Babu vs State Of Kerala

The first accused in S.C.No.1153/2006 on the files of the Additional Sessions Court-VI, Thiruvananthapuram, has filed this appeal, challenging judgment of conviction and sentence dated 28.11.2016 rendered in the above case against him.

Heard the learned counsel for the appellant/1^st accused and the learned Public Prosecutor in detail. Perused the impugned judgment and the evidence available.

In this case, pursuant to death of one Thankam, Crime No.213/01 of Vanchiyoor Police Station was registered, and thereafter the husband and the sister-in-law of the deceased got arrayed as accused Nos.1 and 2 respectively on the allegation that they have committed offences punishable under Sections 323, 324, 326, 498A, 306 and 307 r/w. 34 of the Indian Penal Code (hereinafter referred to as 'IPC' for short), on the premise that Thankam died due to cruelty and assault at the instance of the first and the second accused.

The learned Sessions Judge on framing charge, PW1 to PW19 were examined, Exts.P1 to P15 and MO1 to MO3 were marked on the side of the prosecution. No evidence was adduced on the side of the defence.

On appreciation of evidence, the learned Sessions Judge found that the first accused/appellant had committed offences punishable under Sections 323, 324, 325, 306, 307 and 498A of IPC while acquitting the second accused. Thereby the appellant/first accused was convicted and sentenced as under:

It is submitted by the learned counsel for the appellant/first accused that, in this case, no convincing evidence was adduced by the prosecution to find commission of offences punishable under Sections 323, 324, 325, 306, 307 and 498A of IPC and Exts.P9 and P10, the photocopy of the extract of the diary and a photocopy of a letter respectively, alleged to be written by Thankam (the deceased), were given much reliance to find that the first accused had committed the above offences. According to him, Exts.P9 and P10 were taken by the Investigating Officer after a long delay, and the prosecution failed to establish the handwriting in Exts.P9 and P10 as that of Thankam (the deceased). According to him, PW1 and PW2, the children of Thankam, and PW4, a neighbour, though gave statements supporting the prosecution case, before the Police, during their examination before the Sessions Court, they turned hostile to the prosecution. Thus nothing extracted in their evidence against the appellant. Despite that, the learned Sessions Judge relied on Exts.P9 and P10, supported by the evidence of PW13 and PW14, who are the brothers of Thankam to find the guilt of the appellant. He has pointed out that if the evidence of PW13 and PW14, when read as a whole, the same is nothing, but hearsay. It is submitted further that even though the Doctor examined as PW12 noted injuries, the injuries would, by itself, not sufficient to hold that the first accused caused the injuries without support of convincing evidence. Therefore, the verdict would require interference to acquit the accused, enlarging benefit of doubts.

The learned Public Prosecutor strongly opposed the contentions raised by the learned counsel for the appellant/first accused and submitted that the evidence available in the form of Exts.P9 and P10, supported by the evidence of PW12, the Doctor, and Ext.P8, post-mortem certificate, as to cause of death, when read along with the evidence of PW13 and PW14, the prosecution case has been proved beyond reasonable doubts. Further the evidence of PW13 and PW14 is not hearsay in its entirety. Therefore, no interference in the impugned judgment is required.

Having considered the rival submissions, points arise for consideration are:

In the instant case, it is an admitted fact that Thankam died at 11.15 hours on 22.10.2001 and PW12 conducted autopsy on her body. Before the court, PW12 deposed that while she was working as an Assistant Professor of Forensic medicine and Deputy Police Surgeon, she had conducted post-mortem examination on the body of the deceased, Thankam, aged 30 years on 23.10.2001. She had noted the following 27 ante-mortem injuries.

