IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 CRL.A.No. 808 of 2004() ----------------------- SC.162/2000 OF ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1, MANJERI. C.P. NO.47/99 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT – I, MANJERI) .................... APPELLANT: ACCUSED ------------------ KARATTU SHOUKATHALI, S/O.MOIDEEN, KARATTU VEEDU, KARUVARAKUNDU, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE ------------------ THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PANDIKKAD - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON 18/07/2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.A.NO.808 OF 2004 ============================ DATED THIS 18TH DAY OF JULY 2008 JUDGMENT Balakrishnan Nair,J. The appellant, who was the accused in S.C.No.162/2000 of the Additional Sessions Court (Adhoc),Fast Track Court No.1, Manjeri, has come up in appeal, feeling aggrieved by the conviction and sentence imposed on him, for the offences under Sections 302, 364, 376, 377 and 379 of the Indian Penal Code. 2. The prosecution case in brief is as follows: The deceased Pathumma is the daughter of PW1. She is a divorcee residing with her father. Usually, she works as a coolie worker in the neighbouring rubber estates. The accused is also a coolie worker. On the evening of 10-8-1996, the accused came to the house of the deceased and told her that there is work in Baputty's rubber estate on the next day and she may come for CRL.A.NO. 808/2004 -2- the work. Based on that information, on 11-8-1996 the deceased left her house at 8 a.m. for the work in Baputty's estate. Since she did not return even after the usual time in the evening, her father went in search of her. Though PW1 made enquiries with Baputty, in whose estate she has gone for work, he was told that there was no work in his estate and it has been leased out to somebody for slaughter tapping. PW1, (the father of the deceased) enquired with all persons, who might have seen her. PW3, who is residing in the neighbourhood told him that he saw the deceased in the company of the accused in the morning. When all his efforts to trace her were in vain, he went to Karuvarakundu Police Station and lodged an information regarding the missing of her daughter. Thereupon, the Sub Inspector recorded his statement at 2 a.m. and a crime was registered. 3. Later, the accused was apprehended and based on the information furnished by him, Smt. Pathumma was found in the nearby forest. At that time, she was in an unconscious state. CRL.A.NO. 808/2004 -3- She was carried to a nearby hospital at Perinthalmanna where she was declared dead. Later, the body was taken to the District Hospital, Manjeri, where the inquest was conducted. According to the prosecution, the accused confessed his guilt. He confessed that he has carnal knowledge of the deceased including in the unnatural way. He strangulated her to death using her shawl and committed theft of the gold ornaments worn by her. PW14, the Circle Inspector based on the confession, recovered the ornaments and also the dress worn by the accused at the time of commission of the offence. He questioned the witnesses, recorded their statements and completed the investigation. PW15 successor-in-office laid the charge before the Judicial First Class Magistrate-I, Manjeri. The learned Magistrate committed the case for trial before the Sessions Court. The learned Sessions Judge made over the case to the Additional Sessions Judge(Adhoc),Fast Track Court No.1, Manjeri. 4. The accused pleaded not guilty to the charges. From the CRL.A.NO. 808/2004 -4- side of the prosecution, Pws.1 to 15 were examined and Exts.P1 to P21 were marked. Mos.1 to 6 were also produced. The accused was questioned regarding the circumstances that appeared against him in the evidence. No evidence was adduced from the side of the defence. The learned Additional Sessions Judge, after hearing both sides, found the accused guilty of the offences punishable under Sections 302, 364, 376, 377 and 379 of the Indian Penal Code. The aggrieved appellant attacks his conviction and the sentence imposed on him on several grounds. 