Dismissed

Bokkan, S/O.Killan, C.NO.2219, Central Prison, Kannur v. State of Kerala

Kerala HC19 Oct 2020CRL.A/517/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the criminal appeal against a conviction for life imprisonment under Section 302 IPC, confirming the trial court's finding that the appellant throttled his wife to death and then hung her to stage suicide, citing overwhelming medical and ocular evidence.

What did the court decide?

Conviction and life imprisonment confirmed; appeal dismissed.

Bokkan, S/O.Killan, C.NO.2219, Central Prison… — Murder and Culpable Homicide | Kerala HC (2020)

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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 MRS. JUSTICE M.R.ANITHA

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MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942

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CRL.A.No.517 OF 2016(B)

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AGAINST THE JUDGMENT IN S.C.NO.675/2011 DATED 06-11-2013 OF ADDITIONAL DISTRICT AND SESSIONS COURT, OTTAPALAM

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CRIME NO.147/2007 OF AGALI POLICE STATION

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APPELLANT:

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BOKKAN, S/O.KILLAN, C - 2219, CENTRAL PRISON, CORRECTIONAL HOME, KANNUR

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BY ADV. FARIDIN .A.S (STATE BRIEF)

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RESPONDENT:

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STATE OF KERALA (SHO, AGALI POLICE STATION, PALAKKAD)

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R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C

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SMT S L SYLAJA, SPL. PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.517 of 2016

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A.HARIPRASAD & M.R.ANITHA, J J.

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Crl.Appeal No.517 of 2016

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-------------------------------------Dated this the 19^th day of October, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Aggrieved by the conviction and imposition of life imprisonment under Section 302 of the Indian Penal Code (IPC), the accused in Sessions Case No.675 of 2011 before the Additional Sessions Judge, Ottapalam has come up in appeal. In fact, this is an appeal preferred from the Central Prison. After issuing notice to the parties, Sri.Faridin.A.S is appointed as State Brief. We heard the learned State Brief and the learned Public Prosecutor and perused the records carefully.

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The charge framed against the appellant by

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the trial court reads thus:

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“That on 4-11-2007, at 7 p.m., in the unnumbered house situated at the eastern side of Thazhe Abunnur Ooru, Padavayal village in Mannarkkad Taluk, where you along with your wife deceased Chathi and children were residing, you quarrelled with deceased Chathi, suspecting

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her chastity, and with the intention of committing murder of Chathi and knowing that your action would cause the death of Chathi, you tied a shawl around her neck, and strangled her to death, thereby you committed murder of Chathi and thereby committed an offence punishable under section 302 of IPC which is within the cognizance of this court”.

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Admittedly, the appellant and his deceased wife are Adivasis residing in a hamlet(in Malayalam 'OOru') within the limit of Agali Police Station. The prosecution case in short is that on 04/11/2007 at 07.30pm, the accused, who was suspicious of his wife Chathi's fidelity, throttled her to death and thereafter her body was hanged on a beam on their roof top to make it appear that it is a case of suicide.

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The defence taken by the appellant was of total denial of his involvement.

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In order to substantiate the prosecution cas e, 19 witnesses wer e examined and 16 documents were marked. Material objects are MOs1 to 4. No defence evidence was adduced. After considering the materials on record and considering the social strata of the parties, the trial court convicted the appellant under Section 302 to undergo imprisonment for life and to pay a fine of

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Rs.1,000/-. Sri. Faridin. A. S, the learned State Brief contended that the conviction of the appellant is not legally justifiable. Per contra, the learned Public Prosecutor supported the trial court's judgment by saying that the unchallenged testimony of material witnesses established the prosecution case beyond any reasonable doubt.

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Ext.P5 is the First Information Statement.

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PW10, who is the brother-in-law of the appellant (brother of the deceased) informed police about the incident on 05/11/2007 at about 14.00 hours. Even though the learned State Brief contended that there is inordinate delay in registering the FIR, we are of the view that the incident happened in a very remote area, close to Western Ghats and the persons involved are rustic Adivasis. According to the prosecution case, the incident happened at 07.30p.m on 04/11/2007. We do not find any reason to hold that the delay in registering the FIR was intentional. Therefore, this contention of the appellant cannot be sustained.

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In Ext.P5 FIS, PW10 has clearly mentioned that the appellant was in the habit of tormenting and assaulting his sister, the deceased, after consuming country

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liquor. The domestic violence was a routine affair in the household. It was also pointed out by PW10 at the time of examination that the appellant had baseless doubt about his wife's chastity. True, PW10 is not a witness to the incident. However, his testimony would show that the appellant was present at home at the time of occurrence along with their children aged 6 and 3 years. PW10's deposition remains credible despite of the cross examination.

