduced by the prosecution is otherwise reliable and trustworthy. 7. are all circumstances which lend support to the evidence adduced by the prosecution. Plea of motive generally lends corroboration to the prosecution case if evidence adduced by the prosecution is otherwise reliable and trustworthy. 7. We have already stated that PWs 2, 3, 4 and 8 were neighbours of the deceased. Of them, PWs 2, 3 and 4 turned hostile. PW 8 who is the wife of PW 2, is the immediate neighbour of the deceased who had acquaintance with the deceased. She has no ill will or animosity towards the accused. The house of PW 8 is located near the house of the deceased. She deposed that the incident took place at about 6.45 P.M. Herself, her husband PW 2 and their tenant, PW 3 were watching the television show. PW 8 heard the noise of the deceased crying She called other neighbours on hearing the hue and cry of the deceased and proceeded to the place where she heard the hue and cry. She found the deceased naked in a pond situated near the marapura. She had also noticed wounds on her back and abdomen. Deceased had asked for some cloths. PW 8 and others pulled her out of the pond and the deceased was put on proper clothing and was taken to the road side. Deceased told the witness that her husband had stabbed her and inflicted injuries on her. She also deposed in reexamination that what has been stated in Ext. P9 before the Magistrate was whole truth. No evidence has been adduced in this case to show that PW 8 has got any enmity towards the accused. No suggestion was made about the illegal connection of her son with the deceased and no reliable evidence has been adduced to establish the suggestion made that PW 8 had any ill will towards the accused. PW 8, in our view, is a reliable and natural witness and we find no illegality in the court below relying upon the evidence of PW 8 in proof of the dying declaration made to her by the deceased. 8. The evidence tendered by PWs 2, 3 and 4 who turned hostile to the prosecution need not be rejected in toto. 8. The evidence tendered by PWs 2, 3 and 4 who turned hostile to the prosecution need not be rejected in toto. The apex court in State of Rajasthan v. Bhawani ( AIR 2003 SC 4230 ) has held that the mere fact that the witness was declared hostile by the court at the request of the prosecuting counsel and he was allowed to cross examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witnesses. The court also held that the evidence of such a witness has to be read and considered as a whole with a view to find out whether any weight should be attached to the same and it should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. PW 2 while giving evidence stated that he had also heard a crying sound as He identified the cry as that of the deceased. The evidence of PW 2 also would show that the deceased was sitting inside the pond. Deceased came to the other side of the pond and the neighbours helped her to come out of the pond. 9. PW 3 another hostile witness was a tenant in a portion of the house of PW 8. She also heard the hue of cry and identified it as that of the deceased. She also went to the place and saw the deceased standing inside the pond. Deceased was given lungi for wearing and was helped to get out of the pond. Deceased had multiple injuries on the back and on the right side and abdomen. PW 3 in her cross examination stated that the deceased was semi conscious stage and was nodding the head when asked as to whether she required water. She accompanied the deceased upto Baselious Hospital, Kothamangalam. 10. PW 4 was classmate of the accused. He deposed that he heard a cry. He proceeded towards the place from where the noise was heard. Noticing the incident of stabbing he returned to his residence. Neighbours came with light and then he proceeded and joined the neighbours and saw Usha standing inside the pond. He deposed that the deceased was conscious and was able to walk and speak legibly. He proceeded towards the place from where the noise was heard. Noticing the incident of stabbing he returned to his residence. Neighbours came with light and then he proceeded and joined the neighbours and saw Usha standing inside the pond. He deposed that the deceased was conscious and was able to walk and speak legibly. The evidence of PWs 2, 3 and 4, though they were declared hostile, would show that the deceased was conscious and was capable of speaking to others. Earlier versions given by PWs 2, 3 and 4 to the police were disowned by them at the stage of evidence. PW 8 however maintained her version that was given to the police at the stage of evidence. We find no reason to disbelieve the evidence of PW 8. 11. The evidence of PW 10 also would lend support to the prosecution case. PW 10 is residing in Manimaruthumchal. He is a coolie. He has deposed that on 20/11/2001 when he was returning in his country boat he saw a person swimming across the river. He could not identify the man initially and then he shouted and there was no response but then he moved his boat towards the man and made enquiries. Then the man replied that he is Samban. PW 10 enquired as to why the accused was swimming across the river to which accused replied that he came there to his sister's house. Accused was again asked why he preferred to swim rather than boarding a bus. Accused then replied that he was not on good terms with his wife. PW 10 was a chance witness according to the defence. We do not find any reason to discard his evidence since there is nothing to show that he has any previous enmity towards the accused. Accused left the place of occurrence swimming across the river to keep away from the vicinity of the public. This conduct would show that the accused wanted to conceal himself from the view of the neighbours though at 10.30 p.m on the same day he surrendered before the Adimali police station. We are not prepared to say that the evidence of PW 10 is not trustworthy. Further there was no difficulty for the deceased wife to recognise her husband since the incident took place at 6.45 p.m and PW 10 saw the accused just after the incident. We are not prepared to say that the evidence of PW 10 is not trustworthy. Further there was no difficulty for the deceased wife to recognise her husband since the incident took place at 6.45 p.m and PW 10 saw the accused just after the incident. We reject the contention of the defence counsel that that there was no sufficient light to recognise the accused. 