5. We heard Mr.Babu S.Nair, learned counsel appearing for the appellant and Mr.S.U.Nazar, learned Public Prosecutor. The learned counsel for the appellant took us through the deposition of the witnesses and other materials on record. He pointed out that the case was sought to be established against the appellant, based on circumstantial evidence. Going by the principles laid down by the Apex Court and this Court, there are several missing links in the circumstances proved by the prosecution. According to the learned counsel, the entire case is a cooked up CRL.A.NO. 808/2004 -5- one and the various circumstances appearing on the face of the record will create serious suspicion about the case put forward by the prosecution and therefore, the appellant is entitled to get the benefit of doubt. The learned counsel expatiated his submission by pointing out various circumstances, which according to him, will weaken the prosecution case. They are the following:- (1) It is pointed out that as per the evidence of the investigating officer, PW14, the accused was arrested at 9 a.m.on 12-8-1996 at a place called Karinkalthoni and from there the accused was directly taken to the place where Pathumma was found. But PW1, the father of Pathumma would say that he was asked by the police to reach the police station in the morning on 12-8-1996. When he reached there by 5.30-6 a.m., the accused was there. So, the case put forward by the prosecution regarding the arrest of the accused creates serious doubts and therefore, the accused is entitled to get the benefit of doubt. (2) It is further contended, it is not clear from the evidence CRL.A.NO. 808/2004 -6- adduced by the prosecution, when the confession statement of the accused was recorded and what was the manner of recording the same, as according to PW14, immediately after the arrest of the accused at Karinkalthoni, the police party along with him, proceeded to the place where Pathumma was found. The above version lacks credibility, submitted the learned counsel. (3) It is pointed out that one of the main circumstances relied on by the prosecution and accepted by the court below is that the deceased was seen last in the company of the accused. But, they were seen together last, sitting on a rock in the forest at about 10.30 a.m. Pathumma was found lying unconscious in the forest on the next day at 10.30 a.m. So, there is a gap of 24 hours. Therefore, the last seen theory cannot be pressed into service, to hold the accused liable for what happened to Pathumma. Hands of others might have intervened. Such a possibility cannot be ruled out. The above aspect is a very serious lacuna in the prosecution case. (4) The learned counsel submitted that the recovery of the CRL.A.NO. 808/2004 -7- ornaments and the dress of the accused under Exts.P6 and P7 mahazars does not inspire confidence. They were stated to be concealed inside an uninhabited house belonging to one Mr.Shajahan. Going by the description in the Mahazar, it is an open shed where every one can have access. Further, Mr. Shajahan, who is the owner of the house, was not cited as a witness also. PW9, who came from the neighbourhood of the accused, was made a witness to the seizure mahazars. The above fact is a circumstance, which will weaken the credibility of the prosecution case, it is submitted. It is also pointed out that it is not clear from the confession proved, as to who is the author of the concealment. (5) The learned counsel also brought to our notice the result of chemical analysis. All the findings are negative. No seminal stains were found either in the clothes of the deceased or in the clothes stated to be worn by the appellant. Further, the possibility of commission of unnatural offence by anal intercourse is only a possibility, as stated by the expert witness, CRL.A.NO. 808/2004 -8- viz.the doctor who conducted the post-mortem examination. In the absence of any other materials, the same alone is not sufficient to sustain a conviction under Section 377 I.P.C., it is submitted. (6) The appellant finds fault with the prosecution for not examining Baputty and Shajahan as prosecution witnesses. As per the prosecution case, the accused came to the house of the deceased in the evening of 10-8-1996 and told her to come for work on 11-8-1996 at Baputty's rubber estate. PW1 has stated that Baputty told him that he has no work in his estate, as he had given the estate for slaughter tapping to somebody on lease arrangement. The said information is only a hearsay evidence. The prosecution should have examined Baputty, to prove that point. It is also suspicious why the prosecution failed to examine Shajahan, from whose house the recovery of material objects was made under Exts.P6 and P7 mahazars. The learned counsel also pointed out that in the F.I.R. it is stated that the same was recorded at 2 a.m.on 11-8-1996, whereas CRL.A.NO. 808/2004 -9- the incident happened only after 10.30 a.m.on 11-8-1996. Finally, the learned counsel pointed out that the precision with which information was furnished by the first informant in his F.I. statement will raise doubts regarding its genuineness . In view of the above circumstances, the learned counsel submitted that the appellant is entitled to get the benefit of doubt. Therefore, he prayed for allowing the appeal. 