Mahim Settu @ Sunil vs State of Kerala

Sasidharan Nambiar,J.

Appellant was convicted and sentenced to imprisonment for life for the offence of uxoricide by Additional Sessions Judge, Ernakulam in S.C. No. 252/2007. Appellant married deceased Sabina on 17.08.1997. PW7 Fathima was born in that wedlock. PW2 is the mother of the appellant. The deceased along with the appellant PW2 and PW7 were residing in their house. Deceased was pregnant by four months. Prosecution case is that, appellant was subjecting the deceased wife to cruelty and harassment and on 27.10.2006 while the deceased was lying on the bed due to illness and could not stand up, it was disclosed to the appellant by his mother PW2. Appellant immediately took MO1 reaper and beat her all over her body causing about 42 injuries. PW2 first took the deceased to Mattanchery Hospital. A Gynecologist who was attending her earlier for pregnancy, referred her to General Hospital, Ernakulam where she was admitted as an inpatient. She was thereafter taken to the Medical College Hospital, Thiruvananthapuram, from where she breathed her last on 01.11.2006. PW1, the brother of the deceased getting information, furnished Ext.P1 F.I.Statement. Under Ext.P1(a)F.I.R, crime was registered u/s 174 of Code of Criminal Procedure. Ext. P1(a) was submitted to the Sub Divisional Magistrate. PW17 the Sub Inspector of police proceeded to the Medical College Hospital and prepared the Ext.P2 Inquest Report. On the materials collected at the time of the inquest, finding that an offence u/s 302 of IPC was attracted, Ext.P12 report was submitted before the Judicial First Class Magistrate reporting that the offence u/s 302 of IPC is attracted and therefore the case is being investigated incorporating the said offence and requesting the court to get the records and FIR from the Sub Divisional Magistrate Court. The PW18 arrested the appellant on 03.11.2006. PW10 the Asst. professor of Forensic Medicine and Deputy Police Surgeon of the Medial College Hospital conducted the autopsy on the body of the deceased and prepared Ext.P4 Postmortem Certificate. The final opinion was reserved till the receipt of pathological and Chemical Examination reports of the viscera and parts of organ collected at the time of autopsy. On getting Ext.P6 report of Chemical Examination and Ext.P7 report of pathology, Ext.P5 final opinion was furnished as death was due to the circulatory failure accelerated by the injuries. After completing the investigation charge was laid by the Magistrate who committed the case to the Session Court. When charge for the offence under Sections 302 and 498A of Indian penal Code was framed appellant pleaded not guilty. Prosecution examined 18 witnesses and marked 16 exhibits and identified MO1. After closing the prosecution evidence and questioning u/s 313 Code of Criminal Procedure, finding that there is evidence against the appellant, and is not a case for acquittal, appellant was called upon to enter on his defence and adduce evidence. Dws 1 and 2 were examined and D3 was marked. Exts. D1 and D2 portion of statements of PW1 and PW2 were earlier marked while cross examining the prosecution witnesses. Learned Additional Sessions Judge on this evidence convicted the appellant for the offence u/s 302 and acquitted him for the offence u/s 498A of Indian Penal Code. The appeal is filed challenging the conviction and sentence.

Learned counsel appearing for the appellant and the learned Public Prosecutor were heard.

Argument of the learned counsel appearing for the appellant is that the learned Sessions Judge did not appreciate the evidence in the proper perspective and failed to note that there was no motive for the appellant to cause the death of his wife. It was argued that the evidence of PW10 with Ext.P4 Postmortem Certificate and Exts.P5 to P7 reports, do not establish that death was caused due to the injuries inflicted by the appellant. The argument is that the cause of death is the failure of circulatory system and there is no positive evidence to prove that it was due to the injuries noted by the Doctor in Ext.P4. It is therefore argued that there is no evidence to prove that appellant caused the death. It was also argued that evidence establish that the deceased was first taken to the hospital at Mattanchery and thereafter treated at General Hospital Ernakulam and there after treated as an inpatient in Medical College Hospital, Thiruvananthapuram from where she died, and none of the medical records disclosing the details of the treatment in any of the hospitals is produced, and therefore prosecution has suppressed the material evidence and on the available evidence it is not possible to hold that death was caused due to the injuries inflicted by the appellant. It was also argued that the evidence of PW10 shows that the injuries noted in Ext.P4 would be caused by a fall and evidence of PW2 shows that the deceased had fallen at Mattanchery Hospital and in such circumstances the injuries, even if they accelerated the death, could have been caused by the fall and not by any injuries inflicted by the appellant. The learned counsel also argued that the evidence of PW2 the mother shows that appellant was mentally ill and it is further proved by the evidence of DW1 the doctor, who treated the appellant and corroborated by Ext.D3 treatment records, and also by the evidence of DW2. The argument is that in such circumstances the learned Sessions Judge should have found that appellant established that he is entitled to the exemption provided u/s 84 of the IPC. It was also pointed out that the evidence of PW7 the daughter shows that appellant was addicted to ganja and in such circumstances it is clear that even if appellant had committed any over tact it was not intentional or with sufficient knowledge of its consequences and therefore he cannot be convicted for the offence.

