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2019 Supreme(Ker) 1047
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, N. ANIL KUMAR, JJ.
Rajesh And Another — Appellant
Versus
State Of Kerala — Respondent
Criminal Appeal No. 779 of 2015
Decided on : 07-06-2019
For the Appellant :Sri. B. Raman Pillai (Sr.), Sri. A. Rajesh, Sri. Manu Tom, Sri. M. Sunilkumar, Sri. M. Vivek, Sri. R. Anil, Sri. Sujesh Menon V.B., Sri. T. Anil Kumar, Advocates
For the Respondent: Sr. Public Prosecutor, Sri. S.U. Nazar
Important points:
If the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene.
Headnote:
The Indian Penal Code- Sections 302, 201 r/w 34- The sudden reaction of the appellants-General feelings of ordinary human beings- Seeing the sister presumably in a compromising position with a man of her choice and that too if the man is not acceptable to the brothers-The natural reaction is to manhandle him-It is not reasonable to expect from the brothers to counsel or advise the man not to repeat such kinds of acts in future though the act itself is an offence under the Indian Penal Code.
Statement of facts:
Appellants are accused Nos. 1 to 3 in SC No.53/2011 on the file of the Additional Sessions Court-I, Kalpetta for the offences punishable under Sections 302, 201 r/w 34 of the Indian Penal Code- The appellants challenge the conviction and sentence passed against them for the offences punishable under Section 302 r/w 34 of the IPC.
Finding of the court:
The case of murder punishable under S.302 IPC is not made out and the appellants 1 and 2 committed the offence punishable under S.304 Part II of IPC only-Third appellant is liable to be acquitted for the offence punishable under Section 302 read with 34 of IPC for the reasons cited supra
Result: Appeal is partly allowed
JUDGMENT :
N. Anil Kumar, J.
Appellants are accused Nos. 1 to 3 in SC No.53/2011 on the file of the Additional Sessions Court-I, Kalpetta for the offences punishable under Sections 302, 201 r/w 34 of the Indian Penal Code (for short 'IPC'). The appellants challenge the conviction and sentence passed against them for the offences punishable under Section 302 r/w 34 of the IPC.
2. The prosecution case in brief is that deceased Rajan and accused No.4 Sandhya were immediate neighbours and were in love with each other. Accused Nos.1 to 3 are the brothers of accused No.4 Sandhya. Though Rajan approached the family members of Sandhya to give her hand in marriage, the same was not acceded to. While so, on 12.3.2010, at 1.00 a.m. in the night, Sandhya invited the deceased to her bedroom bearing Door No.XIII/387 at Kathavakunnu and while they were inside, the presence of the deceased was noticed by the third accused. He alerted his brothers - A1 Rajesh and A2 Satheesh and on finding the deceased Rajan in the bedroom of their sister and that too in the midnight, accused Nos.1 to 3 assaulted, throttled, fisted and emasculated the deceased resulting in his death.
3. PW1 lodged Ext.P1 First Information Statement before PW26, the SI of Police, Pulpally Police Station on 12.3.2010 at 9.30 a.m. Consequently, PW26 registered Ext.P1(a) FIR. On that day, copy of the FIR was forwarded to CW43, the Circle Inspector of Police, Pulpally. CW43 died pending proceedings. CW43 commenced the investigation on 12.3.2010 itself. CW43 prepared Ext.P3 scene mahazar and Sandhya was subjected to medical examination. As per Ext.P5 seizure mahazar, MOs.1 to 4 clothes alleged to have worn by the aforesaid Sandhya were recovered. By verifying the clothes removed from the dead body of the deceased, he prepared seizure mahazar and forwarded the property list to the court as per Ext.P20. CW43 arrested A1, A2 and A4 on 14.3.2010 as per Exts.P21 to P23. A3 was arrested on 16.3.2010. The accused were produced before the Judicial First Class Magistrate -II, Sulthan Bathery in accordance with law and they were remanded to judicial custody. They were released on bail on 12.5.2010.
4. CW43, who passed away, pending proceedings conducted the investigation in this case in part and PW19 the Deputy Superintendent of Police completed the investigation and laid the charge-sheet against accused Nos.1 to 4 before the jurisdictional Magistrate where the case was taken on file as CPNo.32/2010. As per order dated 31.1.2011, the learned Magistrate committed the case to the Sessions Court after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence under Section 302, 201 read with Section 34 of IPC and registered the case as S.C.No.53/2011. On 5.3.2011, the learned Sessions judge made over the case to the Additional Sessions Court-I, Kalpetta for trial and disposal in accordance with law.
5. The accused entered appearance before the Sessions Court through a counsel of their choice. After having heard both sides, the learned Sessions Judge framed charges against A1 to A4 for the offences punishable under Section 302 r/w 34 of IPC on 12.12.2012. The charges were read over to which A1 to A4 pleaded not guilty whereupon the prosecution was permitted to adduce evidence in support of their case.
6. During trial, the prosecution examined PWs.1 to 26 and got marked Exts.P1 to P27 and 7 materials objects as MOs.1 to 7. No defence evidence was adduced.
7. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. Their defence is one of total denial. They filed a statement stating that they had not committed any offence on the alleged date of incident. They also stated that accused Nos.1 to 3 had not gone to the hospital on the date of occurrence in the police jeep wherein the deceased Rajan was taken to the hos
