Abdul Jaleel v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **CRL.A.No. 629 of 2013** **AGAINST THE JUDGMENT IN SC 332/2009 of ADDITIONAL DISTRICT & SESSIONS COURT III, ERNAKULAM** **APPELLANT/ACCUSED NO.1** **ABDUL JALEEL,AGED 43 YEARS S/O.KUNJU VAVA MOULAVI,MANAKKAL VALAPPIL VEEDU, MADIYOOR,POTHANICAD,ERNAKULAM DISTRICT.** **BY ADVS.SRI.SALIM V.S. SRI.SHANAVAS.S SRI.H.NUJUMUDEEN** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY C.I.OF POLICE,KALLOORKAD POLICE STATION,THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.NOCHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2018, THE COURT ON 11-04-2018, DELIVERED THE FOLLOWING:** ## **A.M.SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.629 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of April , 2018 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred against the judgment of conviction and sentence made in S.C. No.332/2009 on the files of the Additional District & Sessions Court -III, Ernakulam. The prosecution case in a nut shell is as follows : The appellant herein married one Shajitha ( deceased) on 23/11/2000. It is the case of the prosecution that the appellant herein as well as his parents and brother of the appellant subjected the deceased to cruelty and the relationship was strained in between the deceased and the above referred persons. As such she was living in her parental house. There was a mediation. Thereafter the appellant herein took the deceased and children to his house bearing Reg.No.V/145 (A)-1/238 of Pallarimangalam Crl.Appeal No.629/2013 2 Panchayath in Pothanikad village. The further case of the prosecution is that on 10.2.2008 at 12 noon, the above referred persons including the appellant threatened the deceased Shajitha. The appellant herein cut the hair of Shajitha and it is also the case of the prosecution that the appellant herein due to the suspicion of chasity of the deceased Shajitha and due to ill-will towards her, strangulated her by binding a cord wire of the emergency lamp around her neck and thereby caused her death and committed the offence punishable under Section 302 and 498 A of IPC. 2. After investigation, police filed a charge against four persons for the above referred offences. Prosecution altogether examined 28 witnesses and Exts.P1 to P54 were marked. MO1 to MO 10 were also identified. On the side of the defence, Exts.D1 to D3 marked. After appreciating the evidence, the trial court convicted the appellant ( A1) herein for an offence under Section 302 of IPC and acquitted all other accused including the appellant herein for an offence under Section 498 A of IPC. The appellant Crl.Appeal No.629/2013 3 was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- with default rigorous imprisonment for a period of one year. There was also a direction that if the fine amount is realized, it shall be paid to PWs 2 and 3, who had lost their mother. Challenge is against the said conviction and sentence. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that here is a case where prosecution is mainly relying upon the evidence of PW2 and PW3, child witnesses. It is a fact that immediately after the incident, the appellant herein was taken into custody by Police. When child witnesses are relied upon, there is a danger of prior tutoring. It is the further submission of the learned counsel that when the whole evidence is analysed, it can be seen that admittedly, the FI statement came into existence belatedly. To substantiate their case, the learned counsel submitted before us that there is a clear cut admission by the prosecution witnesses that the police reached at the place of incident at the early hours of the 4 Crl.Appeal No.629/2013 morning i.e. in between 6.30 a.m. and 7 a.m. When there is a categoric admission by the prosecution witness to that effect and when there is no explanation forthcoming as to how the police officers reached therein, the only inference that can be drawn is that there was a prior information to the police station regarding the incident and as such police was sent from the police station to the place of incident. When there was prior information, it can be only legitimately concluded that there was suppression of the earliest version. It is also submitted that prosecution got a case that cord of emergency lamp was used as a ligature. But there is also some mystery apparent on the records. As per the prosecution case, the ligature was in tact when the inquest was conducted. The said ligature was along with the emergency lamp which was handed over to PW26, a police constable, who was entrusted to take the body for postmortem. There is nothing to show that such an emergency lamp was thereafter seen by the doctor at the time of postmortem or that was