Yohannan Yesudasan, Appellant V. State Of Kerala,
Respondent.
DATE : 01-04-1986
1987-(093)-CRLJ -0014 -KER
JUDGE(S) :
K G Balakrishnan
S Padmanabhan
KERALA HIGH COURT
JUDGMENT
PADMANABHAN, J. :- The appellant was charge-sheeted for an offence
punishable under S. 302 of the I.P.C. in having murdered his wife
Chinna at about 5.30 p.m. on 12-11-1982 in the public road near
Vattakkavu junction within the limits of Pathanapuram Police Station.
For that offence he was tried by the Sessions Judge, Quilon in
S.C. No. 43/83. The Sessions Judge found him guilty, convicted
him and sentenced him to suffer imprisonment for life. He has
come up in appeal from jail. A State Brief Counsel was appointed
to conduct the appeal on his behalf. We heard the counsel and
the public prosecutor.
2. The appellant married deceased Chinna about 27 years prior
to the incident. Six children were born out of the wedlock. On
account of some difference of opinion deceased Chinna went and
lived with her brother, P.W. 6, 25 days prior to the incident.
All efforts made by the appellant to get her back proved futile
on account of the adamant stand taken by the deceased.
3. On 12-11-1982 the deceased was going along with P.W. 1, a co-worker,
for manual labour. At that time at about 8 a.m. the appellant
saw them on the way. He told the deceased that one of the children
is seriously ill and therefore she will have to come home. Not
only Chinna rejected the offer, but she also gave a defiant answer
that if the child is not doing well, it is the duty of the father
and the other children to take care of the child. So saying, she
proceeded along with P.W. 1. The appellant warned that if this
is her attitude he will not allow her to go on like this. In the
evening at about 5.30 P.W. 1 and the deceased were returning after
the day's work. On the way in the public road at the scene of
occurrence the appellant asked her what she said in the morning
and caught hold of the tuft of her hair. With M.O. 1 chopper in
hand, he inflicted 3 or 4 cut injuries on her. The deceased tried
to wriggle out from the grip of the appellant. In that action
accidentally M.O. 1 chopper itself caused some injury on the forehead
of the appellant. As a result of the injuries sustained on the
spot, Chinna fell down and had an instantaneous death. At about
8 p.m. P.W. 1 went to the Pathanapuram Police Station and gave
Ext. P1 first information statement before P.W. 13, Sub-Inspector.
After some time at about 8.45 p.m.; the appellant also appeared
before the same police station with M.O. 1 chopper in hand and
alleged that he was attacked by the deceased. His statement was
recorded and a case was registered. He was sent for treatment.
This in short is the prosecution version of the incident.
4. Investigation was initially conducted by P.W. 13 himself. It
was he who held inquest on the dead body and prepared the scene
mahazar. Subsequently, investigation was taken over by the Circle
Inspector examined as P.W. 14. He conducted investigation in the
case registered on the statement given by the appellant also.
That case was found false and referred (Sic).
5. The defence version as disclosed by the statement given by
the appellant, when questioned under S. 313 of the Cr.P.C. is
this. Jointly with the deceased he was constructing a house for
their residence. For that purpose, Rs. 1,000/- was obtained by
mortgaging his property to P.W. 5. Since masons were not available
for construction, they had to wait for a month. Meanwhile, the
amount was with the deceased. When the appellant asked for the
amount at a time when masons were made available, he was informed
by the deceased that the amount was given to P.W. 6. Three or
four days prior to the incident, the deceased was sent to P.W.
6 for getting back the amount. But she did not return. On the
fateful day, he went in search of the deceased. She was seen coming
in the company P.W. 1. When she was informed that the child is
seriously ill, she moved forward without giving any reply. The
appellant insisted for some reply. Even then she proceeded further
without giving any answer. In order to stop her, he caught hold
of the tuft of her hair. Suddenly, the deceased attacked him with
M.O. 2 sickle asking whether he is concerned only about the money
and whether he will not spare her. At that time P.W. 6 came and
the deceased picked up quarrels with him on the question of the
amount. The appellant went home with the injuries sustained by
him. While he was at his residence, the Panchayat Member persuaded
him in the night to go to the hospital. But instead of taking
him to the hospital, he was actually taken to the police station.
6. Even though the appellant did not say so in so many words,
his contention seems to be that the injuries were sustained by
the deceased at the hands of her brother P.W. 6 over the quarrel
concerning Rs. 1,000/- entrusted to him by the deceased.