Apart from that, in order to prove the contents of Ext.P9, photocopy of diary extract, originally written in Tamil, PW16, who translated the document in the form of Ext.P9(a), was examined. According to her, she had been working as a tutor at the Tamil Government Higher Secondary School and possessed degrees viz., M.A, Mphill and B.Ed in Tamil. As requested by the police, she had given a translation of Ext.P9, which got identified as Ext.P9(a). The police had also requested her to translate Ext.P10, but she could not translate the same because of many portions of the documents were unclear and illegible. She stated that Ext.P9 was a ‘nil’ dated letter written by a sister to her brother and his family. She greeted her brother, his wife and children. She read the legible portions of Ext.P10 also. In Ext.P10, Thankam had complained that she was harassed every day. She first had thought of not informing her family. She had not committed any wrong. She also noted an incident occurred on 20^th of previous month. When she entered an autorickshaw with her children, she was pulled out of the autorickshaw and an attempt was made to beat her. Sri.Manoharan, the autorickshaw driver, had restrained her. The child was also restrained. Her husband (might be) had gone in autorickshaw and she was rebuked for attempting to go to her residence. There was also a reference to the visit made by the uncle to whom she had stated that she was beaten up every day and she requested to be taken to her house. Further she stated that she could not write everything and she thought of committing suicide by jumping in front of the train. When she had come to the residence with daughter, on the 7^th day, the mother had instructed to thrash her. Thereafter, there was a quarrel after 10 to 15 days and she was beaten inside the residence. It was demanded that the thali be broken and she would be thrown on the road. Thereafter, she had slept near the door with her daughter. After giving tea, an attempt was made to beat her. Then she got into an autorickshaw with two children. Then her son was restrained and she was told to go anywhere and not to return never. She had gone to the railway road. When somebody told that they would hand her to the police, she had returned to the home fearing that police would beat her. Because of her situation all others have to suffer pain (probably intending her siblings). She though that she would not be permitted to live with two children. She could live only after the expiry of mother-in-law. She is the sole child of her mother and she would remember how her mother had nourished her with love. When Manoharan came on Monday morning the mother asked him to kick her down. When Manoharan came both had rebuked her heavily. He was kicked upon her abdomen.

PW16 further deposed that those lines were the only legible portions of Ext.P10 and that the rest could not be read as the photocopy was illegible. According to her, if it was the original of Ext.P10, she could have read the same. She further stated that in Ext.P9 diary extract, it was written at the beginning that her marriage took place on 03.03.1990. She added that in the writings, some Malayalam terms had crept into the writings, though they were written in Tamil Script and that there were numerous errors in the Tamil script. She noted that the letter was written in spoken language. She also admitted that in Ext.P10 “2001 February” was written in both Malayalam and Tamil.

