GIJIN @ GIJI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is against the conviction and sentence imposed under the judgment dated 24.01.2012 in Sessions Case No.289 of 2009 of the IInd Additional Sessions Judge, Ernakulam, by accused No.1.

(2.) One Amitha, the wife of accused No.1, found lying dead during the early hours at 3.30 a.m. on 21.08.2007 in an artificial tank situated near the house of accused No.1. At that time, accused No.1 and the victim were residing in the said house along with their only daughter aged 1 1/2 years, his brother, parents (mother and father) and PW6, Prasanth, the nephew of accused No.1. The father of the deceased (PW1) came to the house on getting information and gave the First Information Statement to PW19, Sub Inspector of Police, Kothamangalam, who registered a crime for unnatural death. An inquest was conducted by PW10 and post-mortem examination was conducted by PW17, the Assistant Police Surgeon, Medical College Hospital, Alappuzha. After the investigation, a final report was submitted for the offence punishable under Sections 302, 201 and 498A read with Section 34 of the IPC as against the appellant herein, the husband of the deceased, along with his mother, accused No.2, the mother-in-law of the deceased who was charged with offence punishable under Section 498A read with Section 34 IPC. The learned Sessions Judge, on consideration of evidence and after hearing both the parties, found accused No.1 guilty of the offence punishable under Section 302 and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for a further period of one year, with a direction to release the fine amount at the rate of Rs.25,000/- each to PW1 and PW9 and Rs.50,000/- to the child of the deceased. Accused No.2 was found not guilty and accordingly acquitted. The appellant was also found not guilty for the offence punishable under Sections 201 and 498A IPC. The conviction and the sentence imposed under Section 302 IPC against the appellant/accused No.1 is under challenge in this appeal.

(3.) There is no eye witness to the alleged incident and hence the prosecution is heavily relying on the circumstantial evidence. PWs 1 to 24 were examined by the prosecution and got marked Exhibits P1 to P46 and identified MOs 1 to 11. PW1 is the father, PW9 is the mother and PW20 is the sister of the deceased. PW2 is the brother and PW6 is the nephew of the appellant. PW3 is one Hanitha Chandran, with whom, according to the prosecution, accused No.1 maintained an intimacy and illegal relationship, which prompted him to commit the alleged crime. PW3 turned hostile to the prosecution when examined. Exhibit P17 is the inquest report proved through PW7. PW10 is the Tahsildar who conducted the inquest on the body of the deceased. PW11 is the Village Officer who prepared the site plan. PW12 is a neighbour who was examined by the prosecution in order to prove the recovery of MO4 Lungi belongs to accused No.1 under a seizure mahazar. PW13 is the husband of the employer of accused No.1. Accused No.1 at that time was working as a marketing agent and he was provided with a mobile phone by the employer (identified as MO2). PW14 is the photographer who took Exhibit P23 series of photographs and PW15 is the temple poojari who issued the marriage certificate pertaining to the deceased with accused No.1. PW16 is the Magistrate who recorded 164 statement of PW2, PW3 and PW8, which were respectively marked as Exhibits P3, P25 and P18. PW17 is the Doctor who conducted post-mortem examination on the body of the deceased and issued Exhibit P26 post-mortem examination certificate. PW18 is another Doctor who inspected the spot along with PW17 so as to have a scientific study regarding the possibility of an accidental fall in the water tank and commission of suicide. PW19 is the Sub Inspector who recorded Exhibit P1 FIS and registered Exhibit P1(a) FIR at 8.00 a.m on 21.08.2007. PW21 is the attester of scene mahazar. PW22 is the Circle Inspector of Police. On his measurement of the tank, the water level was found to be 1.04 metres. PW24 is the D.Y.S.P who took the investigation from 08.09.2007 onwards.