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PWs1 and 2 are witness to Ext.P1 inquest report. PW3 is a neighbour of the appellant and his deceased wife. Further, she was a friend of deceased Chathi. She also testified that the appellant used to assault his wife in an inebriated mood. PW3 also deposed that appellant had doubted fidelity of his wife. According to her testimony, on the night of occurrence at about 07.30pm she heard the appellant crying out that his wife was dead. PW3 and others went inside the house to find the deceased hanging from the ceiling on a shawl. Thereafter, the appellant untied the shawl and brought the body down. This witness also says that children of the couple were of

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tender age.

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PW4 is the village officer who prepared

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Ext.P2 sketch. PW5 is another neighbour of the appellant who attested Ext.P3 scene mahazar.

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PWs 6, 7 and 8 are neighbours. PW6 also deposed that the appellant used to pick up quarrels with his wife after drinking. According to him this was a usual occurrence. This witness also speaks about the doubt entertained by the appellant about his wife's truthfulness. PW6 stated that on the fateful day after 06.30 pm he heard the appellant yelling that his wife was dead. When PW7 went there, the body was laid on the floor. PW7 also deposed in the same lines as other material witnesses. PW8 emphatically stated that the appellant was in the habit of beating his wife in a drunken bout. All these witnesses speak about the appellant's suspicion about his wife's truthfulness. The testimony of these witnesses prove two things clearly. Firstly, the appellant was present at the time of his wife's death. Secondly, on the fateful day also there was a bitter quarrel within the household.

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PW9 is a police officer who is a witness to

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Ext.P4 seizure mahazar whereby the dress worn by the deceased were recovered. The dress materials have been sent for analysis which is proved by PW19.

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PW11 is a resident of the Ooru and he was

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examined to prove that the appellant was present in their home at the time of occurrence. The testimony of PW12 is very important. PW12 Dr. P. B. Gujaral conducted the autopsy on the body of deceased Chathi and issued Ext.P6 post-mortem certificate. The ante-mortem injuries noted on Ext.P6 is as follows:

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A. General : Body of a moderately built and nourished female of length 153cm. Eyes closed, cornea hazy, conjunctiva intensely congested with subconjunctival bleeding on right side. Rigor mortis passed off from jaw and upper limbs and feebly retained in lower limbs. Postmortem staining on back of trunk fixed. Bleeding present from the vagina. Postmortem ant bite marks were seen on face, neck, chest and at places on the limbs. Body was kept in freezer at 11.00 pm on 05.11.07.

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B-Neck : A fresh, ante-mortem pressure abrasion of size 31.5x2.5 to 5 cm is seen transversely all around neck, placed at and below the thyroid cartilage in midline front of neck, 6cm below chin (breadth 3cm), 4cm below right ear lobule (breadth 5cm), 3cm below left ear lobule (breadth 2.5cm) and 2cm above root of neck in midline back of neck (breadth 3cm). There were patchy areas of blood infiltration along the base and edges of this pressure abrasion. There was another pressure abrasion without any evidence of ante-mortem nature and of size 19x2.5 to 3cm, coursing upwards and backwards from at and above thyroid cartilage in midline front of neck, 3cm below chin (breadth 2.5cm) to its right end at just below right angle of jaw (breadth 3cm) and to its left end at 4cm behind left ear lobule (breadth 3cm). The neck also showed the following fresh ante-mortem injuries -

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1. Crescentic abrasion 1.2x0.4 cm, on right half of front of neck, 1cm below jaw margin and 6cm outer to midline

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Crescentic abrasion 1.1x0.3 cm, on right side of neck, 4cm below right ear lobule.

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1. Crescentic abrasion 1x0.2cm, on right half of front of neck, 3.5cm below jaw margin and 3cm outer to midline.

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Contused abrasion 2x1 cm on right side of neck, 6cm below ear lobule.

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1. Crescentic abrasion 0.9x0.2 cm, on left side of neck, 5cm below ear lobule.

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Crescentic abrasion 0.7x0.2 cm, on left side of neck, 6cm below ear lobule.

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Crescentic abrasion 1x0.2 cm on left side of neck, 7 cm below jaw & 5 cm outer to midline.

