IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 CRL.A.No. 462 of 2005(B) ------------------------ SC.560/1999 of SESSIONS COURT, KASARAGOD CP.49/1998 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... APPELLANT: -------------- K.ABDUL KHADER, CONVICT NO.646, CENTRAL PRISON, KANNUR. BY ADV. ADV.V.B.PREMACHANDRAN(STATE BRIEF) RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, KERALA. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.462 OF 2005-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of January, 2009 JUDGMENT THOMAS P. JOSEPH, J: For alleged double murder and attempt to cause the death of two others, appellant stands convicted and sentenced to undergo imprisonment for life and rigorous imprisonment for five years under Sections 302 and 307 of the Indian Penal Code (for short, “the code”). 2. The prosecution case in short is thus: 3. Suhara (the deceased) along with her sister (PW2), three children and mother, Mariyumma (the deceased) was at the relevant time, residing in house No.IV/64 of Kumbala Panchayath in Arikkady village. The alleged incident occurred on 6.8.1997 between 8 p.m and 8.30 p.m. Appellant, the deceased and injured were residing on the either sides of the railway track. It is alleged that at a time when the husband of Suhara was working abroad, she developed illicit intimacy with the appellant and became pregnant. Appellant who is married to another woman wanted to some how avoid Suhara and on the fateful day, came to the rear side of her house at about 7.45 p.m requesting for some cloth claiming that something had bitten him on the leg. Suhara provided 2 Crl.A.No. 462/2005 him some cloth. Appellant then asked for a torch. Pw2 provided him with that. Appellant went towards the cattle shed. After load shedding was clamped at about 8 p.m, appellant asked the deceased Mariyumma to give him an umbrella. When Suhara, the deceased opened the doors of the kitchen, appellant entered the kitchen and assaulted her with a sword knife. Mariyumma, Pw2 and the 7 year old daughter (Ramseena) of deceased Suhara were also assaulted with that sword knife. Information was conveyed at the house of the paternal uncle of Suhara over telephone. Getting information PW1, son of the paternal uncle of Suhara along with PW11 reached the place of occurrence and found Suhara and Mariyumma lying dead in the drawing room of the house. They also found PW2 and Ramseena with bleeding injuries. PW2 and Ramseena were sent to City Hospital, Mangalapuram along with PW11 and Cw34. At that hospital, PW11 gave first information (Ext.P5) to Pw7, Additional Sub Inspector, Kumbala on 6.9.1997 at 10.45 p.m. PW8 registered the case. Circle Inspector, Kumbala investigated the case and filed chargesheet against the appellant for the offences punishable under Sections 302, 324 and 307 of the Indian Penal Code (for short, 'the Code'). 4. Learned magistrate before whom the final report was filed, committed the case for trial to the Sessions Court, Kasaragod. Learned Sessions Judge framed charge against the appellant for offences punishable under Sections 302 and 3 Crl.A.No. 462/2005 307 of the Code. Prosecution examined Pws 1 to 14 and marked Exts.P1 to P13 and Mos 1 to 35. Appellant was questioned under Section 313 of the Code of Criminal Procedure (for short, 'the Code'). He stated that on the relevant day evening he was returning home after collecting his clothes ironed at Kumbala town and while so, something bit him on the leg. He went to the house of Suhara and called Mariyumma. Mariyumma tied his foot with cloth, advised him to meet a doctor immediately and provided him a torch. Since pain became accute, he stood near the cattle shed. It was time of load shedding. He heard a sound, flashed the torch and found Suhara and Basheer, brother of PW1 in a compromising position. Basheer asked him not to disclose the matter to anybody. Appellant said that he would inform Mariyumma about that. Basheer beat him on the leg with a wooden plank. Suhara stabbed him with a knife and threatened to kill him. He managed to get hold of the knife. He does not know what happened thereafter. Appellant did not adduce any evidence in defence. Learned Sessions Judge considered the evidence and found that Suhara and Mariyumma had a homicidal death. PW2 and Ramseena sustained serious injuries. Those injuries were inflicted by the appellant at the relevant time and place and with the requisite intention to cause death of the deceased women, PW2 and Ramseena. Appellant was found guilty, convicted and sentenced as aforesaid under Sections 307 and 302 of the Code. That 4 Crl.A.No. 462/2005 conviction and sentence are challenged in this appeal. 