Learned Public Prosecutor pointed out that the evidence of PW10 the Doctor with Ext.P4 to P7 establish that death of Sabina was caused by the injuries inflicted on her with MO1 reaper and those injuries have accelerated the death due to circulatory failure and when PW10 was examined there was no case that the deceased Sabina suffered any other illness. It was also pointed out the fact that when PW2 disclosed to the appellant that the deceased was lying and she cannot stand up, appellant beat her with the reaper and these facts were not challenged in cross examination and there is no reason to disbelieve her evidence. The learned Public prosecutor also pointed out that the evidence of PW3, a neighbour and an independent witness, corroborated the evidence of PW2 proves that she had seen the appellant beating his wife. The evidence of PW6 the sister of the deceased and PW5 the sister-in-law of the deceased also establish that when they were in the Medical College Hospital with the deceased while changing her dress, they had seen the injuries on the body of the deceased caused by the appellant by beating her, and the evidence of PW7 who is none other than the daughter of the appellant fortifies the prosecution case. It is therefore argued that the finding of the Additional Sessions Judge that appellant caused the death of his deceased wife by beating her and therefore appellant committed the offence u/s 302 of IPC is perfectly correct.

The fact that the appellant married the deceased on 17.08.1997 and PW7 is the daughter born to them and they were living together in the house along with PW2 is admitted. It is also not disputed that on 26.10.2006 appellant was there in the house along with PW2 and the deceased. The evidence of PW2 that the deceased was feeling unwell and could not stand up in the toilet and sought her assistance and she brought her to the bedroom and the deceased was lying on the cot are not challenged in cross examination. Her evidence that PW2 disclosed to the appellant that Sabina could not stand up was also not disputed at the time of her examination. The assertion of PW2 that inspite of the disclosure that Sabina, his wife is not well, he took a reaper and hit her all over the body several times was not even challenged in the cross examination. Even otherwise, PW2 the mother of the appellant had no reason for falsely implicating the appellant. The evidence of PW3 the neighbour, establish that she also witnessed the appellant beating the deceased at that time. Though learned counsel argued that PW3 could not witness the incident from outside, when she was cross examined inspite of her evidence that she could see what happened inside the house of PW2, it was not disputed and it was not even suggested that she could not see the incident as claimed by her. PW7, the minor daughter of the appellant also deposed that appellant the father used to beat her mother. The evidence of PW5 and PW6 establish that the body of the deceased, showed marks of beating, when they changed her dress at the Medical College Hospital. The evidence of PW15 the doctor of General Hospital with Ext.P11 Wound Certificate establish that the deceased was taken to the General Hospital by none other than PW2 and the Doctor found multiple contusions and abrasions all over the back and right hand of the deceased and it was disclosed to the doctor that the injuries were caused by the husband of the deceased at their residence. In the light of these unimpeachable evidence, the learned Sessions Judge is perfectly correct in holding that the injuries noted by PW10 the Doctor in Ext.P4 Postmortem Certificate were inflicted by the appellant. The evidence of PW10, further establish that those injuries could be caused by a weapon like MO1. The unchallenged evidence of PW2 also establishes that injuries were inflicted by the appellant on beating her with a reaper.

