N. Muralidharan Nair vs State
2009 Latest Caselaw 1093 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 CRL.A. 822/2007

%                             Judgment Reserved on: 29th January, 2009
                               Judgment Pronounced on: 1st April, 2009

       N. MURALIDHARAN NAIR                  ..... Appellant
                Through: Mr. Sumeet Verma, Advocate.


                                  versus


       STATE OF DELHI                            ..... Respondent
                Through:          Ms. Richa Kapoor, APP


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE ARUNA SURESH

       1. Whether reporters of local papers may be allowed
          to see the judgment?

       2. To be referred to the Reporter or not?              Yes

       3. Whether judgment should be reported in Digest?
                                                      Yes
                        JUDGMENT

: ARUNA SURESH, J.

1. This appeal is directed against the judgment dated

18.08.2007 and the order on sentence dated 31.8.2007

passed by the learned Additional Sessions Judge (ASJ). The

appellant was tried for having committed offence

punishable under Sections 302/307 as well as under

Section 309 Indian Penal Code (hereinafter referred to as

„IPC‟) for having murdered his child Vishnu, aged about five

years and for causing grevious hurt to his younger child

Varun aged about three years. He was acquitted of the

offence punishable under Section 309 IPC. However, he

was convicted for offence punishable under Section

302/307 IPC. He was sentenced to undergo imprisonment

for life and pay a fine of Rs.1,000/-, in default of payment

of fine to further undergo rigorous imprisonment (RI) for

one month for the offence under Section 302 IPC. He was

further sentenced to undergo RI for ten years and pay a

fine of Rs.1,000/- in default of payment of fine to further

undergo simple imprisonment (SI) for one month for the

offence punishable under Section 307 IPC.

2. An information was received by Head Const. Umed Singh

at Police Station Naraina on 21.5.2001 at about 11.18 P.M.

that one person had killed his son in House No.67, Kirbi

Place, Double Story, Army Quarters and that the child had

been removed to the hospital. Another telephone call was

received by HC Umed Singh that a murder had been

committed at P-76, Kirbi Place. This information as

recorded in DD No.34-A (Ex.PW-1/B). PW-12 SI Pankaj

Yadav along with PW-19 Ram Niwas reached the spot

around 11.45 P.M. There he recorded the statement of

complainant PW-6 Baby Joseph, he made his endorsement

Ex.PW-12/A at 2.15 A.M. on 22.5.2001 i.e. intervening night

of 21-22.5.2001 and got the FIR Ex.PW-1/A of this case

registered through PW-19 Const. Ram Niwas at 2.45 A.M.

Both Vishnu and Varun, the injured had already been

removed to Base Hospital, Delhi Cantt. by PW-21 Major

Philomina and PW-8 Major Anamma. Vishnu was declared

brought dead and Varun was declared unfit for making

statement by PW-20 Dr. Jasvinder Kaur. After examination

of the victims, she prepared the MLC Ex.PW-20/A of

deceased Vishnu and also the MLC of Varun.

3. Brief facts of the case are that the appellant was married

to PW-3 Major K.G. Sridevi Amma, an Army Officer. He

himself was unemployed and lived with his wife at the

place of her posting along with his two sons, namely,

Vishnu and Varun. PW-3 Sridevi Amma intended to visit

Bangalore to see her sister. She was threatened by the

appellant that if she took the children with her, he would

kill them and also would kill himself. Later on, she came to

know that her mother had expired and she left for

Trivendram. On 20.5.2001 appellant made a telephone

call to his wife PW-3 Sridevi Amma and asked her to come

back immediately by flight and threatened her of the life of

the children and also of himself. A bizarre incident took

place on 21.5.2001 when he murdered his elder son Vishnu

aged about five years and caused grevious injuries on the

person of his younger son Varun, aged about three years

and also made efforts to set himself of fire.

4. PW-6 Baby Joseph, the complainant in his statement

Ex.PW-6/A made to the police disclosed that on the

intervening night of 21-22.5.2001 at about 10.40 P.M.

when he was present in his own house, he heard a sound

of blast from House No.P-76-B which was in front of his

house. He immediately came out of the house and saw

Varun standing outside smeared with blood and was

weeping. He immediately went inside and saw smoke

coming out of the bed room of the said house and found

the door slightly ajar. He peeped inside the bed room and

found the other child, Vishnu lying on the bed smudged

with blood and the appellant, Muralidharan was standing

near Vishnu. He was saying that he had restrained his wife

from going to Bangalore but still she went and therefore he

had stabbed both of his children with a knife and had killed

them. He (PW-6) also extinguished the fire by throwing

out the gas cylinder lying in the room and sent both the

children to the hospital in a neighbour‟s car and informed

the police. He handed over appellant to PW-12 SI Pankaj

Yadav.