Apart from her evidence, PW13 and PW14, the siblings of Thankam also supported the prosecution. PW13, deposed that his residence, which was the tharavad house of Thankam were situated at Azhakiyamandalam at Thakkala in Tamil Nadu. He could speak Malayalam but could not write or read the same. He was literate in Tamil. He testified that the deceased Thankam was his second sister and was married to the first accused. The second accused is the sister of the first accused and Parvathydai is the mother of the first accused. He deposed that while the deceased Thankam had been residing with the first accused at his residence at Punnapuram, the mother of the first accused also resided with them. PW13 stated that PW14 is his brother residing in Chennai. He further deposed that at 7 pm on 20.10.2001, the first accused had contacted him by telephone in the neighbouring house at Azhakiyamandalam. The first accused told him that Thankam was unwell and was admitted in the Medical College Hospital. He stated that he could not go to Thiruvananthapuram on that day because there was a marriage in the family, but he had sent his father to Thiruvananthapuram on 21.10.2001. His father informed him over phone that Thankam was in a serious condition. Then, he along with his brother (PW14) reached Medical College Hospital at 7.30 pm on the said day. He deposed that Thankam was admitted in the 17^th ward and only a neighbour named 'Lakshmi' was present with Thankam, and Lakshmi informed him that the first accused had left the hospital upon seeing him. He had immediately informed the matter to his brother. According to him, Thankam did not speak anything and was crying. He further stated that she symbolically entrusted her children to his father, implying that he was to take care of them. Subsequently, Thankam died on 22.10.2001. Regarding the marriage of Thankam, PW13 stated that her marriage with the first accused was solemnised in the year 1989. There had been quarrels in the family. The second accused also joined the first accused to quarrel with deceased. On the date of receipt of salary by first accused the second accused would be present there. He testified that there was harassment of the deceased 20 days prior to 20.10.2001 during which Thankam was physically manhandled and had become unconscious. On being informed so by the neighbours, he and others went to the residence of the accused and brought Thankam to Tamil Nadu and provided treatment. Thereafter, the second accused, her husband -Ramaswami and neighbour - Manoharan came there and took Thankam back, promising that there would be no further trouble and she was taken back to the residence of the first accused five days prior to 20.10.2001. PW13 further deposed that the first accused had insisted Thankam that nobody from her family should visit his residence and Thankam had complained to him that the first accused used to come home consuming alcohol, manhandle her and burn her body with cigarettes. He further stated that the children also had complained to him that on 20.10.2001 the first accused had manhandled Thankam and when she fainted, he took her to room and poured poison into her mouth and thereafter, the neighbours took her to the hospital by hearing her cries. The children had also complained to him that the first accused had manhandled deceased by hitting her with handle of a spade and with an iron rode. He further deposed that the Circle Inspector had seized a bottle, handle of a spade and a diary written by Thankam from the residence of the first accused. He had seen that diary and took a photocopy of the same from the Circle Inspector. He stated that he had given Ext.P6(a) FI statement to the police and identified MO1 and MO2. He deposed further that during further investigation, he had delivered the copy of the diary given to him by the Circle Inspector. PW14 had given him a letter written by deceased Thankam and he had delivered the same to the police. Before delivering the same to the police, he had taken a photocopy of the same. The said photocopy was also delivered to the police subsequently, along with Ext.P9 and, the same tendered in evidence through him as Ext.P10. The consistent version of PW14 is that the entries in Exts.P9 and P10 were written by Thankam in her hand. He could identify the hand writing of the deceased. During cross examination, PW13 stated that their family consider a “Madan statue” as the family deity, where goat sacrificing is an event. When such pooja would be conducted, the relatives would attend the same. The 1^st accused and his family used to attend such poojas only 7 years prior to 2001. The ‘Madan’ would enter the body of his father. He denied the suggestion that such practices were used to treat illness. He denied the suggestion that the 1^st wife of PW14 had died due to such pooja. He had also denied the suggestion that 5 days prior to 20.10.2001 such Pooja was conducted for deceased Thankam. He asserted that at that time, deceased was treated by Dwararaja Vaidiyar at Parakkodu. He testified further that while his daughter was attending college she had eloped with PW1 and there was no contact with her thereafter. He did not perform her marriage with PW1 and marriage, if any, was without his consent. When the 1^st accused contacted him on 20.10.2001 by telephone, the incident of consumption of poison by Thankam was not revealed by the 1^st accused. Injuries on the body of Thankam were noted by his wife and elder sister. His father was not capable of making complaint. The 2^nd accused had not resided with deceased Thankam.

PW14 testified that deceased Thankam was his younger sister. After marriage with the 1^st accused, she occasionally used to send letters to him. He also occasionally used to visit her. Thankam had told him that there were problems in the family and when the 2^nd accused would visit their house, there would be quarrels. He had met Thankam six months prior to her death. Then also she had said that there were problems. He further testified that on 18.10.2001, he had received a letter stating that she was being harassed and tortured. The letter further recited that she was beaten up and kicked and she intended to die. All such harassments were at the instance of her husband and accordingly, she said that herself and her children would die since she was subjected to torture very much by the first accused. He had immediately sent that letter to PW13, telling him that he was not able to attend her and PW13 and father should intervene in the matter and do something. On 21.10.2001, he got telephonic information that Thankam was in hospital. He reached the hospital at 11.00 hours on 22.10.2001 and met Thankam, and immediately thereafter she died. On 24.10.2001, he and PW13 went to the police station and delivered the letter which he had received from Thankam to the police. He was permitted to go through Ext.P10 (it was recorded by the Sessions Judge that while going through the said letter PW14 cried). PW14 identified Ext.P10 as the copy of the letter which he had received from Thankam and he had reiterated that Exts.P9 and P10 were written by Thankam in her own handwriting. PW13 was present with him when his statement was recorded and the recorded statement was translated to him by PW13. He did not deliver the cover in which the original of Ext.P10 was sent. He had sent the original of Ext.P10 to PW13 by post. He did not know whether envelope of the said letter was delivered by PW13 to police. According to PW14, PW13 had delivered the letter to the police and he was present there. Thankam used to send other letters but only this letter had mentally pained him, since it was recited there that Thankam was going to die, accused was harassing her very much and requested him to do something. The letter he received had 4 sheets and 8 pages [sides] without page numbers. Those papers were torn off from a diary. It was two full sheets (each having four pages). He stated that as Ext.P10 which is a zerox copy, it did not reveal that it had been taken from diary. The pages had lines but Ext.P10 did not have any line. When it was suggested that Exts.P9 and P10 as concocted documents, he had emphatically denied the same.

