IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1053 of 2005 --------------------------- SC.306/2003 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD .................... APPELLANT: ------------ GAFOOR @ ABDUL GAFOOR, S/O. MUHAMMED KUTTY, CONVICT NO.1648, CENTRAL PRISON, KANNUR. BY ADV. ADV.ASHA CHERIAN(STATE BRIEF) RESPONDENT: --------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. A. No. 1053 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of July, 2009. Judgment Basheer, J: Appellant was tried before the Additional Sessions Judges' Court (Fast Track Court No.II, Palakkad) for the offences punishable under Sections 449, 302, 397 and 201 of the Indian Penal Code. 2. The court below found him guilty on all counts and convicted and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.4,000/- and in default to undergo simple imprisonment for two months under Section 449 IPC. He was also sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for three months under Section 302 IPC. For the offence punishable under Section 397 IPC, the appellant was sentenced to undergo rigorous imprisonment for 7 years and for the offence under Section 201 IPC he was directed to suffer rigorous imprisonment for 4 years and to pay a fine of Rs.2,000/- with a default sentence of simple imprisonment for one month. It was further directed that the substantive sentences of imprisonment shall run concurrently. Plea of set off for the period of imprisonment undergone already, was turned down. 3. The prosecution case in brief was that the appellant/accused had committed trespass into the residence of one Amina aged about 70 years with the intention of committing robbery and had in the process assaulted her with a coconut scraper and knife. According to the Crl.A.1053/05 2 prosecution, the appellant inflicted 44 injuries on Amina as revealed from the post mortem certificate. Ornaments worn by deceased Amina weighing about 53 grams were robbed by the appellant. In that process he had cut off her earlobes with M.O.2 knife. The earlobes were allegedly destroyed by throwing them away in Bharathapuzha. 4. Deceased Amina was residing with her daughter in law and three grand children. Her son was away in Qatar. On the ill fated day, the daughter in law and her two younger children had gone to her parental home. Pw.1 the eldest grandchild of the deceased, had gone to the shop in connection with his business. Pw.1 saw the dead body in the kitchen at about 3 p.m. when he came back from the shop. He informed the Police thereafter. Pw.25, Sub Inspector of Police recorded Ext.P1 F.I. statement given by Pw.1 and Ext.P15 F.I Report. Investigation was taken over by Pw.26 Circle Inspector. On questioning the neighbours and other witnesses he suspected involvement of the appellant. On questioning the appellant at his wife's residence at about 11 p.m. on the next day, the appellant allegedly confessed to the crime. The gold ornaments were recovered from Pws.15 to 17 pursuant to the information furnished by the appellant. Investigation was thereafter completed and charge sheet was laid against the appellant. 5. Prosecution examined Pws.1 to 26 and marked Exts.P1 to P20 and M.Os.1 to 25. There was no oral evidence on the side of the accused. However, Ext.D1, the relevant portion of the statement given by Pw.7 to the Police, was marked on his side. Crl.A.1053/05 3 6. As mentioned earlier, the court below found that the prosecution had succeeded in proving the charge against the appellant and accordingly found him guilty and convicted and sentenced him. 7. It is contended by Ms.Asha Cherian, learned counsel who appeared for the appellant as State Brief, that the court below had failed to take note of certain inherent improbabilities in the prosecution case. She submits that the evidence of the witnesses on the side of the prosecution was bristled with contradictions and omissions and therefore their evidence ought not to have been believed. 8. Per contra, it is contended by Sri.S.U.Nazar, learned Public Prosecutor that the prosecution had totally succeeded in proving the charge against the accused. He points out that Pw.3, 4, 6, 8 and 10 had spoken about the presence of the accused in the vicinity of the scene of occurrence at the relevant point of time. The stolen gold ornaments were recovered from Pws.15, 16 and 17 on the basis of the information furnished by none other than the accused himself. The said recovery made under Section 27 of the Evidence Act could not be assailed or challenged by the defence in any manner known to law. Pw.18 had witnessed the recovery in question. He further points out that the evidence of Pws.1, 2, 5 and 6 will also show that deceased Amina was alone in her house at the time when she was done to death. 