6. The learned Public Prosecutor, on the other hand, supported the prosecution case. He has fairly conceded that there is no evidence to sustain a conviction under Section 376 of the Indian Penal Code. But, the learned Public Prosecutor submitted that the conviction under Section 377 is justified. The accused has not chosen to cross-examine PW7, the Doctor, on the opinion given by him regarding the possibility of commission of unnatural offence as well as on the views expressed by him in the post-mortem report, Ext.P4, concerning the condition of anal canal noticed by him. The learned Public Prosecutor also pointed out that the deposition of PWs.1 to 4 coupled with the CRL.A.NO. 808/2004 -10- deposition of PW9 and PW14 will prove the guilt of the accused beyond reasonable doubt. He further submitted that there was no serious challenge to the version given by those witnesses, in their cross examination. Therefore their deposition stands unscathed and there is no reason to disbelieve their version, it is submitted. 7. Now, we will refer to the evidence of the witnesses, relied on by the prosecution, to sustain the case against the accused. PW1 is the father of the deceased. He has stated that the deceased, who is a divorcee, was staying with him along with her son for the last 10 to 12 years. She does coolie work in the neighbourhood. On 10.8.1996 at about 5.30 p.m the accused came and asked the deceased to come for work on the next day. The work to be done was in Bapputty's rubber estate. The accused further told that she should reach Parakkuthodi at 7.30 a.m and other workers will also be there. On 11.8.1996 the deceased went for the work in the morning. She was wearing a green coloured maxi and a shawl. She used to wear ear studs CRL.A.NO. 808/2004 -11- and jimky and also a necklace. She went in the morning at 7.30 a.m and normally, she was to return by 5.30 - 6. p.m. When she did not return by 6 p.m., PW1 went in search of her along with one Mr.Jamal. They met PW3 Vasu, who is residing by the side of the pathway, through which PW1's daughter went for work in the morning. He told PW1 that he saw the accused and the deceased going together before 8.30 a.m. Mr.Vasu also stated that he did not see his daughter returning. In search of his daughter, PW1 went to the house of Bapputty. Bapputty told him that there was no coolie work in his estate. The estate is given on lease to third parties. Later, he went to Karuvarakkundu Police Station and lodged the information regarding the missing of his daughter, at 2 a.m on 12.8.1996. Ext.P1 is the F.I. Statement. He identified M.O.1 series, which are the clothes of the deceased. He also identified the ornaments of the deceased, produced as M.O.2 series. He was asked to come to the Police Station in the morning. From there the police took him and the accused to Parayanmadu forest. The CRL.A.NO. 808/2004 -12- local people also accompanied them. When they reached the forest, a groaning sound was heard and his daughter was found lying by the side of a rock. The shawl was lying on the floor. It was found that her ornaments were missing. It was also understood that his daughter was alive. So, she was taken to the hospital. She was initially carried on his shoulders to the place where the vehicle was parked and from there, she was taken in the jeep to the hospital. On reaching the hospital, she was pronounced dead. Though, the defence counsel cross-examined him, nothing has been brought out to discredit his version. There was no serious challenge to the statement of the witness regarding the finding of the deceased lying almost dead in the forest in a place, to which the police party and others were led by the accused. 8. PW2 is Mr.Haridas, who is a rubber tapper by profession. On 11.8.1996 he went to the place where CW3's elder brother lives, along with CW3. It was through Parayanmadu that he went to that place. When he reached Parayanmadu by about 10 – CRL.A.NO. 808/2004 -13- 10.30 a.m., he found the accused and Pathumma sitting and talking, on a rock in the forest. The pathway through which PW2 was going, was below that rock. Since he knew both of them, he asked them why they were sitting there. Thereupon, the accused replied that they came for work, but other workers did not come. Though he was also cross-examined by the defence counsel, his statement that the accused and the deceased were seen sitting together on a rock, was not seriously challenged. Nothing has been brought out in the cross-examination to disbelieve the above statement of the witness. 