IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 CRL.A.No. 689 of 2005() ----------------------- SC.30/2004 of ADDL. SESSIONS COURT (ADHOC-1), THODUPUZHA .................... APPELLANT(S): ACCUSED. ---------------------- VARGHESE @ JOSE, AGED 33 YEARS, S/O CHACKO, MAZHUVACHERIL HOUSE, ERATTAYAR KARA, KALKOONTHAN VILLAGE. BY ADV. SRI.JOICE GEORGE SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. Bhavadasan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 689 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2009. Judgment Basheer, J: Appellant was charge sheeted by Kattappana police for commission of the offences punishable under Sections 302 and 201 of the Indian Penal Code. 2. The gravamen of the charge against the appellant was that he had committed murder of Sunitha, his neighbour at about 5.15 p.m. on August 29, 2000 by beating her on her head with M.O.3 steel rod and pushing her into the well situated in her residential compound. 3. The trial court after a careful evaluation of the oral and documentary evidence available on record found the appellant guilty under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.10,000/- with a default sentence of simple imprisonment for six months. Appellant was acquitted of the charge under Section 201 IPC. 4. The above order of conviction and sentence passed against the appellant under Section 302 IPC is under challenge in this appeal. 5. The prosecution case in brief was that deceased Sunitha, aged about 17 years was living with her mother, sister, brother, grand mother, uncle etc., in her family house during the relevant period. Appellant was living in the immediate neighbourhood about 50 meters away from the house of the deceased. Appellant was a regular visitor at the house of the deceased and was moving freely with all the inmates of the house for years. It had come out from the evidence of P.Ws.1 to 5, uncle, mother, sister, Crl.A.689/2005. 2 brother etc., of the deceased that the appellant had been showing some kind of infatuation or love towards the deceased; but she had not shown any positive response to those overtures. On the contrary, she had in fact resented about his conduct and even had rebuked him on a few occasions. 6. The prosecution alleged that shortly before the alleged incident, a marriage proposal for the deceased was in serious contemplation of the family members. A close relative of the mother of the deceased was in fact supposed to marry the deceased, who, according to the prosecution, had been writing letters to the deceased and telephoning her also. This, according to the prosecution, had infuriated the appellant. It was because of this resentment or anger that the appellant had, on the fateful day, committed murder of the deceased when she had gone to the well for washing some clothes and also for taking her bath. 7. Initially, the relatives and the police had treated the case as an accidental fall and resultant drowning. But after a few days, it was suspected that there was some foul play, especially when it was revealed from the postmortem certificate that the deceased had sustained three incised wounds on her head. P.Ws.16 and 17 in the course of further investigation found that the appellant had committed the offence. It was thus that he was charge sheeted by the police. Appellant was arrested on October 21, 2000 and M.O.3 steel rod used for committing the offence was recovered from a shed nearby his residence on the basis of the information furnished by him under Ext.P6(a) confession statement. Charge sheet was laid after completing the investigation. 8. Before the trial court the prosecution examined P.Ws.1 to 17 and marked Exts.P1 to P13 and M.Os. 1 to 4. Though no witness was examined Crl.A.689/2005. 3 on the side of the defence, Exts.D1 to D5 were marked. 9. It is contended by learned counsel for the appellant that the court below has found the appellant guilty merely on suspicion and relying on conjectures and surmises. The prosecution had totally failed in proving the charge against the appellant beyond reasonable doubt. Appellant was arrested nearly two months after the alleged incident and that too after pressure was mounted on the police by a socalled Action Committee formed in the locality. It is also pointed out by the learned counsel that the court below has fallen in grave error in relying on the interested testimony of near relatives of the deceased to assume that the appellant had some animosity towards the deceased, which led him to the commission of the crime. In short, the contention of the learned counsel is that there was absolutely no reliable evidence on record warranting conviction of the appellant. 10. It may at once be noticed that there is no dispute about the fact that the deceased had sustained three fatal incised wounds on her head, which according to P.W.15 - Doctor, had resulted in her death. We will refer to the evidence of P.W.15 a little later in detail. 11. The appellant has not seriously disputed the findings entered in the postmortem certificate about the injuries found on the body of the deceased. Therefore, in our view, there is no difficulty in holding that the death was due to homicide. The only question that may have to be considered is whether the appellant was responsible for the death of deceased Sunitha as alleged by the prosecution. 12. P.W.1, the uncle of the deceased (mother's brother) had informed the police about the death of Sunitha. According to P.W.1, he had received information about the death of his niece while he was in town. Crl.A.689/2005. 