9. It may at once be noticed that Ext.P8 post mortem certificate issued by the Professor and Head of Department of Forensic Medicine and Police Surgeon, Medical College, Thrissur will undoubtedly show that the victim was inflicted with not less than 44 injuries all over her Crl.A.1053/05 4 body, particularly on the vital parts like head and neck. She was apparently battered with M.O.1 coconut scraper which is a long and thick weapon. It had also come out in evidence that middle part of the weapon has a zigzag edge in a semi circle. Many of the injuries noted in Ext.P8 and as spoken to by Pw.20 would reveal that the sharp metallic portion of M.O.1 was used by the assailant to inflict several injuries on the helpless old lady. In Ext.P8 the doctor categorically stated that the victim died of injuries sustained on the head and neck. In his chief examination Pw.20 further asserted that immediate cause for the death of the victim was injuries 1 to 32, 37, 39, 40, 41, 42, 43 and 44. He further stated that injury Nos.1, 2, 8 to 10 14 to 18, 19, 20 to 33, 37 to 44 could be caused by M.O.1 and M.O.2 knife. He further stated that he was shown M.O.1 and M.O.2 by the Investigating Officer in the course of the investigation. 10. It has not been disputed before us that the deceased was brutally assaulted by her assailant and that she sustained those injuries with weapons like M.O.1 and M.O.2. Therefore we do not deem it necessary to refer to or extract all the injuries noted by Pw.20 who conducted autopsy. More importantly, the evidence of Pw.20 supported by Ext.P8 will also show that the earlobes of the unfortunate old lady were found to have been cut and removed. 11. Pw.1, the eldest son of Pw.2, (daughter in law of the deceased) had seen the dead body inside the kitchen at about 3 p.m. He stated that he had left the house at 7 a.m. His mother had left the house at about 10 a.m with the siblings. Thereafter the deceased was Crl.A.1053/05 5 alone at home. Pw.2 the daughter in law stated that she had left for her matrimonial home at about 10 a.m. At that time Pw.5 the younger sister of the deceased had just reached there. Pw.2 further stated that later in the afternoon she was informed that her mother in law was not well. She further stated that when she saw the deceased last at about 10 a.m. she had been wearing ornaments in her neck, ear, hand etc. She identified M.O.3 and M.O.4 as the ornaments which were worn by the deceased. M.O.5 which was an ingot was also shown to her. 12. Pw.5 stated that she had visited her elder sister (the deceased) at about 10 a.m.. She spent some time with her and went away at about 11 O' clock. 13. Pw.6, a young lady in the neighbourhood deposed before the court that she had come to the residence of the deceased at 10.30 a.m. to attend a phone call from her husband who was employed in the Gulf. At that time she saw the deceased with her younger sister Pw.5. After attending the call she went back to her house at about 11.15 a.m. She further stated that she saw the appellant in the house of Pw.3, which is opposite to the residence of the deceased. 14. Pw.3 deposed before court that she had been residing in the building situated in front of the residence of the deceased, about 20 meters away. Appellant is none other than her sister's son. According to Pw.3, the accused had come to her house between 10 a.m. and 11 a.m. Accused requested her to give him Rs.50/-. She could not give it because she did not have any money with her. Accused had told her that he wanted the money since he was going to his wife's house. Crl.A.1053/05 6 According to Pw.3 the accused spent some time with her. She further stated that one leg of the accused was amputated. She had seen Pw.5 coming out of the residence of the deceased. In fact the deceased had come to the gate to see her sister off. She came to know about the tragedy at about 3 p.m. Through Pw.1. Pw.3 asserted that on that day no one else other than the accused had come to her house. 15. Pw.4 is yet another neighbour of the deceased. She deposed that she had seen the accused in the residence of Pw.3 on the day of the incident. It was at about 11.15 a.m. She did not see any stranger in that vicinity on that day. She further stated that she had seen Pw.2 and her two children going to their matrimonial home at about 10 a.m. This witness was not cross examined by the defence. 16. Pw.5, as has been noticed already, is the younger sister of the deceased. She stated that she had visited her elder sister on that day at about 10 am. She returned by about 11 a.m. She had gone there to hand over the sakath (alms) since it was the month of Ramzan. At that time Pw.6 had come there to attend her husband's phone call. She also stated that she had seen the accused in the house of Pw.3 just opposite to the residence of her sister. Pw.6 stated that after attending the phone call while she was going, the accused who was in the courtyard of the residence of Pw.3 had asked her about the phone call. 17. Pw.7 deposed that while he was coming back with his father on his bike at about 11.30 a.m. he had seen the accused standing near the house of the deceased. He saw the deceased standing in front of her house talking to her younger sister (Pw.5). The accused was Crl.A.1053/05 7 standing near the compound wall of the residence of the deceased. Later, he saw the accused going with a plastic bag in his hand. Pw.7 stated that at that time he was standing in front of his house. 