IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 Death Sentence Ref..No. 4 of 2007() ----------------------------------- SC.491/2006 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACT NO.I, THRISSUR .................... COMPLAINANT: ----------------- STATE OF KERALA BY ADV. GRASHIOUS KURIAKOSE SPL PUBLIC PROSECUTOR RESPONDENT: --------------- NAVAS @ MULANAVAS ADV. SRI.P.VIJAYA BHANU SRI.P.P.HARRIS THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 09/02/2010, ALONG WITH CRA NO.1620 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- D.S.R.No.4 OF 2007 & CRL.APPEAL No.1620 OF 2007 ----------------------------------------------------- DATED THIS THE 9th DAY OF FEBRUARY, 2010 J U D G M E N T Basant, J. (i) Has the guilt of the accused been established beyond doubt by the circumstances proved by the prosecution. (ii) Is the instant case one that belongs to the category of rarest of rare cases, where the alternative options of punishment are unquestionably foreclosed and a sentence of death has to be imposed as laid down in Bachan Singh v. State of Punjab (1980)2 SCC 684.? (iii) Does the decision in Swamy Shraddananda (2) v. State of Karnataka (2008(13) SCC 767) raise the bar further in the attempt to identify the rarest of rare cases where a D.S.R.No.4/07 & CRL.A.No.1620 /07 -2- sentence of death can be imposed and is liable to be confirmed? These questions arise for consideration in this Death Sentence Reference and the Criminal Appeal, which we dispose of by this common judgment. 2. Navas @ Mulanavas, a person aged about 28 years has been found guilty, convicted and sentenced in a prosecution for the offences punishable under Sections 449, 302 and 309 IPC. He faces a sentence of death for the offence under Section 302 IPC, sentence of rigorous imprisonment for a period of five years and fine of Rs.1,000/- under Section 449 IPC and simple imprisonment for a period of two months and a fine of Rs.500/- for the offence under Section 309 IPC. Default sentences have also been imposed. 3. The prosecution alleged that the appellant had gained access into the house of the deceased persons – four in number, by making a hole on the eastern wall of the house on the night of 3/4.11.2005. He allegedly caused the death of Latha, a woman aged about 39 years, her husband Ramachandran aged about 45 years, their daughter Chithra aged about 11 years and her D.S.R.No.4/07 & CRL.A.No.1620 /07 -3- mother- in-law, Karthiayani Amma aged about 80 years. The accused thereafter allegedly attempted to commit suicide by cutting the vein of his left wrist. Investigation commenced with suo motu FIR, Exhibit P23 registered by PW30, the local A.S.I. and culminated with the final report submitted by PW32, who completed the investigation. 4. The accused denied the offences alleged against him and thereupon the prosecution examined Pws 1 to 32 and proved Exhibits P1 to P45 series. M.Os.1 to 122 were also marked by the prosecution. The accused did not examine any defence witnesses; but proved Exhibits D1 to D5. 5. An appellate judgment must be read in continuation of the judgment of the trial court. We have been taken through the evidence of PWs 1 to 32, Exhibits P1 to P45 series and Exhibits D1 to D5. The relevant material objects have also been perused by us. In these circumstances, we are of the opinion that it is unnecessary to attempt a re-narration of the evidence of the prosecution witnesses as well as the prosecution and the defence exhibits. D.S.R.No.4/07 & CRL.A.No.1620 /07 -4- 6. The prosecution version which they attempted to substantiate by the evidence referred above can be summarised as follows. 7. Deceased Ramachandran and Latha were residing in the house which is the scene of occurrence. They have a child aged 11 years, by name Chithra. The mother of Ramachandran, Karthiayani Amma was also residing along with them. It is suggested that Ramachandran had some psychiatric ailments and was on medicines. It is further suggested that Latha had dissatisfactions in the marital life and that she was involved in extra marital relationships. The accused was known to the family. He had initially helped the family to get out of certain involvements which Latha had with certain others. He had gained the confidence of Latha and Ramachandran. Unfortunately, the relationship between Latha and the accused had drifted and it had entered prohibited zones/domains. She allegedly shared intimacy including physical intimacy with the accused. It is even suggested that Latha had become pregnant in the relationship between her and the accused. But that pregnancy had to be aborted. At some point of time, the accused D.S.R.No.4/07 & CRL.A.No.1620 /07 -5- allegedly came to learn from Latha that Chithra, the child born was not really begotten in her relationship with Ramachandran; but Chithra was brought up as the child of the couple. When it came to the alleged pregnancy through the accused, Latha was allegedly not willing to continue the pregnancy and she had got it aborted. 