PW19 examined in this case is the Circle Inspector, who had conducted further investigation as per the order of the court on 21.06.2015. He deposed that on perusal of the records, he found that the documents seized as per Exts.P3 and P4 had not been produced in the court. Though he had made attempts to recover the same, he found that those documents had been irrecoverably lost. Therefore, he recovered Exts.P9 and P10, which were the copies of the diary and letter, from the possession of PW13. Ext.P15 was the mahazar prepared for recovery of those documents and he obtained Ext.P9(a) translation of Ext.P9 and he was told that it was not possible to translate Ext.P10.

Here is a case where the learned Sessions Judge found that the accused had committed offences punishable under Sections 323, 324, 326, 306, 307 and 498A of IPC. According to the learned counsel for the appellant, despite the hostility of PW1, PW2 and PW4, the learned Sessions Judge given emphasis on Exts.P9 and P10, supported by the evidence of PW13, PW14 and PW19, the siblings of the deceased Thankam. According to him, Ext.P9 is only a photocopy and Ext.P10 does not contain the entire diary. Therefore, reliance could not be given to those document. However, when reading the evidence of PW13 and PW14, along with the evidence given by PW16, who translated Ext.P9 as Ext.P9(a) (the transcribed version) and the contents of Ext.P10 to extend readable supported by the evidence of PW19, the investigating officer who as part of further investigation seized Exts.P9 and P10, when the same was found missing, would categorically show the physical and mental tortures suffered by Thankam before her death; which would constitute the ingredients for the offences found by the learned Sessions Judge. Thus the evidence of PW13, PW14, PW16 and PW19, supported by Exts.P8, P9 and P10, when marshalled with the evidence of PW12, the doctor who conducted the autopsy on the body of Thankam, which would show 27 ante-mortem injuries, and the evidence brought out from Exts.P9, P9(a) and P10, is liable to be accepted, as rightly done by the learned Sessions Judge. Thus none of the contentions raised by the learned counsel for the appellant, including his contention that the handwriting in Exts.P9 and P10 were not identified, the evidence of PW13 and PW14 is mere hearsay could not be accepted. Similarly, his contention regarding hostility of the children of the accused also has no significance, as the children, now under the control of the accused after their mother’s (Thankam’s) death, are not expected to give evidence against their father. Therefore, the same is a natural consequence, and thus, this contention also must fail.

Thus it is held that the learned Sessions Judge is right in holding that the appellant/first accused had committed offences punishable under Sections 323, 324, 326, 306, 307 and 498A of IPC. Therefore, the said conviction does not require any interference.

Coming to the sentence, having noticed the seriousness of the allegations, on par with the sentence imposed by the learned Sessions Judge, modification of sentence also cannot be considered in the facts and circumstances of the case. In such view of the matter, the sentence also is liable to be confirmed.

In the result, this appeal fails and the same is dismissed. The order suspending sentence and granting bail to the appellant/first accused stands cancelled and the bail bond executed by the first accused also stands cancelled. The appellant/first accused is directed to surrender before the Sessions Court, forthwith to undergo the sentence, failing which, the Sessions Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Sessions Court, forthwith, without fail, for information and compliance.