5. We heard Adv. Sri. V.B. Premachandran, counsel appointed as State brief for the appellant and Public Prosecutor Sri. Noble Mathew. The questions arising for a decision are whether appellant inflicted injuries on the deceased Suhara and Mariyumma and PW2 and Ramseena as alleged by the prosecution and what, if any are the offences committed by the appellant. 6. It is not in dispute that Suhara, Mariyumma, PW2 and Ramseena sustained injuries on 6.8.1997 between 8 p.m and 8.30 p.m. and that Suhara ad Mariyumma succumbed to it. As per the evidence of Pws 1 and 11, on getting information about the incident over telephone they reached the scene of occurrence and found Suhara and Mariyumma lying dead in the drawing room. They also found PW2 and Ramseena with bleeding injuries. PW11 deposed that he along with Cw4 person took PW2 and Ramseena to the City Hospital, Mangalapuram. PW4, Medical Officer of that hospital examined Ramseena, aged 7 years on 6.8.1997 at 10 p.m and issued Ext.P2. Pw4 examined Pw2, aged 16 years on the same day at 10.10 p.m and issued Ext.P3. Exts.P2 and P3 show that Ramseena and PW2 suffered incised wounds. 7. Pw13, Circle Inspector, Kumbala conducted inquest on body of Suhara at the place of occurrence on 7.8.1997. Ext.P9 is the report. Pw9 conducted inquest on the body of deceased Mariyumma. Ext.P6 is the report. PW12, Assistant Professor, 5 Crl.A.No. 462/2005 Medical College, Kozhikode conducted autopsy on the body of Mariyumma and issued Ext.P7. PW12 conducted autopsy on the body of Suhara and issued Ext.P8. Exts.P7 and P8 refer to the various injuries found on the body of the deceased. PW12 opined with reference to Ext.P7 that death of Mariyumma was due to haemorrhage and shock from multiple injuries she suffered. Referring to Ext.P8, Pw12 opined that death of Suhara was due to haemorrhage and shock from the injury to the neck blood vessel. It is also stated by PW12 that the said injuries are sufficient to cause death of Mariyumma and Suhara. The above evidence is not challenged before us. On considering the same, we do not also find reason to interfere with the finding of the learned sessions judge that PW2 and Ramseena suffered injuries and that Mariyumma and Suhara succumbed to the injuries suffered by them on the relevant day. 8. Then the next question is whether those injuries were inflicted by the appellant as alleged by the prosecution. PW2 is the only witness for the incident. She is the sister of Suhara and daughter of Mariyumma and herself, an injured. It is not very much in dispute that during the relevant time PW2, aged 16 years was residing in the same house along with the deceased Suhara, Mariyumma and the children of Suhara including Ramseena. Pw2 claimed that the appellant is acquainted to her and that his grandmother used to visit their house occasionally. She claimed that on the day of the 6 Crl.A.No. 462/2005 incident at about 7.45 p.m, appellant came to the rear side of their house near the kitchen carrying a polythene bag (identified by the witness as MO4), claimed that something had bitten him on the foot and requested for some cloth. Suhara opened door of the kitchen and gave a piece of cloth to the appellant. PW2 gave him a torch. Appellant went towards the cattle shed. PW2 and Suhara closed the door of the kitchen. By that time load shedding was clamped (by about 8 p.m). Hence, PW2 lighted a lamp and lantern and placed it in the kitchen and drawing room. After load shedding was clamped, appellant called Mariyumma and asked for an umbrella. Hearing that, Suhara opened the door of the kitchen. Appellant then said that he did not require an umbrella and instead, came to kill Suhara. Appellant entered the kitchen. PW2 was standing in the drawing room. Hearing the talk of appellant, Pw2 also came to the kitchen. Appellant assaulted Suhara with a sword knife (identified by the witness as MO1). When Mariyumma tried to intervene, appellant chased Mariyumma and assaulted her also with Mo1. PW2 tried to interfere. Appellant chased PW2. she got into the veranda of the house. Appellant came there and assaulted her with MO1. She collapsed on the veranda. Appellant then turned towards Mariyumma. Mariyumma tried to close the front door but appellant kicked open the door and assaulted Mariyumma with Mo1. Pw2 found Ramseena also in the house with injuries. Mariyumma asked 7 Crl.A.No. 462/2005 PW2 to make a phone call. Though there was a telephone installed in their own house, Pw2 was seared to enter the house, went to the neighbouring house of CW2 and requested him to inform her paternal uncle about the incident over telephone. After some time, Pw1, son of her paternal uncle along with PW11 came there. Pw1 asked her what had happened. She narrated the incident to PW1. The witness claimed that she could identify the appellant in the burning lamps in the kitchen and drawing room. Pw2 claimed that at the time of incident, appellant was wearing a pant and shirt and identified Mo3 as that shirt. 