12. Weapon of offence was recovered from near the pond near the house of the deceased on 22/11/2002 at 12.30 p. m on the basis of the confession statement of the accused, Ext. P13 (a). PW 19 who conducted investigation deposed that the accused was in surveillance in the Adimali police station. On 22/11/2002 at 11.30 a. m he was arrested and questioned. He gave information leading to the recovery of MO 1 knife. On receiving information from the accused PW 19 went to Oliyanikkal house compound and the accused pointed out the pond which was with water and mud. PW 12 was asked to search the pond and find out the knife said to have been used by the accused. Search was made by PW 12 and he found out MO 1 knife and Ext. P13 mahazar was prepared for the same. PW 12 is the witness to the seizure mahazar. The evidence of PW 19 is corroborated by PW 12. PW 12 stated that he saw the police questioning the accused about the knife and the accused had shown the pond to PW 19. In our view, the conduct of the accused attracts S.8 of the Evidence Act though the accused had not admitted the authorship of concealment of knife. Though recovery of the weapon does not attract S.27 of the Evidence Act, the conduct of the accused and the recovery of the weapon will constitute evidence under S.8 of the Evidence Act. We are therefore of the view that the evidence of PW 19 investigating officer, PW 12 attestor to Ext. P13 mahazar and Ext. P13(a) confession statement leading to the recovery of the material object has to be accepted as corroborating the evidence of PWs 8 and 10. 13. The deceased, as we have already pointed out, was initially removed to Basellious Hospital, Kothamangalam and was later referred to Medical Trust Hospital, Ernakulam. P13 mahazar and Ext. P13(a) confession statement leading to the recovery of the material object has to be accepted as corroborating the evidence of PWs 8 and 10. 13. The deceased, as we have already pointed out, was initially removed to Basellious Hospital, Kothamangalam and was later referred to Medical Trust Hospital, Ernakulam. PW 7 the Chief Medical Officer of Medical Trust Hospital, Ernakulam examined the deceased at 11.15 p.m on 20/11/2002 and issued Ext. P8 wound certificate which discloses the following injuries. 1. Incised wound on the right upper quadrant of abdomen 4.5 x 1 cm. Penetrating into the abdominal cavity. 2. Small incised wound medial to the first wound 1 x 0.5 cm. 3. Incised wound on the right scapular region 10 x 3 x 2 cm. 4. Incised wound medial to the 3rd wound 6 x 3 x 3 cm 5. Incised wound on the left shoulder posterously 5 x 3 x 2 cm. Further, the wound certificate would show that the first wound was penetrating into the abdominal cavity and the second wound was a small incised wound medial to the first wound. Patient had injuries on the right scapular region and left shoulder. There was an incised wound 6 x 3 cm size on the root of the neck on the posterial aspect and this wound was penetrating into the chest cavity and extending along the transverse process of vertebral body. PW 7 also stated that the incised wound on the left shoulder was extending deep along the anterior auxiliary fold over the back and left shoulder. Another incised wound of the size 4.5 x 1 cm extending into the epigastric region on the right side of the mid line penetrating into the peritoneal cavity. It is stated that due to the deep wound on the neck which was penetrating into the chest cavity there was decreased air entry on the right side. Ext. P10 is the discharge summary issued by PW 9. According to PW 9, injury No. 2 and the stab wound on the abdomen were fatal injuries. Doctor has also deposed that chest cavity and the injury on the lung was sutured and the injury caused to the lung was the direct result of the stab. Deceased was continuously on ventilation till 23/11/2002 and for a brief period she was out of ventilation. Doctor has also deposed that chest cavity and the injury on the lung was sutured and the injury caused to the lung was the direct result of the stab. Deceased was continuously on ventilation till 23/11/2002 and for a brief period she was out of ventilation. It was found that without ventilation she could not survive and therefore ventilator was connected. She never recovered from the initial assault and she succumbed to the injuries on 05/12/2002. Doctor had found that the death was caused due to the infection and coagulation failure subsequent to the injury sustained. Doctor deposed that any injury on the surface of the chest and abdomen could lead into infection to the thoracic and abdominal cavity. Pulmonary artery was cut. Evidence of PWs 13, 9 and 7 coupled with Ext. P8 wound certificate and Ext. P10 discharge summary and Ext. P14 post mortem certificate would establish that the death was caused following the complications resulting from the injuries inflicted with MO 1 knife. 14. We however notice that except injury No. 1 others are not on vital parts of the body. The evidence of PW 9 (Dr Antony) shows that the deceased had to be subjected to a surgical operation and there was sutured wounds on her body and that she had developed septicaemia. Injury No. 13 which was stated as a fatal injury, turned out to be a surgical wound. Taking into account that some of the injuries were not on vital parts of the body it cannot definitely be said that any one particular injury was intended. MO 1 weapon used was also not of considerable width or length. A reading of the testimony of the autopsy surgeon (PW 13) would show that he had got confused between ante mortem injuries and surgical wounds. Further, PW 13 has not deposed that any of the injuries was of such magnitude as to fall under the main part of S.300 IPC. Hence, although it can be safely concluded that the accused caused the death of Usha with the intention of causing such bodily injuries as were likely to cause the death of Usha, it cannot be concluded that the acts were committed with the intention or knowledge as contemplated by S.300 IPC. Hence, although it can be safely concluded that the accused caused the death of Usha with the intention of causing such bodily injuries as were likely to cause the death of Usha, it cannot be concluded that the acts were committed with the intention or knowledge as contemplated by S.300 IPC. Therefore considering the circumstances of the case and the evidence adduced in the case as well as the special features noticed, it would be appropriate to convict the accused under S.304 Part I instead of S.302 IPC. We therefore alter the conviction awarded by the court below into one punishable under Part I of S.300 IPC and modify the sentence to rigorous imprisonment for a period of seven years and also a fine of Rs. 5,000/- in default of which to undergo rigorous imprisonment for a period of six months. The appellant shall be entitled to set off under S.428 of the Code of Criminal Procedure. The appeal is disposed of as above.