Dismissed

Frncis v. Sate of Kerala

Kerala HC12 Nov 2019CRL.A/1274/2015

Case brief

AI extract

What is this about?

This criminal appeal challenged the conviction and sentence of an accused for murdering his wife by hanging. The High Court upheld the trial court's finding that the death was caused by strangulation via a noose, rejecting the defense's suicide theory, and dismissed the appeal.

What did the court decide?

The criminal appeal was dismissed, upholding the appellant's conviction and sentence for murder under Section 302 IPC.

Frncis Vs Sate of Kerala — Matrimonial and Divorce | Kerala HC (2019)

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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.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941

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CRL.A.No.1274 OF 2015

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AGAINST THE JUDGMENT IN SC 1236/2011 DATED 21-03-2015 OF I ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM

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CRIME NO.94/2009 OF ANCHUTHENGU POLICE STATION, THIRUVANANTHAPURAM

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APPELLANT/S:

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FRNCIS S/O.BENADI, ANJUTHENGU VADIKKAKOM THUNDU PURAYIDOM VEEDU FROM THYKOOTTAM VEEDU,NEAR MANNAKULAM MUSLIM MOSQUE, ANJUTHENGU DESOM, KADAKKAVOOR VILLAGE.

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BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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SR.PP SRI.K.B.UDAYAKUMAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1274 OF 2015

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JUDGMENT

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A.Hariprasad, J.

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Aggrieved by conviction and imposition of sentence on the sole accused in SC No. 1236 of 2011 before the Additional Sessions Judge-I, Thiruvananthapuram, he has preferred this appeal.

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Charge framed by the trial court against the appellant reads thus;

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“That you on 11/9/2009 picked up a quarrel with your wife and brutally attacked her unwantedly blaming her suspecting her fidelity and compelling her to decouple him by signing an agreement to that effect, you have tortured her incessantly on the previous dates and also having got annoyed at her as your younger son had taken Rs.500/- from the house without your knowledge and consent and when she lost her consciousness, you dragged her into the bedroom at around 1.30 pm and forcefully tied a sari around her neck and hung the other end of the sari on the metal hook on the ceiling in the said room and held her up and drew that end of the cloth through the hook on the ceiling and strongly tied on the window bar with an intention to kill her and thus strangulated and killed your wife and thereby committed the offence punishable u/s.498(A) and 302 I.P.C. within the jurisdiction of this Court and within my cognizance.;

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Prosecution case, in brief, is that the

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CRL.A.No.1274 OF 2015

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appellant married deceased Irene and two sons

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were born in the relationship. Their marriage

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was, in fact, a love marriage. It is alleged

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that the appellant suspected fidelity of the deceased and he continuously tortured her for

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one reason or the other. On 09.09.2009, PW4,

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the younger son of the couple, who was studying in a seminary, went back to seminary after Onam recess and at that time, he took a

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sum a Rs.500/- from the shirt pocket of the

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appellant. When the appellant came to know about this, he got enraged and picked up a

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quarrel with the deceased. He beat the deceased black and blue. He also threatened PW1, his elder son, that he would be finished

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off. Thereafter, the appellant procured a stamp paper and coerced the deceased to sign

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it as a token of her consent for dissolving their marital relationship. On 09.09.2009 at about 8 pm, the appellant picked up an

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CRL.A.No.1274 OF 2015

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altercation with deceased Irene and assaulted

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her mercilessly. On the very next day, i.e. on

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10.09.2009 around 3.30 pm, the appellant manhandled her again. When PW1 tried to save his mother, the appellant physically assaulted

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him too and torn off his dress. On that day, again he insisted that the deceased should sign on the stamp paper to sever their relationship. When she expressed her unwillingness, the appellant thrashed her. When PW1 tried to rescue his mother, the appellant brandished a knife to keep him at bay. Their relatives and neighbours intervened in the matter and PW1 was taken to the family house of the deceased.

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The incident in this case happened on 11.09.2009. As per Ext.P1 FIS furnished by PW1, the appellant was responsible for murdering his mother. He has narrated the

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prosecution case mentioned above in Ext.P1.