4 Immediately he rushed to his house in a jeep. By that time, the body of Sunitha had been taken out of the well and was being removed in a jeep to the hospital. He also went to the hospital in another vehicle. On reaching the hospital, the doctor, who examined Sunitha informed that she was dead. P.W.1 gave Ext.P1 First Information Statement at about 9 p.m. on the same day. P.W.13, Assistant Sub Inspector of Police had registered Ext.P9 First Information Report on the basis of Ext.P1 First Information Statement. P.W.13 had conducted inquest on the next day in the morning. P.W.8 was one of the witnesses to Ext.P3 inquest. 13. P.W.2, the mother of the deceased girl, deposed before the court that she had been living with her mother and three children including the deceased, in her ancestral property. Her husband had deserted her and she had been working in the Middle East for some time. She had gone to the Middle East in 1998 and came back in the year 2000, two months prior to the incident. She also spoke about the close relationship of the appellant with her family, especially her three children including the deceased. She stated that at about 5 p.m. on the fateful day Sunitha had gone to the well to wash her clothes. She had gone alone. At about 6 p.m. Sunitha's youngest sister Anitha (P.W.3) was sent to the well to find out why Sunitha had not returned. P.W.3 came and informed that Sunitha was not seen near the well, though she had called out her name. Sunitha's chappal, bucket and clothes were found near the well. Anitha further informed that the water in the well was found muddied. Immediately P.W.2 rushed towards the house of C.W.13 seeking for help. Cw 13 and others came to the scene. By that time Reji and Pappachi had also come near the well. They were asked to search for Sunitha in the well. They took out Sunitha from the well. She Crl.A.689/2005. 5 was taken to the hospital. At the time when Sunitha was taken out of the well some injury was noticed on her forehead and it was bleeding. P.W.2 also accompanied Sunitha to the hospital. But she came back after some time. P.W.2 also spoke about the marriage proposal for Sunitha with her cousin's relative, who was employed in Bangalore. But at that time, the boy was working in Goa. P.W.2 further stated that her daughter had agreed for the alliance. Sunitha used to speak to the boy over telephone and he used to send letters to her daughter. She further stated that Sunitha in one of her letters, written while she was in the Gulf, had indicated that someone was likely to murder her within three months. P.W.2 had not taken it seriously and though she thought that she would ask her daughter about it, she had forgotten. P.W.2 had further referred to certain incidents involving the appellant (P.W.2) and deceased Sunitha. We will refer to them a little later when we deal with the contentions raised by the appellant with regard to the accusation made against him. 14. P.W.3 is the younger sister of deceased Sunitha. She was aged 18 years at the time when she was examined in the court, four years after the incident. She stated that she did not go along with her sister to the well on the ill fated day, since she had got an examination on the next day. She also spoke about what had transpired when she went near the well and found her sister missing. She also spoke about the injury that was found on the head of her sister when she was taken out of the well. This witness also spoke about the close relationship maintained by the appellant with her family, especially with her sister. P.W.3 stated that once the appellant had told her sister that his family had been talking about their marriage. Sunitha had retorted by saying that he had given room for such talks by hanging Crl.A.689/2005. 6 around her house. The appellant is alleged to have threatened the deceased at that time saying that she need not pretend to be so angelic and that he would finish her off. In response to this reaction, Sunitha had replied by saying that if he attempted to to any such thing, she would not keep quiet. P.W.3 had also narrated certain other incidents in the relationship between the appellant and deceased Sunitha. More significantly, P.W.3 stated that at about 6 p.m. on the day of the incident, the appellant had come to the house asking for P.W.1. He had left the house immediately when he was informed that P.W.1 was not available there. When P.W.3 asked him where he was going, he told her that his mother was in the hospital. P.W.3 further stated that the appellant had not come to the family house after the death of Sunitha. He had not participated in the obsequies and he came to the locality only after a week. In cross-examination this witness had asserted that she had heard the appellant saying once that she would finish off Sunitha. 15. P.W.4, the younger sister of P.W.2 (mother of deceased) in her deposition stated that Sunitha had once told her that the appellant had threatened her that she would be killed. Even though P.W.4 had asked Sunitha about the reason for such a threat made by the appellant, she had not given any reply. 16. P.W.5, the younger brother of the deceased, was aged only 11 at the time of the incident. He also spoke about the relationship between the appellant and deceased Sunitha. This witness also referred to one particular incident. The appellant had asked the deceased when all of them were standing near the well, as to how she would feel if he had pushed her into the well. Sunitha had reportedly reacted by saying that he could keep this Crl.A.689/2005. 