5. As PW-6, Baby Joseph has testified that on 21.5.2001 at

about 10.30 P.M. he was preparing his dinner when he

heard a big sound and came out of his house. He looked

around and also towards opposite House No.76 which is

situated at a distance of 50 yards. He noticed people

standing outside that house. He also went there and found

the windows of the said house having transparent glass

and saw the house lit. He saw one boy lying on the bed in

a pool of blood and another injured boy standing near the

bed. He also saw appellant standing nearby the boy with a

gas stove pipe in his hand. Flame was coming out of one

end of the pipe. Appellant was trying to put fire to the bed

lying there. Appellant was also trying to burn the child

standing near the bed with the gas flame. He forced open

the door which was having single latch from inside and

went inside. He again found door of the room where

incident took place bolted from inside which was forced

open by him. Sheejan (PW-10) also reached inside the

room to help him. He lifted Varun and handed him over to

Sheejan as he was bleeding from his neck. He also threw

the gas cylinder out of the house to extinguish the fire. He

lifted Vishnu lying on the bed and found that his throat was

also slit and he handed him over to another person so that

he could be taken to hospital. He asked appellant N.

Muralidharan as to what he had done, to which he said that

it was a family matter. He pulled out the appellant from

his house and handed him over to the persons standing

there. He informed the PCR and within ten minutes police

reached and the appellant was apprehended by the police.

He is a witness to the recovery of bloodstained clothes,

mosquito net, weapon of offence i.e. knife Ex.P-1 which

were seized vide memo Ex.PW-6/B. He identified the knife

Ex.P-1 as the same which was recovered.

6. Since PW-6 Baby Joseph stated that appellant had not said

anything to him when he entered the room or

apprehended him, he was allowed to be cross examined by

learned Additional Public Prosecutor (APP) for the State.

When cross examined by the learned APP, he accepted

that after coming out from the house appellant had stated

that his wife went to Bangalore despite his refusal to allow

her to go, he (appellant) stabbed both of his children with

a knife and killed them. He deposed that there was no

other person in the house except the appellant and his two

sons who were in an injured condition. He did not notice

any injury on the person of the appellant at that time.

7. In his cross examination he deposed that it was upon

enquiry from appellant Muralidharan after reaching the

spot that, he came to know that, appellant had hit the gas

cylinder on the wooden frame of the door which produced

the sound heard by him. He denied the suggestion that

doors were not bolted from inside and were open. He also

denied the suggestion that appellant was trying to

extinguish the fire and was not trying to set the bed on

fire.

8. When further cross examined, he replied that from the

transparent window pane the incident was also being

witnessed by him and the crowd. When asked further, he

replied that he remained at the spot till 11.00 P.M. and

thereafter he went to the hospital and in the hospital he

remained for about an hour and then came back to his

house. He deposed that recovery memos were prepared

at the Police Station in his presence as he was called there

on the next day at about 11.00 A.M. and he had signed

every recovery memo in the Police Station. His statement

was recorded at the spot in 20 minutes before his leaving

for the hospital and his supplementary statement was

recorded by the police in the Police Station. When further

questioned, he deposed that he did not know from where

knife was recovered by the police as he had seen it after it

was recovered. He deposed that sketch of the knife was

prepared in his presence in five minutes. When confronted

with the pipe, he stated that he could not see any burn

portion but, after careful examination of the pipe, he

deposed that there were burnt marks at the end of the

pipe which could be seen unevenly broken. To a question

put to him in the cross examination regarding the burn

injuries on the person of appellant, he replied that he did

not notice if appellant was having any burn injuries as he

was concentrating on the children.

9. PW-10 Mr. Sheejan George has deposed that on 21.5.2001

he heard a noise and saw crowd gathered in front of the

house situated opposite the house of her aunt with whom

he was residing. He saw Philomina, Baby Joseph, Annama

O.T. present in the crowd. He also went inside the house

of the appellant whom he identified in the court and found

Varun crying. He along with Baby Joseph brought Varun

outside the house. Varun was having injuries on his left

hand and was bleeding. Therefore, Annama O.T.,

Philomina and other persons removed Varun to the

hospital. However, he did not see Vishnu, but later came

to know that he had died.

10. In his cross examination he has stated that the noise which

he heard was similar to a blast in the transformer. He

followed Baby Joseph inside the house. He further testified

in the cross examination that he also saw appellant

Muralidharan at the spot.

11. PW-21 Major Philomina went to the house of the appellant

on hearing the noise from the rear side of his house and he

found Vishnu lying on the bed inside the house. On finding

him in an injured condition, he lifted him in his arms and

Varun was lifted by Major Anamma O.T. and they both took

the children in a vehicle to the Base hospital where Vishnu

was declared dead.

12. PW-8 Major Anamma reached the spot on hearing the

noise at about 10.30 P.M. and found a crowd gathered near

Sridevi‟s house. He saw Varun being taken out from

Sridevi‟s house in a critical injured condition. He also saw

Major Philomina had lifted Vishnu, the elder son of the

appellant in his arms. Both the children were taken to the

hospital. Later on he came to know that appellant had

injured his own sons and his elder son Vishnu died.

13. PW-4 Mohanan Nair is the brother of PW-3 Sridevi Amma,

wife of the appellant. He has testified that on coming to

know on 14.5.2001 that his mother had expired at

Waynad, Kerala, he went there to attend her last rites.

PW-3 Sridevi Amma and PW-5 Anand Valli, his sisters had

also reached there to attend the last rites of their mother

on 20.5.2001. A telephone call was made by the appellant

to PW-3 Sridevi Amma which was attended by PW-5 Anand

Valli, as Sridevi Amma was not well and had suffered head

injury. He deposed that appellant threatened her on

telephone „If Sridevi did not reach Delhi next day then he

will kill the children and himself'. On 21.5.2001, his cousin

brother Anil Kumar informed him on telephone „accused

Muralidharan has killed his elder son Vishnu while other

son was admitted in hospital in a critical condition.' PW-5

Anand Valli, has corroborated the testimony of PW-4.