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Flap dissection of neck in a bloodless field showed patchy areas of blood infiltration in the skin and subcutaneous tissues underneath the first pressure abrasion all around neck and also in the subcutaneous tissues underneath the crescentic abrasions. Thyroid cartilage showed an oblique fracture at lower outer end of the right lamina, with blood infiltration around the fracture site. The hyiod bone was intact. There were no blood infiltration or visible pallor or any findings suffestive of ante-mortem nature of the injury, underneath the second pressure abrasion which is oblique and non-continuous.

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C. Injuries (Ante-mortem):

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Superficial contusion 2x1 cm, on right side of face, 3cm in front of tragus of ear.

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Contusion 2x0.5x0.2 cm, on left cheek, 4.5cm outer to nostril. 3) Contusion 1.2x0.4x0.2 cm, on right side of face, just outer to nostril. 4) Contusion 1.5x1x0.2cm, on inner aspect of upper lip, in midline. 5) Multiple contused abrasions over an area of 3x2 cm, on back of left elbow.

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D. Other fndings :i Skull intact. Brain intensely congested with patchy areas of subarachnoid bleeding. Lungs were congested and edematous. Heart normal, coronaries patent. Liver, spleen and kidneys were intensely congested. Stomach contained partially digested, softened rice and other food particles in a semisolid medium, no unusual smell, mucosa normal. Bladder empty. Vagina normal, admitting two fingers loosely, hymen absent. Uterus size normal, cavity contained menstrual blood. Tubes and ovaries were normal. Spinal column and cord were intact. All other organs were congested, otherwise normal Viscera preserved for chemical analysis and vaginal swab to look for semen.

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Opinion as to cause of death :

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"The deceased died due to LIGATURE STRANGULATION. There is evidence of Attempted Throttling and Postmortem Suspension on the body".

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PW12 emphatically deposed that the nail marks with blood infiltration in the subcutaneous tissues are suggestive of attempted throttling while the victim was alive. Further, fracture of thyroid cartilage is not seen normally in suicidal hanging. Intense congestion of conjuctiva with subconjunctival bleeding on right side indicated violent aspiration caused by constriction force applied to neck. On

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noticing the above facts, PW12 pointed out that the deceased died due to Ligature Strangulation and there was evidence of attempted throttling and postmortem suspension of the body. This clear deposition of PW12 has not at all been challenged in the cross examination. The evidence given by PW12 definitely shows that the victim was throttled to death and then later hanged. The oral evidence adduced by independent witnesses also probabalize the testimony of PW12. In the absence of any challenge levelled against the medical as well as ocular evidence, we find the court below is justified in finding that the appellant is responsible for his wife's death.

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PW13 is the Panchayath Secretary who issued ownership certificate Ext.P7 in respect of the house. PW14, a police officer was in the bandobust duty of the dead body. PW15 recorded Ext.P5 FIS and registered Ext.P8 FIR. PW16 is the S.I of Police prepared Ext.P1 inquest report. PW17 Circle Inspector of Police conducted the investigation. He questioned the material witnesses. He prepared the scene mahazar. From the chief examination of PW18, it can be seen that a case of suicide could be ruled

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out for the reason that the deceased was only having 153cm height whereas the beam was having a height of 170cm. There is no case for the defense that the deceased used some stool, chair etc. to climb for committing suicide. In the absence of such a suggestion, the case of homicide is very much probabalized. The appellant was arrested on 08/11/2007 at 06.00 pm by PW18. PW17 collected all the evidence and filed a final report on finding that the appellant is responsible for the murder. PW18 was the A.S.I of police who sent a report Ext.P6 for adding an offence under Section 302 of the IPC. PW19 is the Chemical Examiner who proved Ext.P15 Chemical Analysis Report.

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On reassessing the entire evidence, we are of the view that the trial court has considered the materials on record properly to arrive at a conclusion that the appellant on the fateful evening throttled his wife to death and thereafter hanged her from the roof. The defense case of complete innocence is highly improbable and the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. All the circumstances point only to his guilt.

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The contention raised by the learned State

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Brief that non examination of six year old child is fatal to the prosecution cannot be accepted in the light of the fact that the child was of a tender age and also that the parties are Adivasis having no exposure to normal worldly affairs. At any rate, non examination of the child cannot be a reason to find that the appellant is innocent in the light of overwhelming evidence adduced against him.

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In the result, the appeal is dismissed confirming

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the conviction and sentence imposed on the appellant.

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A. HARIPRASAD, JUDGE.

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M.R.ANITHA, JUDGE

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Bokkan, S/O.Killan, C.NO.2219, Central Prison, Kannur v. State of Kerala

Case brief

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Bokkan, S/O.Killan, C.NO.2219, Central Prison, Kannur v. State of Kerala

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