9. According to PW1, at the time information was received at his house situated about 200 meters away from the place of occurrence over telephone PW11, his friend also was in that house. PWs1 and 11 reached the scene of occurrence. Pw2 told him that herself , Mariyumma, suhara and Ramseena were assaulted by the appellant with knife. Pws 1 and 11 found Suhara and Mariyumma lying in the drawing room of the house. They found PW2 and Ramseena with bleeding injuries. PW2 and Ramseena were sent to City Hospital Mangalapuram along with PW11. PW11 also gave evidence in the above line. 10. According to PW1, after PW2 and Ramseena were sent to the hospital, police reached the place of occurrence and getting information that appellant is available near the place of occurrence police and the local people searched for 8 Crl.A.No. 462/2005 him. While so, PW1 found the appellant removing his shirt and jumping into the river from near the bridge. Next day, police prepared mahazar for scene of occurrence in his presence. Witness claimed that Mo1 is the sword knife seen in the room adjacent to the kitchen in the house of the deceased. Mo2 is the lamp found in the drawing room. PW5 is the Assistant Surgeon of community health centre, Kumbala. He examined the appellant in that hospital on 18.8.1997 at about 12 p.m and issued Ext.P4. Evidence of PW5 and Ext.P4 is to the effect that appellant had incised wounds on the left thumb, left middle finger, right thigh middle and a lacerated wound on the ring finger. Injuries were not fresh. According to Pw5, those injuries could be caused by coming into contact with any sharp edged weapon. Those injuries could be caused while attacking another person holding a sharp edged weapon on the right hand. 11. PW6 was working in a hotel at Pune during August, 1997 and claimed that during that time, appellant in search of job in that hotel. Appellant was given the job of washing dishes. PW6 noticed that the appellant used to wash dishes wearing gloves and when he asked about that, appellant claimed that he had suffered some injuries on the hand. It is also the version of PW6 that whenever people from Kerala came to that hotel to take food, appellant used to hide himself and when asked about conduct, appellant claimed that he had caused the death of Suhara and Mariyumma. In cross 9 Crl.A.No. 462/2005 examination PW6 stated that the appellant came to that hotel on 11.8.1997 and worked there for two days. PW7, Sub Inspector, Kumbala proceeded to the City Hospital, Managalapuram on 6.8.1997 as directed by the Circle Inspector, Kumbala. Pw7 could not record the statement of any of the injured as they were admitted in the operation theature and hence he recorded the statement of PW11 at 10.45 a.m. PW8, A.S.I Kumbala registered the case based on Ext.P5, the statement given by PW11 to PW7. According to Pw8, while he was on duty at Kumbla police station on the night on 6.8.1997 a lady gave vague information over telephone about the incident. To verify the matter, himself and the party came to the place of occurrence and found the two ladies lying in the house. He learned that two other persons also had sustained injuries in the incident. Local people said that the assailant is available nearby. Thereon, he sent police men to search for the assailant. He later learned that the appellant had jumped into the nearby river and escaped. 