14. PW-3 Major K.G. Sridevi Amma testified that she was

married to the appellant in December, 1992. They had two

sons out of the wedlock and at the time of the incident her

husband was unemployed. On 29th December, 2000 she

had received head injuries in an accident and she

remained on two month‟s sick leave. Since she wanted to

go to Bangalore to visit her sister to take care of her, she

was threatened by the appellant that if she took the

children with her then he would kill them and he would

also end his life. She joined her services after availing of

the sick leave. She further testified that on 14.5.2001 she

came to know that her mother had died and therefore she

left for Trivandrum by air to attend last rites of her mother

leaving behind the appellant and her two sons in her house

bearing No. P-76-B at Kirbi Place, Delhi. After reaching

Trivandrum she enquired on phone at about 10.00 P.M.

about the well being of her children. On 20.5.2001 she

received a call from the appellant who told her that if she

did not come to Delhi immediately, he would kill his sons

and also himself. On 22.5.2001 she received information

from her brother that her children were admitted in the

hospital and were in a serious condition. She came to Delhi

with her brother and two sisters, where she came to know

that her elder son Vishnu had succumbed to his injures and

Varun was under medical treatment. She has also

deposed that Varun had told the police in Malyalam that

his father had killed Vishnu with a knife.

15. PW-2, Anil Kumar had received phone call from the

appellant at about 8.00 P.M. on 21.5.2001 and appellant

had told him that he had killed his sons. On receipt of this

information he went to the house of appellant where he

found police officials present and the injured already

removed to the hospital.

16. PW-12, SI Pankaj Yadav seized knife Ex.P-1 from the spot

vide seizure memo Ex.PW-6/B; clothes of the appellant

Ex.P-2 and P-3 having blood-stains vide seizure memo

Ex.PW-12/C; a diary Ex.P-7, a pen Ex.P-8 vide seizure

memo Ex.PW-6/F, a gas pipe and various other articles. He

also seized one small diary having admitted hand writing

of the appellant vide seizure memo Ex.PW-12/H.

17. PW-17 Dr. Chandra Kant had conducted postmortem

examination on deceased Vishnu on 23.5.2001. On

examination, as per his report Ex.PW-17/A, he noted

following injuries:-

"External injuries:-

1. One incised wound on the outer aspect of lower 1/3rd of left leg, 3 cm above from left ankle, both margins clean cut, both angles acute, size 5 cms x 1.2 cm x tissue and tendon deep/vessels severed.

2. One incised wound on the lower 1/3rd of left forearm 4 cms above from left wrist joint. Both margins clean cut, both angles acute size 5 cms x 1.8 cms x tissue and tendon deep blood vessels severed.

3. One incised wound on the lower 1/3rd of interior aspect of right forearm 4 cms above from right wrist, both margins clean cut, both angles acute size 5 cms x 2 cms x tendon severed, blood vessels severed.

4. One incised wound on front of neck 5 cms away from chin and 5 cms above from supra-external notch, both margins clean cut, both angles acute size 8 cms x 2 cms x trachea deep and severed, blood vessels severed.

Internal injuries:-

1. Thyroid cartilage was transversely severed. Trachea was transversely severed with both margins clean cut, both angles acute. Underneath tissues and blood vessels were transversely severed and all injuries were corresponding externally with injury No.4.

2. Both lungs were congested; clotted blood was present in the cavity and bronchioles.

3. Stomach contain undigested, liquid contents, rice pieces identified, mucosa was healthy.

4. Liver, Kidneys and spleen were all congested.

18. He appended his opinion in his report Ex.PW-17/A

regarding cause of death as 'Shock, haemorrhage, injury to

trachea, injuries are ante-mortem in nature, caused by

sharp edged weapon and collectively all are sufficient to

cause death in ordinary course of nature.'

19. On 23.5.2001, knife Ex.P-1 was examined by him. After

examination he appended his opinion in his report Ex.PW-

17/B, „On examination of weapon in my opinion all four

antemortem injuries as described in the post mortem

report could be produced by the weapon examined by me.'

20. PW-20 Dr. Jasvinder Kaur had examined Vishnu on

21.5.2001 when he was brought to Base hospital with

incised injuries on his neck, both wrists and legs. She

declared him dead vide MLC Ex.PW-20/A prepared by her.

Weapon of offence i.e. knife Ex.P-1 was also shown to her

and after examining the weapon of offence and the injuries

mentioned in the MLC of Varun (not exhibited), she penned

down her opinion vide her report Ex.PW-20/B „the injuries

sustained by Varun, aged about 3½ years son of N.

Muralidharan as reflected in MLC No.1133 dated 21 May,

2001, are in my opinion caused by a sharp weapon. The

weapon which is shown to me may not be the same

weapon with which the injuries were caused. However,

such a weapon is capable of inflicting such injuries on the

person of Varun as observed by me on 21.5.2001.'

