IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 CRL.A.No. 1070 of 2004 S.C.NO.819 OF 2001 OF II ADDITIONAL SESSIONS COURT, KOLLAM APPELLANT: PRAKASH @ AJAYAN, S/O. CHAKRAPANI, C.NO.8264, CENTRAL PRISON, THIRUVANANTHAPURAM -695 012. BY ADV. SRI.SHABU SREEDHARAN RESPONDENT : STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.JOI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, ALONG WITH CRL.APPEAL NO.1071 OF 2004, THE COURT ON 06/02/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.T.SANKARAN, JJ. ------------------------------------------------------------- CRL.A.NOS.1070 & 1071 OF 2004 ------------------------------------------------------------- Dated this the 6th February, 2009 JUDGMENT K.T.Sankaran, J. The Criminal Appeals arise out of S.C.No.819 of 2001, on the file of the Court of the Sessions Judge, Kollam. Crl.A.No.1070 of 2004 is filed by the first accused while Crl.A.No.1071 of 2004 is filed by the second accused. 2. Accused No.3, Sinu, turned out to be an approver and he was tendered pardon under Section 306 (3) of the Code of Criminal Procedure. 3. The prosecution alleged offences punishable under Sections 302, 376, 394, 404 and 201 read with Section 34 of the Indian Penal Code. The trial Court found accused Nos. 1 and 2 guilty of the offences under Sections 302, 376, 404 and 201 read with Section 34 of the Indian Penal Code. They were sentenced to undergo imprisonment for life under Section 302, rigorous imprisonment for a term of ten years under Section 376, rigorous imprisonment for a term of three years under Section 404 and rigorous imprisonment for a term of seven years under Section 201 of the Indian Penal Code. Accused Nos.1 and 2 CRL.A. NOS.1070 AND 1071 OF 2004 :: 2 :: were also directed to pay compensation of Rs.50,000/- each and, in default, to undergo simple imprisonment for six months. The terms of sentence are to run concurrently. 4. The prosecution case is that deceased Shyla, a handicapped woman, who was in love with the first accused, was enticed by the said accused with ill motive and she was raped and murdered by him along with the second accused. It was also alleged that the second accused took away the gold chain belonging to the deceased. 5. The prosecution alleged that accused Nos.1 and 2 and the accomplice were very close friends. Prakasan @ Ajayan, the first accused and Anson, the second accused, are auto drivers. The accomplice is their close associate. Anson is the owner of auto rickshaw by name “Hai Ma”. The first accused was driving the auto rickshaw “Hai Ma” while the second accused was driving the auto rickshaw “Nono”. The first accused was married. Suppressing that fact, he made the deceased Shyla to believe that he was unmarried. A false pretension of love was shown towards her. Shyla was enticed on the fateful day under the pretension of love. The first accused thought that his relationship with Shyla would affect his marital life. Accused Nos.1 and 2 conspired together to do away with Shyla. With that motive, as CRL.A. NOS.1070 AND 1071 OF 2004 :: 3 :: per the pre-arranged plans, they came in an auto rickshaw at about 6 P.M. on 12.2.2000 and took Shyla in the auto rickshaw. They took Shyla to a partially constructed building near Arikkavu Temple. The first accused took her into the building and had sexual intercourse with her. Thereafter, they took Shyla to Kuthirakadavu at Kadavoor. Since people were available there on account of the festival in a temple, they moved to another place. The deceased was taken in the autorickshaw to other places and finally returned to Kuthirakadavu. They took her to a coir manufacturing shed. The first accused and Shyla got into the shed while the second accused and Sinu left the place. After some time, they returned to Kuthirakadavu. Thereafter, the second accused committed rape on Shyla in the presence of the first accused and the accomplice. After committing rape, with an intention to commit murder, a piece of cloth was put into her mouth and another piece of cloth was tied around her neck and made her suffocate. Shyla became unconscious and attained the stage of expiratory dysponoea. After midnight, accused Nos.1 and 2 threw her in Kuthirakadavu Kayal, a branch of Ashtamudikayal. Shyla died due to the suffocation as well as due to drowning. 