7. P.W. 1 is the solitary eye witness to the incident. She has
spoken to the entire incident that took place both in the morning
and in the evening. Her evidence was under serious attack before
us by the counsel. Before dealing with her evidence, we may consider
the evidence regarding motive. It is not disputed even by the
appellant that the deceased was living separate from him at the
time of the incident on account of some quarrel. P.W. 1, who is
a co-worker of the deceased, has stated from her own personal
knowledge that for about one month prior to the incident the deceased
was living separate from the appellant since they were not on
good terms. P.W. 3 is a priest belonging to the locality. He said
that these two persons were moving in inimical terms. He made
an attempt to settle their disputes. His version is that his attempt
did not succeed on account of the attitude adopted by the deceased.
From the evidence of P.W. 6 also it is seen that on account of
quarrel with the appellant the deceased was residing along with
him. We have no reason to disbelieve the above items of evidence
tendered by the prosecution. Further, we have got the added evidence
of PWs. 1 and 6 regarding the conversation between the deceased
and the appellant on the morning of the fateful day at 8 O'clock
and the warning given by the appellant that she will not be allowed
to move on freely like this. In such a situation, it will have
to be found that the prosecution succeeded in proving the motive
beyond any shadow of reasonable doubt.
8. It is not necessary for us to extract the details of the evidence
given by P.W. 1 regarding the incident. Suffice it to say that
she gave evidence not only regarding the actual acts of assault
but regarding the prior conversation also. Some answers given
by this witness in cross-examination were attempted to be taken
advantage of for the purpose of contending that she might not
have seen the incident. We do not think that there is any force
in the contention. She is an illiterate rustic witness who was
facing a tough cross-examination at the hands of an able lawyer.
In answer to certain suggestive questions, she gave some answers
which may be capable of an interpretation that she was moving
forward and she might not have seen the actual infliction of injuries
on the body of the deceased by the appellant. We had occasion
to consider the evidence of this witness as a whole. She struck
us as a truthful witness who was divulging only what she actually
saw and heard. In spite of some answers given in cross-examination
she said in chief-examination as well as in re-examination that
she heard the initial conversation. She also said that she walked
forward since the appellant stared at her. When she was a little
ahead, she heard the cry of the deceased which prompted her to
look back. At that time she saw the appellant cutting the deceased
3 or 4 times with M.O. 1 chopper. She also said that on receipt
of the injuries, the deceased fell down on the ground. We do not
think that there is any scope for contending that this witness
has not seen the actual incident. This aspect of the matter has
been elaborately considered by the Sessions Judge. We are in agreement
with the opinion expressed by the Sessions Judge on the evidence
P.W. 1.
9. On the basis of the evidence of P.W. 1, it was also contended
that Ext. P1 first information statement might not have been given
at the time mentioned by her and stated in Ext. P1. We do not
think that there is any basis for this contention also. It is
true that in cross-examination some answers were elicited from
P.W. 1 to the effect that on the night of the incident she was
at her residence itself and she was taken to the police station
only the next day. But a reading of the entire evidence of this
witness shows that she went to the police station along with her
husband at 8 p.m. on the date of incident and gave Ext. P1 first
information statement which was read over to her and signed by
her. In this connection, her evidence is corroborated by the testimonies
of PWs. 7 and 13. PW. 7 is a local political leader who happened
to be in the police station for settling some labour dispute.
P.W. 13 is the Sub-Inspector who recorded Ext. P1. We have no
reason to disbelieve the version of these witnesses when they
swear regarding the time at which Ext. P1 was given by P.W. 1
and recorded by P.W. 13.
10. The evidence of these two witnesses further show that within
40 or 45 minutes of the recording of Ext. P1 first information
statement, the appellant went over to the police station with
M.O. 1 chopper in hand. He made an allegation which we had occasion
to refer earlier. His statement was also recorded by P.W. 13 and
a case was registered. Earlier, we have mentioned that the said
case was also investigated by P.W. 14 and referred as false. From
the evidence of P.W. 7 and 13 it is seen the face and the entire
dress worn by the appellant at that time were completely soaked
in blood. This is an additional circumstance corroborating the
evidence of P.W. 1 that the appellant alone is the assailant and
the incident might not have taken place as stated by him when
questioned under S. 313 of the Cr.P.C.