21. PW-22 Ms. Deepa Verma, Senior Scientific Officer (SSO)

after comparing the specimen handwriting of the appellant

with the admitted handwriting and disputed handwriting

opined vide her report Ex.PW-16/A that 'In my opinion the

person who wrote the blue enclosed writings stamped and

mark S-1 to S-8 also wrote the blue enclosed writings

similarly stamped and marked Q-1.'

22. On appreciation of the evidence available with him on

record, the learned ASJ found the appellant guilty of

committing murder of his son Vishnu and causing grevious

injuries on the person of his younger son Varun. He

accordingly convicted the appellant for offence punishable

under Sections 302/307 IPC.

23. Mr. Sumeet Verma, Amicus Curiae appointed by Legal

Services Committee for the appellant has urged that PW-2

Anil Kumar, PW-3 Major K.G. Sridevi Amma, PW-4 Mohanan

Nair, PW-5 Mrs. Anand Valli, PW-6 Baby Joseph; the

complainant, PW-8 Major Anamma, PW-10 Mr. Sheejan

George and PW-21 Major Philomina are unworthy of

credence being at variance with each other. He has urged

that PW-6 Baby Joseph, as a prosecution witness has

deposed that on hearing a big sound, he came out of his

house. Whereas in his complaint Ex.PW-6/A he has stated

that he heard sound of some blast. In contradiction to his

statement PW-8 Major Anamma stated in his cross

examination that he heard the sound just like a blast of a

transformer. PW-10 Mr. Sheejan George in his cross

examination also stated that the noise he heard was

similar to the blast of a transformer. Learned counsel for

the appellant has pointed out that PW-21 Major Philomina

in his cross examination has described the noise heard by

him as something had fallen.

24. He further urged that PW-6 Mr. Baby Joseph in his

examination-in-chief has deposed that he forced opened

the door which was bolted from inside with a single latch

and entered inside the room. Whereas in his complaint

Ex.PW-6/A he did not state that he entered the room after

forcibly opening the door. The fact remains in the

complaint Ex.Pw-6/A the witness has stated that the door

was closed.

25. The contradictions as highlighted above by the learned

counsel for the appellant are insignificant. The description

of the sound heard by the witnesses was according to their

perception. In his cross examination PW-6 has explained

the cause of sound. He was told by the appellant that he

had hit the gas cylinder with the wooden frame of the door

while keeping it.

26. Much has been argued that the witnesses are inconsistent

as to who lifted which child from the room and who took

them to the hospital. PW-6 Baby Joseph in categorical

terms has deposed that he lifted Varun, who was standing

near the bed and handed him over to PW-10 Mr. Sheejan

George and after throwing out the gas cylinder to

extinguish fire, he lifted Vishnu lying on the bed. He

handed over this child to someone so that he could be

taken to the hospital. May be, and it is natural that, he did

not remember the name of the person to whom he had

handed over Vishnu to be removed to the hospital.

27. PW-10 Mr. Sheejan George corroborated the testimony of

PW-6 Baby Joseph when he deposed that he found Varun

lying there, he along with Baby Joseph took Varun outside

the house. According to him PW-8 Major Annama O.T., PW-

21 Major Philomina, and other persons removed the child

to the hospital. Naturally, in the entire scenario PW-10

Sheejan George was more concerned about the welfare of

Varun who was handed over to him by PW-6 Baby Joseph

to be removed to the hospital immediately. PW-21 Major

Philomina found Vishnu lying on the bed and he lifted him

and removed him, whereas Varun was lifted by PW-8 Major

Anamma. He along with Anamma had taken the children

in one vehicle to the Base hospital. In tune with the other

witnesses, PW-8 Major Anamma deposed that Vishnu was

lifted by Major Philomina and both the children were taken

to the hospital. Small variations are natural with the lapse

of time.

28. PW-7 Master Varun appeared as a prosecution witness on

8.3.2004. The court observed that he was shy and

abstracting himself from the witness box and was not

ready to depose as seemed to be of tender age and did not

appear to be a competent witness to depose and also that

he was not well conversant with Hindi language. The court

dropped him from the list of witnesses holding that his

deposition was not required to be recorded. Therefore, non

examination of Varun is not fatal to the prosecution case

and no adverse inference can be raised against the

prosecution that had he been examined, he would not

have supported the prosecution case.

29. The credibility of testimony of PW-6 Baby Joseph that he

saw the incident from outside the window, has also been

questioned. It is urged that he could not have seen the

incident from outside by peeping through the window as a

cooler was installed in the window and nothing could be

seen from the window. PW-6 in categorical terms has

deposed that on hearing the sound, he went out of his

house and peeped inside from the window of the appellant

to see what was happening. Photographs Ex.PW-15/1-11

were taken at the spot by the prosecution. These

photographs belie the submissions. Photograph mark „A‟

clearly depicts lower portion of one side of the window

open and uncovered and unblocked by the cooler which

block the other part of the window. In Photograph „D‟ one

full side of window is seen open and the remaining window

is blocked with the cooler. This is the window from where

PW-6 peeped inside and witnessed the occurrence.

Photograph „N1‟ clearly shows the place where the cooler

is fixed in the window. The window has three doors, two

doors are blocked with the cooler and some upper part of

the window is unblocked. Third door of the window is seen

open which gives full view of the room from outside. „R-1‟

is a photograph of the window taken from outside the

house. His testimony that he had seen the occurrence from

outside through the window is comprehensive. Suffice to

say, Baby Joseph is a truthful witness and is fully reliable.