6. The trial court, on the basis of the medical evidence in the case, came to the conclusion that the death of Shyla took place due to CRL.A. NOS.1070 AND 1071 OF 2004 :: 4 :: drowning and that constriction force around the neck contributed to her death. The evidence of the approver was found reliable. It was held that the statement of the approver was recorded under Section 164 of the Code of Criminal Procedure after complying with all the procedural formalities and that the tender of pardon to him under Section 306 of the Code of Criminal Procedure was in accordance with law. It was also found that the evidence of the approver (PW1) was corroborated by the evidence of several other witnesses and the circumstances established in the case. It was found that the deceased was last seen with the accused and there was no explanation by the accused as to what happened to her thereafter. The trial court took the view that the evidence of the other witnesses also supported the case that the deceased was last seen with the accused. The circumstances, as brought out in the evidence of the witnesses, were carefully and meticulously taken into account by the trial court and it was held that the said circumstances proved the guilt of the accused. The court below also relied on the discovery of MO6 gold chain and the cloths worn by accused Nos.1 and 2. 7. The learned counsel appearing for the appellants (Accused Nos.1 and 2) submitted that the court below was not justified in relying upon the evidence of the approver/accomplice, as he was a person CRL.A. NOS.1070 AND 1071 OF 2004 :: 5 :: under “psychiatric treatment”, “a person of pretensions and manipulative behaviour” and a person suffering from epilepsy. They contended that the evidence of the other witnesses did not corroborate the evidence of the approver. The counsel contended that it is not established that the offences alleged were committed by accused Nos.1 and 2 and there is nothing in the evidence to indicate that the accused persons were present at the place of occurrence. Learned Public Prosecutor controverted all the contentions put forward by the learned counsel appearing for the appellants. 8. On 13.2.2000 at 8.30 a.m., PW2, a member of the Panchayat, reported to the Sub Inspector of Police that dead body of a woman, aged about 30 years, was found floating in Kuthirakadavu Kayal. The Sub Inspector of Police (PW50) registered Crime No.56 of 2000. After reporting the matter to the superior officer, the Sub Inspector took steps to get the services of dog squad, finger print expert, photographer, etc. PW50 conducted the inquest of the dead body. Statements of some of the witnesses were recorded by PW50. Further investigation was conducted by PW51, Circle Inspector of Police, Kundara. PW42, the Assistant Professor of Forensic Medicine and Deputy Police Surgeon attached to the Medical College Hospital, Thiruvananthapuram conducted the postmortem examination and issued Ext.P16 report and CRL.A. NOS.1070 AND 1071 OF 2004 :: 6 :: Ext.P17 additional report. The dead body was identified by PW13, the brother of the deceased. Accused Nos.1 and 2, who were absconding, were arrested on 2.3.2000. The first accused stated before PW51 about the place of occurrence and he had shown that place to the police. In the disclosure statement made by the first accused, he has stated that the gold chain was entrusted to Naseema (PW18). The statement of Naseema was recorded before PW40, the Judicial Magistrate of the First Class II, Kollam. Naseema stated that she had sold the gold chain to PW15, the owner of Vishnupriya Jewellery. As led by PW18 Naseema, MO6 gold chain was discovered. MO12 shirt and MO13 pants belonging to the first accused were seized, as shown by the first accused. MO14 shirt and MO15 pants worn by the second accused were also seized as per the disclosure statement made by the second accused and as shown by him to the investigating officer. The accomplice, Sinu (PW1) was arrested at 8 a.m. on 7.3.2000. The Chief Judicial Magistrate (PW38) directed the Judicial Magistrate of the First Class II, Kollam to record the statement of the accomplice under Section 164 of the Code of Criminal Procedure. Accordingly, Ext.P13 statement was recorded on 16.11.2000. The accomplice was thereafter produced before the Chief Judicial Magistrate, who read over the statement in full to the accomplice. The Chief Judicial Magistrate was satisfied that the statement given by the accomplice was voluntary without undue CRL.A. NOS.1070 AND 1071 OF 2004 :: 7 :: influence, coercion, threat or any other vitiating circumstances. He recorded Ext.P12 statement under Section 306(3) of the Code of Criminal Procedure and tendered pardon to the accomplice. After necessary investigation and seizure of material objects and other documents, PW52, the Circle Inspector of Police filed charge sheet. The learned Magistrate committed the case for trial by the Sessions Court. 