{"id":199604,"date":"2008-03-27T00:00:00","date_gmt":"2008-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gousjan-houjan-vs-state-of-kerala-on-27-march-2008"},"modified":"2017-04-19T05:19:09","modified_gmt":"2017-04-18T23:49:09","slug":"gousjan-houjan-vs-state-of-kerala-on-27-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gousjan-houjan-vs-state-of-kerala-on-27-march-2008","title":{"rendered":"Gousjan @ Houjan vs State Of Kerala on 27 March, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Gousjan @ Houjan vs State Of Kerala on 27 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1163 of 2004()\n\n\n1. GOUSJAN @ HOUJAN, S\/O. MEHABOOBKAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.RAJEEV\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice J.B.KOSHY\nThe Hon'ble MRS. Justice K.HEMA\n\n Dated :27\/03\/2008\n\n O R D E R\n                    J.B.KOSHY & K.HEMA, JJ.\n               -------------------------------------------\n                        Crl.A.No.1163 of 2004\n               -------------------------------------------\n               Dated this the 27th day of March, 2008\n\n\n\n\n                              JUDGMENT\n<\/pre>\n
KOSHY, J.\n<\/p>\n
     The appellant, who is the accused in crime No.71\/98 of<\/p>\n
Punalur Police Station, stands convicted for the offence<\/p>\n
punishable under Sections 302 and 449 IPC. He was sentenced<\/p>\n
to undergo imprisonment for life and pay fine of Rs.1,00,000\/-<\/p>\n
under Section 302 IPC and he was also sentenced to undergo<\/p>\n
rigorous imprisonment for 5 years under Section 449 IPC. There<\/p>\n
was also a direction for undergoing the sentence concurrently.<\/p>\n
     2.    According to the prosecution, the deceased, 19 year<\/p>\n
old girl was living with her sister. The accused is a close relative<\/p>\n
of the deceased and he was also the driver of the car owned by<\/p>\n
CW18, the father of the deceased. It has come out in evidence<\/p>\n
that the mother of the deceased was employed in America. It<\/p>\n
has also come out in evidence that earlier, father was also<\/p>\n
employed in America and the house was looked after by PW4,<\/p>\n
CRL.A.1163\/2004                  2<\/span><\/p>\n
sister’s husband of the deceased with the assistance of the<\/p>\n
accused. PW4 also deposed that during that period his wife had<\/p>\n
gone to Thiruvananthapuram for studying beautician course. At<\/p>\n
the relevant day on 10.2.1998, father and sister of the deceased,<\/p>\n
CW18 and CW12 respectively, had gone to Kottayam for<\/p>\n
purchasing textile in connection with the textile business<\/p>\n
conducted by them in Punalur and at 10.30 a.m., the accused<\/p>\n
committed trespass into their house and tried to commit rape on<\/p>\n
the deceased and when she resisted with a knife, the accused<\/p>\n
inflicted severe injuries on head, face, arm, neck, chest etc. and<\/p>\n
at about 1 p.m., Sherin alias Sheema succumbed to the injuries.<\/p>\n
At that time other than she, only 2= year old child of her sister<\/p>\n
was present in the house. On hearing the cry, PWs 2 and 3,<\/p>\n
brothers of PW4, and their mother reached the place. PW9 also<\/p>\n
accompanied them. He came to that place for purchasing gunny<\/p>\n
bags from PW3. The doors were closed from inside. PWs 2 and 3<\/p>\n
saw the accused inflicting injuries on the deceased through<\/p>\n
kitchen window. PW2 kicked open the door and the accused ran<\/p>\n
out from the house.      PWs 5 and 6, father and mother of the<\/p>\n
CRL.A.1163\/2004                 3<\/span><\/p>\n
accused, also came to the spot and found Sheema with injuries.<\/p>\n
The accused was lying on the door of the kitchen with blood<\/p>\n
stain. The washing machine was on the dyning hall and the knife<\/p>\n
was on the top of the washing machine. MOs 1 to 4 were the<\/p>\n
clothes of the accused and the deceased. It is the case of PWs 2,<\/p>\n
