Faisal v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 CRL.A.No. 692 of 2012 AGAINST THE JUDGMENT IN SC 418/2008 of IVth ADDL.SESSIONS JUDGE (ADHOC)-II, THODUPUZHA, DATED 16-05-2012 CP No.16/2008 of J.M.F.C., ADIMALY, Cr.No.235/2004 OF ADIMALY POLICE STATION APPELLANT/ACCUSED NO.3 : - --------------------------------------------- FAISAL, S/O.MUHAMMAD SHERIF, SHALIMAR MANZIL VEEDU, MUDIYOORKKARA KARA, PERUMPAIKKADU VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN RESPONDENT/COMPLAINANT: - ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR. PUBLIC PROSECUTOR SMT. AMBIKA DEVI (FOR ATROCITIES AGAINST WOMAN AND CHILDREN) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2017. THE COURT ON 16.01.2018 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------Crl.Appeal No.692 of 2012 -----------------------------------------------Dated this the 16[th] day of January, 2018 ## J U D G M E N T ## **Somarajan, J.** Appeal against the judgment of conviction and order of sentence passed against accused No.3 under Sections 302 and 397 IPC in Sessions Case No.418/2008, by the IV Additional Sessions Judge (Adhoc-II), Thodupuzha, dated 16.05.2012. 2. The prosecution case is that the accused, in pursuance of a criminal conspiracy, took the deceased in an Ambassador car to a lonely place and strangulated her and took away her gold ornaments. Her body was pulled and wrapped in a jute bag. On seeing that she is alive, accused No.1 inflicted a cut injury on her throat using a dagger and accused Nos.2 to 4 facilitated the said act of accused No.1 by firmly holding her legs and threw the dead body into an adjacent abyss. 3. The victim is one Siji. Her husband was employed abroad at the time of alleged incident and she was residing with her son and father-in-law. Earlier there was some dispute Crl.Appeal No.692 of 2012 2 with respect to the alleged illicit relationship of the victim Siji with another man and her husband's brother produced a photograph which has ended in a complaint before the police station and there was an understanding to resolve the dispute after the arrival of her husband. It is at that juncture, on 27.07.2004, Siji came to the house of her mother and told her that she is going to St.Jude Church, but her dead body was found on 30.07.2004. It is PW1 who had seen some blood stains about one kilometre away from Valara. Then he found, below the road, the dead body of a woman and it was informed to Adimaly Police Station. The Sub Inspector of Police, Adimaly registered a crime under the caption 'suspicious death' and later on it was altered under Section 302 IPC. 4. There is no eye witness to the alleged incident. Hence, prosecution mainly relied on the circumstantial evidence advanced through PW1 to PW96, DW1, Exhibits P1 to P116, Exhibits D1 to D5 and MO1 to MO61. PW1 is the first informant who saw the dead body lying in a culvert at Valara. Exhibit P1 FIS was given before PW91, the Sub Inspector of Crl.Appeal No.692 of 2012 3 Police, Adimaly Police Station, on 30.07.2004. PW2 is the attester to Exhibit P2 inquest conducted by PW93 on 30.07.2004 by 2.00 p.m. It is PW5 who had identified the photograph of the deceased published in a printed media. The deceased was working with him as a sales girl. PW3 is the lorry driver who saw accused No.3 in a white ambassador car at Thalakkodu check post on Adimaly- Kothamangalam route at 3.00 p.m, but he turned hostile to the prosecution and contradictions were marked as Exhibits P4 to P7. PW4 is the person through whom the body of the deceased was taken from the culvert to the road under the instruction of PW93. He had identified MO1 and MO2, thorthu and churidhar top of the victim. PW8 is the mother of the deceased who had identified MO3 to MO15 gold ornaments belonged to the victim. PW9 is the uncle of the deceased. He was examined by the prosecution to prove that he had received a telephone call of the victim on 29.07.2004 that she is proceeding to Palakkad with one Johnson. PW13 is the witness to Exhibit P8 seizure mahazar of the articles belonged to accused No.1 and identified MO18 to MO24. PW14 identified MO5 to MO9 and Crl.Appeal No.692 of 2012 4 MO11 to MO15. MO5 belonged to the victim was brought by accused No.1. PW16 is the Sub Inspector of Police, Muvattupuzha police station who had seen accused Nos.1 to 4 and a lady at BOC Junction, Muvattupuzha during midnight on 29.07.2004 in a white ambassador car. PW18 was examined to prove the alleged extra judicial confession made by accused No.4, but he turned hostile to the prosecution. Exhibits P10 to P12 contradictions were marked. The other witnesses, who were examined to prove the extra judicial confession of accused No.4 as PW19 and PW20, also turned hostile to the prosecution. PW21 to PW32 except PW31 also turned hostile to the prosecution. PW33 is the duty officer of Thalakkodu check post who had seen an Ambassador car coming from