SHANU T. HAMEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Sessions Judge, Kottayam in S. C. No. 8 of 2009 (Old No. 277 of 2006) on his file found the Respondent in DSR 3 of 2009 guilty for offence under Section 302 of the Indian Penal Code and sentenced him to death. Seeking confirmation of the death sentence, reference was made by the Sessions Judge as mandated under Section 366(1) of the Code of Criminal Procedure. Assailing the conviction and sentence, the convict - -Respondent in the DSR (hereinafter referred to as the Appellant) has preferred the appeal, Crl.A. 1134 of 2009.

(2.) P . W.8 Sainulabdeen, who retired from Army while working in the Rank of Subedar Major, had a son and a daughter. The daughter was named Sareena. Sareena, while pursuing her Postgraduate Degree in Literature, was married to the Appellant on 25 -10 -2001. The Appellant was stated to be employed in Muscat and had immovable assets as well as business in vehicles. At the time of marriage, Sareena was given 150 sovereigns of gold ornaments, Rs. 1,00,000 in cash and a Delux Maruti car of which Ext.P -17 is the Registration particulars. After the marriage, the Appellant did not go abroad; but he continued some business in automobiles at Paippadu, near Changanacherry. The business was not successful. The matrimony was blessed with a daughter in the following year. On the 40th day of the birth of the child, who was named Amisha, ornaments weighing 20 sovereigns were obtained from the relatives. The Appellant, who was a spendthrift, had squandered all the gold ornaments and the money. Thereafter, the Appellant had been demanding money from P. W.8. On 25 -8 -2006, the Appellant telephoned P.W.8 and demanded Rs. 50,000 and also to hand over a fixed deposit receipt for Rs. 10,000 in the name of the child. But P. W.8 was not amenable. On the next day, at about 10 a.m., the Appellant strangulated Sareena with a shawl which was marked as M.O.6. When she became unconscious, she was lifted to the store room attached to the kitchen of the house. Amisha, who had been to the neighbourhood and playing with the daughters of P. W.4, was called back home and she was also strangulated with M.O.6. When she became unconscious she was also lifted to the store room. He cut down the rubber tube connecting the gas cylinder with the stove and took the gas cylinder to the store. Then it was noticed that Sareena was moving. He took M.O.5, a wooden model of a snake boat kept in the show case and inflicted severe injuries at the head, face and neck of both Sareena and Amisha. Then the Appellant sprinkled kerosene, which was kept in M.0.12 bottle, over the face of both. The regulator of the gas cylinder was then opened and ignited. The gas caught fire with explosion. Hearing the explosion, the neighbours ran to the house which was found locked from inside. The tape recorder and television were switched on in full swing. P. W.3 Ratheesh, an immediate neighbour and others asked the Appellant to open the door. The Appellant did not heed. So, they attempted to kick open the door, but in vain. By the time, the Appellant opened the back door. P. W.3 and others entered the house and found that Sareena and Amisha, who were lying in the store room, were on flames. Water was poured over and put off the fire. Amisha was taken out first and rushed to Pushpagiri Hospital, Thiruvalla, where P. W.11 was working as a Medical Officer. P.W. 11, after examining Amisha, declared her 'brought dead' with a history of burn injuries. Sareena was also lifted to the very same hospital. She was also declared 'brought dead'. The matter was informed to the police by phone for which Ext.P -8 treatment report was prepared. Some of the gathered telephoned the matter to the uncle of Sareena who was examined as P.W. 1. P.W. 1, who was running a hotel at Kollakadavu, rushed to the hospital and found Sareena and Amisha dead with burns and other injuries.

(3.) THE learned Sessions Judge, after hearing the prosecution and the Appellant, found that there are materials to send the Appellant for trial for offence under Section 302 IPC. Hence, charge was framed. When read and explained, he pleaded not guilty. Therefore, the Appellant was sent for trial. On the side of the prosecution, P.W 1 to P.W.20 were examined. Exts.P -1 to P -26(a) and M.Os. 1 to 33 were marked. During the course of the cross -examination of P.W.7, Exts.D -1 and D -2 were marked. After closing the evidence for the prosecution, the case was posted for recording the statement of the Appellant. But the Appellant absconded. In spite of repeated coercive steps, he could not be apprehended. Consequently, the case was transferred to L P Register and periodically arrest warrants were repeated. On 5 -1 -2009 the Appellant was arrested and produced. Thereupon, the case was re -numbered. Since it was submitted that he was not engaging a counsel, the Sessions Judge appointed Adv. Sri R. Sudevkumar to defend the Appellant. The Appellant was then questioned under Section 313 of the Code of Criminal Procedure. He admitted the relationship between himself and the deceased and further stated that they were leading a harmonious life and he was very affectionate to his wife and daughter. He had some failure in the business. He asked Sareena to demand back the amount which he had lent to P.W.8, but Sareena did not agree. Since he could not find out any other source for money, he insisted to demand back the amount. Though he went to the sit out with phone to call P.W.8, he did not. He returned back to the room. While so, he heard a sound from the kitchen. He rushed to the kitchen. He heard the cry of the daughter from the store room. He kicked on the door. The door fell into the store room over Sareena and the child. No sooner door fell down, than the fire and glass pieces were flown out. He put off the fire with water. Hearing his cry for help, the locals gathered. He lifted the child to the kitchen and hugged her. The gathered people obstructed him and thereafter he lost his sense and came to senses only when police came to the house. The prosecution and the Appellant were then heard and on finding that the Appellant is not entitled to be acquitted under Section 232 of the Code of Criminal Procedure, he was called upon to enter his defence. No defence evidence was let in. The Appellant and the prosecution were again heard. The learned Sessions Judge, on appraisal of evidence entered a finding of guilt. Accordingly, the Appellant was convicted. Again, the Appellant and the prosecution were heard regarding sentence. The learned Sessions Judge arrived at a conclusion that the case on hand falls within the category of 'rarest of the rare' cases. Consequently, the Appellant was sentenced as above.