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According to him, on 11.09.2009 at about 1.30 in the noon, he came home fearing whether his father would be there or not. He was afraid to see his father because on the previous night, his father had threatened to kill him if he

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happened to come home. When he called his mother, he found the house locked. She did not answer his call. He opened the window kept ajar and peeped inside. At that time, he found his father (appellant) muffling the deceased and tying a noose around her neck by using a saree. He pulled her up towards a hook fixed on the ceiling. The witness was petrified and immediately rushed to his uncle by name John. When the relatives came, the deceased was found hanging from the ceiling. Although she was taken to a hospital, it was declared that she was dead.

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When examined, PW1 adhered to the statements in Ext.P1 FIS. He has narrated the appellant's

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attitude towards his mother and frequent quarrels happened in the household. He has also spoken to about the incident happened on the previous night. According to him, the appellant had hatred towards the family members of the deceased. The appellant wanted to get divorce from the deceased and also the share in the house, where they lived together.

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He compelled the deceased to execute a document on a stamp paper (Ext.P21).

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Although this witness was cross-examined, we find no material to discard his testimony regarding the incident. It is pointed out by the learned counsel for the appellant that PW1 has no consistent case as to the manner in which the appellant allegedly hanged her from a hook fixed on the ceiling. According to him, PW1 initially stated that there was a ceiling

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fan in the room and later, he changed his version saying that it was only a hook

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CRL.A.No.1274 OF 2015

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provided and no fan was there. It is also pointed out by the learned counsel for the appellant that even according to the testimony of PW1, height of the ceiling was above 5 meters. It is, therefore, contended that

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without climbing on something, the appellant could not have put the saree through the hook. What PW1 saw was only the appellant putting a noose around neck of the deceased by muffling her. On seeing this, he became panic and rushed to his uncle's house for help and must not have seen the entire incident. The possibility of putting a noose around neck of the deceased and taking one end of the saree through the hook of the ceiling and tying the same end to the grill in the window and then pulling her up cannot be ruled out. This possibility is spoken to by PW10 also.

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Ext.P7 is the Postmortem Certificate. The

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ante-mortem injuries recorded in Ext.P7 are as

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follows:

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“ 1.Abrasion 4.5x0.5 to 2cm oblique on the front of neck across midline, 6cm below chin above the level of thyroid cartilage. Its right upper extent 2cm to right of midline and 6cm below jaw margin.

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Abrasion 10x0.5 to 0.7 cm oblique on the front of neck across midline. Its right upper extent 6 cm below right angle of jaw and left extent 6.5cm below left angle of jaw. In midline it was 6.5cm below chin and merges with injury no.(1).

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Abrasion 10.5 x 0.5 to 2.5 cm oblique on the left side and front of neck, its upper inner end 2.5 cm to the left of midline and 6.5cm below jaw margin and merges with injury no.(2). Its lower back end 12 cm below and behind mastoid process.

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Flap dissection of the neck done under a bloodless field. The subcutaneous tissue beneath injury no.(3) showed infiltration of blood over an area 10x2x0.4cm and that of injury no.(1) was pale, other areas were normal. Lower attachment of both sternocleido mastoid muscles showed infiltration of blood. Other neck structures including hyoid bone were found intact and normal.

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Contusion of scalp 3x2x0.5cm on the left side of head over the parietal prominence.

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Contusion of scalp 4x2.5x0.5cm on the left side of head 7cm behind top of ear.

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Contusion of scalp 3x3x0.5cm on the left side of back of head 3cm behind root of ear.

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Contusion 5.5x3x0.7cm on the left side of back of head overlying the mastoid

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process.

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All the scalp contusions (injury no's 4 to 7) were dark red in colour.

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Contusion 0.6 x 0.4 x 0.3cm on the left side of face 0.7cm in front of middle of ear.

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Contusion 4x4x0.6cm on the back of right arm 7.5 cm above elbow.

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Contusion 2.5x2x0.5cm on the back of right arm 7 cm above elbow.

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Contusion 7x7x1cm on the back of right arm and adjacent part of elbow, its upper extent 6.5cm above elbow.

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Contusion 3x1.2x0.3cm on the inner aspect of right arm 9cm below the middle of armpit.

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Contusion 1.5x1x0.3 cm on the inner aspect of right arm 3 cm above elbow.

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Injury no's 8 to 13 were bluish black in colour.

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Contusion 2.5x1.5x0.2cm on the inner aspect of right arm 6 cm below middle of armpit.

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Contusion 4x3.5x0.5cm on the back of right forearm 8 cm above wrist (brownish in colour)

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Contusion 2x1.5x0.5cm on the back of left arm 15.5cm above elbow.

