IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 CRL.A.No. 356 of 2007(D) ----------------------- SC.113/2005 of ADDL.SESSIONS COURT FAST TRACK NO.I (ADHOC), MANJERI .................... APPELLANT : ACCUSED: ---------------------- POONTHALA ABOOBACKER ALIAS BABU, S/O.LATE ALAVI, MUCHIRIKKADU VEEDU, ARIMBRA, MORAYOOR, MALAPPURAM DISTRICT. BY ADV. SRI.T.K.AJITH KUMAR SRI.SUSHANTH.J. SRI.P.VINODKUMAR RESPONDENT: --------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KONDOTTY. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY A.D.G.P SRI.TOM JOSE PADINJAREKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. Appeal No.356 of 2007 ------------------------------------------------- Dated this the 22nd day of November, 2011 JUDGMENT Basant,J. Is the chain of circumstances complete? Is a safe inference of guilt of the appellant possible from the totality of circumstances? These are the questions that arise before us in this appeal in which the appellant assails the verdict of guilty, conviction and sentence imposed on him for offences punishable under Secs.302, 376 and 201 of the Indian Penal Code. 2. The crux or the gravamen of the charge against the appellant is that on 8/9/2004 he caused the death of 12 year old Khairunissa, a student of the 7th Standard, after he committed rape and unnatural offence on her. He allegedly caused the evidence to disappear. He has already been found not guilty and acquitted of the charge under Sec.377 IPC. That acquittal Crl.A.No.356/07 2 has now become final without challenge. 3. Investigation commenced with Ext.P1 First Information Statement lodged by P.W.1, the father of the deceased minor girl. Investigation was completed and final report was lodged by P.W.44, the Investigating Police Officer. After complying with all statutory formalities, the case was committed to the Court of Session by the learned Magistrate. The Sessions Court thereupon took cognizance of the offence. Charges framed by the learned Sessions Judge were denied and a plea of not guilty was advanced by the appellant/accused. Thereupon the prosecution examined P.Ws.1 to 44 and proved Exts.P1 to P53. M.Os.1 to 33 were also marked. 4. When examined under Sec.313 Cr.P.C., the accused denied all circumstances which appeared in evidence and which were put to him. On his side, he examined D.Ws.1 and 2 and proved Exts.D1 to D7 series. 5. The learned Sessions Judge, before whom the trial was conducted, proceeded to pass the judgment dated 22/1/2007. The appellant/accused was found guilty, convicted and sentenced for offences punishable under Secs.302, 376 and 201 IPC. Sentence of death was imposed on him. By a common Crl.A.No.356/07 3 judgment dated 24/8/06 in D.S.R. No.6/05 and Crl. Appeal No.2051/05, another Bench of this Court set aside the verdict of guilty, conviction and sentence and sent the matter back to the trial court for fresh disposal in accordance with law. Specific directions were also issued. 6. When the matter thus reached the learned Sessions Judge for fresh disposal, the learned Sessions Judge framed charges afresh. The accused repeated his plea of not guilty. The accused did not avail of the opportunity to further cross- examine witnesses examined by the prosecution. As directed by the Division Bench in the earlier judgment dated 24/8/06, the appellant was examined afresh under Sec.313 Cr.P.C. The appellant did not adduce any further defence evidence. Counsel were heard. Thereupon, the learned Sessions Judge proceeded to pass the impugned judgment. The appellant was acquitted of the offence under Sec.377 IPC. He was found guilty, convicted and sentenced for the offences under Secs.302, 376 and 201 IPC. 7. Before us, the learned counsel for the appellant Sri. T.K. Ajith Kumar and the learned Additional Director General of Prosecutions Sri. Tom Jose Padinjarekkara have advanced their Crl.A.No.356/07 4 arguments. 8. An appellate judgment is and must essentially be read as continuation of the judgment of the trial court. The trial court in the impugned judgment has adverted in detail to all the relevant, oral and documentary evidence adduced by either side. We do not, in these circumstances, think it necessary to resort to the unnecessary exercise of re-narration of the oral and documentary evidence placed before the trial court. Suffice it to say that we have been taken in detail through the oral evidence of P.Ws.1 to 44, D.Ws.1 and 2 as also the documentary evidence Exts.P1 to P33 and Exts.D1 to D7 series. We have also been taken through the other documents in the case including the charges framed after remand by the learned Sessions Judge and Sec.313 examination of the accused. All these documents have been read before us in detail by the counsel. 