9. PW3 Vasu is a rubber tapping worker. He stated that he saw the accused and the deceased going through the pathway in front of his house at about 8 – 8.30 a.m. At that time, Pathumma was carrying a plastic sheet, which could be used for working during the rains. Later, the father of the deceased and others came and enquired with him whether he has seen Pathumma. The enquiry was made at 9 p.m. PW3 asked PW1 what was the dress worn by her. He replied that she was wearing a green CRL.A.NO. 808/2004 -14- coloured maxi. PW3 told PW1 that he has seen the deceased going along with the accused. The said statement also remains practically unchallenged in the cross-examination by the defence. 10. PW4 Thomas was a witness, who was present when Pathumma was found lying in the forest at a place pointed out by the accused. It was at about 10.30 a.m. When the police examined, it was found that Pathumma was not dead. So, she was carried on his shoulders along with the help of two or three other persons. She was taken to the Perinthalmanna hospital, where she was declared dead by the doctor. Though he was cross-examined, nothing has been brought out to discredit his version. 11. The next witness relied on by the prosecution is PW9, who was present when the police recovered a purse from the place pointed out by the accused in the house of Mr. Shajahan, who is the brother-in-law of the accused. In that purse, the ornaments of the deceased were found. He identified M.O.4 purse, so recovered. The accused also produced a shirt, a CRL.A.NO. 808/2004 -15- mundu and a thorthu, which were hidden in that house. The accused produced them, stating that they were the dress worn by him on 11-8-1996. PW9 is an attester to Exts.P6 and P7 mahzars, under which the purse and the clothes were recovered. We notice that though he was cross-examined, nothing has been brought out to discredit the version given by him regarding the recovery. 12. The next material witness is PW14, the C.I of Police, who conducted the investigation. Though he completed the investigation, the charge was laid by his successor PW15 before the Magistrate's court. PW14 would state that the accused was arrested from Karinkalthoni at 9 a.m on 12.8.1996. The accused confessed his guilt. He stated that he will show the body of Pathumma, her shawl, the purse in which her ornaments are kept and the place where it is concealed and also the dress worn by him on 11.8.1996. Based on that information furnished by the accused, Pathumma was found lying unconscious in the forest. Her shawl was recovered. The purse containing the ornaments of CRL.A.NO. 808/2004 -16- the deceased was recovered, apart from the clothes worn by the accused on the date of occurrence. He conducted the inquest at the District Hospital, Manjeri and the body was sent for post- mortem to the Medical College Hospital, Kozhikode. During inquest, using a cellophane tape, sample from the ligature mark on the neck of the deceased was taken. Sample was taken from the hands of the deceased also, using cellophane tape and those tapes were sent for chemical analysis. Ext.P21 is the chemical analysis report, which would show that the cellophane tape, which collected the sample from the hands of the deceased, contained synthetic fibres, identical and similar to the fibres of item No.7, which was the shirt worn by the accused at the time of the incident. 13. Regarding the time of arrest of the accused, there is conflict between the versions of PW1 and PW14. According to PW1, he saw the accused in the Police Station when he went there in the early morning. According to PW14, the accused was arrested only at 9 a.m and that too, from Karinkalthoni and CRL.A.NO. 808/2004 -17- thereafter, based on the disclosures made by him, Pathumma was detected and other material objects were recovered. 14. PW7 is the doctor who conducted the post-mortem examination. He has given opinion regarding the cause of death of the deceased as ligature strangulation. He also stated about the possibility of anal intercourse. 15. The circumstances which were proved against the accused by the prosecution are the following: (1) The accused and the deceased were found sitting together and talking on a rock in the forest at 10.30 a.m on 11.8.1996. Before that, they were seen together going for work, by PW3 at 8.30 a.m. (2) Next day at 10.30 a.m the body of Pathumma was recovered from a place pointed out by the accused. P.Ws.1, 4 and 14 were present then. (3) From the house of the brother-in-law of the accused, the gold ornaments of the deceased were recovered, which were inside a purse kept at a place pointed out by the accused. 