9. The accused pleaded not guilty to the charges framed against them. The prosecution examined PWs.1 to 52 and marked Exts.P1 to P49 documents and MO1 to MO21 material objects. On the side of the accused persons, DWs.1 to 4 were examined and Exts.D1 to D8 were marked. 10. PW42, Dr.Sasikala, who conducted the postmortem examination, issued Ext.P16 postmortem certificate. On the basis of the injuries noted on the body of the deceased and on the basis of the postmortem findings, P W 42 gave an opinion in Exhibit P16, as follows: “Postmortem findings are consistent with death due to drowning. Constrictive force around the neck might have contributed to death.” CRL.A. NOS.1070 AND 1071 OF 2004 :: 8 :: The postmortem report shows that the ligature made up of a piece of white cotton khadi cloth was seen tied around the neck with a half knot on the right side just below and in front of ear. Hymen showed multiple healed tears. Fluid blood was seen coming through vagina. Mud stained fluid was seen coming though nostrils. Blackish discolouration with thickening of skin was seen on the front of right thigh over an area of 16 x 7 cm, at 7 cm above knee. The following injuries (antemortem) and certain other observations are relevant, which are extracted below: “INJURIES (ANTEMORTEM) 1. Pallor 20 cm long on the front and sides of neck, being invisible at the back due to darkened skin, was placed 3.5 cm below right ear (3.5 cm broad), 3.5 cm below the chin (4.5 cm broad) and 4 cm below left ear (3.5 cm broad). 2. Abraded contusion (4 numbers) 0.4 x 0.3 cm to 1 x 0.4 cm over an area 1.8 x 1 cm on the left side of neck 2 cm outer to midline and 4 cm below jaw bone. 3. Curved in abrasion 1.5 cm long 0.1 cm broad with the convexity facing outwards on the right side of neck, 5 cm outer to midline and 7 cm below jaw bone. 4. Abrasion 0.5 x 0.5 cm on the right side of neck, 4 cm outer to midline and 5 cm below the jaw bone. Injury Nos. 2 to 4 were seen beneath the ligature material, at the region of front pallor. The subcutaneous tissue underneath appeared normal. 5. Small areas of contusions (sizes varying from 0.4 x 0.4 x 0.2 cm) seen on the upper pole of both lobes of thyroid gland. Posterior pharyngeal wall CRL.A. NOS.1070 AND 1071 OF 2004 :: 9 :: on the left side showed a contusion 1 x 0,5 x 0,2 cm corresponding to the pallor. Left superior horn of thyroid cartilage showed a fracture with infiltration. Multiple small abrasions over an area 3.5 x 1 cm on the back of left forearm 4 cm above wrist. 6. Multiple small abrasions of size varying from 0.3 x 0.2 cm to 1.3 x 0.5 cm over an area 1.0 x 5 cm on the top of right shoulder and adjoining part of arm its lower extent 27 cm above elbow. 7. Contusion 0.5 x 0.2 x 0.2 cm on the outer aspect of right side of upper lip 1 cm outer to midline. Brain congested and oedematous. Air passages congested and contained mud stained frothy fluid. Lungs showed sub pleural petechial hemorrhages. ” 11. PW42 stated in evidence that the deceased might have inhaled the fluid medium while she was sub merged in water and that was why mud stained fluid was coming from the nostrils. She stated that injury Nos.1 to 4 would occur due to application of constrictive force on the neck by the ligature (MO8). The ligature was present on the neck of the deceased and it was removed only at the time of postmortem examination. PW42 deposed that the fracture sustained to thyroid cartilage was due to the application of constrictive force on the neck with the ligature. In the light of the postmortem findings as well as the evidence of PW42, it can safely be concluded that Shyla died due to drowning and the constrictive force applied around her neck. CRL.A. NOS.1070 AND 1071 OF 2004 :: 10 :: 12. The prosecution, to prove its case, heavily relied on the evidence of the approver who was examined as PW1. It was contended by the prosecution that the evidence of PW1 is corroborated on material particulars by the evidence of other witnesses. The evidence of PW1 revealed, inter alia, the following facts: Accused Nos.1 and 2 are the friends of PW1. On 12.2.2000, the first accused stated that he wanted to meet his fiancée