IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 CRL.A.No. 181 of 2007() --------------------------- SC.3/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANT/ACCUSED ------------------------- SHAJAHAN @ SHAJI, S/O.SAHIB ABDUL KHADER KOSAMATTOM COLONY, VIJAYAPURAM VILLAGE, NOW RESIDING IN THE HOUSE OF KANNAN, KATTIPARMBIL VEEDU, MUTTAMBALAM VILLAGE. BY ADV. SRI.RAJGOPAL PADIPPURACKAL RESPONDENT(S): RESPONDENT-COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON 19/07/2011 DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = Crl.Appeal No.181 of 2007 = = = = = = = = = = = = = = Dated this the 19th day of July, 2011 Judgment V.Ramkumar,J. In this appeal filed under Sec.374(2) Cr.P.C. the appellant, who was the sole accused in S.C.No.03/2006 on the file of the Addl. District and Sessions Court Fast Track (Adhoc-II), Kottayam for an offence punishable under Section 302 IPC, challenges the conviction entered and the sentence passed against him. 2. The case of the prosecution can be summarised as follows: The accused namely Shajahan @ Shaji aged 40 years (in the year 2004) was residing in a rented room in the railway puramboke colony at Muttambalam village. 4½ year old Shahana and 3 year old Shafana, who were minor daughters of the accused were also residing with him. Shahida, the wife of the accused was employed as a housemaid in Muscat since July 2004. The rented room in which the accused and his daughters were residing belongs to PW7(Kannan) who was insisting on the accused to vacate the said room. Mariam Beevi (PW6) the mother of the accused was residing in the ancestral house by name “Thadathilparambil” at Kosamattom Colony in Vijayapuram Village. On Crl. Appeal No.181 of 2007 2 account of the frustration and enmity due to the unwillingness on the part of Mariam Beevi to look after both his daughters in the ancestral house and the non-availability of his wife Shahida due to her employment abroad, the accused had picked up quarrel with his mother. He had openly declared that if, by 15.09.2004, the welfare of the children was not taken over by his mother and his wife did not return from Gulf, he along with the children, would commit suicide. Accordingly with a view to do away with his daughters and translate his threats into reality and with the full knowledge that his daughters would thereby die, on 15.9.2001 at 7 pm the accused reached the Mathoth ghat in Perumbaikadu village along with his daughters and dipped both the girls in Meenachil river and intentionally caused their death by drowning. The accused has thereby committed the offence of murder punishable under Section 302 IPC 3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.W.s 1 to 21 and got Crl. Appeal No.181 of 2007 3 marked 25 documents as Exts.P1 to P25 and 7 material objects as MOs.1 to 7. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He submitted a separate written statement stating, inter alia, as follows:- He and his wife along with their two daughters were residing in a rented premises in the Railway Puramboke Colony at Muttambalam. Since it was a love marriage, the relatives of both the husband and wife had alienated themselves from them. On account of the intervention of his sister, his wife, Shahida, was provided with an employment as housemaid in the Gulf. But after his wife reaching the Gulf, he came to know from his wife, whom he had contacted over the phone, that she was being compelled to be taken to different Crl. Appeal No.181 of 2007 4 houses for immoral activities. His wife had also written a detailed letter to him as well as to his mother narrating her bitter experiences in the Gulf. He, therefore, wanted her to be brought back to native place. Meanwhile, his landlord had asked him to vacate the room by 30.8.2004. He thereupon approached his mother seeking permission to allow him and his children to reside in the family house. But PW5 (Nazeer), who is his younger brother and the said brother's wife objected to the same. Yielding to their objections, his mother refused to accommodate him and his daughters in that house. He was at last forced to vacate the rented premises on 4.09.2004. He brought his clothes and household articles to the family house. But his mother, brother and brother's wife sent him and his daughters away. He was driven to the necessity of vacating his rented premisses along with his small daughters. The dress which he had taken to the ancestral house were burnt by Nazeer and his wife Selma (PW2) and