30. The prosecution witnesses, therefore, are consistent in

their deposition. The appellant has been unsuccessful in

demolishing their credibility during their cross

examination. The contradictions pointed out by the learned

counsel for the appellant are trivial in nature and are of no

consequence.

31. Learned counsel for the appellant has argued that weapon

of offence i.e. Knife Ex.P-1 as shown in the sketch is

different from the one produced in the court. It is argued

that in the photograph of the knife it is shown to be

bloodstained and its handle appears to be of black colour,

whereas, the knife produced before the court did not have

any blood-stains and its handle is of brown colour. It is

emphasized that this shows that the blood-stained weapon

shown in the photograph is not the weapon which was

produced in the court this is also evident on comparison of

sketch of the knife Ex.PW-12/F prepared by the

Investigating Officer and sketch of the knife prepared by

PW-17 Dr. Chandra Kant on the back of his report Ex.PW-

17/B.

32. When these arguments were raised before the trial court,

the matter was examined by it on 31.7.2007. The court

placed the weapon of offence i.e. Knife Ex.P-1 on the

sketch Ex.PW-12/F prepared by the IO as well as on the

sketch prepared by Dr. Chandra Kant on the back of his

report Ex.PW-17/B. It was observed, after demonstration,

weapon fully fits in the sketches and corresponds both the

sketches. Court observed that in the sketch prepared on

the back of Ex.PW-17/B, the dimension was inadvertently

written as 3.5 cm. Therefore, the theory of double weapon

as raised by the learned defence counsel falls. These

submissions were dealt with by the learned trial court in

para 23,24 and 25 of the judgment. It is observed:-

"23. I have considered the submissions of Ld. Defence counsel.

In his testimony PW12 SI Pankaj Yadav has testified that he seized the knife EXP1 vide memo Ex.PW6/B. this knife was produced in the court duly sealed with the court seal and after opening this seal, this knife was exhibited as Ex.P1. In cross examination it was not suggested to the witness that the knife produced in the court was not the same knife which was seized by this witness from the spot. The appropriate opportunity for the appellant to draw the attention of the witness as well as of the court to this fact was at the time of cross examination of PW12. Failure to dispute the fact that the weapon Ex.P1 produced in the court is the same which was seized by PW12 itself goes against the double weapon theory. Further more, the difference in the colour of the handle of the knife as shown in the photograph EX-I and the knife produced in the court is of no consequence. The colour of an article which appears in a photograph depends upon the quality of the photographic reel and the quality of light at the time of taking of the photograph. Therefore, it is

understandable that a dark article might appear darker in the photograph.

24. As a matter of abundant caution and with a view to remove any doubt, I myself saw this weapon and I am of the considered opinion that the weapon produced is the same which appears in the above photograph. It is necessary to produce my observations dt.16.5.2007, regarding this weapon of offence which is as under:

31.7.2007 Present : Ld APP for the State Appellant from J.C. with counsel Sh.Jagdish Dhawan,Adv.

Case property is produced today again in the court. The sharp edged weapon EXP1 is produced and placed on the sketch EXPW12/F and the sketch made on the back opinion ExPW17/B. The weapon fully fits in the sketches and corresponds both the sketches. However, it appears that in the sketch prepared on the back of Ex.PW17/B, the dimension 3.5 cm has been wrongly written. The gas regulator is also produced. However, it is found that its nozal is broken. The broken piece of nozal is also lying in the case property. The gas pipe is shown by Ld Defence Counsel and it is pointed out by him that there is no burnt end of this pipe. Further arguments are heard. It is 4.00 pm. To come up for remaining arguments on 1.8.2007.

ASJ/31.7.2007"

25. In view of above observations, I am left in no doubt that the weapon which was seized from the spot by PW12 SI Pankaj is the same which appears in the photograph EX-I and it is the same weapon, sketch of which was prepared by PW12 and which was sent to doctor Chander Kant for opinion. The sketch prepared by Dr. Chander Kant (PW17) and the sketch prepared by PW12 are of one and the same knife, although due to inadvertence Dr. Chander Kant had noted wrong dimension of brass rivet in the knife."

33. We find ourselves in agreement with the observations of

the trial court and find that knife Ex.P-1 is the only weapon

which was used by the appellant in inflicting injuries on his

sons resulting into death of Vishnu.

34. It is argued by the learned counsel for the appellant that

as per medical evidence, injuries on the body of deceased

were not caused by knife Ex.P-1. PW-17 Dr. Chandra Kant

in his opinion Ex.PW-17/B as well as in the court has

deposed „On examination of the weapon in my opinion all

four ante-mortem injuries as described in the post mortem

report Ex.PW-17/A could be produced by the weapon

examined by me.' In other words, in his opinion the

injuries which were found on the person of deceased

Vishnu could be caused by the weapon examined by him.

Sketch of the weapon produced before him was prepared

by him on the back of his report which, as discussed

above, is of the knife Ex.P-1 and conforms the other sketch

prepared by the IO. Therefore, the plea that the medical

opinion was that the injury on the body of deceased were

not caused by the weapon of offence is feeble and is not

sustainable.