9. It will be apposite at the very outset to note that in the course of the trial, several inadmissible material had found its way into the evidence before the trial court. The learned Judges who disposed of the earlier appeal and the D.S.R. by judgment dated 24/8/06 have adverted to those aspects in detail. We do note that when the Crl.A.No.356/07 5 matter was disposed of afresh by the learned Sessions Judge, very great care has been employed by the learned Sessions Judge to eschew and not advert to such inadmissible material that has been permitted to come on record. We shall not advert to such inadmissible evidence. Rightly the learned Sessions Judge by the impugned judgment has carefully avoided any reference to such inadmissible material. In these circumstances, though dissatisfied with the admission of inadmissible materials by the learned Sessions Judge who conducted the trial, we are satisfied that the interests of justice shall be served eminently by careful avoidance of any reference to such inadmissible material. Such inadmissible material shall not in any way be permitted to influence us in the disposal of this appeal. 10. The case rests entirely on circumstantial evidence. The prosecution has built up its case on the strength of circumstances. We think it apposite straightaway to refer to the circumstances relied on by the prosecution now. We emphasis the word 'now' because we find that certain materials which are improperly found their way into the evidence of the case is carefully avoided by the prosecution and no reliance is placed on such materials. We now attempt to narrate the Crl.A.No.356/07 6 circumstances relied on by the prosecution in seriatim: (1) The deceased Khairunissa left her house to proceed to her school to write her Onam terminal science examination at 9.30 a.m. on 8/9/2004. She was found missing thereafter and did not reach the school or return to her house on 8/9/04. (2) From her house, she had to proceed to her school on foot. There was a short cut which ran by the side of two residential buildings under construction referred to hereafter as 'Beerankoya's house' and 'Abdul Latheeff's house'. (3) The dead body of the child was located ultimately in one of these two houses (Abdul Latheeff's house) on 11/9/04. (4) The deceased was raped and murdered shortly after she left her house at 9.30 a.m. on 8/9/04, as seen from the medical evidence. (5) Pubic hair which did not belong to the child were found in the vagina of the child in the course of post-mortem examination by the Medical Officer. (6) The accused was a worker involved in the construction of the Beerankoya's house and he was expected to work on that morning in that house. (7) The accused was seen in that locality on that morning - Crl.A.No.356/07 7 both before and after the probable time when the death of the child must have taken place. (8) After the body was found in that house on 11/9/04 the police wanted the contractor to produce all the workers engaged by him in connection with the work in that house (Beernkoya's house). All others appeared before the police; but the accused was not available. (9) The accused was found absconding thereafter and was not available to be contacted till 16/9/04 on which day he was eventually arrested. (10) As suspicion was aroused consequent to the abscondance of the accused, the house of the accused was searched even before his arrest and this led to recovery of personal belongings of the deceased from the house of the accused. (11) The accused was arrested on 16/9/04 and when he was so arrested, he had injuries on his person for which he has not offered any specific explanation. (12) Pubic hair sample taken from the accused were similar to the pubic hair sample recovered from the vagina of the Crl.A.No.356/07 8 child during post-mortem examination. (13) In the course of interrogation after arrest, the accused made statements which led to the recovery of personal belongings of the deceased under Sec.27 of the Evidence Act. (14) The accused led the police to the alleged venue of the crime (Beerankoya's house) and pointed out the room and certain articles which were recovered by the Investigating Officer in pursuance of such conduct of the accused. (15) There were black oil in Beerankoya's house as also in the clothes which the accused and the deceased were wearing on the relevant date. (16) Bood was found on the clothes of the accused and the deceased as also on the articles pointed out by the accused when he was taken to the venue of the crime (Beerankoya's house); 17) Spermatozoa was found present in the clothes of the accused and the deceased. 