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Contusion 2.5x2x0.5cm on the inner aspect of left arm 10cm above elbow.

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Contusion 2x2x0.3cm on the inner aspect of left arm 4.5cm above elbow.

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Contusion 2x2x0.5cm on the inner aspect of left elbow.

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Contusion 3.5x3x0.5cm on the inner aspect of left elbow. 1cm behind injury no. (19)

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Injury no's 16 to 20 were bluish black in colour.

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Abrasion 0.5x0.5cm on the outer aspect of left forearm 14cm above wrist (covered with brown adherent scab).

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Eight superficial incised wounds of varying sizes and disposition on the front of left wrist over an area 6x1.6cm (i) upper most one 2x0.1cm and horizontal (ii) 2.5x0.2cm, horizontal and 0.3cm below injury (i),(iii) 1.7x0.2cm, horizontal and 0.2 cm below the injury (ii) at its outer half, (iv) 2.5x0.1cm, oblique and 0.3cm below the middle part of injury (ii) and its inner end merging with the injury (ii), (v) 1x0.1cm, oblique and 0.3cm below the injury (iv) and merges with it at its outer part, (vi) 4.7 x 0.1 to 0.2 cm, horizontal and 0.3cm below the injury (iv) and the inner end of injury (v) merges at its middle (vii) 2x0.1cm, horizontal and 0.2cm below the injury (vi), (viii) 1.5x0.1cm, horizontal and 0.3cm below injury (vii).

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Contusions 2x1.5x0.5cm and 2x1.5x0.2cm on the right side of front of chest, 1cm apart and side by side, the inner one just to the right of midline and 13cm below the upper end of breast bone.

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Abrasion 0.5x0.1cm on the right side of chest 2.5cm outer to midline and 19.8cm below collar bone (covered with black loosely adherent scab).

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Contusion (yellow in the periphery and brown in the centre) 5.7x3.5x3cm with an

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abrasion 0.6x0.1cm (covered with brown adherent scab) at its right end, on the front of trunk across midline and its right extent 1.7cm to the right of midline and 23 cm below inner end of collar bone.

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Contusion (brown in colour) 3x2x0.3cm with an abrasion 1.4x0.1cm (covered with brown adherent scab) at its middle, on the right side of abdomen 30cm below collar bone and 0.5cm to the right of midline.

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Contusion (brown in colour) 2.5x2x0.5cm with an abrasion 0.6x0.2cm (covered with brown adherent scab) at its middle, on the right side of abdomen, just to the right of midline and 31 cm below the upper end of breast bone.

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Abrasion 5x0.1cm oblique on the left side of back of trunk, its lower inner end 0.5cm to the left of midline and 5.5cm below root of neck (covered with black loosely adherent scab).”

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Out of the above mentioned injuries, injuries 1 to 3 clearly indicate that they were caused due to constriction force around the neck. PW10, Dr.Sharija S., proved Ext.P7 Postmortem Certificate. She deposed that injuries 1 to 3 and their effect on the neck is sufficient to cause death in the ordinary course of nature. MO4 saree when shown to her, she deposed that a similar saree was brought along with the

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CRL.A.No.1274 OF 2015

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body, separately. It is her opinion that by tying the saree around neck of the victim and pulling her upwards, injuries could be caused. She further deposed that injuries 4 to 7 could be sustained by hitting or beating with hands

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or any blunt object. Similarly, she spoke about all the injuries noted in Ext.P7.

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The learned counsel for the appellant pointed

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out that no answer was elicited from PW10 regarding injury No.22 in Ext.P7. It is the argument advanced on behalf of the appellant

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that injury No.22, from its appearance,

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clearly indicates hesitation marks caused by a victim to oneself before attempting to commit suicide. It is true that minor superficial incised wounds mentioned as injury No.22 in Ext.P7 could be caused by any sharp weapon. It may give an indication of hesitation marks as well as defence wounds when somebody tries to attack the victim by a sharp weapon. Merely

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looking at injury No.22 in Ext.P7, we cannot find that the victim might have committed suicide by hanging. Our reasoning is fortified by the evidence tendered by other material witnesses.

