The High Court of Kerala confirmed convictions for wrongful confinement and voluntarily causing hurt but reduced the sentence to the period already undergone, considering prolonged proceedings and lack of premeditation.
Conviction confirmed; sentence of rigorous imprisonment reduced to the period already undergone; fine of Rs. 1000 reserved.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 13TH DAY OF DECEMBER 2022 / 22ND AGRAHAYANA,
1944
CRL.A NO. 1075 OF 2006
AGAINST THE JUDGMENT IN SC 637/2005 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM
APPELLANT/S:
1 ELAMMA KIZHAKKEL KURUVITHADATHIL, ARAKKUZHA KARA,, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK.2 BIJOY JOSE SO.MATHEW GEORGE KIZHAKKEL KURUVITHADATHIL, ARAKKUZHA KARA,, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK. BY ADV SRI.NIREESH MATHEWRESPONDENT/S:
STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
OTHER PRESENT:
REKHA,GP ,RAJESH A(SPL GP)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 1075 OF 2006
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JUDGMENT
The challenge in this appeal is to the judgment dated 06.05.2006 passed by the Sessions Judge, Ernakulam in S.C.No.637 of 2005. Accused Nos.1 and 2 are the appellants.
appellants/accused Nos. 1 and 2 for the offences under Sections 323 and 342 IPC and sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1000/- each.
The deceased Dr.Mathew George was a retired Professor. Accused No.1 is his wife. Accused No.2 is his son. In 2003, he was working as the Principal of Sree Narayana
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College of Teacher Education, Muvattupuzha. He was not in good terms with the other members of his family. The victim left his residence and took asylum in an old age home. His wife and son, accused Nos. 1 and 2 resisted the victim staying in the old age home. They approached the authorities of the old age home and pressurized them to send him out from there. Due to the pressure on the part of accused Nos. 1 and 2, the victim was sent out of the old age home. By the time, the deceased had executed a Will in respect of his assets. On knowing this, the accused tried to manipulate documents to the effect that the deceased was mentally ill. For that purpose, accused Nos. 1 and 2 approached the S.H.Mental Hospital, Painkulam and obtained medicines for the victim as if he was suffering from Paranoid psychosis with intent to administer the same to him without his knowledge. Later, the accused decided to take the victim forcibly to S.H.Hospital, Painkulam. They arranged a vehicle bearing No. KL-7/R 1047, a Tata Sumo car, with the assistance of
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accused No.3 and on 05.08.2003, accused Nos.1 and 2 tied the mouth and limbs of the deceased and forcibly took him to the hospital in the vehicle. By the time they reached the hospital, Dr.Mathew George had died. Accused Nos.1 and 2 took back the body of Mathew George to their house and made preparations for burying. The college authorities, on getting information regarding these incidents, lodged a complaint before the police alleging that the death of Dr.Mathew George was suspicious. Based on this information Crime No.465 of 2003 was registered by the Muvattupuzha Police. The Police conducted inquest and forwarded the dead body to the Medical College where the postmortem of the dead body of Dr.Mathew George was done. The Circle Inspector of Police, Muvattupuzha conducted investigation and submitted final report against the appellants and the other accused. The accused appeared before the trial Court. Charges were framed against them for the offences punishable under 342, 302, 120B and 511
CRL.A NO. 1075 OF 2006
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of 201 read with Section 34 IPC. They pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences.
appearing for the appellants/accused and Smt. Rekha S., the Senior Government Pleader.
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appeal, appellant No.1 died. As the sentence impugned was a composite sentence of fine and imprisonment, the appeal as against appellant No.1 shall not abate. Appellant No.2 prosecuted the appeal for and on behalf of himself and the appellant No.1.
The following points arise for consideration:-
(i) Whether the prosecution succeeded in establishing the ingredients of the offences punishable under Sections 342 and 323 IPC against the accused/appellants.
(ii) Whether the sentence imposed against the accused requires modification.
According to the prosecution, on the date of death, accused Nos.1 and 2, in their attempt to take the deceased to hospital tied his mouth and limbs and took him forcibly to S.H. Hospital, Painkulam in a vehicle. By the time they reached the hospital at Painkulam, Dr.Mathew George had died. Dr.Mathew George had
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CRL.A NO. 1075 OF 2006
sustained the following injuries as is evident from Ext.P12 post-mortem certificate.
“1) Abrasion 3x1 cm on the bridge of nose, just above its tip.