11. While the learned counsel for the appellant/accused contends that these circumstances have not been satisfactorily established and that the proved circumstances do not point clinchingly and unerringly to the guilt of the accused, the learned Additional Director General of Prosecution contends that Crl.A.No.356/07 9 all these circumstances have been established satisfactorily and the circumstances established do lead to an unerring inference about the guilt of the accused -- to the exclusion of every reasonable hypothesis of innocence of the accused. 12. We shall now proceed to consider the various circumstances extracted above. We shall initially consider whether those circumstances have been proved. We shall later consider whether the circumstances are sufficient to lead a prudent mind to a safe inference of guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the accused. 13. To the law relating to appreciation of evidence in a case resting on circumstantial evidence now. The law is too well settled to require or to persuade us to attempt any reference to precedents. It is trite that in a case of circumstantial evidence, every circumstance must be proved satisfactorily. The circumstances must form strong links of a chain and the links must together constitute a strong chain pointing unerringly to the guilt of the accused excluding every reasonable hypothesis of innocence of the accused. 14. It will be apposite straight away to note that each Crl.A.No.356/07 10 circumstance may be capable of several other interpretations. The Court has to consider whether each such circumstance has been established satisfactorily and if those circumstances/links are part of a chain pointing to the guilt of the accused, the question of benefit of doubt to the accused is to be considered at the end to ascertain whether the links together point unerringly to the guilt of the accused. At that final stage it has to be considered whether any reasonable doubt survives. Undoubtedly each circumstance has to be firmly established. The circumstances together should not leave behind any trace of reasonable doubt about the complicity of the accused. 15. Having so attempted to understand the law, we shall now proceed to consider the 17 circumstances specifically relied on by the prosecution. In respect of circumstances which are not seriously disputed, we may not refer to the whole gamut of evidence that has been placed before the Court. In respect of such circumstances we shall only broadly refer to the materials that are placed. Circumstance No.1 16. We have the oral evidence of PWs 1 and 2 on this aspect. We have Ext.P1 F.I statement lodged by PW1 on the very Crl.A.No.356/07 11 night on which the child was found missing. We have also the evidence of PWs 3 and 5 - Headmaster and class teacher of the child. We find that virtually there is no dispute regarding this circumstance. The prosecution has clearly established that the child had gone to the school at 9.30 a.m on 08.09.2004. The child did not reach the school. The child did not return to her house. The first circumstance is thus eminently established by the prosecution. There is virtually no dispute on this circumstance. Circumstance No.2 17. The second circumstance relied on by the prosecution suggests that the child, who wants to proceed to her school could have taken a circuitous route along the main road, but she had shorter access - a short cut, to reach her school. That shorter route used to be taken by her usually. For this, she had to proceed along a short cut which lies by the side of two residential buildings namely Beerankoya's house and the Abdul Latheef's house referred to earlier. We find no dispute on this aspect. We readily agree that circumstance No.2 has been satisfactorily established. Crl.A.No.356/07 12 Circumstance Nos.3 and 4 18. According to the prosecution though the child was missing from 08.09.2004 and a crime has been registered by the police, the whereabouts of the child could not be traced by the police or the relatives of the child in spite of their best efforts till 11.09.2004. On that day, PW9, a neighbour felt that foul smell was emanating from the Abdul Latheef's house. The information was passed on to the police. The police came to the scene of occurrence. They found the dead body of the child in the loft of the bathroom on the first floor of Abdul Latheef's house. The child was near naked at the time when the body was found. She had only M.O 3 skirt on her. She, who had left her house fully dressed, was found lying dead with only M.O3 skirt on her person. It is unnecessary to refer to the inquest report and the other details. We have the oral evidence of PW39 doctor, who conducted the postmortem examination and Ext.P36 postmortem certificate issued by PW39 to throw