7 wish in his heart. She told him that she would hit him on his head with the bucket if he attempted to do any such thing. P.W.5 asserted that Sunitha was not joking. Significantly this witness further stated that Sunitha somehow appeared to be scared of the appellant, though she had not stated any reason for that. P.W.5 also stated that about one and a half weeks prior to the incident, the appellant had snatched away the letter written by the fiance of Sunitha, while she was reading it. Appellant had crumbled it and thrown it away stating that he would not allow her to enjoy reading that letter. P.W.5 further stated that though appellant was showing love towards Sunitha, she was scared of him. In cross-examination P.W.5 stated that the letter referred to by him was an inland letter and that a portion of that had been torn off when it was snatched away by the appellant. (This letter was infact marked in the case as Ext.P2, to which we will refer a little later). 17. P.Ws. 6 and 7 gave almost identical versions about the presence of the appellant near the well between 5 and 5.30 in the evening on the day of the incident. These witnesses stated that on that day they were coming back from the property of a Police Constable, Sri.Vijayan, after finishing their work. They saw Sunitha standing near the well in her compound. At that time the appellant was seen walking through the tapioca plants in the property of the deceased towards the well, where Sunitha was standing. Of course P.W.6 stated that he did not remember the dress that was worn by the appellant, but he was categoric when questioned in the course of cross-examination that it was the appellant, who was seen coming towards the well. According to these witnesses, the appellant was only 5 - 6 meters away from Sunitha at that time. He had further stated that he had seen the appellant and Sunitha together on several earlier occasions. P.W.7 Crl.A.689/2005. 8 further stated that the appellant was wearing a red shirt. He had no doubt at all that it was the appellant, who was found near the well about 5 meters away from Sunitha at about 5- 5.30 p.m on that a day. 18. P.W.8 was an attestor to Ext.P3 inquest report. P.W.9 was one of the persons, who took the body of Sunitha from the well. P.W.10, who was a neighbour of the deceased girl, had signed as a witness in Ext.P4 scene mahazar, and Exts.P5 and P6 recovery mahazars, under which M.O.2 series and M.O.3 iron rod were recovered. 19. P.W.11 was an attestor to Ext.P7seizure mahazar, under which Ext.P2 inland letter was seized by the police from the police station when it was produced by P.W.2. P.W.12, Village Officer prepared Ext.P8 site plan. According to him the plan was prepared on the basis of Ext.P4 scene mahazar. As mentioned earlier, P.W.13, the Assistant Sub Inspector of Police, had recorded Ext.P1 First Information Statement and registered Ext.P9 FIR at 9 p.m. on the day of the incident viz. August 29, 2000. He had also prepared Ext.P3 inquest report. 20. P.W.14, the Judicial Magistrate of First Class, Idukki had recorded Ext.P10 series statements (three in number) of P.Ws. 3, 6 and 7 under Section 164 of the Criminal Procedure Code on November 4, 2000. 21. PW.15 was the doctor who conducted autopsy. In Ext.P11 post mortem certificate he had noted the following among other external injuries. “Injuries: (1) An incised like wound extending from the midpoint of forehead in the hair margin, 7 cm. length, lower extending to posterior aspect. Whole layers of scalp cut Crl.A.689/2005. 9 except in both ends. Skull can be seen in the middle of the wound. (2) An incised wound 4 c.m. left to the wound (1). It is parallel to the wound (1). It is about 4 c.m. length extending anteriorly 4 cm. behind the upper orbital margin of left eye and to posteriorly. It is linear, clear cut, well defined and exerted margins. Whole layers of scalp cut width ½ cms. Skull can be seen in the anterior aspect of the wound. The wound is spondle shaped. Fracture of the skull can be seen through the wound in the anterior aspect. (3) An incised like wound of 3 cm. length and is 6 cm. above left ear. Clear cut well deformed and extended margin ½ cm. width. Spondle shaped. Skull can be seen in the anterior aspect of the wound.” We are not referring to the other minor external injuries like abrasions or to the observations made by the Doctor as regards internal examination, since in our view, they are not very relevant for the purpose of this case, particularly for the reason that the appellant/accused has not seriously questioned the cause of death viz., the fatal nature of the injuries sustained by the deceased on her head. However the following internal antemortem injury noted by Pw15 and his opinion about the causes of death in his deposition are extracted hereunder: “Internal antemortem injury:- Crl.A.689/2005. 10 1. Injury over the skull left temporal bone 3.1 cm length linear perforated fracture. A clean cut opening is seen on the 1.5 cm of its anterior aspect. Width of the anterior aspect is 2MM and is narrowing posteriorly. There is a tear in the duramatur in the same part corresponding to the skull fracture, and is about 1.2 cms length collection of blood clot is seen in the subdural region in the frontal and left temporal regions. Collection of blood is also seen in the subdural region between the lower part of right hemisphere of the brain. In the posterior aspect and the upper part of right hemisphere of cerebellam. Death was due to drowning and head injury. Internal injury is part of 2nd external injury. 