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PW2 is the sister of the deceased. She also stated that there were frequent fights between the deceased and appellant. She further deposed that the appellant used to force the deceased for signing on some document for terminating their marital relationship. It is the case of PW2 that the appellant used to beat and abuse PW1. She saw PW1 crying and saying that his father hanged his mother on

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11.09.2009 at about 1.30 in the noon. Testimony of PW2 lends support to that of PW1. All the material objects were identified by

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PWs 1 & 2. Although marriage between the

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appellant and deceased was a love marriage, the harmony did not last long.

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Cross-examination of these witnesses did not

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yield any result.

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10.PW3 is the niece of deceased Irene. She

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resides in a nearby house. She also spoke about the fights frequently happened in the house of the appellant. She testified about the appellant abusing and hitting the deceased for their son taking Rs.500/- from his pocket. It is the testimony of PW3 that on 11.09.2009 at about 12'O clock in the noon, the appellant beat the deceased for not signing on Ext.P21 stamp paper. After sometime, there was an uneasy calm in the house. Thereafter, she found PW1 crying in a petrified state, saying that his father had hanged his mother. Testimony of PW3, despite cross-examination, remains credible and agrees with that of other material prosecution witnesses.

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11.PW4 is the younger son of the appellant. He testified only about the incident of taking

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Rs.500/- from the his father's pocket and he

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has no direct knowledge about the incidents happened thereafter.

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12.PW5 was declared hostile by prosecution and

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cross-examined with the permission of the court. He testified that when he along with other persons reached the house of the appellant, the deceased was found hanging from a hook in the ceiling. But, according to him, the door was closed at that time and therefore, they had to break open. When cross-examined, he did not say whether it was closed from inside or outside.

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13.PW6 is the brother of deceased Irene. PW1, in a state of utter grief, went to the house of PW6 to fetch him on seeing his father strangulating his mother by hanging. PW6 also deposed about the inhuman attitude of the

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appellant towards the deceased on many occasions prior to the incident. According to

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his unchallenged testimony, door of the room,

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where Irene's body was found, kept ajar. It was not locked. He also deposed that one end of the saree was tied in the window grill and the other end around neck of the victim. It indicated that she must have been pulled up by passing the saree through the hook in the ceiling. All these aspects were not seriously challenged in cross-examination and PW6's evidence remains believable.

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14.PW7 is a witness to Ext.P4 inquest report. She also identified the material objects including the apparels worn by the deceased at the time of her death. PW8 is a witness to Ext.P5 mahazar. PW9 is a nephew of the appellant, who turned hostile to prosecution case. Both sides cannot derive any benefit from the testimony of these witnesses. PWs 11 & 12 are the witnesses cited to prove the chemical examination done in this case.

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15.Another witness relevant to be mentioned is

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PW17, who was the Judicial First Class Magistrate, who recorded the statement of some witnesses under Section 164 Cr.P.C. PWs 20 & 21 are the investigating officers, who deposed about the steps taken in the investigation. We find no reason to find any defect in investigation causing prejudice to the appellant.

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16.Learned Sessions Judge has considered the above mentioned evidence meticulously and came

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to the conclusion that the appellant was extremely cruel towards his wife and was torturing her physically and mentally, thereby guilty of offence under Section 498(A) IPC. He

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is also found guilty of murder under Section 300 IPC and therefore, liable to be punished under Section 302 IPC.

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17.On re-appreciation of evidence, we find no

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reason to accept the theory of suicide

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attempted to be projected by the learned counsel for the appellant. Considering the material prosecution evidence, coupled with the testimony of PW10, Dr.Sharija S., and the recitals in Ext.P7 Postmortem Certificate, we are of the definite view that the death of Irene was caused due to strangulation by hanging. The fact that one end of saree was tied around the grill of the window, as spoken to by PW6 and other witnesses, would show that it could not have been a case of suicide and it probablises the case of pulling up the victim by someone else. On considering the material aspects in the evidence and the reasoning adopted by the court below, we find

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no reason to take a different view in the light of the evidence adduced in this case. In the result, we find the appellant guilty of the offences charged against him and therefore, the conviction and sentence imposed

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by the court below on him is proper and legal. The appeal is without any merit and hence, it

is dismissed.

Sd/-

A.HARIPRASAD

JUDGE

Sd/-

N.ANIL KUMAR

JUDGE

Bka/13.11.2019

Frncis v. Sate of Kerala

Case brief

What is this about?

What did the court decide?

Frncis v. Sate of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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