35. This argument seems to have been lifted from the opinion

of PW-20 Dr. Jasvinder Kaur who had examined deceased

Vishnu as well as injured Varun and prepared their MLCs

on 21.5.2001. She has declared Vishnu brought dead in

MLC No.1132, Ex.PW-20/A. She has given her opinion on

the weapon of offence in relation to the injuries sustained

by Varun in MLC No.1133. She opined, „the injuries

sustained by Varun, aged about 3½ years son of N.

Muralidharan as reflected in MLC No.1133 dated 21 May,

2001, are in my opinion caused by a sharp weapon. The

weapon which is shown to me may not be the same

weapon with which the injuries were caused. However,

such a weapon is capable of inflicting such injuries on the

person of Varun as observed by me on 21.5.2001.'

36. Thus, it is clear that she had no occasion to examine the

knife Ex.P-1 qua the injuries found on the person of Vishnu

to opine if the injuries could be co-related to have been

caused by Ex.P-1. Her opinion related to the injuries found

on the person of Varun only. Besides, her opinion is not

conclusive and cannot be considered either side. According

to her, weapon Ex. P-1 may not be the same with which

the injuries were caused on the person of Varun, but such

a weapon is capable of inflicting such injuries found on the

person of Varun as observed by her. As PW-20 she

deposed, "if Ex.P-1 is the same weapon which caused

injuries is to be opined then such opinion may be given by

a Forensic Expert." In view of this testimony of Dr.

Jasvinder Kaur, it cannot be said that the medical opinion

evidences that the injuries on the body of the deceased

were not caused by Ex.P-1. It is pertinent to mention, that

in her cross examination she deposed that her opinion did

not mean that some other weapon was used to cause

injuries. What she meant was that weapon shown to her

might not be the same which caused injuries. Therefore,

we find medical evidence supporting the prosecution case

that injuries found on the body of the deceased were

caused by knife Ex.P-1.

37. It is argued that the rubber pipe attached to the regulator

or gas cylinder Ex.P-5 did not have any burnt portion when

produced in the court and therefore, the prosecution story

that appellant was holding the gas pipe burning from one

end is not believable and therefore prosecution case

stands demolished.

38. In the order dated 31st July, 2007, the trial court examined

the rubber pipe Ex.P-5 noting down the plea of the learned

defence counsel that there was no burnt end of the pipe.

PW-6 Baby Joseph in his cross examination was shown the

pipe and was asked if he noticed any burnt portion on the

pipe to which the witness initially replied that no burnt

portion is seen but after watching the pipe carefully, he

again stated that there are burnt marks on the end of the

pipe which is seen unevenly broken. Photograph Ex. „J‟

depicts the rubber pipe. True that, from this photograph it

is difficult to make out if the pipe has any burnt end. The

fact remains that Baby Joseph had thrown out the gas

cylinder from inside the house to avoid spreading of fire

and also to extinguish the fire. It has been observed by

the trial court in para 32 of the judgment that he examined

the pipe produced before him, one end of it was not intact

and therefore possibility of falling off the burnt portion of

the pipe at the time of making efforts to extinguish the fire

cannot be ruled out. However, the trial court did not

properly take into consideration the MLC of the appellant

Ex.PW-11/A. As per this MLC, the doctor found burns over

right hand, face, some area over B/L foot. It has come in

evidence that appellant was holding the pipe out of which

flames were coming out. He was trying to set the bed on

fire as also Varun standing near the bed, with the gas pipe.

The mosquito net was partially burnt in the process. To

extinguish the fire PW-6 Baby Joseph disconnected the

pipe from the cylinder after closing its regulator and

thereafter kept the cylinder outside.

39. Appellant in his statement recorded under Section 313

Cr.P.C. in response to question No.24 put to him replied

that he had already extinguish the fire himself which was

burning his bed and mosquito net and during the process

he suffered burnt injuries on his hand, face and feet.

However, he has not explained how the fire had broken in

the room which partially burnt his bed and mosquito net

and also he suffered injuries on his person. Rather, in his

statement he stated that he had no knowledge how his

children suffered injuries and how his bed caught fire.

According to him he was sleeping on the bed along with his

children and when he felt heat on his hand, he got up and

started extinguishing the fire and also shouted for help.

Some people came in the house. It is not the case of the

appellant that his house was tress-passed by someone.

40. Admittedly, none else was present in the house who could

be responsible for setting the bed and mosquito net on fire

or, who could be responsible for causing injuries on the

person of Vishnu and Varun. We note that there is strong

probability that appellant was trying to set the bed on fire

and may be his younger son who survived his stabs. This

also explains the burn injuries on his person.

41. Admissibility of FSL report has also been challenged by the

appellant per-se Section 293 Code of Criminal Procedure

(hereinafter referred to as „Cr.P.C.‟). Section 293 Cr.P.C.

contains a sub rule of evidence making any document

purporting to be a report under the hand of Government

Scientific expert upon any mater or thing duly submitted to

him for examination and report admissible in evidence

without calling such expert as a witness if the report is

made by one of the officers of Government, who has

conducted chemical examination of the sample in due

discharge of his duty as Chemical Examiner by whatever

designation he might be known. („Usman Mian v. State,

1971 Crl. L.J. 947 Patna‟, referred to). The report of

Scientific Expert mentioned in sub-section 4 of Section 293

are admissible without examining the expert as witnesses.