3 and 9 that they saw the accused inflicting injuries on the<\/p>\n
deceased through the window of the kitchen door. Sheema was<\/p>\n
taken to the Government Hospital, Punalur by the mother of the<\/p>\n
accused (PW6) and a neighbour of the deceased (PW7). PW6 and<\/p>\n
PW7 stated to a specific question that they do not know how the<\/p>\n
incident occurred and they also stated that they do not inquire<\/p>\n
how the incident occurred. PWs 2, 3 and 9 saw the incident but<\/p>\n
they did not take the injured to the hospital. But later in an<\/p>\n
autorickshaw the deceased was taken to the hospital by PW6<\/p>\n
etc. PW4 who was in the shop was informed the matter by PW2<\/p>\n
and he also went to the hospital. PW4 intimated the matter to<\/p>\n
PW1. PW1 furnished First Information Statement before the<\/p>\n
police at 4.15 P.M. on the same day. It reached the court only<\/p>\n
on 12th morning. It is contended that even though the incident<\/p>\n
CRL.A.1163\/2004                  4<\/span><\/p>\n
occurred at 10.30 A.M., PWs 2, 3 and 9 did not take the injured<\/p>\n
to the hospital. The incident also occurred near the police station<\/p>\n
at Punalur town. But they did not go to the hospital even though<\/p>\n
they asserted that they saw the incident and they are relatives.<\/p>\n
They did not inform the police. It is quite unnatural. It is further<\/p>\n
argued that the first information was given to Police by PW1 who<\/p>\n
got the information from PW4, who is also not an eye witness.<\/p>\n
Why PW4 himself did not inform the matter to the police was not<\/p>\n
explained. It cannot be accepted the undue delay in registering<\/p>\n
the FIR and forwarding the same to the court is a ground for<\/p>\n
disbelieving the prosecution case. It is the duty of the police to<\/p>\n
record the FI statement and register the FIR and sent it to court<\/p>\n
promptly. The delay in registering the FIR and despatching the<\/p>\n
same is not explained. In such circumstances, the court must be<\/p>\n
careful in analysing the evidence.\n<\/p>\n
     3.    The defence of the accused was that the vehicle of the<\/p>\n
father of the deceased was in the work shop of PW10 and he was<\/p>\n
in the workshop at the relevant time and he is innocent. He<\/p>\n
further stated that she was in love with the deceased and the<\/p>\n
CRL.A.1163\/2004                 5<\/span><\/p>\n
witnesses who deposed against him was enmical because of the<\/p>\n
above affair. PWs 2, 3 and 9 are eye witnesses who saw the part<\/p>\n
of the incident through window slated that she resisted his<\/p>\n
attempt when he stabbed her by using a knife. The accused was<\/p>\n
also injured. Immediately on arrest he was taken to the hospital<\/p>\n
and Ext.P8 shows that he had sutured wound on the left wrist<\/p>\n
joint.  The evidence of PW14, a lady doctor shows that the<\/p>\n
accused was treated by her husband and Ext.P10 certificate is<\/p>\n
with respect to a treatment on 10.2.1998, issued by her<\/p>\n
husband. It is stated that he got the injury when he was in the<\/p>\n
workshop while removing the engine. But the evidence of PW10,<\/p>\n
workshop owner, shows that he never went to the work shop on<\/p>\n
10th. The car of the father of the deceased was repaired only at<\/p>\n
5 O’ clock on 9th and thereafter, the accused never came to the<\/p>\n
workshop. The suggestion put forward by the accused was that<\/p>\n
he got injury at the workshop cannot be accepted. Further, the<\/p>\n
driver also stated that there was no occasion to remove the<\/p>\n
engine of the car on 10th. From the evidence of PW10, it is clear<\/p>\n
that the accused was not in the work shop on the date of<\/p>\n
CRL.A.1163\/2004                 6<\/span><\/p>\n
occurrence. If the alibi pleaded is not proved it is well settled<\/p>\n
law that it will boomerang on the accused himself. The Apex<\/p>\n
Court in Rajesh Kumar vs. Dharamvir and others<\/a> (1997 SCC<\/p>\n