8. At some point of time, according to the prosecution, the relationship had soured. It appeared as though the accused perceived that Latha was not willing to continue the relationship. She, he apprehended, was attempting to avoid him. Exhibits P9 to P11 suggest that on the complaint of Latha, the local police had registered a crime and had filed the final report alleging commission of offences by the accused against Latha. Consequently, the relationship turned from bad to worse and the accused allegedly was not getting opportunities to meet and interact with Latha as he allegedly used to do earlier. 9. We come to the date of occurrence, i.e., 3.11.2005. On that night, till 7 p.m., all the four deceased were found in the house hale and hearty by the local neighbours including PW1. On that morning i.e. at 7.30 am. on 4.11.2005 when PW1 went to D.S.R.No.4/07 & CRL.A.No.1620 /07 -6- sweep the courtyard of that house and was so sweeping, she found that nobody came out of that house to open the door and that blood was flowing out through the outlet on the southern room on the ground floor. A commotion followed. People of the locality came. They informed the police. The local police also came. As there was no response from inside, the house was broken open and access was made into the house. They had also seen that a hole had been drilled on the eastern wall of the house, suggesting that someone had gained illegal access into the house. Persons who entered the house found that deceased Latha was lying dead on the ground floor with multiple injuries including stab injuries. Ramachandran and Chithra were lying dead on the northern room on the first floor with serious injuries. MO33 iron rod which was allegedly used to inflict injuries on Ramachandran and Chithra was also available in that room. Karthiayani Amma, the 80 year old mother of Ramachandran was found with injuries on the northern room on the ground floor. She was immediately shifted to the hospital for emergent medical attention. Later, seeing the trail of blood from the middle room to the southern room on the ground floor, the D.S.R.No.4/07 & CRL.A.No.1620 /07 -7- police opened the southern room on the ground floor and there they found the accused with bleeding injuries on his left hand lying unconscious. He was also shifted to the hospital. Karthiayani Amma succumbed to the injuries. The accused was nursed and he ultimately recovered. 10. The prosecution alleged that it was the accused who caused injuries on all the four deceased persons. It is the case of the prosecution that on the night of 3.11.2005, PW3, an auto rickshaw driver had dropped the accused some where near the scene of the crime after 10.30 p.m. According to the prosecution the accused had, to gain access into the house, created a hole on the eastern wall and had crept into the house with his belongings including MO34 bag. He had gone to the southern room on the ground floor and had indulged in making writings on the wall and other surfaces in that room. According to the prosecution, these writings suggest that he was disappointed in love and had decided to commit suicide. According to the prosecution, he wanted to murder Latha and commit suicide. He wanted both of them to die together. Karthiayani Amma was occupying the northern room on the ground floor, whereas the couple along D.S.R.No.4/07 & CRL.A.No.1620 /07 -8- with their child were occupying the northern room on the first floor. It is the case of the prosecution, though there is no eye witnesses for the occurrence, that the accused who reached the room by 12 mid night continued to remain in the southern room on the ground floor till 6.30 a.m. in the morning. He consumed alcohol there and smoked. He made all the writings seen in that room. When deceased Latha came down in the morning from the bed room on the first floor, the accused allegedly, attacked Latha and caused injuries to her. It is the inference of the prosecution that Ramachandran and Chithra came to know of the attack on Latha and they made a hue and cry. The accused then went up with MO33 iron rod and allegedly inflicted fatal injuries on Ramachandran and Chithra. He came down thereafter and went on inflicting multiple stab injuries on Latha with one of the two knives, which