42. FSL report Ex.PW-16/H is prepared and signed by Shri

A.K.Shrivastava, Senior Scientific Officer (Biology), Forensic

Science Laboratory, Delhi cum-Ex Officio Chemical

Examiner to the Govt. of National Capital Territory of Delhi.

This report, therefore, was prepared by a Scientific Officer

of the Govt. In other words, the report is prepared by the

Chemical Examiner/Analysist of the Govt. This report is

enclosed with a letter signed by Director, Forensic Science

Laboratory, Delhi. Therefore, examination of Mr.

A.K.Srivastava, as a witness, was not required for making

the report admissible in evidence. The report has been

tendered in evidence and exhibited during the trial of the

case and stands proved on record. In „State of Himachal

Pradesh vs. Mast Ram, AIR 2004 SC 5056‟, where the

FSL report prepared by Ballistic Expert was challenged on

the grounds that it was signed by one Junior Scientific

Officer and the report having not been signed by any of

the persons enumerated in sub Section 4 of Section 293

Cr.P.C., could not be read in evidence without examination

of the ballistic expert who signed the report, it was

observed:-

"6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of ballistic expert. The report of ballistic expert (Ex.P-X) was signed by one junior scientific officer. According to the High Court, a junior scientific officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the Forensic Science Laboratory Report (Ex. P-

X) has been submitted under the signatures of a junior scientific officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a Government scientific expert. Section 293 (1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a Government scientific expert under the section, upon any manner or thing duly submitted to him for examination or analysis and report in the course of any proceedings under the Code, may be used as evidence in any inquiry, trial or other proceedings under the Code. The High Court has completely over- looked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a junior scientific officer is not an officer enumerated under sub- section (4) of section 293. What sub-section 4 of Section 293 envisages is that the court to accept the documents issued by any of six officers enumerated therein as valid evidence without examining the author of the documents."

43. In this case, the report has been signed by A.K. Srivastava,

Senior Scientific Officer who also happened to be Ex Officio

Chemical Examiner to the Govt. of National Capital

Territory of Delhi. Therefore, the report was submitted

under the hand of Govt. Scientific Expert within the ambit

of sub Section (4) of Section 293 Cr.P.C. The credibility of

this report cannot be questioned for non examination of

A.K.Srivastava, Senior Scientific Officer as he was not

required to be examined in court to prove his report.

44. Another circumstance sought to be proved against the

appellant is suicide note written by him in his diary. During

investigation PW-12 SI Pankaj Yadav; the investigating

officer recovered one diary and pen from the spot which he

seized vide memo Ex.PW-6/F in the presence of PW-6 Baby

Joseph and HC Mohan Singh. Another diary of 1998

containing 85 pages was also seized. During investigation

PW-16 Insp. Ved Bhushan seized specimen handwriting of

the appellant, taken with the approval of the court on eight

different sheets i.e. S-1 to S-8 vide memo Ex.PW-12/G and

a diary containing some admitted handwriting from page 6

to 8. The handwriting was in Malayalam and English. This

diary contained 85 pages in all. He signed each page of

the diary and seized it vide memo Ex.PW-12/H. The

admitted handwriting and signatures of the appellant with

the disputed handwriting, signatures and the specimen

signatures obtained in the court were sent for expert

opinion. PW-22 Ms. Deepa Verma, Senior Scientific Officer

Documents, examined the questioned document,

purported to be a suicide note dated 21.5.2001 on page 8th

January, 1998. After comparison of the specimen

handwriting Ex.PW-16/K-1 to K-8 with suicide note Ex.PW-

22/B and the admitted handwriting A-1 to A-J Ex.PW-22/A

collectively, she opined that the scribe of the admitted

handwriting, the specimen handwriting and the disputed

handwriting is the same.

45. In his statement under Section 313 Cr.P.C. appellant has

not disputed that suicide note in the diary Ex.P-7 is in his

hand. As regards specimen signatures; his answer to

question No.46 reads:-

"It is correct that some specimen handwritings were taken from me on the directions of Hon. Court and same were taken outside the court and my signatures were also taken. I do not know whether the question to whom I am answering is the same hand writing as sample or some other thing. If it is not the same the same is wrong and denied."

46. His answer to question No.67 is :-

"It is correct that PW22 gave her opinion on my hand writing sample which were taken by S.I Ved Bhushan PW16. But it is wrong and denied that the diaries Ex.PW-22/B belongs to

me."

47. Even if the plea of the appellant that he was forced to

write in Malyalam and in English in the diary by the

Investigating Officer is accepted, the fact remains his

specimen handwriting was obtained by the Investigating

Officer on the directions and with the permission of the

court. There could not be any pressure on the appellant

when he gave specimen handwriting. Neither PW-12 SI

Pankaj Yadav nor PW-16 Insp. Ved Bhushan has been given

suggestion that the appellant was forced to write the

suicide note in the diary.

48. In cross-examination Insp. Ved Bhushan stated that the

diary did not bear the name and address of the appellant.

Viewing this statement, learned counsel for the appellant

has submitted that the diary, recovered from the house of

the appellant did not belong to him. The trial court

probably did not carefully examine the diary. On

examination of the diary during the course of arguments,

we noticed the name of the appellant written on the first

page of the diary. Not only this, the diary contains various

telephone numbers. It is scribed at various places in

Malyalum and is also scribed in English at other places.

