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KERALA HIGH COURT
A. Hariprasad and M.R. Anitha, JJ.
Babu ISSAC —Appellant
versus
State of Kerala —Respondent
Criminal Appeal No. 869 of 2016
Decided on 21.5.2020
(A) Indian Penal Code, 1860 – Section 302 – Murder of wife – Life sentence – Evidence of PW2 with regard to extra judicial confession is corroborated with evidence of PW4 also – Once accused was last seen with deceased, onus is upon him to show that either he was not involved in occurrence at all or that he has left deceased at her home or at any other remarkable place – To rebut evidence of last seen together and its consequences in law, onus was upon accused to lead evidence in order to prove innocence – But nothing could be brought out through evidence of prosecution witnesses, or during his examination probabilising his innocence – Prosecution could establish last seen together theory also – Motive alleged in this case is matrimonial dispute between deceased and accused – Prosecution could establish chain of circumstances without any missing link which leads to guilt of accused – When a husband strikes a pregnant wife with Chopper and inflicted 20 incised cut injuries involving brain his intention to cause death is explicit – No reason whatsoever to interfere with conviction and sentence passed under Section 302 IPC against accused – Conviction and sentence confirmed. (Paras 8, 17, 20, 27, 29, 39,
41, 47, 48 and 49)
(B) Indian Evidence Act, 1872 – Section 8 – Motive – In cases depending on circumstantial evidence there must be a chain of circumstances, incompatible with innocence of accused and there should be no missing link also – Motive is prime ingredient and it assumes importance in cases that rest entirely upon circumstantial evidence – It is almost an impossibility for prosecution to unravel full dimensions of mental disposition of an offender towards person whom he offended. Paras 28, 29 and 30)
(C) Indian Evidence Act, 1872 – Section 25 – Extra-judicial confession – There is no invariable rule that court should not accept evidence if actual words are not used – Corroboration of extra-judicial confession in all cases is a sine qua non is neither just nor reasonable preposition – If extra-judicial confession is found to be unbiased untainted coming from evidence of trustworthy and reliable witness who has to test of cross-examination against whom there is no remote suggestion or allegation of inimical terms, same can be basis for holding accused guilty. (Para 41)
Result: Appeal dismissed.
JUDGMENT
M.R.Anitha, J. —This appeal has been directed against the judgment and order dated 30.11.2015 in S.C.No.286/2014 of the Additional District and Sessions Judge-I, Kalpetta. Appellant/accused has been convicted under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.3,00,000/- in default to undergo simple imprisonment for four years.
2. Prosecution case in brief is as follows :
On 31.7.2013 at about 11.00 pm, appellant/accused out of enmity towards the deceased Subila intentionally caused her death by hacking with the chopper at her head, face, back, hand and leg at the courtyard of house No.III/234 of Pulpally Gramapanchayath,where CW5 and family are residing.
3. Fir was registered suo motu by PW1 the Sub Inspector of police, Pulpally police station upon surrender of the accused before the police with MO1, blood stained chopper and the ststement given by him.Thereafter, PW14 Circle Inspector of police, Pulpally, took charge of the investigation, arrested the accused and questioned the witnesses. Thereafter PW13 continued the investigation, questioned PW12,and completed the investigation and filed charge-sheet against the appellant/accused.
4. On the side of prosecution, PW1 to PW15 were examined and Exts.P1 to P20 were marked. MO1 to MO12 were also identified and marked. After the closure of prosecution evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating facts and circumstances put to him. Thereafter both sides were heard. Since the Court below did not feel it fit to acquit the appellant/accused under Section 232 Cr.P.C, he was called upon to enter on his defence. DW1 examined and Exts.D1 and D2 were marked on the defence side. Thereafter on hearing both sides the judgment and order was passed.
5. Heard Adv. Muhammed Sabah, learned counsel for the appellant and learned Public Prosecutor Sri. Nazar and perused the records.
6. To prove that the death of Subila was a homicide, prosecution relies upon the evidence of PW13, Assistant Professor and Assistant Surgeon, Department of Forensic Medicine, Medical College, Kozhikode, who conducted post-mortem on the body of deceased Subila. The post-mortem certificate is marked as Ext.P11.
7. Ante-Mortem injuries noted are :
1. Incised wound (cut injury), 6x2x3.5 cme (entire thickness), of right hand 2.5cm below wrist, which is almost total amputation except for a skin lag 3cm on anatomical snuff box. All the metacarpals near the base seen cut fractured along with muscles, lendons, nerves and blood vessels. The injury was directed transversely towards outer aspect.
2. Incised wound (cut injury), 4.5x2x2.5 cm (bone deep), on back of left forearm, oblique, upper outer end 3cm below elbow injury showed slanting towards front and to left.
3. Incised wound (cut injury) 4x0.5 to 1cm on hypothenar area of left hand, 1cm above root of little finger. This injury showed avulsion of skin and muscle for 1.5 cm. Which was directed upwards underneath the muscles and blood vessels seen cut.
4. Incised wound (cut injury) with avulsion 1x0.5cm, on outer margin of tip of left thumb involving the nail for its length 1x0.2 cm, the wound flap was directed upwards for a depth of 1 cm.
5. Incised wound (cut injury) having avulsion 6x3cm, front to back, on back aspect of top of right shoulder. Upper front inner end 3cm outer to root of neck. The injury showed slanting towards left and slightly downwards for a length of 4 cm.
6. Incised wound (cut injury) 14x0.5 to 1cm, on right half of front of face with lower end 1cm inner to right corner of mouth involving entire thickness of upper lip. Then coursed upwards along right side of bridge of nose reaching lower aspect of right orbit, cut fracturing the maxilla underneath and producing a cut injury of globe of right eye. Further it involved right forehead reaching upwards frontal eminence, 3cm right to midline. This injury was of variable depth. Lower end show
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