according to the prosecution, he had carried with him to the house (marked as MOs.29 and 30). Thereafter the mother-in-law of Latha, according to the prosecution, had also tried to come to the scene and she was deterred by him by kicking her forcibly. She fell, hit some surface and suffered the fatal injuries. D.S.R.No.4/07 & CRL.A.No.1620 /07 -9- 11. Thereafter, the accused allegedly in an attempt to commit suicide cut the vein of his left wrist. There was bleeding from that self-inflicted injury. He went to the southern room where he had already entered and made all the writings. He closed the room from inside. He fell unconscious there. It is the case of the prosecution that prior to that, the accused in that southern room had consumed alcohol, had smoked cigarette and had consumed Bombay gudka. It is the case of the prosecution that the totality of circumstances relied on by the prosecution unerringly points to the commission of the offence punishable under sections 449, 309 and 302 IPC by the accused. 12. The accused in the course of cross-examination of prosecution witnesses does not appear to have taken any specific stand. He was not able to engage a counsel of his own at the stage of trial, though he had earlier engaged a counsel. The services of a counsel of standing Shri P.P.Haris was made available to the accused as a State Brief counsel. 13. At the stage of 313 examination, after answering all the questions, the accused advanced a version by filing a statement. In that statement, the accused took an interesting D.S.R.No.4/07 & CRL.A.No.1620 /07 -10- stand, attempting to explain all circumstances which were available in evidence at the close of the trial. The accused took up the stand that there was a pact between him and Latha to commit suicide. He had come to the house of Latha on that night with the intention that both of them shall commit suicide. He had brought with him MO25 audio cassette in which he had made a record in his own voice of all the circumstances and the relationship between him and Latha. Latha had kept the door open as usual and he gained entry into the house through such door which was kept open. After he entered the house, he found that Latha and others had all suffered death. On account of the grief, without much forethought, he had cut his left wrist for the purpose of committing suicide. It was thus that he was found available in the house in an unconscious state. His obvious suggestion is that someone else had gained access into the house by making a hole on the eastern wall and such miscreant must have caused the death of all the four deceased persons and as he found that they had died, he had proceeded to attempt to commit suicide. D.S.R.No.4/07 & CRL.A.No.1620 /07 -11- 14. The court below on an anxious consideration of all the relevant circumstances, came to the conclusion that the prosecution has succeeded in establishing that all the four deceased persons suffered death at the hands of the accused, who had gained access into the house by creating that hole on the eastern wall of the house. The court further came to the conclusion that the accused had thereafter attempted to commit suicide. 15. Before us, the learned counsel for the appellant Shri Vijayabhanu, Shri Gracious Kuriakose, the Special Prosecutor appointed in the Death Sentence Reference and Shri K.J.Mohammed Anzar, the learned Public Prosecutor have advanced their arguments. 16. The learned counsel for the appellant/accused vehemently contends that the circumstances have not been established satisfactorily by the prosecution and the circumstances even if accepted in toto cannot lead to an unerring conclusion about the complicity of the accused. The circumstances cannot rule out his innocence also, it is contended. At any rate, the learned counsel argues that a D.S.R.No.4/07 & CRL.A.No.1620 /07 -12- sentence of death is not warranted at all. 17. The learned Special Prosecutor who appeared in D.S.R.No.4/2007 and the learned Prosecutor who appears for the State in Crl.Appeal No.1620/2007 on the contrary contends that sufficient circumstances have been established by the prosecution pointing unerringly to the guilt of the accused and excluding the innocence of the accused. The nature of the facts and circumstances of this case, according to the prosecution, clearly shows that this is an eminently fit case where the sentence of death is warranted, as the case belongs to the category of rarest of rare cases. 