(Crl.) 591) held that defence of alibi shall be proved with<\/p>\n
absolute certainty excluding the presence of the accused at the<\/p>\n
time of the incident. The Apex Court in Binay Kumar Singh vs.<\/p>\n
State of Bihar (1997 SCC (Crl.) 333) held that strict proof is<\/p>\n
required to prove alibi. Here, alibi is not proved by the accused.<\/p>\n
However, merely because the accused did not prove his defence,<\/p>\n
he cannot be convicted. The burden is on the prosecution to<\/p>\n
prove the charges with certainty.      Now, we will consider the<\/p>\n
evidence adduced on behalf of the prosecution to find out<\/p>\n
whether it has adduced evidence to prove the guilt of the accused<\/p>\n
beyond reasonable doubt.\n<\/p>\n
     4.    PW11 doctor conducted the postmortem and issued<\/p>\n
Ext.P6. She noted the following injuries.\n<\/p>\n
1).  Incised penetrating wound 1.7×0.5 cm vertical on the right<\/p>\n
side of front of neck, its lower blunt end 2.5 cm. above the<\/p>\n
middle of collar bone.    Its upper end was cleanly cut.      The<\/p>\n
CRL.A.1163\/2004                   7<\/span><\/p>\n
sternomastoid muscle, and the internal jugular vein were cleanly<\/p>\n
cut, the chest cavity penetrated through the apex and the apex of<\/p>\n
right long cleanly cut (1.5×0.5×0.5 cm). The wound was directed<\/p>\n
downwards for a total minimum depth of 4 cm.\n<\/p>\n
2).   Incised penetrating wound 1.5×0.5 cm obliquely placed on<\/p>\n
the right side of back of chest its lower inner sharply cut end 65<\/p>\n
cm below the root of neck in the middle. It upper cutter end was<\/p>\n
blunt.   The chest cavity was seen penetrated through fifth<\/p>\n
intercostal space, (3.5×1.5 cm) and the right lung at the<\/p>\n
interlobar fissure cleanly cut. (1.5×0.5×0.4cm). The wound was<\/p>\n
directed downwards and forwards for total minimum depth of 5.5<\/p>\n
cm. Right chest cavity contained 1.5 litres of fluid blood and<\/p>\n
right lung was collapsed.\n<\/p>\n
3)    Incised wound 1×0.5×1 cm. on the right side of face 4 cm.<\/p>\n
in front of the middle of ear.\n<\/p>\n
4)    Incised wound 3x1x2 cm vertical on the right side of face 3<\/p>\n
cm. in front of the lobule of ear.\n<\/p>\n
CRL.A.1163\/2004                  8<\/span><\/p>\n
5).  Incised wound 2×0.5×1.5 cm obliquely placed on the right<\/p>\n
side of back of neck, its upper outer blunt end 1cm. below and 5<\/p>\n
cm. behind lobule of ear.\n<\/p>\n
6)   Incised wound 2.5×0.5×0.3 cm horizontal on the under chin<\/p>\n
in the middle 2.5 cm. behind the tip of chin.\n<\/p>\n
7).  Incised wound 3×0.2x.2 cm horizontal on left cheek.<\/p>\n
8)   Incised wound 2x.5 x1cm horizontal on the left side of face<\/p>\n
overlying jaw bone and 4 cm. outer to midline.<\/p>\n
9)   Incised wound 1.5×0.5×1 cm vertical on the left side of neck<\/p>\n
2 cm. below lobule of ear.\n<\/p>\n
10) Incised wound 3×0.5×0.5 cm horizontal on left side of front<\/p>\n
of neck 4.5 cm. below lobule of ear with a tailing 5 cm. long<\/p>\n
directed forwards and upwards.\n<\/p>\n
11) Incised wound 3.5×0.5x.3cm horizontal on the back of left<\/p>\n
ear lobe 2 cm. below its top.\n<\/p>\n
12). Incised wound 1.5×0.5×0.5 on the left side of back of head<\/p>\n
0.5 cm. behind root of ear in line with injury No.11.<\/p>\n
CRL.A.1163\/2004                  9<\/span><\/p>\n
13) Incised punctured wound 1×0.5×2.5 cm on the left side of<\/p>\n
back of head 4.5 cm. below and 3 cm. behind lower end of ear<\/p>\n
lobe. Its upper end was blunt and lower end sharply cut.<\/p>\n
14) Incised wound 1×0.2×0.2 cm. on the back of right wrist.<\/p>\n
15) Incised wound 1.7×0.5×0.5 cm. on the back of right hand<\/p>\n
2.5 cm. above the root of forefinger.\n<\/p>\n
16) Incised wound 1.5×0.5×0.5 cm. on right palm 2 cm. above<\/p>\n
root of thumb.\n<\/p>\n
17) The horizontal incised wounds 1×1.5 cm.x1 cm., 1×0.5×0.5<\/p>\n
cm. and 1.5x1x0.5 cm. on the front of forefinger, middle finger<\/p>\n
and ring finger of right hand respectively 0.5 cm. below the<\/p>\n