and requested the second accused Anson to go with him. Accused Nos.1 and 2 asked PW1 to remain in “Nono” auto rickshaw belonging to the second accused. Accused Nos.1 and 2 went in another auto rickshaw. At about 11 p.m., while PW1 was waiting in the auto rickshaw, he was assaulted by one Manoj. At about 11.30 p.m., accused Nos.1 and 2 came back to the place in an auto rickshaw. A girl was also with them. The first accused boarded in “Nono” auto rickshaw. PW1 and the first accused went in that auto rickshaw to a place called Mathilil. The “Nono” auto rickshaw was parked in front of the house of the second accused. Thereafter, accused Nos.1 and 2 and PW1 went in the other auto rickshaw to Kadavoor. They reached Kadavoor near the backwaters. People were seen going to a temple festival. Since the circumstances available there were not favourable, they took the vehicle and went near Thevalli bridge. All the three men alighted from the auto rickshaw and smoked cigarettes. The first accused stated that if the girl were to be sent to her house on the next day morning, that would create CRL.A. NOS.1070 AND 1071 OF 2004 :: 11 :: problems and it was better to kill her. The second accused stated that he could not kill the girl and suggested that he would drive the vehicle and the first accused could strangulate the girl to death. The first accused replied that he could not kill. PW1 stated that he thought that it was stated by accused Nos.1 and 2 lightly and it was not intended. They went into the auto rickshaw to the place near the backwaters. The place was lonely. All of them alighted from the vehicle. Only then PW1 realised that the girl was handicapped, who had a limp. The second accused took PW1 in the auto rickshaw. The first accused and the girl went to the coir manufacturing shed. While going in the auto rickshaw, they met PWs.9, 10 and 11. The second accused and PW1 returned to the coir shed. The first accused was found smoking a cigarette and the girl was crying. On enquiry as to why she was crying, the first accused told that she disliked to have sexual contact with PW1 and that was why she was crying. At that time, PW1 stated that he could have sexual relationship with a prostitute after paying Rs.100/- and, therefore, he did not want to have sexual relationship with the deceased girl. The second accused stated that he would pacify the girl and went near her. At that time, the first accused and PW1 waited and smoked cigarettes. The second accused took a khadi cloth which was tied along his waist and torn the same into two pieces. On seeing it, PW1 offered to marry the girl if it was unacceptable to accused Nos.1 and 2. Though the second CRL.A. NOS.1070 AND 1071 OF 2004 :: 12 :: accused agreed to it, the first accused opposed stating that if PW1 were to go to the place of the girl, her people would kill him. When PW1 stated to accused Nos.1 and 2 not to quarrel, the first accused told PW1 not to utter a word or else he would be killed and thrown to the backwaters. Thereafter, PW1 did not speak anything. The second accused thereafter had sexual contact with the girl. The first accused asked the second accused to put a cloth in her mouth. A stranger came there smoking a beedi, which was brought to the notice of accused Nos.1 and 2 by PW1. All of them lied down. Accused Nos.1 and 2 lied on the girl so as to avoid the stranger seeing the girl. The first accused was afraid that the stranger would bring some other people. The first accused stated that the girl be thrown to the backwaters. Only at that time PW1 came to know that the girl was dead. PW1 had an epileptic attack at that time and he fell down. After some time, he was alright but he continued to lie down there. Accused Nos.1 and 2 lifted the girl and threw her in the backwaters. The first accused asked why the dead person should have a gold chain. The second accused stood on the retaining wall, caught hold of the cloth tied on the neck of the girl, lifted the body and took the gold chain. All the three persons left the place and went to Kollam Railway Station. Thereafter, they came near the District Hospital and after taking tea, they went to a nearby church. PW1 remained in the auto rickshaw while accused Nos.1 and 2 went into the CRL.A. NOS.1070 AND 1071 OF 2004 :: 13 :: church. At about 4 a.m. on the next day, they went to the house of the second accused. In the morning, the second accused went for a marriage and the first accused went elsewhere. PW1 remained in the house of the second accused. At about 4 p.m., accused Nos.1 and 2 came there. Thereafter, all of them went to a jewellery shop to pledge the gold chain. The mother of the second accused was also with them. On the way, they stopped near a church and lighted candles worth Rs.101/- per person. The second accused paid Rs.1,500/- to PW1 and asked him not to come to Kollam any more. Thereafter, they went to a bar at Kottarakkara and accused Nos.1 and 2 had drinks. They came back to the house of the second accused, took food and slept there. PW1 stated that on the next day, he went to Kadakkal, where his aunt was residing. 