light on the cause of death. The evidence of PW39 and Ext.P36 will have to be read along with Ext.P37 report of the local Forensic Science Laboratory which confirmed that there was nothing abnormal in the viscera and that Spermatozoa was not detected in the vaginal swab. Crl.A.No.356/07 13 According to the prosecution, the child was raped and her death was caused by ligature strangulation. The totality of circumstances available in the case convincingly prove that the death of the child was homicidal. It is also established from evidence that there was attempt to commit rape on her. The last trace of doubt if any on this aspect is laid to rest by a reference to injuries 1 and 2 described in Ext.P36 postmortem examination, which we extract below: “1. Pressure abrasion band 3-3.5 c.m broad over the left side of upper part of neck ascending to left mastoid region from front and back, front portion extending from angle of jaw to mastoid (4 c.m) and back portion from the back of neck to mastoid (3 c.m). 2. Vaginal tear 3 c.m long from right labia minora (inner lip of vagina) along its length vertically. At the depth of the vagina a few black curly long hairs were present. The pubic hair of the child were downs (fine soft short hairs)” 19. We are not at this juncture making detailed reference Crl.A.No.356/07 14 to the other injuries, ie. injuries 3 to 9 seen on the dead body as they only indicate associated violence that must have taken place. 20. It will not be inapposite in this context straightaway to refer to the fact that spermatozoa was found on M.O16 petticoat (shemmis) worn by the deceased. Virtually there is no serious dispute raised about the cause of death of the deceased, the dispute being only about the responsibility of the appellant for the alleged crimes committed against the deceased. We have adverted to the main pieces of evidence in support of circumstance No.3. We come to the conclusion that it is absolutely safe from the totality of inputs available in the case - particularly the ones referred above to conclude that deceased Khairunissa was raped and murdered. The time of death may in this context be of some relevance. We have evidence of PW2 about the food consumed by the deceased on that morning. The undigested green gram particles found in the stomach at the time of postmortem examination eloquently confirm the case of the prosecution that her death must have taken place at some time after 9.30 a.m -- before the child could have reached her school. Circumstances 3 and 4 are thus established satisfactorily Crl.A.No.356/07 15 by the prosecution. Circumstance No.5 21. The 5th circumstance relied on by the prosecution is significant. According to the prosecution during postmortem examination, PW39 had found foreign hairs deep in the vagina of the deceased child. He got it out during postmortem examination. The fact of availability of such hairs is mentioned in Ext.P36 postmortem certificate. PW39 had opined that these were not hairs of the child and this had aroused suspicion and inquisitiveness in PW39. 22. The appellant challenges this evidence stoutly. First of all it is contended that PW39, a police surgeon, is not speaking truth. He is obliging the police by permitting them to create such a circumstance against the appellant. It is for this purpose that such a theory of availability of foreign hair, deep in the vagina of the child is pressed into service by PW39 with the help of the police, contends counsel. 23. We have been taken through the cross examination of PW39. The broad circumstances have been referred to. We find not a semblance of doubt raised in our mind about the acceptability of the oral evidence of PW39. PW39 is a medical Crl.A.No.356/07 16 officer. True he is a police surgeon also. But absolutely nothing has been indicated in evidence which can justify an approach with elemental doubt, suspicion or distrust against the testimony of PW39. Ext.P36 dated 12.09.04 (ie. long before the arrest of the accused) clearly indicates that PW39 had recorded this finding in the postmortem certificate. 