corresponding root.\n<\/p>\n
18) Incised wound 0.5×0.2×0.2 cm. on the front of chest in the<\/p>\n
middle 4 cm. below the lower end of breast bone.<\/p>\n
19) Incised wound 1×0.5×0.5 cm. on the inner aspect of left<\/p>\n
wrist.\n<\/p>\n
20) Two incised wounds 3.5×1.5×0.5 cm. and 2x1x0.5 cm.<\/p>\n
oblique, parallel to each other 1.5 cm. kapart on the inner aspect<\/p>\n
CRL.A.1163\/2004                  10<\/span><\/p>\n
of left forearm the lower inner end of the former being 2 cm.<\/p>\n
above wrist.\n<\/p>\n
21) Incised wound 1.5×0.2×0.2 cm. on the back of left wrist.<\/p>\n
22) Two incised wounds 2×0.5×0.5 cm. and 2.5×0.5×0.5 cm.<\/p>\n
oblique parellel to each other 1 cm. apart on the inner aspect of<\/p>\n
left forearm the latter being 12 cm. below elbow.<\/p>\n
23) Incised wound 1×0.5×0.5 cm. on the back of left forearm 14<\/p>\n
cm. below elbow.\n<\/p>\n
24) Two incised wounds, each being 1×0.2×0.2 cm. side by side<\/p>\n
1 cm. apart on the top of left shoulder.\n<\/p>\n
25) Incised wound 1×0.5×0.5 cm. on the left side of front of<\/p>\n
chest 4 cm. below the middle or collar bone.\n<\/p>\n
26) Abrasion 1.5×1 cm. on the outer aspect of left ankle.<\/p>\n
      5.   According to PW11, the death was due to the<\/p>\n
penetrating injuries sustained to the chest injury Nos.1 and 2 in<\/p>\n
Ext.P6   and   doctor    also  stated   that  the  injuries were<\/p>\n
independently fatal. Injury Nos.14, 17 and 19 to 25 are defensive<\/p>\n
injuries. The blood group of the accused was ‘O+’ as certified by<\/p>\n
PW13.\n<\/p>\n
CRL.A.1163\/2004                 11<\/span><\/p>\n
      6.    PW15 is the doctor who issued Ext.P11 wound<\/p>\n
certificate of the deceased.    She found 13 injuries on her.<\/p>\n
According to PW15 there are following injuries on her.<\/p>\n
1)    Incised penetrating wound 1.7×0.5 cm. vertical on right side<\/p>\n
of front of neck.\n<\/p>\n
2)    Incised penetrating wound 1.5×0.5 cm. obliquely placed on<\/p>\n
the right side of back of chest.\n<\/p>\n
3)    Incised wound 1×0.5x1cm. on the right side of face.<\/p>\n
4)    Incised wound 3x1x2 cm. vertical on the right side of face.<\/p>\n
5)    Incised wound 2x.5×1.5 cm. obliquely placed on the right<\/p>\n
side of back of neck.\n<\/p>\n
6)    Incised wound 2.5x.5×3 cm. horizontally placed on the<\/p>\n
under chin on the middle.\n<\/p>\n
7)    Incised wound 3x.2x.2 cm. horizontal on left cheek.<\/p>\n
8)    Incised wound 2x.5×1 cm. horizontal on left side over<\/p>\n
mandible.\n<\/p>\n
9)    Incised wound 1.5x.5x.1 cm. vertical on the left side of<\/p>\n
neck.\n<\/p>\n
CRL.A.1163\/2004                 12<\/span><\/p>\n
10) Incised wound 3x.5x.5 cm. horizontally placed on the front<\/p>\n
of neck.\n<\/p>\n
11) Incised wound 3.5x.5×3 cm. horizontally placed on the back<\/p>\n
of right ear.\n<\/p>\n
12) Incised wound 1x.2x.5 cm. on the back of right wrist.<\/p>\n
13) Incised wound .5x2x.2 cm. on front of chest in middle 4 cm.<\/p>\n
below the lower end of blunt bone.\n<\/p>\n
      According to her, the patient was in shock and patient was<\/p>\n
referred to Medical College Hospital, Thiruvananthapuram”<\/p>\n
      7.   Now we will consider the evidence of PWs 2, 3 and 9.<\/p>\n
PWs 2, 3 and 9 were not only relatives but also the immediate<\/p>\n
neighbours and PWs 2 and 3 are brothers of PW4. They were in<\/p>\n
the nearby shop. They saw their mother (CW2) running towards<\/p>\n
the house of the deceased. They followed her. Since all the<\/p>\n
doors were locked, they looked through the window and they saw<\/p>\n
the accused inflicting injuries with the knife and the deceased<\/p>\n
trying to resist him. Since the summary of the evidence is<\/p>\n
recorded in the trial court judgment, we are not reiterating the<\/p>\n
same. Their evidence would clearly show that the accused was<\/p>\n
CRL.A.1163\/2004                13<\/span><\/p>\n
caused the murder of the deceased. PW4 was in the shop. He<\/p>\n