12. PW13, Circle Inspector conducted investigation. He claimed that he got information about the alleged incident through wireless while he was on law and order duty. He came to the scene of occurrence and learned that the injured (referring to Pw2 and Ramseena) were taken to the hospital at Mangalapuram. On 7.8.1997 Pw13 examined the place of occurrence. He prepared mahazer for scene of occurrence at 10 Crl.A.No. 462/2005 9.15 a.m on 7.8.1997. Ext.P10 is that mahazer. He found an umbrella, pair of chappels and blood stained turkey towel on the varanda of the house which were taken into custody. Witness identified the same as Mos 14 to 17. Mo2, lantern found in the drawing room and the broken glass pieces, (Mo19) were also taken into custody as per Ext.P10. The blood stained articles, Mos 20 to 23 and a button (identified as Mo 24) found at the place were also taken into custody as per Ext.P10. Mo1, blood stained sword knife found in the room adjoining the kitchen was taken into custody as per Ext.P10. On the same day PW13 seized Mo3, shirt and Mo27 series, currency notes found near the bridge near the place of occurrence as per Ext.P11. From near the cattle shed in the compound of the deceased, Mos 4 and 28 to 34 were seized as per Ext.P12, mahazer. PW13 arrested the appellant from a house at Kasaragod and got him medically examined by Pw5. PW14 conducted further investigation. Final report was submitted by PW10 who succeeded PW14. 13. Learned Sessions Judge did not accept the extra judicial confession attempted to be proved through Pw6. As regards the injuries on the appellant proved through Pw5, the learned sessions judge observed that the prosecution has not explained how the appellant suffered those injuries. Learned Public Prosecutor submitted that the said findings of the learned sessions judge are not correct. So far as the alleged extra judicial confession is concerned, learned 11 Crl.A.No. 462/2005 sessions judge has considered evidence of PW6 and stated that his version is not believable. That being a finding of fact based on a proper appreciation of the evidence and having heard learned counsel for the appellant and the public Prosecutor, and having gone through the evidence of PW6, we find no justifiable reason to upset that finding. 14. It is argued by the learned counsel for appellant that evidence of PW2 regarding the alleged incident is not believable. According to the learned counsel, PW2 had no occasion to identify the assailant. It is also contended by the learned counsel that going by the evidence of PW12, MO1 could not have been the weapon of the alleged offence. Learned counsel referred to the plea raised by the appellant and the suggestions put to Pws 1 and 2 that Basheer, brother of PW1 is responsible for the incident. In response it is contended by the learned Public Prosecutor that there is no reason to disbelieve the evidence of PW2 particularly as herself is an injured. Since the assault on her was at close distance, she could easily identify the assailant. There was no reason for her to absolve the real culprit and falsely implicate the appellant. 15. It is true that the version given by the appellant when questioned under Section 313 of Cr.P.C cannot be taken as the basis for a conviction. Settled position of law is that explanation given by the appellant can also be taken into account while appreciating the evidence. In this case it is 12 Crl.A.No. 462/2005 not very much in dispute that the appellant was available at or near the place of occurrence at the time of incident, his version being that at the time he was standing near the cattle shed he happened to see Suhara and Basheer in a compromising position, he told them that he will disclose the incident to Mariyumma and then Basheer beat him with a wooden plank and Suhara stabbed him with a knife. He managed to get hold of the knife. Pw2 referred to the presence of appellant at the place of occurrence. According to Pw2, a lamp (Mo2) was burning in the drawing room and a lantern was burning in the kitchen at the time of incident. As it was load shedding then and the incident occurred in a house, we find no reason to disbelieve the version of Pw2 that there was burning lamps in the kitchen and drawing room. It is not in dispute that PW2 and the appellant are on either sides of the railway track. According to PW2, grand mother of the appellant used to visit their house occasionally and the appellant is known to her from her childhood. It is also the version of PW2 that the appellant used to pass along the road in front of her house almost every day. Appellant is not a stranger to Pw2. Even in darkness, it is possible to identify known persons. We find no reason to disbelieve the evidence of PW2 that she had identified the assailant at the time of incident. 