2nd injury and internal injury are sufficient to cause death without the effect of drowning. Mo3 can cause all the injuries. First 3 injuries cannot be caused in a single act. Due to fall of stones on the head of the deceased injuries in the duramatur will not occur.” 22. No dispute has also been raised as regards the prosecution case that it was a clear case of homicide. As noticed already, the doctor was of the firm opinion that Sunitha had died due to the head injury inflicted on her. In this context the three injuries noticed by the doctor and extracted above will undoubtedly show that those injuries were sufficient enough in the normal course to cause death. When he was examined in court, the doctor had categorically stated so. 23. PW.16, the Sub Inspector of Police, stated that he had taken over the investigation from the Asst. Sub Inspector (Pw.13) and questioned Cws.1 to 12. On September 21, 2000 he had altered penal section in the crime as one under Section 302 IPC, since originally the crime was Crl.A.689/2005. 11 registered under Section 174 of the Code of Criminal Procedure. 24. Pw.17, the Circle Inspector of Police had conducted further investigation in the case. He deposed before the Court that he had verified the investigation conducted so far by Pw.16. He had also verified the scene mahazar prepared by Pw.13. M.O.1 chappal and M.O.4 net used for covering the well were also seized. This witness further stated that he had seized M.O.3 steel rod from the cattle shed situated in the property of the appellant on the basis of the information furnished by him in Ext.P6 mahazar. The relevant portion of the confession statement as recorded in the mahazar was marked as Ext.P6(a). M.O.2 series shirt and lunki of the appellant were also recovered from the residence of the appellant under Ext.P5(a). The relevant portion of the confession statement was also marked through this witness. Ext.P2 inland letter produced by Pw.2 at the Police station was seized by Pw.15 under Ext.P7 mahazar. Pw.17 further stated that he had sent the material objects for chemical examination, the report of which was marked as Ext.P12. In cross examination this witness stated that the accused was arrested on October 21, 2000. He had been searching for the appellant /accused from September 28 onwards till his arrest. The information he could gather was that the accused was somewhere in Tamil Nadu. He further stated that he had questioned all the witnesses who were earlier questioned by Pw.13 and Pw.16, and completed the investigation and filed the charge sheet thereafter. 25. We have referred to all the material and vital pieces of evidence adduced by the prosecution in the case. As has been noticed earlier, the appellant had maintained a very cordial and friendly relationship with all the family members of the deceased. He had absolute freedom in the Crl.A.689/2005. 12 household and all the youngsters including deceased Sunitha, Pw.3 and 5 (her sister and brother) had been maintaining a very close friendly relationship with the appellant. But one striking aspect which has come out from the evidence of Pws.2 to 5, especially that of the mother of the deceased (Pw.2) is that while deceased Sunitha had maintained some kind of distance in her relationship with the appellant, the latter had been showing some special kind of affinity towards her. It has also come out from evidence that on many an occasion deceased Sunitha had shown her resentment about the freedom that was being taken by the appellant towards her. On one occasion deceased Sunitha had in fact reproached the appellant when he remarked that his relatives were speaking about his marriage with the deceased. She retorted by saying that the appellant had himself given opportunity to such silly talk because of his behavior by visiting her house frequently. 26. In this context we may also refer to one particular incident which was revealed by Pw.2 the mother of the deceased. It appears that a few days prior to her tragic demise the deceased girl had told her mother (Pw2) about the misbehaviour of the appellant to her. It was when the grandmother of the deceased was hospitalized because of high blood pressure. Sunitha was alone at home. On that occasion the appellant had allegedly caught hold of her hand and pushed her on to the bed. Sunitha had wriggled out of his hands. This incident was divulged by Sunitha to Pw.2, her mother allegedly 4 or 5 days prior to the incident. Pw.2 deposed that he had reprimanded the appellant and curtly told him not to repeat the same. At that time the appellant did not react. But on the next day when Pw.2 met the appellant on her way to town, the appellant told her that he Crl.A.689/2005. 13 was sorry for what had happened and he promised that it would not be repeated. Pw.2 stated that her daughter had told this 4 days prior to the incident. Pw.2 had also deposed that while she was employed in the Gulf her daughter had written to her stating that somebody had threatened that she would be killed within three months. Though Pw.2 wanted to ask her daughter who that person was, she stated that she forgot to ask her. Yet another incident narrated by Pw.2 was about recording of some songs in an audio cassette which was brought by the appellant to Sunitha 3 or 4 days prior to the incident. According to Pw.2 Sunitha was not very enthusiastic and she did not respond to the appellant when the request was made. But when Pw.2 told her to oblige Sunitha had reluctantly agreed to record