18. Pw.8 who is a neighbour of Pw.7 stated that she had gone to the residence of Pw.7 at about 12.15 p.m. on the day of the incident to fetch some water. After identifying the accused in the dock, she stated that she had seen him going towards west with a small plastic bag in his hand. 19. Pw.9 who was living in the neighbourhood of the deceased stated that he had gone to the residence of the deceased along with Cw.12 at about 12.15 p.m. to collect rice which was to be distributed among the poor people in the month of Ramzan. Though the door bell was rung three or four times, there was no response. He went to the back side of the house. The door was found closed. Therefore he went back. 20. Pw.10 is the son of one of the Aunts of the accused. He saw the accused standing in front of his house at about 12.30 p.m. on that day. There was a small packet in his hand. He was sweating profusely. When Pw.10 asked the accused why he was sweating, he was told that he was exhausted because of the walk. As regards the small packet, the accused told Pw.10 that it was a new shirt which he had collected from tailor Kuttan. The accused requested Pw.10 to fetch an auto rickshaw for him. But by the time Pw.10 came back with the autorickshaw driven by Cw.14, the accused had left the place in a jeep. This witness was also not cross examined by the defence. Crl.A.1053/05 8 21. Pw.11, the tailor referred to by Pw.10 stated that the accused had not got any shirt stitched from him in the recent past. Pw.12 was an attestor to Ext.P2 seizure mahazar under which M.O.6 to 9, pant, shorts, shirt and wrist watch respectively belonging to the accused were recovered. Under the same mahazar a sum of Rs. 21180/- which was marked as M.O.10 series, was also recovered. Significantly Pw.13 the wife of the accused was a witness to the recovery of M.Os.6 to 10. She was also a witness to Ext.P3 arrest memo. Pw.14 was an attestor to Ext.P4 scene mahazar. 22. Pw.15 was the owner of Ambal Jewellery shop. He admitted that he had purchased certain gold ornaments from the accused on November 30, 2002 at about 5.30 p.m., the date of the occurrence. He further stated that he was acquainted with the accused for some time. He had paid Rs.21400/- to the appellant/accused towards the value of the gold ornaments (49 grams at the rate of Rs.433/-) to the accused. But according to this witness, he had sold away the said ornaments to Pws.16 and 17 who were also engaged in the same business. Accordingly Pw.26, the Investigating Officer had recovered 31.800 grams of gold from Pw.16 under Ext.P5 mahazar. The gold was found to be in the shape of two pieces. According to Pw.6 he was in the process of making a bangle (------------). Similarly Pw.17 had produced broken pieces of ear ornaments known as Kummath and broken pieces of pendant with white and red stones. These ornaments (M.Os.3 and 4) were identified by Pw.2 as that of her mother in law when she was examined in the court. These ornaments were seized by the Crl.A.1053/05 9 Investigating Officer under Ext.P6 mahazar. Significantly Pws.16 and 27 also admitted that they had purchased these gold ornaments from Pw.15. Pw.18 was an attestor to Exts.P5 and P6 seizure mahazars. 23. Pw.19 Village Assistant prepared Ext.P7 site plan. We have already referred to the evidence of Pw.20, the doctor who conducted autopsy on the body of the victim. 24. Pw.21 was the doctor who examined the accused and issued Ext.P11 wound certificate. In this certificate the doctor had noted 4 punctured abrasions on the proximal phalanx of left little finger and two abrasions on the distal part of middle phalanx of left thumb. Yet another injury ½ cm long and skin deep was also found below the wrist. Two lacerations were also found on the right wrist on the dorsal aspect. These injuries were found to be 3 to 4 days old. Significantly the accused was examined by the doctor on December 2, 2002 at 4.30 p.m. 25. Pw.22 was an attestor to Ext.P12 scene mahazar under which M.O.12 video cassette was produced by the videographer before the Investigating Officer. He was also an attestor to Ext.P13 mahazar under which M.O.13 M.O.14 material objects collected from the scene of occurrence were produced. Pw.23 was the videographer who recorded the scene of occurrence in the video. Pw.24 was a witness to Ext.P14 inquest report. Pw.25, as we have mentioned already, recorded Ext.P1 F.I. statement and registered Ext.P15 First Information Report. 26. Pw.26 the Investigating Officer, spoke about the various steps taken by him in the course of investigation. We do not deem it Crl.A.1053/05 10 necessary to refer to them at length. According to this officer, he arrested the accused at his wife's residence on December 31,2002, the next day of the incident after making recovery of M.Os. 6 to 10 and after recording Ext.P16 confession statement. Ext.P3 arrest memo was also prepared in which the wife of the accused (Pw.13) was a witness. Ext.D1 contradictory statement given by Pw.7 was marked through this witness. 