11. Basing on the evidence of P.W. 1 an attempt was made by the
counsel to contend that even though independent witnesses were
available, the prosecution thought of contending with the evidence
of P.W. 1 alone. It is true that PW. 1 made some mistaken statements
that there is a pan shop and another residential building within
the close vicinity of the scene of occurrence. The scene mahazar
as well as the evidence of PWs. 13 and 14 show that the above-said
statement given by P.W. 1 is only a mistake. Further, the evidence
of P.W. 1 itself shows that nobody else had occasion to witness
the incident. In such a situation, we may not be justified in
coming to the conclusion that the prosecution has suppressed legal
testimony from court.
12. The evidence of P.W. 4 is also an additional item of evidence
lending assurance to the testimony of P.W. 1. Just before the
incident she saw the appellant moving towards the scene of occurrence.
She is a competent witness in the sense that she is running a
tea shop at some distance from the scene of occurrence. There
is also the evidence of P.W. 5 that on the strength of Ext. P2,
he advanced Rs. 1,000/- to the appellant for the construction
of a residential building. It was P.W. 9, who conducted autopsy
on the dead body of Chinna and prepared Ext. P4 post-mortem certificate.
There were four incised injuries on the dead body. Injury No.
1 cut through almost the whole of neck, cutting all the underlying
structures including the trachea, oesophagus, blood vessels and
vertibral column. The head was found connected to the trunk only
by skin, subcutaneous tissue and the adjacent muscles of the left
side. The other incised injuries were also serious. P.W. 9 said
that injury No. 1 is necessarily fatal. Therefore, if the prosecution
evidence is accepted as true and correct, there cannot be any
dispute regarding the fact that this is a case in which the appellant
was acting with the murderous intention.
13. Even though the defence suggestion is that the deceased might
have sustained injuries at the hands of P.W. 6, No such question
was asked to that witness while he was cross-examined. The prosecution
evidence completely rules out the possibility of an incident having
taken place in the manner stated by the appellant while questioned
under S. 313 of the Cr.P.C.
14. It was P.W. 10 who examined the appellant and issued Ext.
P5 would certificate. He had a vertical incised would 3 x 0.5
on scalp deep over the left side of the anterior aspect of the
scalp near the forehead. The defence version is that when the
appellant caught hold of the tuft of the hair of the deceased,
she took out M.O. 2 sickle and cut him on his forehead. The prosecution
version is that the abovesaid injury was received by the appellant
on his forehead by his own cut with M.O. 1 aimed at the deceased.
The evidence only probabilises the prosecution version of the
incident. It is true that in Ext. P1 P.W. 1 had not mentioned
anything about the injury sustained by the appellant. An omission
in this respect made by P.W. 1 cannot in any way probabilise the
defence version of the incident. It has to be remembered that
P.W. 1 is a rustic witness. PW. 10 has stated in cross-examination
that a cut with M.O. 2 cannot cause the injury found on the forehead
of the accused. According to him, if M.O. 2 was used for inflicting
that injury there must necessarily be corresponding injury with
the tip of that weapon because of the nature of its curve. He
also said that location of the injury is such that contact of
the tip portion of M.O. 1 is inevitable on some part of the head,
if M.O. 2 had been used for inflicting that injury. We had occasion
to peruse M.O. 2 and we are in full agreement with the opinion
expressed by P.W. 10 in this respect. The judgment of the Sessions
Judge shows that the defence lawyer made a demonstration before
him of the possibility of the injury on the forehead with M.O.
2. For valid reasons, the Sessions Judge said that he was not
at all impressed by the demonstration. Therefore, we are of opinion
that the injury found on the appellant was not at all possible
in the manner spoken to by him while questioned under S. 313 of
the Cr.P.C.
15. Every item including M.O. 1, and the wearing apparel of the
appellant and the deceased were sent for chemical examination
and Ext. P6 is to the effect that all of them contained human
blood. In this connection, the counsel for the appellant argued
before us that M.O. 2 sickle has not been sent for chemical examination
and this has prejudiced his defence. Even though we agree with
the argument that M.O. 2 also ought to have been sent for chemical
examination, we are not in agreement with the argument that the
omission had occasioned prejudice. Even taking for granted that
the injury found on the forehead of the appellant was inflicted
by the deceased, in the circumstances, it cannot give rise to
any right of private defence. According to the prosecution evidence
and as per the defence version also it was the appellant who caught
hold of the tuft of the hair of the deceased with M.O. 1 chopper
in hand. Therefore, evidently he was the aggressor. If, in such
a situation, the deceased used M.O. 2 stickle by way of private
defence, that cannot in turn give any right to the appellant to
act in exercise of the right of private defence. Right of private
defence cannot be availed of by the aggressor. Therefore, at any
rate, the defence contention cannot succeed.