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contusion 8x6x1 cm Involving the left temporal region of the head, skull bone was normal. Duramater intact. Brain was congested.
The cause of death was found to be asphyxial death.
Teacher Education, Muvattupuzha where the deceased was employed at the time of his death gave Ext.P1 FIS. The prosecution examined PWs 3 and 9 to establish that the deceased was not in good terms with Accused No.1. PW3, Sr. Merin of Anjos Sadan , Basalhem, Vazhakulam gave evidence that in the month of July, 2001, Dr. Mathew George reached the old age home stating that he had some problems with other members of his family and that he wanted to stay there for six months. PW8 stated that
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the deceased stayed in the Anjos Sadan for nine months. Thereafter accused Nos. 1 and 2, his wife and son, came there and demanded them to send him out. PW8 stated that when accused Nos. 1 and 2 protested in permitting him to reside there, he left Anjos Sadan along with his son-in-law. The prosecution relied on the oral evidence of PW3, a teacher of Sree Narayana College, PW4 a marketing agent, PW6 another Lecturer of Sree Narayana College to establish that Dr. George Mathew had no mental decease. The oral evidence of PWs 3,4, 6 and 8 would show that the Dr. Mathew George had no mental illness. PW2 is the driver of Tata Sumo vehicle bearing Regn No. KL-7/R 1047. PW2 gave evidence that on 03.08.2003, accused No.3 had booked the vehicle for taking the father of accused No.2 to S.H. Hospital, Painkulam. According to PW8 on 05.08.2003 at 07.00 AM, he reached the residence of the accused No.3 and proceeded to Muvattupuzha. They reached Muvattupuzha and waited at Muvattupuzha Post Office Junction for some
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time. Thereafter, accused No.2 came and went to the house at Arakuzha.
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taken to the hospital against his will by using force. The injuries noted in Ext.P12 is sufficient to hold that the victim was taken forcibly to the hospital. So, the evidence of PW2 is sufficient conclude that the deceased was taken to the hospital in a vehicle with his hand and legs tied. There is convincing evidence to show that the deceased was wrongfully confined. It has also come out in evidence that accused Nos. 1 and 2 voluntarily caused hurt to the victim in their attempt to take him to the hospital against his will. Therefore the conviction under Sections 323 and 342 r/w 34 of IPC against accused Nos. 1 and 2 requires no interference. The same is confirmed.
proceedings in this case continued for more than 19 years
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CRL.A NO. 1075 OF 2006
causing immense mental pain, trauma and anguish to the accused. Accused No.1, who is no more, is the wife of deceased. Accused No.2 is his only son, who is now aged 45. He still remains unmarried.
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meditation in a sudden fight;
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CRL.A NO. 1075 OF 2006
convicting and sentencing the accused."
KHC 4640), the Apex Court, after taking into account the prolonged proceedings in the trial and appeal for nearly 17 years, reduced the sentence of two years' imprisonment imposed on the appellant therein to 7½ months being the period of imprisonment already undergone by him. The offence alleged in that case was punishable under Section 8 of the PC Act, 1988.
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The surviving appellant, accused No.2, has no criminal antecedents as per the materials placed before the Court.
am of the view that the sentence imposed on the appellant/accused No.2 requires interference.
In the result, the appeal is partly allowed.
(i) The judgment convicting the appellants/accused
Nos.1 and 2 under Sections 323 and 342 is confirmed.
(ii) The sentence imposed on appellant
No.2/accused No.2 is modified as follows:-
(a) Sentence passed against Appellant No.2/accused No.2 is confined to the period
of imprisonment he has already undergone.
(b)He is sentenced to pay a fine of Rs.1000/-/ .
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CRL.A NO. 1075 OF 2006
In default of payment of fine, he shall undergo simple imprisonment for a period of one month.
(c) Appellant No.1/accused No.1 is no more and the question of imposition of sentence against her does not arise. The fine imposed against appellant No.1 is recoverable from the assets if any she has left.
Sd/K. BABU, JUDGE
kkj
2 issues framed by the court
Whether the prosecution succeeded in establishing the ingredients of the offences under Sections 342 and 323 IPC against the accused.
Whether the sentence of one year rigorous imprisonment imposed on the appellant requires modification.
Colour shows how this judgement treated each authority
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1 provisions across 1 enactments
Elamma Kizhakkell Kuruvithadathil
Bijoay Jose So. Mathew George Kizhakkell Kuruvithadathil
State of Kerala
K. Babu
As recorded by the court registry
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K. Babu
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