came there only on getting the information. He informed PW1<\/p>\n
and went to the hospital. In cross examination, no suggestions<\/p>\n
were put forward to PWs 2 and 3 regarding the involvement of<\/p>\n
PW4 in the incident and their evidence is practically not<\/p>\n
challenged. No case is made out in the 313 statement or no<\/p>\n
suggestion was even put      forward to any of the witnesses<\/p>\n
suggesting the involvement of PW4 in the incident. Except he is<\/p>\n
husband of the sister of the deceased, absolutely no allegations<\/p>\n
are made against PW4 and therefore, evidence given by PWs 2<\/p>\n
and 3 cannot be ignored as they are relatives of PW4.  PW9 is a<\/p>\n
person who came there for purchasing gunny bags from the<\/p>\n
house of PW3. His evidence cannot be brushed aside as a chance<\/p>\n
witness. He used to collect old gunny bags from PW3. He also<\/p>\n
gave evidence similar to PWs 2 and 3. So evidence of PWs 2, 3<\/p>\n
and 9 are very cogent and clear against the accused. It is true<\/p>\n
that the father, CW18 or sister, CW12 of the deceased ought to<\/p>\n
have been examined. But admittedly they were not in the place<\/p>\n
and went to Kottayam and there was no suggestion put forward<\/p>\n
CRL.A.1163\/2004                 14<\/span><\/p>\n
by the defendants that they were near in the locality and there<\/p>\n
were no allegations against them. Since there are eye witnesses,<\/p>\n
prosecution examined only direct eye witnesses. The mother of<\/p>\n
PWs 2 and 3 was also reached            the place and she also<\/p>\n
accompanied her in the autorickshaw to the hospital along with<\/p>\n
PW6 and PW7. But she was not examined due to old age. Mother<\/p>\n
of the accused, PW6 who accompanied the deceased to the<\/p>\n
hospital and deposed that she did not inquire regarding how the<\/p>\n
incident occurred.  Ext.P16 analysis report of the FSL regarding<\/p>\n
the knife recovered from the place of the incident shows that it<\/p>\n
contain ‘O’ group blood and other items 1 to 9 contain human<\/p>\n
blood. Even though the blood group of the accused was ‘O’ group<\/p>\n
and the blood of the deceased was not examined, that alone<\/p>\n
cannot connect the accused with the incident.       But all other<\/p>\n
evidence coupled with the falsity of defence taken by the accused<\/p>\n
proves the guilt of the accused.     We are of the opinion that<\/p>\n
prosecution was able to prove conclusively that the accused is<\/p>\n
guilty.   We also agree with the conclusions made by the trial<\/p>\n
court judge and we see no ground to interfere with the conviction<\/p>\n
CRL.A.1163\/2004                 15<\/span><\/p>\n
and sentence. However, we reduce the            fine amount of<\/p>\n
Rs.1,00,000\/- to Rs.10,000\/-. If there is any default in payment<\/p>\n
of fine, he shall undergo imprisonment for another six months.<\/p>\n
      The criminal appeal is dismissed subject to the above<\/p>\n
modification regarding the amount of fine.<\/p>\n
                                            J.B.KOSHY, JUDGE<\/p>\n
                                               K.HEMA, JUDGE<\/p>\n
csl<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Gousjan @ Houjan vs State Of Kerala on 27 March, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1163 of 2004() 1. GOUSJAN @ HOUJAN, S\/O. MEHABOOBKAN, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY … Respondent For Petitioner :SRI.S.RAJEEV For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice J.B.KOSHY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-199604","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGousjan @ Houjan vs State Of Kerala on 27 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gousjan-houjan-vs-state-of-kerala-on-27-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gousjan @ Houjan vs State Of Kerala on 27 March, 2008 - 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