Adimaly in the night of the ill fated day between 3.00 a.m and 4.00 a.m. PW34 is the proprietor of Mangalathil Financiers. Accused Nos.3 and 4 came to his financial institution and pledged a gold chain on 12.03.2004 by executing Exhibit P24 promissory note in exchange of Exhibit P25 token issued from Mangalathil Financiers. After three days, they had repaid the loan amount of Rs.5,000/- with interest of Rs.40/-. Exhibit Crl.Appeal No.692 of 2012 5 P26 is the loan ledger. PW35 is the attester of Ext.P27 recovery mahazar. PW36 is the Principal of Devivilasam High School, Kumaranellore, who issued Exhibit P28 certificate showing the date of birth of accused No.2. PW37, PW38, PW39, PW40 and PW41 turned hostile to the prosecution. PW49, PW56, PW62, PW63, PW65, PW69, PW70, PW71, PW87, PW88 and PW90 also turned hostile to the prosecution. 5. The circumstances relied on by the learned Sessions Judge to bring home the guilt of accused No.3 are extracted below:- _“(i) A photograph of Accused No.3 Faisal was found in the hand bag of Siji. Siji faced with the situation to pay telephone bill, entrusted the gold chain, which was pledged by A3 Faisal. This proves his intimacy and affair with her._ _(ii) Detection of the photograph and use of telephone by Siji resulted in a dispute in her matrimonial house, leading to filing of a petition in Kidangoor Police Station and subsequent mediation resulting in leaving the matrimonial house. Siji started staying in her parental house._ _(iii) This led to Siji in search of job. She started working in a bakery at Thodupuzha._ Crl.Appeal No.692 of 2012 6 _(iv) All these events lead to break down of her matrimonial relationship. This also point out to Siji forcing A3 Faisal to marry her._ _(v) A3 Faisal is already married and as such developments in the house of Siji and her demand to live with her disturbs him._ _(vi) Salim and Siji stayed in Thiruvananthapuram from 27.7.2004 to 29.7.2004. During this period Siji was missing and a complaint was filed by her father._ _(vii) Faisal is a driver by profession having licence and badge. Taxi car bearing registration No. KL 5C 7716 belongs to him. He operates from taxi stand at Medical College, Kottayam._ _(viii) Siji and Salim left the lodge on 29.7.2004 at 1.20 p.m. Faisal purchased diesel at for his car KL 5C 7716 at Changanachery on 29.7.2004._ _(ix) This car of Faisal was seen at Muvattupuzha by PW16 and PW44 at about 12.00 pm. From Changanachery to Adimaly, normal road route is through Muvattupuzha._ _(x) At 3.00 p.m. on 30.7.2004 Faisal was seen driving his car along with three other persons at Thalakodu check post. At that time there were blood stains on the car._ Crl.Appeal No.692 of 2012 7 _(xi) On the same day 30.7.2004, Faisal redeems the gold ornament belonging to Siji. This ornament was found along with gold ornaments of Siji which was sold by A1._ _(xii) Money and mobile phone were recovered on the basis of confession statement given by Faisal._ _(xiii) Immediately before the commission of offence, he had entrusted papers of the car for change of ownership. This indicates that he was expecting money after the incident.”_ 6. The first circumstance relied on by the learned Sessions Judge, that a photograph of A3 Faisal was found in the hand bag of the victim Siji, itself is not sufficient to bring home the guilt of accused No.3. At the most it would show the intimacy and affair of the victim with accused No.3 and hence it cannot be taken as a connecting link to the commission of murder in a case resting on circumstantial evidence though the said circumstance is relevant to show the relationship and intimacy between them. The second circumstance relied on by the learned Sessions Judge is also not sufficient to bring home the guilt of accused No.3, though Crl.Appeal No.692 of 2012 8 it may be a relevant factor when there are other circumstances connecting with the commission of offence. Circumstance Nos. 3, 4 and 5 also will not sufficient to bring home the guilt of accused No.3. Circumstance No.4 relied on by the prosecution would be relevant in so far as the connection of accused No.1 is concerned. Circumstance No.7 noted by the learned Sessions Judge also cannot be treated as relevant connecting accused No.3 with the commission of offence of murder of the victim. Likewise, circumstance No.13 relied on by the learned Sessions Judge is also not sufficient to connect accused No.3 with the commission of offence. The incriminating circumstances brought out by the prosecution against accused No.3 are: (1) the user of vehicle bearing registration No.KL 5C 7716, a white ambassador taxi car, for the commission of the offence; (2) the alleged recovery of a bag containing the dress materials of the victim from a place 100ms away from the place wherein the dead body of the victim was found lying; (3) the possession of MO5 gold chain belonged to Siji and pledging of the same by accused No.1 along with the other gold ornaments of Siji; (4) medical Crl.Appeal No.692 of 2012 9 evidence adduced regarding the cause of death; and (5) user of weapon, a chopper, for inflicting injury on her neck by accused No.1. 