seized by the police officer at any point of Crl.Appeal No.629/2013 5 time. If that be so, how the said emergency lamp was produced before the court is also not clear. The positive case of the defence is that there was a possibility of hanging which can be supported by the postmortem certificate, wherein the ligature marks was not seen around the neck. Constriction force is the cause of death. As such, when the possibility of hanging cannot be ruled out, the absence of the so called ligature mark around the neck is also attains importance. Here is a case where there is possibility of suicide by hanging cannot be ruled out. To implicate the appellant herein, a manipulation in the evidence is apparent. Tampering of evidence is apparent especially when there is admission of the prosecution witness that at the earliest point of time itself police came therein. But as per the official records, police registered the crime only at 8.30 p.m. as an unnatural death. If the ligature, the cord of the emergency lamp, was apparently seen around the neck of the deceased, then the first information will certainly contain that fact. Thus, when the crime was registered, only as an Crl.Appeal No.629/2013 6 unnatural death and the FIR was registered for unnatural death, it can be informed that at the earliest point of time, the information received to the police was that of only unnatural death. PW2 and PW3 are minor witnesses aged below 6 or 7 years at the time of incident. It is also submitted that it will be highly unsafe to rely upon the uncorroborated testimony of such minor child witnesses especially when they were residing along with their maternal grandparents, after the incident. 4. It is also the submission of the learned counsel for the appellant that the original case of the prosecution was that out of the 25 soverings of gold given to her, 13 soverings were misappropriated and balance 12 soverings were taken by the parents of the deceased. But as per the evidence adduced by the prosecution, at the time of death, gold ornaments were seized from the dead body of Shajitha, which was received by PW1 from the police. Thus, it is the submission of the learned counsel that the motive alleged is not proved by the prosecution to commit such an Crl.Appeal No.629/2013 7 offence by the appellant. When the motive is not proved by the prosecution and when the evidence of the child witnesses are not inspiring confidence, then the only inference that can be drawn is that the case now put forward by the accused is more probable one and is entitled for benefit of doubt. It is also the submission that the evidence adduced by DW1 is a reliable evidence and the non marking of the statements given under Section 164 of Cr.P.C. by the prosecution will cast a doubt regarding the prosecution case. 5. We heard the learned Public Prosecutor. The learned Public Prosecutor submitted before us that in this case, the evidence of PWs.1 to 7 will positively prove the case of prosecution. The evidence of PW7 will show that her hair was cut and removed by the appellant. When the evidence of PWs.2 and 3 is reliable, it can be only held that there is nothing to interfere with the conviction entered into by the court below. 6. After hearing the counsel, we perused the F.I.Statement and FIR in this case. As per the FIR, it was registered at 8.30 Crl.Appeal No.629/2013 8 hours and the time of incident was noted as in between 8 p.m. and 6.30 a.m. in the night of 10.2.2008. The crime is registered under section 174 of Cr.P.C., ie. for unnatural death. The F.I.Statement was given by one Abdul Latheef, who is the brother of the deceased. At the time of giving FI Statement itself, he had stated to the Police regarding the mental and physical harrassment by the appellant herein. 7. The oral evidence of the witnesses is as follows: PW1 deposed that deceased Shajitha was his 4[th] sister and he was having four sisters and three brothers. The marriage of deceased Shajitha was in 2000. It was an arranged marriage. At the time of marriage, she was given 25 sovereigns of gold ornaments. At the time of marriage, he was working in Bahrain and was conducting a cool bar therein. He came back from Bahrain two years prior to the incident and was plying a goods authorickshaw. He last met her on the previous day of the death. The incident occurred in the early hours of 11.2.2008. At about 11 .30 a.m., he 9 Crl.Appeal No.629/2013 was informed by one Hussain, a nearby resident of his sister. He further deposed that on 10[th] evening, he had met her at about 4 p.m. from her house. At that time, his mother Ayisha, brother Aboobacker and his brother-in-laws Ibrahim and Siddque were also present. He also deposed that as Shajitha requested, they went there. He further