18. The learned Prosecutors submit that in the facts and circumstances of this case, the explanation coming forth from the accused is of crucial and vital significance. The learned Prosecutors contend that if the explanation coming forth from the accused is not acceptable, sufficient and clinching circumstances are available to safely and unerringly come to the conclusion that all the four persons who had suffered injuries and who were inside the closed house, must have suffered injuries at the hands of the accused, who was the only other D.S.R.No.4/07 & CRL.A.No.1620 /07 -13- person found inside the house, lying with suicidal injuries. The learned Prosecutors in this context places reliance on the decision in Trimukh Maroti Kirkan v. State of Maharashtra (2006(4) KLT 638). It is not as though an accused person has no burden at all in a criminal trial. Where an accused person is found lying with suicidal injuries along with three other deceased persons and the 4th deceased with serious injuries inside a closed house, the accused has the burden to explain how and under what circumstances these injuries were suffered by himself and the others. That burden cannot be avoided by the accused by falling back on his purported right to silence, it is contended. We find merit in that contention. 19. It is in this context that the version of the accused assumes importance. According to him, he had entered the house on that night through a door which was kept open which he assumed must have been kept open by Latha with whom he was in love. It is his case that she used to keep the door open on many earlier occasions. When he entered the house, he found that death of Latha and others had taken place and then he went on to attempt to commit suicide. If this version is found to be D.S.R.No.4/07 & CRL.A.No.1620 /07 -14- false, that will be one more circumstance against the accused adding to the chain of circumstances which the prosecution has chosen to rely on. 20. The accused and the deceased were known to each other and the accused and the deceased Latha had illicit intimate relationship. That is the case of the prosecution and that version is accepted by the accused. There has been some souring of that relationship and that is also indicated clearly by Exts.P9 to P11 as also Exhibit P3 which is a transcript of the audio tape, MO.24 which the accused carried with him to the house admittedly. All the four deceased persons were hale and hearty till the night of 3/11/2005 but on 4/11/2005 morning they were found with fatal injuries inside the closed house. Admittedly, the accused had come to the house later in the night. All the four deceased persons suffered homicidal injuries also. Till his examination under Section 313 Cr.P.C., nay till he chose to file a statement at the end of the questioning under Section 313 Cr.P.C., the present version was not advanced by the accused. Serious doubts are aroused about the genuineness and acceptability of the version of the accused. If that were a true D.S.R.No.4/07 & CRL.A.No.1620 /07 -15- version, it is unlikely that he would not have advanced such a version earlier before the police, before the trial court or subsequently till the statement was filed after his examination under Section 313 Cr.P.C. 21. The prosecution relies on various circumstances to drive home the charge against the accused and to disprove this very ingenious explanation which has been offered in the written statement filed at the end of 313 examination. 22. The learned Prosecutors have painstakingly narrated before us various circumstances that are available which would convincingly show that this version of the accused is an after- thought and cannot be swallowed by a prudent mind. 23. The first circumstance relied on by the prosecution is the fact that while drilling the hole on the eastern wall, soil/powder was available at the site of that hole. MO.34 bag carried by the accused seized as per Exhibit P12 scene mahazar had identical soil/powder on it. MO.71 shirt belonging to the accused, which is also seized under Exhibit P12 has identical soil/powder on it. This is evident from the report of FSL. The prosecution further relies on an unexplained injury which the D.S.R.No.4/07 & CRL.A.No.1620 /07 -16- accused had on his person when he was examined by the Doctor on 4/11/2005. PW18, the Doctor to whom Karthiayani Amma and the accused were rushed from the scene of the crime on that morning had examined the accused and had issued Exhibit P14 wound certificate. In that wound certificate in addition to the self inflicted injury on the left wrist, there was an abrasion 2 millimetre on the right hand (dorsal side) of the accused. It is the case of the prosecution that this injury must have been suffered by the accused when he attempted to break open the house and