16. There are other circumstances also which justify the claim of PW2 that the appellant was the assailant. In 13 Crl.A.No. 462/2005 Exts.P2 and P3, alleged cause of injury is stated as “assault by a known person”. As per the evidence of PW4 and Exts.P2 and P3, the injured were not in a position to speak even their names. Information regarding the alleged cause of injury was given to Pw4 by the bystander. We referred to the evidence of Pws 1, 2 and 11 that PW2 and Ramseena were taken to the hospital by PW11 and CW 34. We also referred to the evidence of Pws 1 and 11 that on getting telephonic information about the incident, they reached the scene of occurrence where PW2 told them about the incident. Concededly Pws1 and 11 are not witnesses to the incident. Therefore when Pw11 or Cw34 conveyed information to Pw4 at the time of his examining Pw2 and Ramseena that a “known person” had assaulted Pw2 and Ramseena, we are inclined to think that the bystander who made that statement to Pw4 must have got it from Pw2 as Ramseena being aged only 7 years could not have given that information to Pw11 or Cw34 and the other two ladies who suffered injuries being dead by then. That means, Pw2 had identified the appellant as the assailant at the time of incident itself. 17. It is true that in Exts.P2 and P3, name of the assailant is not mentioned. It is not absolutely necessary that whenever a medical officer examines the injured, the latter should disclose the name of the assailant to the medical officer and even if disclosed by the injured, it should be recorded by the medical officer. 14 Crl.A.No. 462/2005 18. According to Pws 1 and 8, policemen and the local people made a search for the assailant learning that he is available nearby the place of occurrence. Pw1 stated that they found the appellant hiding near a bridge near the place of occurrence and on seeing the searching party, appellant removed his shirt and jumped into the thick flowing river. It has come in evidence that it was rainy season then with full flow of water in the river. It is from nearby that bridge that on 7.8.1997 PW13 seized MO3 and 27 series, a shirt and currency notes as per Ext.P11. (Pw2 has identified Mo3 as the shirt which the appellant was wearing at the time of incident). We referred to the evidence of PW13 supported by Ext.P10 that Mo24 - a button was seized from the place of occurrence on 7.8.1997. Learned Sessions Judge after verification has recorded in the judgment that one button was found missing from Mo3 and that Mo24 is similar to the remaining buttons on Mo3. it could reasonably be said that Mo24 is the button which was missing from Mo3. Seizure of Mo24 from the scene of occurrence is an added circumstance in favour of the prosecution. 19. It is contended by the learned counsel that the injuries of the nature found on the deceased, PW2 and Ramseena could not have been caused with a weapon like Mo1 which has a curved tip. Pws 4 and 12 have opined that the injuries found on Pw2, Ramseena and the deceased could be inflicted with a weapon like Mo1. PW12 was cross examined 15 Crl.A.No. 462/2005 on the line that Mo1 could not cause injuries found on the deceased. He stated that if the tip of MO1 falls on the body, the injury will be “L” shaped. That means “L” shaped injury will be caused only if the tip of Mo1 falls on the body. The contention that Mo1 could not cause the injuries cannot therefore be accepted. We also find that the material objects including Mo1 were subjected to chemical examination and as per Ext.P13, report of the chemical examination, Mo1 (sword knife) was found to be stained with human blood. It is pertinent to note that Mo1, stained with blood was seized from the scene of crime itself as per Ext.P10 on 7.8.1997. These circumstances corroborate the version of Pw2 that herself, Ramseena and the deceased were assaulted with Mo1. We find no justifiable reason to disbelieve Pw2. 20. It is contended on behalf of the appellant relying on Ext.P8, certificate of autopsy concerning Suhara, that the motive pleaded by the prosecution stands exploded. Ext.P8 and evidence of PW12 is that on examination of uterus of Suhara it was found to be empty. According to PW12, if Suhara was carrying a foetus aged of 2-3 months, he would have noticed that. What could be said is that the medical evidence do not show that at the time of incident Suhara was carrying. That cannot in any way explode the case of prosecution for more reasons than one. Firstly, when there is acceptable evidence regarding the incident, motive looses its importance. Secondly, it may be that Suhara and the appellant 16 Crl.A.No. 462/2005 thought the