IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 CRL.A.No. 40 of 2006(A) -------- ----------------------- JUDT. DT.22.12.2005 IN SC.1065/2004 of ADDL.SESSIONS COURT, KOZHIKODE .................... APPELLANT(S)//ACCUSED: --------------------- SAMIKUTTY, S/O.MAYYAN, ELATHUR, KOZHIKODE DISTRICT. BY ADVS. SRI.M.ASOKAN & SRI.DEVAPRASANTH.P.J. RESPONDENT(S)//COMPLAINANT: ------------------------ STATE OF KERALA, REPRESENTED BY SHO, ELATHUR POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.A. No.40 of 2006 ------------------------------ Dated this, the 28th day of October, 2009 JUDGMENT Balakrishnan Nair, J. The accused in Sessions Case No.1065 of 2004 on the files of Sessions Court, Kozhikode is the appellant. The prosecution case in brief is as follows:- The appellant - Samikutty and the deceased Sarojini were living as husband and wife. For both of them, it was their second marriage. The parents of the appellant and his brother were not in favour of their union. The appellant was not having an independent house and he was staying in the house of his brother, Velayudhan(PW-10). The said witness was staying along with his wife, Valli and two children. For some time, the couple stayed together in the house of PW.1, Narayanan, the brother of the deceased Sarojini. Later, Sarojini was taken to the house of Velayudhan. It appears that about two months before the date of death of Sarojini, Crl.A.No.40 of 2006 - 2 - she alone came and started living with PW.1, her brother. Later, PW.1 talked to the appellant and based on that it was decided to take Sarojini to the house where the appellant was living. So, on 12.1.2003, PWs.1 to 3 and the deceased went to the house of PW.10 where the appellant was living. They left the deceased in the house of Velayudhan at about 5.30 p.m. and returned home. After a few minutes they heard a lady crying out that Sarojini was killed. Immediately, the appellant came to them carrying a blood stained chopper and told them that that they may take back PW.1's sister Sarojini. They immediately returned to the house of Velayudhan and found Sarojini lying in a pool of blood. On finding that she was dead, PW.1 along with others went to Elathur Police Station and reported about the incident. The Sub Inspector of Police, PW.16, recorded Ext.P1 F.I. Statement and registered Ext.P1(a) F.I.R. While so, the accused appeared before the Sub Inspector of Police carrying the chopper. He told the Sub Inspector that he has killed his wife. Then, PW.1 pointed out to the Sub Inspector that, it was the accused, who Crl.A.No.40 of 2006 - 3 - killed his sister. Thereupon, the appellant was arrested and the chopper was seized. PW.18, the Circle Inspector of Police took over the investigation. He prepared the scene mahazar, sent the body for autopsy and questioned the witnesses. PW.15, Tahsildar conducted the inquest and prepared Ext.P3 inquest report. PW.11 conducted the autopsy and issued Ext.P11 post mortem certificate. Injury No.1 noted in Ext.P11 was found to be the cause of death. PW.17, the C.I. of Police who succeeded PW.18 verified the charge and laid it before the Judicial First Class Magistrate's Court, Koyilandy. The learned Magistrate committed the case for trial by the Sessions Court. 2. The appellant pleaded not guilty to the charge framed for the offence under Section 302 of the Indian Penal Code by the trial court. The prosecution to prove its case examined PWs.1 to 18 and marked Exts.P1 to P21. The material objects, MOs.1 to 12 were also produced and marked. The learned Sessions Judge after hearing both sides, Crl.A.No.40 of 2006 - 4 - found the appellant guilty and convicted him for the offence under Section 302 I.P.C. 3. We heard the learned counsel for the appellant. According to him, the case of the prosecution is absolutely false and the appellant has been falsely implicated. At the relevant time, the appellant was away. When he came home, he along with his brother were taken to the police station and he was made an accused in the crime. The above defence case which is narrated in the statement under Section 313 Cr.P.C. by the appellant is probabilised by the facts disclosed on examination of the witnesses. The learned counsel took exception to the omission of the police for not sending MO.1 chopper for examination by fingerprint expert to find out whether it had any fingerprints of the appellant. The learned