16. On an entire reappraisal of the evidence, we are of opinion
that the prosecution fully succeeded in establishing beyond doubt
that the appellant committed murder of his wife Chinna at the
time and place alleged by the prosecution. The Sessions Judge
has awarded only the lesser of the two alternatives.
17. In the judgment the Sessions Judge said that as he does not
propose to award the capital sentence, there is no need to hear
the accused on the question of sentence. Therefore, he proceeded
to award the sentence of imprisonment for life without hearing
the accused or the prosecution on the question of sentence. This
attitude of the Sessions Judge was commented upon by the public
prosecutor to be not strictly in accordance with law. Even though
we are not prepared to accept that what the Sessions Judge did
is illegal or that it resulted in prejudice or miscarriage of
justice, we are of opinion that there is an element of irregularity
involved. In S. 235 of the Cr.P.C. occurring in Chap. XVIII relating
to Sessions Trial, it is provided that if the accused is convicted,
unless the Judge proceeds in accordance with S. 360, he shall
hear the accused on the question of sentence and then pass sentence
on him according to law. In S. 248 appearing in Chapt. XIX relating
to trial of warrant cases by magistrates also, there is an identical
provision. Section 354(3) says that when the conviction is for
an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and,
in the case of sentence of death, the special reasons for such
sentence. It is true that for the offence punishable under S.
302 of the IPC the two alternative punishments are death or imprisonment
for life and fine. Imprisonment for life is the normal sentence
and conviction alone need be the reason for awarding that sentence.
18. Non-compliance with S. 235(2) is not a mere irregularity in
the course of the trial curable under S. 465. It is much serious.
It will amount to by-passing an important stage of the trial and
omitting it altogether. Non-compliance amounts to disobedience
to an important express provision of the Code as to the mode of
trial (Santa Singh v. State of Punjab, AIR 1976 SC 2386 : (1976
Cri LJ 1875). S. 354(3) of the Code marks a significant shift
in the legislative policy underlying the Code of 1898 according
to which both the alternative sentences were normal sentences.
Now on the face of S. 354(3) the normal punishment for murder
and six other capital offences under the Indian Penal Code is
imprisonment for life or for a term of years and death penalty
is an exception. S. 235(2) of the Code bifurcates the trial by
providing for two hearings, one at the pre-conviction stage and
the other at the pre-sentence stage. Even though S. 235(2) does
not contain specific provision as to evidence and provides only
for hearing of the accused as to sentence, it is implicit that
if a request is made in that behalf either by the prosecution
or the accused or by both, the Judge should give the party or
parties concerned an opportunity of producing evidence or material
relating to the various factors bearing on the question of sentence.
AIR 1980 SC 898 : (1980 Cri LJ 636). That means that even though
hearing the accused alone is provided under S. 235(2) in the matter
of sentence, the prosecution is also entitled to be heard in the
matter and in case of necessity both sides are entitled to let
in evidence also though it cannot be a protracted affair. Even
though the Judge had made up his mind to award life imprisonment
alone in a murder case even before hearing either side on the
question of sentence, both sides may desire to have their on say
in the matter. The prosecution may desire to argue for capital
sentence or place materials in support of it. The accused may
desire to argue or place materials to persuade the court to make
some observations or recommendations to the executive government.
Any how S. 235(2) provides for hearing and S. 354(3) provides
for stating reasons. These provisions will have to be complied
with.
19. In this case the non-compliance of these provisions have not
in any way resulted in prejudice or miscarriage of justice. We
heard both sides on the question of sentence and the defect, if
any, has been cured thereby. As earlier stated, there are only
two options on the question of exercising the sentencing discretion.
The lesser sentence alone has been awarded. Even after hearing
the appellant, the Sessions Judge could not have awarded any lesser
sentence. In such a case a plea of violation of S. 235(2) cannot
be entertained by the appellate court. AIR 1976 SC 2386 : (1976
Cri LJ 1875). Such a plea would be meaningless and futile especially
when the appellant (accused) has no case that he had anything
else to say or any material to be placed on the question of sentence
or on any other matter. The plea itself was raised by the public
prosecutor and not by the appellant. The public prosecutor also
did not argue that the sentence was improper. State has not filed
any appeal also. Therefore, even though we feel that a hearing
on the question of sentence ought to have been made, we do not
feel that on that score any interference is necessary.
Confirming the conviction and sentence, we dismiss the criminal
appeal.
Appeal dismissed.
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