deposed that Shajitha informed that her hair was cut and removed by the appellant. To enquire regarding the same, they went there. The appellant as well as Shajitha were present and he had seen the trimmed hair and when enquired, she told that accused cut and removed the hair, as there was quarrel between them. The appellant kept mum. After reaching at the house he telephoned her and she answered that at present there was no problem. After getting information about the death he went there and found Shajitha lying on the floor on a bed sheet as well as on the plain floor. Both children were in the nearby house. Appellant was not there. He gave information to the police, which was marked as Ext.P1. He further deposed that cutting of hair is not Crl.Appeal No.629/2013 10 considered as proper in Muslim community. During cross examination he deposed that the place of incident is about 3 ½ kms. away from his house. He deposed that he had earlier made a complaint before the mosque committee in respect of not taking the deceased back to the house of the appellant after her delivery. PW2 is the daughter of the deceased. It can be seen that she was examined before the court after verifying her competency, voir dire. She deposed before the court that his father murdered her mother by pressing on the neck, She further deposed that after pressing on the neck, he went out saying that he want to purchase medicine for her mother and also deposed that when he went outside, he closed the room from outside. PW3 is also a child witness aged about 6 or 7. Her capability to depose is also seen verified and thereafter recorded the evidence. She also deposed that “ÌÞMºîß ©NºîßæÏ æµÞKÄÞÃí.åÌÞMºîß ©NºîßÏáæ¿ µÝáJí èµæµÞIí æ¾øáAß æµÞKÄÞÃí.å¥Kí ®ÈßÏíAí ÉÈß ©IÞÏßøáKáçÕÞ ®Kí Crl.Appeal No.629/2013 11 ³VNÏßÜï.å¾ÞX ©NºîßÏáæ¿ µâæ¿ÏÞÏßøáKá µß¿AÞùáIÞÏßøáKÄí.å©Nºîß µøÏáKÄí çµGÞÃí ¾ÞX ©ÃVKÄí.å¥çMÞZ ¾ÞX µøEßÜï.åÌÞMºîß ©NºîßÏáæ¿ ÕÏxßW µÏùß §øáKí ©NºîßÏáæ¿ µÝáJßW É߿ߺîá æ¾øáAß.” PW4 is the Panchayath member. He deposed that he came to know about the incident through a phone call and immediately he went to the place. He found the crying children inside the house, holding the window. He found that front door as well as the back door was closed and front door was kicked opened. When he entered the house, Shajitha was found on the floor of the bed room and by checking the pulse, it was found that she was no more. He further deposed that the children were brought outside. Police came, and at the time of inquest, he was present. He was a signatory to the inquest report, which was marked as Ext.P4. PW5 is the neighbour of deceased Shajitha. She deposed that she came to know about the incident on 6.30 hours. She was Crl.Appeal No.629/2013 12 preparing the children to send to Madrasa. She deposed that the children of the Shajitha also used to go to Madrasa and on that day, they did not come. She deposed that when she heard the cry of the children of Shajitha, she along with Jameela went therein. When they enquired, the children told her that “©NºîßæÏ ÌÞMºîß æµÞKá . ” They also cried and on hearing their cry, people from the nearby mosque came. Her father's brother, after consent from the police, opened the door. But they have not witnessed the same. Police questioned her on the day of incident itself. PW6 deposed that on the date of incident, in the early hours, he found the appellant pushing a bike. When he specifically enquired why he is not starting the bike, he did not give any answer. His impression is that starting of the bike will make sound. PW7 is the mother of the deceased Shajitha. She deposed that on the previous day, she went to her daughter's house. She deposed that when they went there appellant was not present, but Crl.Appeal No.629/2013 13 after some time he came. She deposed that on the date of incident, she reached therein after the death of her daughter. PW8 declared hostile. PW9 is an attestor to the mahazar for the seizure of mobile phone, key chain, two keys and motor bike and the seizure mahazar was marked as Ext.P7. The mobile phone was marked as MO2 and key chain with two keys were marked as MO3. PW10 deposed that his wife Souda is the sister of deceased Shajitha. He met the deceased on the previous day of her death. He also deposed about the cutting of the hair of the deceased. He deposed that when he went there, after knowing the news of the death of Shajitha, appellant was not therein. PW11 is the Secretary of Pallarimangalam Central Jama-ath committee. He marked a certificate showing the marriage of the deceased with the appellant which was marked as Ext.P8. He also marked the complaint given by the accused to Juma-ath as Ext.P9 and another complaint given was marked as Ext.P10. Crl.Appeal No.629/2013 14 PW12 is