a false complaint was lodged against him in the Kottayam East Crl. Appeal No.181 of 2007 5 Police Station. He was summoned to the Police Station continuously for 4 to 6 days and was detained there from morning till evening. During day time his daughters were kept in the Anganwadi and the nights were spent in the Railway Station and private bus stand of Kottayam. On account of his continued detention in the Police Station, he was deprived of earning his bread by doing coolie work. His children also had no spare dresses or blanket and he was unable to provide them with food. In that situation he had informed that he would come and stay in his ancestral home on 15.09.2004. On that day he reached the eastern side of Kosamattom colony by about 6.30 pm. He then noticed that his brothers and their friends and others were waiting for him for denying his entry into the house. In order to avoid a clash, he reached the northern end where the first set of houses in the Kosamattam Colony are located and through the sides of the houses he reached the banks of Meenachil river which runs along the northern side. He reached the ghat on the western Crl. Appeal No.181 of 2007 6 side of the Colony along with his daughters. While sitting on the western structure at the ferry, Shahana, the elder child, accidentally fell in that part of the river where it was deep. He jumped into the river in order to rescue the child. Along with him the small child also accidentally fell in the river. In that perplexed situation and on account of the depth of the river he was unable to rescue both his daughters and take them to the shore desperately rescued his daughters from the deep river. Both of them were then alive. He took his daughters to his ancestral home. But his mother and other inmates of the house mistook that he had done away with his children. Even though he asked them to rush his daughters to the hospital, his entreaties were in vain. Instead of taking his daughters to the hospital his brothers and others, who were waiting there for him to come, assaulted him and forcibly tied him to a post at Kosamattom junction. The children were lying unattended in the family home. Had they be taken to the hospital in time, their lives could have been saved. After Crl. Appeal No.181 of 2007 7 the children were taken to he hospital, the younger child was given oxygen, as is discernible from the inquest report. Exts.P14 and P15 Wound Certificates were not produced before Court in time. Those Wound Certificates and police intimations were thereafter fabricated and produced before Court. On 15.9.2004 he had not gone to Mathothu ghat nor had he gone to the shop of Bindu Sajikumar. Fearing that he also would have to be given a share in the family property, his mother, brothers and sister-in-law were falsely swearing against him. The slippers produced before Court do not belong to him. His slippers are of the size 7 inches. He had not produced the slippers before the Police nor had he shown them at the place of occurrence. The slippers constitute false evidence created for the purpose of this case. He had not given any confession statement to the Police. The letters allegedly written and sent by him are not in his handwriting and were not written by him. No decision was taken on the petition filed by his mother on 6.9.2004. The so-called decision taken on the said Crl. Appeal No.181 of 2007 8 petition is the product of concoction. 5. Since this was not a case of no evidence within the meaning of Section 232 Cr.P.C, the learned Sessions Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce any evidence which he might have in support thereof. Except getting marked Ext.D1 which is the relevant portion of case diary contradiction of PW.2(Salma), the accused did not adduce any defence evidence. The learned trial Judge got marked two hospital intimations pertaining to the 2 deceased girls as Exts.C1 and C2 which were available in the Case Diary files. The case was then taken up for arguments. 6. The Addl. Sessions Judge, after trial, as per judgment dated 28.03.2006 found the appellant guilty of the offence of murder of his daughters and on the next day after hearing him on the question of sentence, sentenced him to imprisonment for life. It is the said judgment which Crl. Appeal No.181 of 2007 9 is assailed in this appeal by the accused. 7. We heard Advocate Sri.Rajagopal Padippurackal, the learned counsel appearing for the appellant and Adv.Sri.C.S.Hrithwik, the learned Public Prosecutor defending the State. We also perused the oral and documentary evidence in the case. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not. The Point 9. PW1 (Joy Kurian @ Animon) is the first informant. He is a neighbour of the ancestral home of the accused. He proved Ext.P1 First Information Statement as well as MOs.1 and 2 frocks worn by the deceased girls. PW2(Selma) is the wife of Nazeer, the younger brother of the accused. The said Nazeer was examined as PW5. Selma along with her Crl. Appeal No.181 of 2007 10 husband resides with Mariam Beevi, the mother of the accused in the family house at Kosamattom Colony. PW3 (Bindu Saji Kumar) runs a stationery cum vegetable shop, some distance away from the ghat, where the children were drowned to death. PW3 has been examined to prove that the two girls were last seen together in the company of their father, the accused, at about 6.30 pm on 16.09.2004 and that the accused had purchased sweets for the girls from the shop of PW3. PW4 (Rajani) is a teacher at the Anganwadi in the Railway Puramboke Colony. This witness was examined to prove that the accused used to bring the children to the Anganwadi in the morning and take them back in the evening and he last brought them and took them back on 14.09.2004. PW5(Nazeer) is the younger brother of the accused. He speaks about the ultimatum given by the accused through Exts.P2 to P4 letters sent by the accused to his mother, PW6 and his elder brother Abdul Rahiman @ Andru to the effect that if by 15.9.2004 his wife did not Crl. Appeal No.181 of 2007 11 return from the Gulf and his children were not looked after by his mother, then he and his children would commit suicide. This witness has identified MO3 chappals as belonging to the accused. PW6 (Mariam Beevi) is none other than the mother of the accused. She proved an extra- judicial confession made by the accused in the form of a declaration while he came with the corpses of his daughters that he acted in accordance with the ultimatum given by him earlier. She also proved Ext.P5 complaint lodged by her before the Kottayam East Police Station consequent on the accused coming to the ancestral home on 5.9.2004 along with the children and setting ablaze the clothing when he was denied accommodation in the ancestral home. PW7 (Kannan) is the landlord of the rented premises where the accused was residing along with his daughters. He was examined to prove that even though he demanded the accused to vacate the premises by 30.8.2004, the accused had not vacated the premises. PW8 (Thomas) is the attester Crl. Appeal No.181 of 2007 12 to Ext.P6 inquest report pertaining to the inquest of Shahana, the elder child, held by PW19. PW9 (P.G.Sasi) is an attester to Ext.P7 Scene Mahazar prepared by PW19. MO3 chappals were seized under Ext.P7 scene mahazar. PW10 (Anil Ummen) was the Village Officer of Perumbaikkad village. He proved Ext.P8 scene plan, wherein a mistake had crept in while locating the place of occurrence, and he also proved Ext.P10 revised plan prepared by him without any mistake. PW11 (P.R.Mohandas) is the Police Constable attached to the Kottayam East Police Station. He proved Ext.P11 Petition Register and Ext.P5 complaint preferred by PW6, the mother of the accused, pursuant to the garments burning incident. PW12(Baby) is another Police Constable attached to the same Police Station. He had been deputed to meet the parties and summon them to the Police Station for a decision on Ext.P5 petition. He claims to have met the accused in his rented premises on 6.9.2004 and had asked Crl. Appeal No.181 of 2007 13 the accused to go to the Police Station on that day. PW13 (K.K.Sasi) is an attester to Ext.P13 mahazar as per which Exts.P2 to P4 letters produced by Abdul Rahiman @ Andru were seized by PW19, the Circle Inspector of Police. PW14 (Dr.Bincy T.K.) is an additional witness. She was the Assistant Surgeon in the Taluk Head Quarters Hospital, Kottayam. Exts.P14 and P15 Wound Certificates pertaining to Shahana and Shafna respectively were marked through her. According to this witness, both the children were brought dead in the hospital at 7.15 pm on 15.09.2004 by PWs.1,5 and Abdul Rahiman @ Andru. PW15(Dr.V.M.Rajiv) who was the Senior Lecturer and Asst.Police Surgeon, Forensic Science Department in the Medical College, Kottayam, conducted autopsy over the dead body of Shahana and proved Ext.P16 Postmortem Certificate. He also proved Ext.P17 Chemical Report. PW16(Dr.Tomy