Then, the question is what is the cause of death of deceased Sabina. Ext.P4 Postmortem Certificate with the evidence of PW10 Dr.Geetha establish that there were 42 anti mortem injuries on the body of deceased Sabina, when the postmortem was conducted on 02.11.2006. The injuries 1,2,4,17,30,31,38,39 and 42 are abrasions and injury Nos. 5,6,8,9 to 16, 18 to 27,29,32,37,40 and 41 are contusions. Injury No. 7 is a fracture of 10th rib on right side, at its back 7.5 c.m. outer to the vertebral attachment. The fracture showed rounding of its lower edge and right chest cavity contained 30 ml. of blood stain fluid. Injury Nos. 3 and 28 are hypo pigmented areas caused by abrasions. Ext.P6 the report of the chemical analysis shows that the viscera, liver and kidney parts, collected and sent for chemical analysis, showed negative results for organic and inorganic poisons. Ext.P7 pathological report shows that there was congestion of liver, spleen and kidney and mild cerebral edema as well as congestion on myocardium. Based on these reports, Ext.P5 final report was submitted by PW10 that the postmortem report are consistant with death due to circulatory failure and the injuries could have accelerated the death. Though learned counsel appearing for the appellant vehemently argued that for the failure to produce the treatment records from the hospitals at Mattanchery, General Hospital and Medical College Hospital, it cannot be found that death was caused due to the injuries and the doctor has not deposed that those injuries are sufficient to cause of death in ordinary course of death and hence It cannot be found death was due to the injuries. But on the evidence we cannot agree. The evidence of PW10 with the injuries noted in Ext.P4, and the results in Exts.P6 and P7 reports of chemical examination and pathology establish that the death of Sabina was caused due to the failure of circulatory system. The evidence of PW10 further establish that the death was accelerated by the injuries inflicted on her. The evidence also establish that the deceased was pregnant by four months and she was weak and was not having normal health. Even on the day of the incident, she was very weak and with the aid of the mother of the appellant she was taken to the bedroom and she was lying on the cot. It is after the mother disclosed to the appellant that the deceased could not even stand up, appellant took a reaper and beat her all over her body. The fact that none of the injuries independently is sufficient to cause death, does not mean that death was not caused due to the injuries inflicted by the appellant. The evidence of PW10 establish that when those injuries noted in Ext.P4 are inflicted on a pregnant woman who is physically weak death will be caused. In the light of the evidence on record finding of the learned Sessions Judge that death of Sabina was caused by the injuries inflicted by the appellant with MO1 reaper is perfectly correct.

Then the only question is what is the offence committed. Though the appellant sought to claim the benefit provided u/s 84 of Indian Penal Code on the evidence we cannot accept the plea. Section 84 provides that "nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law". Therefore, it is for the appellant to show that when he inflicted the injuries on the deceased, which caused her death, by reason of unsoundness of mind he was incapable of knowing the nature of the act or what he was doing was either wrong or contrary to law.

The doctrine of proof in the context of plea of insanity was laid down in Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, as follows :

When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S.84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime.

Apart from contending that he used to inhale ganja earlier, there is no evidence to prove that appellant was having any mental illness during the relevant time when he committed the murder. Though DW1 the doctor was examined and Ext.D3 treatment records were produced, they would only prove that after the case was committed to the Session Court, as it was represented by the appellant that he is having mental illness he was sent to a psychiatrist for treatment. Ext.D3 shows that he was examined by DW1 on 28.07.2007, in view of the order of the learned Sessions Judge and on examination that it was disclosed to the doctor that he was earlier taking alcohol and also using camabis. The history of the mental illness disclosed to the doctor was only that he used to scold his family members without knowing for what reason he was doing it. The doctor has only found that he has mental depression at the time of his examination. The said evidence of the doctor with Ext.D3 is insufficient to prove or to probablise the plea of insanity during October 2006. DW2 was also examined by the appellant. But the evidence of DW2 is that getting information that the wife of the appellant was admitted to a hospital, he came to her house and along with the appellant went to the General Hospital, Ernakulam. If appellant was a man having any mental illness much less was not a person who does not know what he was doing, DW2 definitely would not have taken him to the hospital. In the absence of any evidence to prove or even to probablise that appellant was not knowing what he was doing was wrong or contrary to law, during the relevant period the plea based u/s 84 of IPC can only be rejected. When none of the exceptions apply offence could only be under Sub Section 300 and punishable u/s 302 of Indian Penal Code. The evidence establish that though the deceased wife of the appellant was four months pregnant and was not physically fit and was not in a position to stand up and was lying on the bed and even after the said fact was disclosed to the appellant by none other than his own mother, appellant beat her all over her body with a reaper causing her death. In such circumstances, we are unable to agree with the argument of the learned counsel appearing for the appellant that he had no intention to cause her death. That fact is fortified by the fact that appellant was not prepared to take her to the hospital or even after she was removed to the hospital to provide her sufficient medical assistance or even to see her. In such circumstances, we find that the conviction of the appellant for the offence u/s 302 of IPC as is perfectly correct. The learned Sessions Judge has sentenced him only for imprisonment for life. Therefore, sentence also warrants no interference. Appeal is dismissed.