Back
1993 Supreme(Ker) 45
Judges : THOMAS,USHA
Kesavan - Appellant
Versus
State of Kerala - Respondent
Case No : Crl.A.No.475 of 1989
Decided On : 01/29/1993
Advocates Appeared :
V.A. Kasthuri (S.B.) For Appellant Public Prosecutor (T. V. George) For Respondent
The admissibility of the testimony of a child witness and the need for corroboration in criminal cases.
Headnote:
Appellant was convicted of uxoricide under S.302 of the Indian Penal Code for killing his wife by cutting her neck with a chopper. The court rejected his plea of self-control due to sudden and grave provocation. The main question was whether the appellant inflicted the cut injury on the deceased, and the testimony of the child witness, P.W.3 - Sreeja, was crucial. The court discussed the admissibility of the testimony of a child witness and the need for corroboration. The court found that the testimony of P.W.3 was corroborated by other evidence, and the appellant failed to prove self-control due to provocation. The conviction and sentence were confirmed and the appeal was dismissed.
Fact of the Case:
The appellant was convicted of uxoricide for killing his wife by cutting her neck with a chopper. The prosecution established that the appellant murdered his wife without any justification.
Finding of the Court:
The court found that the appellant failed to prove self-control due to provocation and that the testimony of the child witness, P.W.3 - Sreeja, was crucial in establishing the appellant's guilt.
Issues: The main issue was whether the appellant inflicted the cut injury on the deceased, and the admissibility of the testimony of a child witness was also discussed.
Ratio Decidendi: The court discussed the admissibility of the testimony of a child witness and the need for corroboration. It found that the testimony of P.W.3 was corroborated by other evidence, and the appellant failed to prove self-control due to provocation.
Final Decision: The court confirmed the conviction and sentence and dismissed the appeal.
Thomas, J.
Appellant' was indicted for uxoricide and now he stands convicted by the trial court of the offence under S.302 of the Indian Penal Code. The gist of prosecution case is that he killed his wife Omana by cutting her neck with a chopper on the evening of 7-11-1988. Sessions Court rejected his plea that he lost power of self-control due to sudden and grave provocation. He filed this appeal from jail and we appointed Smt. V. A. Kasthuri to argue the case for him on State Brief.
2. Further details of the prosecution story are the following: Appellant and deceased Omana were in love with each other even before marriage, and it is not certain whether their marriage was legally solemnized.
However, they lived as husband and wife for about nine years. P.W.3 - Sreeja is the only child born to them. She was aged ten when her mother was murdered. Although it was a love marriage, the married life was not sailing smooth for reasons good or bad. Frequently erupting skirmishes marred their connubial life and eventually they contemplated the idea of dissolving the alliance.
3. Appellant desired to finish his wife off. He got a chopper sharpened and reached his house by 5 p.m. on the fateful day. After saying this and that he inflicted a cut on her neck, which pierced the jugular vein and common carotid artery.
4. Hearing the hue and cry made by PW.3 - Sreeja, some neighbours rushed to the scene. Deceased's brother Vijayan (P.W.1) also reached the house. Deceased was taken to the hospital and there she was pronounced dead.
5. First Information Statement about this was furnished on the same day at 9 p.m. by P.W.I - Vijayan at 9 p.m. Appellant was arrested on 24-11-1988 and a chopper (M.O.19) was recovered from a concealed place.
6. Appellant when questioned on the prosecution evidence generally denied the allegations and put forward a plea that he was deprived of his self-control due to sudden and grave provocation. According to the appellant, Omana was leading a way ward life and on the fateful day he saw her entertaining an outsider from whom she collected some cash, and when appellant questioned her about it she snorted and retorted that it was none of his business to poke into her affairs and on hearing those snubbing words he lost his equanimity.
7. The aforesaid plea was not accepted by the Sessions Court. Learned Sessions Judge found that prosecution established convincingly that appellant murdered his wife without any justification. Accordingly, the appellant was convicted and sentenced as aforesaid.
8. It is clear that death of Omana was a case of homicide. It is a point, which is not seriously disputed either in the trial court or in this court. Hence the main question is whether it was the appellant who inflicted the cut injury on the deceased.
9. Testimony of P.W.3 - Sreeja is the most important evidence in this case. She said that she came back from her school during noon recess and after lunch she did not go back to the school since she was asked by the deceased not to go to the school. According to her, deceased sent her to a hotel after 5.30 p.m. to buy tea and when she' returned she saw her father holding a chopper and talking to the deceased. Sreeja further said that her father caught hold on the left hand of the deceased and pulled her down and Inflicted a cut on the neck with the chopper and when Sreeja made a hue and cry many others including PWs.1 and 4 came to the scene. Learned Sessions Judge relied on the aforesaid evidence.
10. Learned counsel for the appellant contended that the evidence of P.W.3 -Sreeja, being a child witness, cannot be used to convict the appellant. According to the learned counsel, testimony of a child witness is fraught with the danger that a child is invariably vulnerable to brain washing and tutoring. She cited the decision reported in State of Bihar and others v. Kapil Singh and others (AIR 1969 SC 53) in support of the said contention. The Supreme Court has observed in the decision
