Partly allowed

Madhavi v. State of Kerala

Kerala HC18 Sept 2018CRL.A/1417/2013

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against conviction under Section 302 IPC. Court substituted charge with Section 304 Part I IPC due to sudden mental explosion caused by illicit relationship with husband of victim, awarding ten years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC set aside; accused convicted under Section 304 Part I IPC and sentenced to ten years rigorous imprisonment.

Madhavi Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940

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CRL.A.No. 1417 of 2013 (B)

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AGAINST THE JUDGMENT IN SC 331/2010 of I ADDL.SESSIONS COURT, ERNAKULAM, DATED 31-08-2013

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APPELLANT/ACCUSED:

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MADHAVI, W/O. KUTTAPPAN, PANAYADATH VEEDU, RESIDING AT 4 CENT COLONY, MAROTTICHODU BHAGOM, MATTOOR KARA, MATTOOR VILLAGE.

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BY ADV. SRI.RAJESH VIJAYAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KALADY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY. SR. PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2018, THE COURT ON 18.09.2018 DELIVERED THE FOLLOWING:

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Crl. Appeal No. 1417 of 2013

JUDGMENT

P. Somarajan, J.

Appeal against the judgment of conviction and order of sentence passed under Section 302 IPC in Sessions Case No.331/2010 by the 1^st Additional Sessions Judge, Ernakulam.

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The allegation is that on 09.03.1998 at 7.25 p.m. the accused inflicted a cut injury on the right side of neck of one Valsa with a chopper and that she succumbed to the injuries. The motive behind the crime is the alleged illicit relationship of the victim with her husband.

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PWs 1 to 4 are the eye witnesses to the alleged incident. PW1 gave Exhibit P1 FIS on 09.03.1998 at Kalady Police Station. The fact of death of victim was intimated to the police by PW7, the then CMO of Angamaly Little Flower Hospital. PW9 is the Investigating Officer who conducted Exhibit P2 inquest on the body on 09.03.1998. PW5 is the witness to the inquest. Exhibit P3 plan was also prepared through PW6 Village Officer. PW8 is the then Civil Surgeon who conducted autopsy on the body of the deceased and prepared Exhibit P4 Post-mortem examination certificate.

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PWs 1 to 4 are in agreement with respect to what actually happened and transpired between the accused and the victim on the alleged day of commission of offence. The alleged incident happened

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Crl. Appeal No. 1417 of 2013

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while they were on their way to the working place at 7.25 a.m on 09.03.1998. PW1 was also on his way to his working place in connection with concrete work at Paravoor Junction. His sister Leela also accompanied him and when they reached in front of the house of Valsa, the victim Valsa along with Indira and Usha joined them. When they reached near to the house of Madhavi at Marottichuvadu Junction, Madhavi, the accused herein, all on a sudden took a chopper from a cover and inflicted a cut injury on the neck of the victim and thereby the victim fell down. Seeing this, they cried aloud and people gathered and she was removed to hospital in an auto rickshaw. It is also spoken by him that after the alleged incident the accused Madhavi left the place by leaving the chopper at the place of incident.

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PW4, who is the sister of PW1, had given sufficient corroboration and is in full agreement with what is spoken by PW1. Two other persons who were accompanying the victim and accused were also examined by the prosecution - PWs 2 and 3. They are also in full agreement with the version given by PW1 and have given corroboration to the oral testimony of both PW1 and PW2. During their cross examination nothing was brought out sufficient to shake their credibility. On the other hand, they are in full agreement with what actually happened, the sequence of incident, the time and place of incident and even the genesis of the alleged incident. It was all on a sudden the

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Crl. Appeal No. 1417 of 2013

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accused took a chopper concealed in a cover and inflicted a cut injury on the neck of the victim. There was no visible provocation for the commission of offence. Their version is found to be trustworthy in all respects. All of them are rustic witnesses and there is no occasion for them to falsely implicate the accused in the crime. Though the accused attempted to advance a case that she is a lady from Pulaya community (a Scheduled Caste) and that she converted into a Pentecost in Christian community, by which the witnesses (PWs 1 to 4) are in inimical terms, we are not in a position to accept the same simply for the reason that at the time of alleged incident, Usha (PW3) and Leela (PW4) were in the company of accused and they were proceeding together to the workplace. In other words, the accused was in the company of both PW3 and PW4 and were proceeding towards the workplace at the time of alleged incident. This would show that there was no subsisting enmity or hatredness at that time between them. Even if it is assumed that they are not in good terms with the accused, that may not be sufficient to falsely implicate the accused in a heinous crime of this nature - homicide. This would show that there is no occasion or any hatredness or ill-will against the accused and what is spoken by PW3 and PW4, who are rustic witnesses, is genuine and inspires confidence.