an official from the Vodaphone. He marked a print out of the call details. The said document is marked as Ext.P12 and the covering letter was marked as Ext.P13. He deposed that as per Ext.P12 call details, there is an outgoing call to 0485 2562893 and the call was at 5.24 a.m. He also deposed that the details of phone number 9846432092 was provided to the Kalloorkkad Circle Inspector and the documents were marked as Exts.P32 and P33. PW13 deposed that he was the neighbour of deceased Shajitha and the phone number of his house is 2562893. He further deposed that on the day of the incident, a phone call came at 5.15 a.m. informing that the children are crying from the neighbouring house and when enquired about the maker of the call, the phone was abruptly stopped. PW14 is a photographer and the photos are marked as Ext.P14 to P21(a). He marked the negatives as well as the photographs. Crl.Appeal No.629/2013 15 PW15 was present, when the Circle Inspector seized documents from Sub registrar office. The mahazar was marked as Ext.P22 to 24 PW16 is the Head Clerk at the Sub Registrar office, who marked the document, Ext.P26 PW17 is an employee of Sub Registrar Office who deposed regarding the seizure. PW18 is the doctor who issued Ext.P27 certificate, after examination of the accused. PW19 is the Assistant Professor of Forensic Medicine, who conducted the postmortem and marked the postmortem certificate as Ext.P28. He deposed that the deceased sustained the following antemortem injuries and opined that cause of death was due to constriction force on the neck. “ (1) pressure abrasion 11 x 6 cm. horizontally placed across the middle of front of neck at the level of the Thyroid cartilage with its middle portion Crl.Appeal No.629/2013 16 6 cm. above the root of neck right end 5 cm. outer to the mid line on 6 cm. above root of neck and left end 4 cm. out of the mid line 6 cm. above root of neck. “On flap dissection of neck done in a blood less field - subcutaneous tissue underneath the abrasion was hemorrhagic. The superor horn of Tyroid cartilage on its right side was found fractured. The lower part of right lobe of tyroid gland was confused over in an area of 1 x 1 x .7 c.m. Thyroid bone, muscles – nerves and blood vessels of the neck were found to be intact. (2) Lacerated wound 1 x .65 x 0.3 cm. on the left side of face. 2.5 cm. Outer to midline on 0.5 cm. Below lower lip margin. (3) Lacerated wound 1 x 0.3 x 0.4 cm. On left side of inner aspect of lower lip corresponding to the canine tooth.” PW20 is the scientific assistant who collected the materials Crl.Appeal No.629/2013 17 from the place of incident. PW21 is the secretary of the Grma Panchayat who issued the ownership certificate of the building, which was marked as Ext.P30. PW22 is the Village Officer who prepared the cite plan which was marked as Ext.P31 PW23 is the Secretary of the mosque committee who deposed that there was a mediation in between the deceased and the appellant and the agreement entered into was marked as Ext.P34 PW24 was the ASI attached to Kalloorkkad C.I. Office, at the relevant period. He is an attestor to Ext.P35 PW25 is the receiver of arrest memo. PW26 deposed that he is the police constable who received the body of the deceased for postmortem. PW27 is the sub inspector, who conducted the preliminary investigation in this case. PW28 is the circle inspector, who conducted the investigation Crl.Appeal No.629/2013 18 in this case. 8. The Magistrate who recorded the statement of PW2 and PW3 was also examined before the court as DW1. She marked Exts.D2 and D3, the statement under Section 164 of Cr.P.C. of PW2 and PW3 respectively. 9. In this case, as per the contention of the appellant, it can be seen that the main argument is regarding the reliability of the evidence of witnesses adduced by the prosecution. The delay in registering the FIR is also brought out. Surely, the FIR, Ext.P14 was registered by PW27 only at 8.30 hours on 11.2.2008. When PW10 was examined, who is the brother-in law of the deceased was examined, he deposed that he reached at 7.a.m. in the house of the deceased and during cross examination he further deposed that when he reached at the house, police was present. Relying upon this evidence, the submission of the learned counsel for the appellant is that if the police already reached at the place of incident at 7 a.m., the F.I. Statement now marked before the court Crl.Appeal No.629/2013 19 as Ext.P1 is not a first information report, but only a subsequent creation so as to shape the case. Surely, when going through the evidence of PW10, it can be seen that he deposed before the court that he reached at the place of death at about 7 a.m. But it is to be remembered that a specific question was put during