16. It is not disputed that the deceased breathed her last CRL.A.NO. 808/2004 -18- because of ligature strangulation. It was also proved by reliable evidence that the accused and the deceased were seen together at 10.30 a.m on 11.8.1996. On the next day she was found lying in the forest at a place pointed out by the accused, almost dead on account of ligature strangulation. The learned Sessions Judge relied on the “last seen together” theory, to find the accused guilty. But, the learned counsel for the appellant/accused pointed out that there is substantial time gap between 10.30 a.m on 11.8.1996 and 10.30 a.m on 12.8.1996, when the body was recovered. So, the involvement of third parties cannot be ruled out. But, we are of the view that the involvement of the accused is fortified by the fact that the body was recovered from the place pointed out by the accused. We find no reason to disbelieve the said case of the prosecution. The body was found out in the presence of a group of persons, who followed the police party and the accused. Further, the ornaments of the deceased were recovered from a purse, which was concealed in the house of the brother-in-law of the accused. The same also lends further CRL.A.NO. 808/2004 -19- credence to the case of the prosecution about the hand of the accused in the death of Pathumma. We agree with the reasons given by the learned Sessions Judge for believing the versions of the prosecution witnesses. As rightly pointed out by the prosecution, their version before the court was not seriously challenged in the cross-examination, especially concerning the material points. 17. Now, we will examine the loop-holes pointed out by the learned counsel for the appellant in the case of the prosecution. One of them is the conflict regarding the time of arrest of the accused in the versions of PW1 and PW14. According to PW1, the accused was seen in the Police Station in the morning of 12.8.1996, whereas according to PW14, the accused was arrested only at 9 a.m. The above conflict in the versions of PW1 and PW14 had been considered by the trial court and held that it does not affect the veracity of the prosecution case. It is possible that the accused, as the last man seen together with the missing lady, being taken into custody earlier, but recording his CRL.A.NO. 808/2004 -20- arrest subsequently, only on getting confirmation about his involvement, which is a usual general conduct of the police in many criminal cases. The same will explain the difference in the versions of PW1 and PW14 regarding the time of arrest of the accused. But, as rightly pointed out by the learned Sessions Judge, even if there are conflicting versions on this aspect, the same will not materially affect the prosecution case. This is so, as the body of Pathumma was found out and her ornaments were recovered transparently in the presence of several persons, including reliable witnesses. So, the foisting of a false case on the accused can be safely ruled out . 18. The contention of the learned counsel for the appellant that since the recovery of the ornaments was made from a place where others have also access, it will not inspire confidence, does not appear to us as a valid ground. According to the learned counsel, it is an uninhabited house. If that be so, the recovery of the material objects from such a place on the next day will inspire confidence. The non-examination of Bapputty or CRL.A.NO. 808/2004 -21- Shajahan is also of no consequence. Since it is proved by reliable evidence that the accused was found in the company of the deceased at 10.30 a.m on 11.8.1996, it is unnecessary to examine Bapputty to prove that there was no work in his estate on that day. Further, the recovery of the material objects from the house of Shajahan is proved by the evidence of P.Ws.9 and 14. So, the non-examination of Shajahan will not in any way weaken the prosecution case. The date given in the F.I.R.is only a clerical mistake occasioned because of the recording of the same in the night between 11.8.1996 and 12-8-1996. The authorship of concealment, though not stated in so many words in the part of the confession proved(Ext.P13), a close reading of it would show that it was none other than the accused, who concealed MO.II series, Mo.V and MO.VI. Thus, the contentions raised on behalf of the appellant are not sufficient to disturb the finding of