Mappalakkayil) who was also the Assistant Police Surgeon in the Medical College Hospital, Kottayam, conducted Crl. Appeal No.181 of 2007 14 autopsy of the dead body of Shafna and issued Ext.P18 Postmortem Certificate. PW17 (Ajith Kumar) is the Scientific Assistant in the District Mobile Laboratory, Kottayam. He had collected in two separate bottles water samples from the vicinity of the ghat, where the children were drowned. He proved Ext.P20 report showing the result of the diatom test. PW18 (K.K.Muraleedharan) was the Sub Inspector of Police, Kottayam. He recorded Ext.P1 First Information Statement of PW1 and registered Ext.P21 FIR. He also held inquest over the dead body of Shafna on 16.09.2004 as evidenced by Ext.P22 Inquest Report. MO2 frock was seized under the said inquest report. PW19 (V.Muhammed Rafeek) was the Circle Inspector of Police, Kottayam East Police Station. He arrested the accused in the night of 15.9.2004 from Kosamattom Colony where the accused was detained by the local public. He held inquest over the dead body of Shahana the elder child on 16.9.2004 at 9 am and prepared Ext.P6 inquest report. MO1 frock Crl. Appeal No.181 of 2007 15 was seized under the Inquest Report. Mos.5 and 6 which are the particles collected by PW17 from the body of the deceased children were marked through him. MO7 cotton gauze was also marked through him. PW19 also proved Ext.P23 report giving the complete address of the accused, Ext.P24 report regarding the exact time of the occurrence as 7 pm and Ext.P25 Inspection Memo. PW20 (N.C.Rajmohan), the Circle Inspector of Police, Kottayam East Police Station who succeeded PW19, questioned the witnesses during the period from 22.10.2004 to 27.06.2005. PW21(V.G.Vinodkumar) was the succeeding Circle Inspector of Police, after verifying the investigation conducted by PWs.19 and 20 laid the charge sheet before the committal Magistrate. 10. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- The evidence regarding the extra-judicial confession Crl. Appeal No.181 of 2007 16 allegedly made by the appellant to his mother is so contradictory and discrepant that it cannot be accepted at all. PW1 came out with a case when examined before Court that at about 7.30 pm on 15.09.2004 the appellant came to his ancestral home with the two dead children and laid them before his mother (PW6) and proclaimed that he carried out the ultimatum given by him earlier. But PW1 had no such case in Ext.P1 F.I.Statement. PWs.2 and 6 who have deposed in support of the aforesaid extra-judicial confession made by the appellant to his mother, were inimically disposed of against the appellant. Shahida (the wife of the appellant) was secured an employment in the Gulf as a house maid by the family members of the appellant. But it was only after she reached Muscat that she realised that she was being sexually exploited. When she conveyed this to the appellant and his family members through letters, the appellant was very much aggrieved and he demanded his family members to repatriate Shahida. But they were unwilling to do so. Thereafter the relationship between the accused and his Crl. Appeal No.181 of 2007 17 family members got very much strained. Hence, the testimony of PWs.2,5 and 6 has to be approached with caution. The last seen together theory sought to be propounded through PW3 is totally unworthy of any credence. PW3 went on prevaricating regarding the location of her shop from where the appellant allegedly bought sweets to his daughters. According to her first version, the shop was attached to her house. She confessed that she is residing at S.H.Mount which is 1½ km away from Mathoth ghat where the girls were allegedly drowned to death. She had to then wriggle out of the difficult situation by coming out with an improved version that the shop belongs to her husband. Ext.P7 scene mahazar does not make any mention of the shop of PW3. So also Ext.P10 scene plan. The alleged seizure of MO3 slippers as per Ext.P7 scene mahazar is also doubtful. PW19 (C.I. of Police) would say that it was the appellant who showed him the place of occurrence. But Ext.P7 scene plan is silent about it. PW9, the attester to Ext.P7 scene mahazar was made to say that it was the accused who handed Crl. Appeal No.181 of 2007 18 over MO3 slippers to the Circle Inspector. Exts.P14 and P15 are claimed to be the wound certificates prepared by PW14, the Asst.Surgeon at Taluk Head Quarters Hospital, Kottayam when the girls were allegedly brought dead in the