27. A perusal of the evidence of the material witnesses examined on the side of the prosecution will unambiguously show that the prosecution had succeeded in establishing all the links in this case which entirely is based on circumstantial evidence. The evidence of Pw.3 in particular, who was none other than the elder sister of the mother of the accused , clearly established that the accused was in her house on the day of the incident. Her house was just opposite to the residence of the deceased. Accused had remained in her house for more than an hour going by the evidence of not only Pw.3 but also that of Pws.4, 5, 6 and 7. That there was no one else in the house other than the deceased lady at the relevant point of time had also come out on record through the evidence of Pws.1, 2, 5 and 6. Pw.5, the sister of the deceased had apparently seen her last. According to Pw.5 she had gone to meet her elder sister at 10 a.m. and left the house at about 11 O' clock. Pw.6 had also seen the deceased at about 11.15 a.m. Thus the evidence of Pws.1 to 10 will clinchingly show that the accused was not only present in the vicinity of the scene of occurrence but also that the deceased was alone at her home after about 11.30 a.m. Accused was Crl.A.1053/05 11 seen going towards west shortly after 12-12.30 p.m, as spoken to by Pw.8. Pw.10 saw the accused at about 12.30 p.m. in front of his house. According to Pw.10 the accused went away in a jeep by the time he fetched an autorickshaw for the accused as requested by him. Pw.9 deposed that when he went to the residence of the deceased at about 12.15 p.m. along with Cw.12 and rang the bell there was no response. Therefore the evidence adduced by the prosecution clearly established that the victim might have been assaulted between 11.30 and 12.15 p.m. 28. The only question is as to who might have been responsible for the death of the unfortunate old woman. The presence of the accused near the scene of occurrence is clearly established from the evidence of the witnesses referred to above. 29. Then we have the evidence of Pws.15 to 17 through whom the stolen gold ornaments were recovered. We have carefully perused the evidence of Pws.15 to 17 in this regard apart from the evidence of Pw.18 who was an attestor to Exts.P5 and P6 recovery mahazars. Significantly Pw.15 candidly admitted that he had purchased gold ornaments in the evening on the day of the incident and paid him Rs.21,400/-. In this context it may be pertinent to note that the accused was not having any employment (he was a physically handicapped person). In fact he had gone to the residence of Pw.3 to borrow Rs.50/- from her. That clearly indicated that he did not have even Rs.50/- with him in the morning on the day of the incident. But significantly a sum of Rs.21,180/- (Ext.P10 series) was recovered from Crl.A.1053/05 12 him on December 1, 2008 the next day of the alleged incident. The accused had no explanation to offer as to how he came in possession of such a huge amount. 30. Having carefully perused the evidence adduced by the prosecution, we have no hesitation to hold that the prosecution has succeeded in establishing its case. M.O.10 series cash recovered from the accused could only have been the sale proceeds of the gold ornaments robbed by him from the body of the deceased. We also do not find any kind of infirmity in the evidence of Pw.15 to 18 and also Exts.P5 and P6 recovery mahazars. 31. It is true that there are some minor contradictions or omissions in the evidence of Pw.7 (Ext.D1). Those contradictions and omissions in our view are totally insignificant and irrelevant in the totality of the facts and circumstances of the case. Having carefully perused the materials available on record and having gone through the deposition of the witnesses and documents, we find no reason to interfere with the order of conviction and sentence passed by the court below. 32. Though learned counsel for the appellant has strenuously contended before us that the accused whose right leg had been amputated in connection with an accident could not have been in a position to inflict such a large number of injuries on the victim, we are not at all impressed by the said contention. Admittedly the accused was aged only 24 at the time of the commission of the crime. There is no evidence on record to indicate that apart from the amputation of one of Crl.A.1053/05 13 his legs, he was not stout or unhealthy. Moreover, bloodstains were noted on the shirt, shoes and pants recovered from the accused at the time of arrest, which admittedly were worn by him at the time of commission of the offence. In the absence of any evidence adduced by the defence to show that the accused was physically infirm or weak, it cannot be assumed that he could not have inflicted the injuries on the victim, as is now contended by learned counsel for the appellant. We do not find any merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge P. S. Gopinathan Judge an.