49. PW-2 Anil Kumar, a relative of the appellant has deposed

that on the evening of 21.5.2001, he received a call from

the appellant who seemed to be in big tension. He

inquired from him about the cause of his tension.

Muralidharan told him that he had killed his sons. He went

to the spot and found the police and the appellant standing

outside the house and the children removed to the

hospital. There is no cross examination of the witness that

Muralidharan did not telephone him and that he did not tell

him (Anil Kumar) that he had killed his sons.

50. PW-3 Sridevi Amma, wife of the appellant and PW-4

Mohanan Nair testified that on 20.5.2001 appellant

telephoned and talked to his wife and threatened her that

if she did not come back, he would kill his children and

himself. This reflects the conduct of the appellant before

commission of the crime. When asked by the complainant

Baby Joseph as to what he was doing, the appellant told

him that it was his family matter. Subsequently, after

coming out of the house, he did tell him that since his wife

had gone to Bangalore despite his refusal, he had caused

injuries to both his children with knife and killed them.

51. The writing in the diary which stands proved on record is

confessional in nature and can also be termed as suicide

note of the appellant when, he wrote that he would end his

life. The relevant note in English reads, „We are dying

(Varun, Vishnu and N.M. Nain) because of my wife and her

elder sister Anand Vally (living in Bangalore) behaving

badly and wife family including her brother are harash me

and my children the death is being to wife's family.' This

writing appears on page dated 8th January, 1998.

52. Confession made by the appellant to PW-2 Anil Kumar and

PW-6 Baby Joseph can be termed as extra judicial

confession wherein he confessed that he had killed his two

sons. Extra judicial confession if true and voluntary, can be

relied upon by the court to convict the appellant for the

commission of the crime alleged. If such confession is

made before a person who has no reason to state falsely

and whom it is made under the circumstances, which tend

to support the statement, cannot be ignored.

Corroboration of such type of extrajudicial confession as a

piece of evidence is required only by way of abundant

caution. An unambiguous extrajudicial confession

possesses high probative value force as it emanates from

the person who committed the crime and therefore is

admissible in evidence, however, such confession should

be free from suspicion and suggestion of any falsity.

53. In "Gura Singh v. State of Rajasthan, (2001) 2 SCC

205", the admissibility of extrajudicial confession has

been dealt with as follows:-

"6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the appellant for the commission of the crime alleged.

Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh AIR 1954 SC 322, this Court again in Maghar Singh v. State of Punjab (1975) 4 SCC 234 held that the evidence in the form of extrajudicial confession made by the appellant to

witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. (1985) 4 SCC 26, this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. (1991) 1 SCC 286, this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding

circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana 1991 Supp (1) SCC

14. After referring to the judgment in Piara Singh v. State of Punjab (1977) 4 SCC 452, this Court in Madan Gopal Kakkad v. Naval Dubey (1992) 3 SCC 204 held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."

54. PW-2 Anil Kumar happen to be a relative of the appellant.

He received telephone call on 21.5.2001 from the

appellant himself who informed him that he had killed his

sons. Initially, this information was not believed by Anil

Kumar but, when he went to the house of the appellant, he

noticed police, the appellant and also that the injured

Vishnu and Varun had already been removed to the

hospital. It is significant that Anil Kumar has not been

cross examined by the counsel for the appellant on this

information, or confession made by the appellant to Anil

Kumar.

55. PW-6 Baby Joseph, an independent witness, residing in the

same locality and just opposite the house of the appellant,

when reached at the spot asked the appellant as to what

he had done to which appellant initially replied that it was

his family affair and subsequently he told him that he had

killed his sons. Presence of Baby Joseph in the house at the

time of occurrence is also not disputed by the appellant.

56. Extrajudicial confession made by the appellant, under the

circumstances is another reliable piece of evidence which

highly probablizes that appellant had injured his sons,

killed the elder one and tried to set his bed on fire with an

intention to do away with his children and himself.

57. In view of the analyses of the evidence of the prosecution

as above, we find none of the grounds of defence taken by

the appellant of any consequence. The appellant was in

anguish and was mentally disturbed because of his

differences with his wife PW-3 Sridevi Amma. He being

unemployed was also a frustrated man. He was obsessed

with an idea of killing himself and his children for

sometime. His state of mind and pre event conduct is

reflected from his talk to his wife on telephone when she

was at Bangalore on 20.5.2001 as well as from the diary

seized vide memo Ex.PW-12/H from his house. He had told

her to come back or he would kill the children and himself.

Appellant was alone in the house with his two children at

the time of incident and none else was present. The door

was bolted from inside. On hearing sound PW-6, the

complainant reached the spot and had to force open the

door. No other person was present inside the house when

the children were stabbed and also the bed, etc. were put

on fire.

58. The chain of circumstances in this case clearly nail the

appellant of having murdered his son Vishnu and

attempted to commit murder of Varun. We find no reason

to interfere in the judgment of the trial court.

59. Hence, we find no merits in this appeal, the same is

accordingly dismissed.

60. Trial court record be sent back immediately with a copy of

the order.

ARUNA SURESH, J.

PRADEEP NANDRAJOG, J.

APRIL 01, 2009 vk