13. The evidence tendered by PW1 regarding his waiting at the auto rickshaw stand near the District Hospital, Kollam at about 11 a.m., the fact that one Manoj assaulted PW1 and thereafter accused Nos.1 and 2 along with the girl came in “Hai Ma” auto rickshaw, that at about 11.30 p.m. the first accused and PW1 went in “Nono” auto rickshaw while the deceased and the second accused went in “Hai Ma” auto rickshaw, are corroborated by the evidence of PWs.23, 24 and 27. It is true that PW27 did not see the girl in the auto rickshaw. CRL.A. NOS.1070 AND 1071 OF 2004 :: 14 :: 14. On a careful consideration of the evidenced of PWs.3, 19, 20, 21, 22 and 23, it can be seen that the deceased Shyla was last seen in the company of accused Nos.1 and 2 from 6.30 p.m. to 11.30 p.m. on 12.2.2000. PW3, stated that he saw the auto rickshaw, three men and a lady during night while returning from Kadavoor temple, between 11.30 p.m. and mid night on 12.2.2000. PW19, who is familiar with accused Nos.1 and 2, stated that at 6.30 p.m. on 12.2.2000, accused Nos.1 and 2 came to his tea shop and had tea. He saw the deceased girl also in the auto rickshaw. PW19 also stated that the relatives of the deceased enquired with him as to the whereabouts of the deceased as she was found missing. He stated to them as to what he had seen. PW20 is a Municipal Councillor. He stated that at 6.30 p.m. on 12.2.2000, the deceased came to his house in an auto rickshaw and requested him to arrange a loan which was being sanctioned by the Municipality to women . PW20 stated that in that auto rickshaw there were two men, of whom one had a limping leg. It is not disputed that the first accused has such a handicap. He could identify the two men and he stated that he did so in the police station. PW13, who is the brother of the deceased, had also seen accused Nos.1 and 2 and the deceased in the auto rickshaw on 12.2.2000. The auto rickshaw was stopped at his request. He was told by his sister that she would be coming back soon. At that time, accused Nos.1 and 2 were sitting in the driving seat of the auto CRL.A. NOS.1070 AND 1071 OF 2004 :: 15 :: rickshaw. PW21, the salesman in a petrol bunk and who is also a friend of accused Nos.1 and 2, deposed that accused Nos.1 and 2 came in an auto rickshaw to the petrol bunk and that there was a lady in the auto rickshaw. He identified her in the photographs shown to him by the Circle Inspector of Police. He also identified the accused before the Police. PW22, a salesman in another petrol bunk and who knew accused Nos.1 and 2, stated that at about 10.30 p.m. on 12.2.2000, accused Nos.1 and 2 came in an auto rickshaw to the petrol bunk. He deposed that a lady aged about 30 years, wearing skirt and blouse, was also there in the auto rickshaw. PW23, who runs a stationery business and who knew accused Nos.1 and 2, stated that at 11.30 p.m. on 12.2.2000 accused Nos.1 and 2 came in “Hai Ma” auto rickshaw and enquired about “Nono” auto rickshaw which was parked in the auto stand. PW23 stated that in the “Hai Ma” auto rickshaw, there was a lady. The evidence of these witnesses would establish that the deceased was seen last with accused Nos.1 and 2. The evidence of PW1, the approver, is materially corroborated by the evidence of the aforesaid witnesses. There is nothing to disbelieve the evidence of the aforesaid witnesses. That PW1, the approver, was speaking the truth, and that the aforesaid witnesses saw the deceased with accused Nos.1 and 2 at various places in the evening of 12.2.2000, is clear from the evidence of the aforesaid witnesses. CRL.A. NOS.1070 AND 1071 OF 2004 :: 16 :: 15. The evidence of PWs.8, 9, 10, 11, 24, 26, 31 and 36 would also corroborate the evidence of PW1 as to the various events which took place from 6.30 p.m. on 12.2.2000 till about early hours on the next day. There