cross examination that “øÞÕßæÜ 7 ÎÃßçÏÞ¿áµâ¿ß phone ÕKçMÞZ ¦Ãí ×Þ¼ßÄ Îøßºî µÞøc¢ ¥ùßEÄíå®Kíåpolice çÈÞ¿í ÉùEßøáKáçÕÞ? øÞÕßæÜå phoneå ÕKí ¥ùßEá ®Kí ¾ÞX ÉùEßøáKá. Éæf ØÎÏ¢ µcÄcÎÞÏß ¾ÞX ÉùEßGßÜï” and when further cross examined, he stated that when he reached there, there was mob and police was also present. It is to be remembered that at first only an F.I.R. was registered under Section 174 of Cr.P.C. for unnatural death. It is to be remembered that no cognizable offence was reported to the police. Only after inquest, the offence under Section 302 of IPC was introduced. The F.I.R. Reached before the court on the next day itself. Thus, all these aspects will give assurance regarding the promptness and Crl.Appeal No.629/2013 20 correctness of the FIR. 10. It is to be remembered that the said FIR was registered on an information by PW1, who was not an eye witness to any of the incident. Under such circumstances, police will be registering a crime for murder only after getting reliable information. In this case, the reliable information, that can be the basis of registering of FIR was that, there was an unnatural death. Only because at the earliest point of time, the FIR was registered only for an unnatural death and not for a murder, it cannot casts any doubt upon the whole prosecution case now presented before the court. In this case, it is also relevant to examine the cause of death before proceeding further. PW19 is the Assistant Professor of Forensic Medicine attached to Medical College Alappuzha. He marked Ext.P28, postmortem certificate. As per the evidence of the said witness, he categorically deposed before the court that postmortem findings are consistent with death due to constriction force on the neck. He further deposed that the findings are indication of Crl.Appeal No.629/2013 21 strangulation. Which occurs mostly in the case of homicide. He deposed that in the case of hanging the pattern and distribution, direction of the pressure abrasion will be different and usually oblique He also deposed by seeing the wire attached to the emergency lamp, that it can be the ligature for causing death. He also deposed that injury No.1 noted is sufficiently fatal to cause the death. He further deposed that the pressure abrasion on the dead body noted was present only across the middle of front of neck and further deposed that strangulation can be caused due to the pressure around the whole neck or part of the neck. When a suggestion was put to him whether the ligature can be a plastic wire, he deposed that surface pattern of the pressure abrasion would be certainly different in the case of use of a plastic rope. He further deposed that in the case of phone wire, the dimension of the injury will be different. Thus, the doctor categorically deposed that this is a case of strangulation and also categoric that the ligature is the wire shown to him and it is not that of any other Crl.Appeal No.629/2013 22 thing. Thus, it is proved by the prosecution that it is a case of homicide by strangulation. 11. When the fact is that much proved, on the background of this, other evidence has to be appreciated. When PW1 was examined, he deposed that deceased is his sister and she married the appellant herein in 2000 and he further deposed that he was originally working in gulf countries and now returned back and is now plying a goods authorickshaw. His evidence is that on the previous date of the death, he had gone to the house of the accused and on that day after 4 p.m. he had met deceased Shajitha at her residence. He deposed that at that time, the mother of the witness, his mother Ayisha, brother Aboobacker and his brother-in-laws Ibrahim and Siddque were also present. He went therein on an information that accused has cut and removed the hair of the deceased. He met the accused, deceased and children at their residence. He also deposed that he had seen the trimmed hair of the deceased. Further evidence is that on the next day, when he Crl.Appeal No.629/2013 23 went therein, on getting information of the incident, he found Shajitha lying on the floor. Accused was not seen therein and the children were in the neighbouring house. This aspect was seen corroborated by the evidence of PW7, who is the mother of the deceased. She also deposed that she had went to the house of the deceased and had seen her and the accused as well as the children. PW10 is the brother-in-law of deceased, as well as that of PW1. Thus, PW10 also corroborated the evidence of PW1 regarding the fact that they had went to the house of the deceased on the previous day of the incident and had seen the accused as well as the deceased and children therein. From the evidence of the above witnesses what comes out is that the accused as well as the deceased and children were residing in the said house. 