that part of the body came into contact with the surface. The opinion of PW18, Doctor on this aspect has not been specifically elicited by the prosecution in the course of examination in chief. But the fact remains that the oral evidence of PW18 and Exhibit P14 clearly indicate that the accused had on his person one more injury which cannot be explained by the accused as an incidental self inflicted injury in the course of his attempt to commit suicide. But, perhaps, what is crucial on this aspect is that the nail clippings of the accused which were taken by PW31 on 14-11-2005 revealed that identical soil/powder were available in such nail clippings of the accused. The same was D.S.R.No.4/07 & CRL.A.No.1620 /07 -17- sent to the expert and Exhibit P41(b) shows that the nail clippings had such soil/powder. The prosecution relies on this also as a crucial input in support of their case that it was the accused who gained access to the house through that hole. 24. The learned counsel for the petitioner contends that the accused was taken from the scene of the crime on 4/11/2005 and the nail clippings were taken only on 14/11/2005. The gap of time between 4th and 14th November 2005 was relied on by the learned counsel to argue that crucial significance cannot be attached to the nail clippings and the report of the scientific expert issued after examination of those nail clippings. It is significant to note that the accused does not have a case at all that soil/powder similar to the one which was detected from the scene (of the hole) were planted on his nail clippings at any time by the investigating officer. We reckon this as a formidable circumstance to choose between the rival versions. 25. The prosecution relies on another very important circumstance. Writings on the wall and surfaces in the southern room on the ground floor have been identified to be that of the accused by the handwriting expert by Exhibit P42 report. This D.S.R.No.4/07 & CRL.A.No.1620 /07 -18- aspect of the testimony of PW32 is not seriously challenged at all. In the nature of the materials available before the court, we have no reason whatsoever to doubt the prosecution version that these writings were made by the accused himself. On that aspect, we entertain not a semblance of doubt and in fact we note that there is no serious dispute on that aspect also. 26. The writings in the room offer crucial assistance to the court to choose between the rival versions. It is written that the accused was available in the house on that day at 12 midnight. Further, it is written that between 6 and 7 in the morning he is 'finishing'. This clearly shows that on his own version, available convincingly from the writings, he had spent about seven hours in that room. This is definitely inconsistent with his version that he saw Latha and others dead and proceeded to inflict suicidal injuries on him in grief. His presence for about seven hours in the room spending time to make the writings is inconsistent, totally with his version that Latha and others were found dead when he entered the room and he without forethought proceeded to inflict injuries on himself. D.S.R.No.4/07 & CRL.A.No.1620 /07 -19- 27. It is true that in MO.24 and its transcript,Exhibit P3 he describes that he loves Latha. There are many writings in the southern room on the ground floor which also indicates that he was in love with Latha. The question is not whether he was in love with Latha or not. The other writings available in the room clearly indicate that he had a grievance/grouse against Latha and it was he who decided that both should die . “In love we are one, in death also both must be together. This is certain” is one of the writings. It is also written that “Latha is responsible for my death. I, therefore, decided that Latha and me must die together. This is certain”. The writings that he is in love with Latha is not at all inconsistent with a decision on his part to cause the death of Latha and commit suicide. It is true that in Exhibit P3 there is a reference that a joint decision has been taken by Latha and himself to end their lives together. This is only an assertion on the part of the accused and there is absolutely nothing otherwise available to show that on that date, i.e. on the night of 3/11/2005 Latha had agreed to commit suicide and had wanted him to go to her house to enable both of them to commit suicide together. A careful reading of Exhibit D.S.R.No.4/07 & CRL.A.No.1620 /07 -20- P3/MO.24 must lead to the inference that the same was not prepared immediately prior to 3/11/2005. The indications therein about Latha wanting to commit suicide,