counsel also pointed out that the appellant was arrested at about 7.20 p.m. According to the prosecution, he appeared before the police at 7.11 p.m. PW.10, the brother of the appellant was also present when he was arrested. It is highly improbable that his brother could be informed about the Crl.A.No.40 of 2006 - 5 - arrest and he may be present at the police station within a few minutes. It is therefore clear that his case stated under Section 313 Cr.P.C. is probabilised, it is submitted. The learned counsel also submitted that the version of PWs.1 and 2 cannot be relied on. The statement made by them that the appellant told that it was he who killed Sarojini is an embellishment. In the statement before the police, they did not have any such case. The learned counsel also pointed out that son of PW.10 was present in the house when the incident took place. We heard the learned Public Prosecutor, who supported the judgment of the trial court. 4. PW.1, the brother of the deceased has stated that, on the fateful day, he went along with PWs. 2 and 3 and his sister Sarojini to the house of the appellant. They left her in the house of PW.10 in the company of the appellant and returned at about 5.30 p.m. Within a few minutes, they heard a lady crying out that Sarojini was killed. When they turned back, they were accosted by the accused with a blood Crl.A.No.40 of 2006 - 6 - stained chopper in his hand. He shouted that they may take away Sarojini. On rushing to the house, they found that Sarojini was lying in a pool of blood. It was found that she was dead. Immediately thereafter, PW.1 and others went to the police station and lodged the F.I. statement. While they were there, the appellant came there, with a blood stained chopper in his hand, confessed about his guilt and he was arrested. This version was supported by PWs.2 and 3. Of course, there are some minor contradictions and there are some embellishments, inasmuch as they have expanded the story beyond what is stated to the police and recorded under Section 161 Cr.P.C. But, from their evidence, it is clear when they left the house of PW.10, they saw only the appellant and the deceased together in that house. There is some dispute as to whether the son of PW.10 was present inside the house or he has gone out. Whatever be that, these witnesses have spoken to that the appellant and the deceased were together when they left the house. Within a few minutes, they found Sarojini lying with a cut injury on her neck. We are inclined to Crl.A.No.40 of 2006 - 7 - believe the version of the said witnesses. Therefore, it is for the appellant to explain how the lady found in his company a few minutes earlier was found lying in a pool of blood. The appellant has no explanation. But he has pleaded a case of alibi. We find it difficult to accept the said defence version. 5. The case that the appellant came to the police station with a blood stained chopper is spoken to by PWs.1 to 3 and also by the Sub Inspector of Police, PW.16. We find no reason why these persons should falsely implicate the appellant. We find no reason why they should spare the real culprit. In the absence of any explanation on the above point given by the appellant, we find no reason to believe the defence version. The F.S.L. report would show that there was human blood in the MO.1 chopper. The hair samples taken from the scalp of the deceased was also found to be similar to the hairs found on MO.1. The evidence of PW.11, the doctor who conducted autopsy, would prove beyond doubt that injury No.1 in Ext.P11 has resulted in the death of Sarojini and the Crl.A.No.40 of 2006 - 8 - same was homicidal also. The doctor who conducted autopsy opined that injury No.1 could be caused with MO.1 chopper. The above circumstances proved in this case, we feel, unerringly point to the guilt of the accused. The plea of alibi which we have found to be false also strengthen the case of the prosecution. In other words, the appellant has failed to explain what happened to Sarojini who was found to be in his company a few minutes before she was found lying in a pool of blood. In view of the above position, we find that the view taken by the learned Sessions Judge that it was the appellant, who committed the crime is to be upheld. We do so. In the result, the Criminal Appeal fails and it is accordingly dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)