12. The next aspect is regarding the evidence of PW2 and PW3, who are none other than the children of the deceased as well as that of the appellant. The capability of deposing was tested by putting questions by the court and thereafter alone the witnesses Crl.Appeal No.629/2013 24 were examined before the court. They deposed the fact that father was in the house and thereafter, when they woke up on hearing the cry of their mother, they found the father sitting on the chest of the deceased and exerting pressure on the neck area. They also got a case that the appellant went out by locking the door saying that he had to purchase some medicine for the mother. Surely PW2 and PW3 are child witnesses. 13. As back as in 1952, the reliability of a child witness was considered by the Hon'ble Apex Court in **Rameshwar v. The State of Rajasthan ( AIR 1952 SC 54)** . It was held therein that “ the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, Crl.Appeal No.629/2013 25 coupled with other circumstances appearing in the case, such for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.” 14. Keeping in mind the above principle laid down by the Hon'ble Apex Court the evidence of PW2 and PW3 can be appreciated. It is to be remembered that, they were given evidence in respect of an incident occurred inside their house. The accused was none other than their father. 15. Apart from the same, other circumstances or corroborations are also therein. As per the evidence of PW4, the door was seen closed and was kicked open. Practically, the evidence of PW4 is corroborating the evidence of PW2 and PW3 Crl.Appeal No.629/2013 26 to the effect that the accused went away after locking them from outside. It is also relevant to note that when PW6 was examined, he deposed before the court that in the early hours he found the accused going out of the house by pushing the bike, not starting the same and he enquired about the same to the appellant but he did not give answer. Thus, it can be seen that as per the evidence of this witness he left the place in the early hours. It is also the evidence of PW1 to the effect that when he came to the house, the appellant was not seen therein. The behaviour of the appellant is also relevant in appreciating the materials. 16. Now the evidence before the court, when summed up, it can be seen that the appellant along with the deceased and children were residing in the house where the dead body was seen. On the previous night till 7 p.m. he was therein as per the evidence of PW1, PW7 and PW10. PW2 and PW3 who are child witnesses deposed before the court that they found the appellant strangulating their mother. There is also evidence to show that the Crl.Appeal No.629/2013 27 appellant was seen going out of the house in the early hours. The doctor who conducted the postmortem deposed that the death was due to strangulation and MO1 can be the ligature. It is also proved before the court that the house was seen closed by lock from outside. Inside the house, there was only the minor children and the dead body of the deceased. 17. After appreciating these materials, it can be safely concluded that the appellant is the person who caused strangulation. The doctor deposed before the court that injury No.1 is fatal and in the ordinary course it will cause death. There is also evidence of PW7 and PW10 to the effect that the relationship was not cordial in between the deceased and the appellant. There is evidence of PW11, the secretary of Juma-ath Committee, that on 9.1.2008 a complaint was given to the Jumaath by the appellant which was marked as Ext.P9. On 16.1.2008, he again made a complaint which was marked as Ext.P11. These documents will show that the appellant was not happy with the Crl.Appeal No.629/2013 28 conduct of the deceased. There is also evidence to the effect that he was illtreating the deceased, as per the evidence of the mother, brother and brother-in-law of the deceased. Thus, it is apparent and clear that there is reason for committing such an heinous crime by the appellant. The death is a culpable homicide and when it is a strangulation by ligature, the intention also will be to cause death. Thus, it will come squarely under the category of murder. When appellant was seen committed murder, there is nothing to interfere with the conviction entered into by the court below. In respect of the sentence, the court below found that it is not a case coming under the category of rarest of the rarest. Thus, there is nothing to interfere with the conviction and sentence entered into by the court below against the appellant. Accordingly, the appeal is dismissed. **Sd/-** ## **A.M.SHAFFIQUE, JUDGE** **Sd/-** ## **K.P.JYOTHINDRANATH, JUDGE** sv