24. The accused relies on a host of circumstances to contend that this evidence of PW39 should not be relied on. 25. According to PW39, after the postmortem examination he had sent M.O1 ear ring and M.O 3 skirt (found on the dead body) to PW44, the Investigating Officer through PW40, a police constable. They were recovered from the dead body. They were sent to the investigating officer. The investigating officer had seized the same under Ext.P26. PW29 is an attestor to Ext.P26. It was the definite evidence of PW39 that he had taken the foreign hair available in the vagina of the child, nail clippings of the child and the pubic hair of the child in the course of postmortem examination and had forwarded the same to the Forensic Science Laboratory at Trivandrum for examination. He had also forwarded the viscera and the vaginal swab to the local expert for examination. The articles were handed over to PW40 Crl.A.No.356/07 17 for carrying the same to the Forensic Science Laboratory, Trivandrum. The evidence of PW40 shows that he had actually taken such articles to the Forensic Science Laboratory, Trivandrum. They were returned by the Foreign Science Laboratory for the reason that there was no covering letter accompanying the same. The articles came back to PW44 and he re-sent the same with PW43 with the requisite covering letter. According to PW26, the Scientist from the Forensic Science Laboratory, it was received on 17.09.2004. 26. The appellant attempts to make much of these circumstances and contends that it must be concluded that no hair was recovered as alleged from the vagina of the child at the time of postmortem examination and the story of recovery of hair from the vagina of the child is a consequent concoction. This theory is built on the circumstances that in Ext.P26 seizure mahazar only M.Os 1 and 3 are seen seized and the cover sent to the Forensic Science Laboratory by PW39 through PW40 is not seized under Ext.P26 seizure mahazar. 27. We find not a semblance of substance in this contention. What was sent to the investigating officer by the doctor who conducted the postmortem examination were seized Crl.A.No.356/07 18 under Ext.P26. The pubic hair of the child, the foreign hair present in the vagina and the nail clippings of the child were not intended to be handed over to the investigating officer. They were intended to be carried to the forensic science laboratory. The fact that the investigating officer did not in Ext.P26 seizure mahazar refer to those articles which were to be carried to the Forensic Science Laboratory cannot succeed in generating any semblance of a dissatisfaction in the mind of the Court. The evidence of PWs 40 and 43 read along with the evidence of PW39 and PW26 do convincingly show that the evidence of PW39, that he seized foreign hair from the vagina of the child and sent the same to the Forensic Science Laboratory where PW26 received the same on 17.09.04 can safely be accepted. Notwithstanding the laborious and the hard attempts made by the learned counsel for the appellant, the appellant has not succeeded in generating any dissatisfaction against this aspect of the prosecution case. We do, in these circumstances, come to the conclusion that the 5th circumstance - that foreign pubic hairs (not of the child) were recovered from the vagina of the child by PW39 doctor who conducted the postmortem examination, is strongly and firmly established by the Crl.A.No.356/07 19 prosecution. Circumstance No.6 28. That the accused had worked under PW6 in connection with the construction of the Beerankoya's house is not disputed by the accused/appellant. According to PW6, the employer/contractor as also PW7, a co-worker, the accused was also engaged along with other workmen in connection with the construction work of Beerankoya's house by PW6. We find no reason to approach the oral evidence of PWs 6 and 7 with any amount of reservation, doubt or suspicion. Their cross examination does not reveal the possibility of existence of any motive for PWs 6 and 7 to speak incorrectly or falsely against the appellant. The evidence of PW6 shows that by 05.09.04, the work in Beerankoya's house was substantially over. Thereafter the other workmen had no work in that house. The accused had to continue to work. Certain iron sheets used for the construction had to be applied with black oil. Certain nails had to be removed. It is for this purpose, according to PW6, that the accused had to be engaged after 05.09.2004. He was supposed to report for work on 07.09.2004. He did not. On 08.09.04 he had to continue that work. According to PW6, he did not report Crl.A.No.356/07 20 for work at Kondotty as he was expected to. 29. The fact remains that the appellant was expected to work in Beerankoya's house on 08.09.2004. Of course going by the version of PW6, it would appear that the appellant was expected to report at Kondotty to PW6 for work. But the work had to be performed in Beerankoya's house only. This circumstance is thus established by the prosecution to the extent that the accused was expected to report for work in Beerankoya's house on that morning,though going by the version of PW6 it would appear that he was expected at Kondotty by PW6 to report for work. Nothing prevented him from reporting directly at the place of work and doing his work. The 6th circumstance is thus clearly established.