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The motive behind the crime is also brought out through the

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very same witnesses as the victim was maintaining an illicit relationship

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Crl. Appeal No. 1417 of 2013

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with the husband of the accused. Since there are eye witnesses to the alleged occurrence and all of them, four in numbers, are found to be rustic witnesses, speaking about the truth as to what they had seen on the alleged day of incident, the non establishment of motive sufficient for the commission of offence may not be fatal to the prosecution. On the other hand, the motive advanced through the witnesses would sufficiently satisfy the requirement. It may not be discernable, invariably in all cases, to trace out the actual mensrea behind the crime by the prosecution and when there is evidence to show the strained relationship, it would suffice.

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The medical evidence adduced is not in conflict with the main substratum of the prosecution case and what is spoken by the occurrence witnesses - PWs 1 to 4. The ante-mortem injuries noted are the following:

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“Obliquely placed incised wound 16x6 cm on the right side of face, neck and back of neck. Upper front end 2cm outer to right end of mouth, lower back end 2cm right to C6 level. Margin of the wound was regular and cleanly cut. Both ends sharply cut. Strap muscles of the neck cut and separated. Jugular veins, superficial arteries cut. External carotid cut. Facial artery cut. Muscles on the right side of neck cut. Vertebral column cut at the level between C6 and C5. Spinal cord cut and severed.”

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PW8, the Doctor who conducted post-mortem examination on

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the body of deceased, had given expert opinion that the deceased died

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Crl. Appeal No. 1417 of 2013

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due to the injury sustained on the neck and it could be possible by the user of a heavy cutting sharp edged weapon like MO1. It gives further corroboration to the ocular evidence of PWs 1 to 4.

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From the occurrence place a pair of chappel (MO2 series), three plastic covers and MO3 purse were recovered, besides MO1 chopper. It is true that there is no satisfactory evidence to show to whom MO3 purse and MO2 chappel belonged. But that itself may not be sufficient to throw away the oral testimony of the eye witnesses - PWs 1 to 4. FIR also gives sufficient corroboration as there is no inordinate delay in registering the crime or sending the FIR to the concerned Magistrate.

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All the eye witnesses - PWs 1 to 4 - identified the accused, besides the identification of MO1 chopper used for the commission of offence.

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There is only a single blow, but the cut injury sustained by the victim is on the most vital part - the neck, to the extent of an amputation. The ante-mortem injuries would sufficiently show that the neck portion was almost cut. The weapon used is a heavy sharp edged weapon and it would prima facie satisfy the ingredient which constitute Section 300 IPC. It is a case wherein a young hapless lady reacted against another lady with whom her husband maintains an illicit relationship. There was an earlier quarrel few days back to the alleged incident. But, the offence was somewhat prearranged and pre-planned

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Crl. Appeal No. 1417 of 2013

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as she had taken a chopper in a cover and the same was used for inflicting cut injury on the victim. The injury is on the most vital part of the victim cutting almost the entire portion. An intentional act of commission of offence with the intention to do away or causing such bodily injury as is likely to cause death is well evident and hence this would satisfy the ingredient which constitute Section 300 IPC. Element of deprivation of power of self control on seeing the husband's paramour would also indicate a sudden mental explosion, especially from a young hapless lady, though there was no immediate provocation for the commission of offence. It is true that at the time of alleged offence, there was no visible provocation by any physical act. But the provocation sometimes may be silent without any physical act. Maintaining an illicit relationship by the victim with the spouse of the accused would always be a source of provocation and it may sometimes aggravate on seeing the paramour and the peculiar circumstance involved in the case including the fact that both the accused and victim are young ladies - rustic persons - compels us to take a different view rather than under Section 302 IPC, by fastening liability under Part I of Section 304 IPC and hence convicted thereunder.

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Rigorous imprisonment for a period of ten years for the offence under Section 304 Part I IPC would be sufficient while considering the mitigating, extenuating and aggravating circumstances.

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Crl. Appeal No. 1417 of 2013

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In the result, the appeal is allowed in part. The finding of guilt of accused under Section 302 IPC and the conviction and sentence thereunder are hereby set aside. The accused is found guilty for the offence punishable under Part I of Section 304 IPC and she is convicted thereunder and sentenced to undergo rigorous imprisonment for ten years. She is entitled to set off for the period of pre-trial detention. Sentence already undergone shall be counted as part of sentence awarded for the said offence.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

P.SOMARAJAN

JUDGE

// True copy //

P.A. to Judge

DMR/-

Madhavi v. State of Kerala

Case brief

What is this about?

What did the court decide?

Madhavi v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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