hospital and examined by PW14 at 7.50 pm and 8 pm respectively. But Column IX of Ext.P22 Inquest Report pertaining to Shafna contains a statement by Abdul Rahiman, the elder brother of the appellant to the effect that after the girls were brought to the hospital, the doctor gave them oxygen. If so, the prosecution case that the girls were brought dead to the hospital is false. For reasons best known to the prosecution Abdul Rahiman was kept out of the witness box. The prosecution did not consider it necessary to mark the intimations allegedly sent by PW14 to the Police. It was the trial court which got those intimations marked as Ext.C1 and C2 and the same will show that death intimations were not sent promptly. The ultimatum constituting the alleged motive for the occurrence, also is a product of subsequent manipulation. Exts.P2 to P4 letters allegedly sent by the Crl. Appeal No.181 of 2007 19 appellant and containing the ultimatum have not been proved to be in the handwriting of the appellant. The specific suggestion put by the appellant to PW5 was that those letters were written by PW5. No admitted writings of the appellant have been taken. The appellants' specimen writings were also not taken. No expert opinion has been sought. The alleged cloth burning incident is also a figment of fertile imagination by the Police. The appellant has denied the alleged act of burning the clothes. The very fact that the appellant had brought all the clothes of himself, his wife and children to his ancestral house on 5.9.2004 itself probabilises the defence version that the appellant was forced to vacate his rented premises and had taken asylum at his ancestral house requesting his mother to take over his daughters. In Ext.P5 complaint the mother of the appellant has admitted that a situation under which the appellant is forced to vacate his rented premises, has arisen. It was PW5 who had burnt the clothes and Ext.P5 false complaint was given against the appellant. Crl. Appeal No.181 of 2007 20 11. We are afraid that we find ourselves unable to agree with the above submissions made on behalf of the appellant. PW6 (Mariam Beevi) residing at Thalathiparambil House in Kosamattom Colony in Vijayapuram village has three sons by name Abdul Rahiman @ Andru, Shajahan (the accused) and Nazeer. The appellant had married twice earlier and Shahida who is at present in Muscat, is his third wife. The appellant was of a quarrelsome nature. Eventhough he was initially residing in the family house at Kosamattom colony, on account of his pugnacious disposition, after he married Shahida he shifted to a rented premises in the Railway Puramboke Colony in Muttambalam village. PW7 is the landlord of the said premises. At the intervention of the sister of the appellant, his wife Shahida was taken to Muscat, where she was secured the employment of a housemaid. The appellant along with his two daughters thus continued their residence in the rented premises in the Railway Puramboke at Crl. Appeal No.181 of 2007 21 Muttambalam. The appellant used to take the children to the Anganwadi in the Railway Puramboke Colony where PW4 was the Anganwadi teacher. The appellant would take the children to the Anganwadi in the morning and would bring them back to his rented premises in the evening. During day time he used to do coolie work and thus eke his livelihood. On account of his quarrelsome nature, his mother and brothers were not agreeable to the appellant residing in the family house at Kosamattom Colony. The appellant used to unfoundedly allege that his wife was being subjected to immoral activities while at Muscat and he was in the habit of blaming his family members for that. He used to frequently insist upon repatriating his wife and was demanding his family members to look after his daughters until then. On 05.9.2004 he went to the family house at Kosamattom along with his daughters and demanded his mother to take care of his children. He had also brought with him the clothes belonging to him, his wife and children. Crl. Appeal No.181 of 2007 22 When his mother (PW6) refused to oblige him, he grew wild and burnt the clothes in the courtyard of the family house. It was this incident which provoked his mother and family members culminating in his mother lodging Ext.P5 complaint before the Police. On receipt of Ext.P5 complaint in the Kottayam East Police Station, the parties were summoned through PW12 a Police Constable attached to the said Police Station. PW12 met the