7. PW83 is the Doctor who conducted the postmortem examination on the body of the deceased and issued Ext.P89 postmortem report. The ante-mortem injuries noted are the following: “1) Incised wound 13x5 cm, bone deep, horizontally placed, involving the front and sides of neck, with the midpoint of its lower edge, 8 cm above the supra sternal notch. The larynx was cut and separated at the level of the vocal cords. The oesophagus, carotid arteries, jugular veins, nerves and muscles on both sides were cut and separated. The body of the 4[th] cervical vertebra showed a horizontal superficial cut 3x0.2x0.2 cm on its front aspect. - 2) Incised wound 2.5x0.2x0.2 cm horizontally placed on the left side of neck, 0.8 cm above the upper edge of injury No.(1), with its inner end touching the midline. - 3) Incised wound 1.5x0.2x0.2 cm, horizontally placed on the right side of neck, 0.5 cm above Crl.Appeal No.692 of 2012 10 injury No.(1) and its inner end 2 cm outer to midline. 4) Incised wound 3x1.5x0.6 cm obliquely placed on the tip of left shoulder.” The cause of death is reported to be due to injury sustained to neck. 8. Let us examine one by one the incriminating circumstances brought out by the prosecution as against accused No.3. Even according to the prosecution, the cut injuries on the neck of the victim were inflicted by accused No.1 Salim by using a chopper, which was recovered based on the disclosure statement alleged to have been given by accused No.1 while under police custody, and the weapon, found to be identified as MO1, was stained by human blood of 'A' group, the blood group of the victim Siji. The Doctor who conducted post-mortem examination on the body of the deceased could not detect any strangulation mark on her neck because of the existence of cut injuries on the same place. The prosecution case regarding the attempt of strangulation while she was inside the car has not been properly established Crl.Appeal No.692 of 2012 11 due to lack of medical evidence in this regard, especially when resting on circumstantial evidence. So, the role of accused No.3 in facilitating and assisting in the commission of offence of murder by accused No.1 has to be tested in the light of attending circumstances. The fact that MO5 gold ornament belonged to the victim was entrusted by her with accused No.3 for pledging would definitely show her intimacy with accused No.3. But, this cannot be taken as an incriminating circumstance against accused No.3. But, the fact that the said gold ornament was subsequently entrusted with accused No.1, who in turn pledged the same along with other gold ornaments taken from the victim just after the commission of the offence would be relevant only when it was shown that accused No.3 was aware of the fact that the other gold ornaments pledged by accused No.1 are belonged to the victim Siji. So, this will not in any way improve the prosecution case as against accused No.3. 9. But, the presence of accused No.3 who drove the vehicle bearing registration No.KL 5C 7716, a white ambassador car, just before and after the commission of the Crl.Appeal No.692 of 2012 12 offence is relevant. The victim was found in the company of accused Nos.1 and 3 and other accused persons on the night of commission of offence in a car driven by accused No.3. The very same accused persons were found on the very same night after few hours just 10 kilometres away from the place of occurrence. The theory of last seen together would come into play when it was established by the prosecution that the victim was found in the company of accused Nos.1 and 3 and other accused during the ill-fated night in a car driven by accused No.3. Section 106 of the Evidence Act also would come into play when it was established by the prosecution that the victim and the accused alone were there in the motor car driven by accused No.3 on the ill-fated night and the dead body of the victim was found lying somewhere near to the place wherein the accused persons were found proceeding in an ambassador car. This would bring them under the sweep of Section 106 of the Evidence Act as what actually happened to the victim, who was in the motor car and in the company of the accused persons during the ill-fated night, is known to the accused persons only. They were held at Thalakkodu check Crl.Appeal No.692 of 2012 13 post on Adimaly-Kothamangalam route by 3.00 p.m. The oral evidence tendered by PW3, though turned hostile, is relevant regarding the identification of accused No.3 as a person known to him and his interference with the check post authorities to clear out their suspicion against the accused persons. At that time there were four persons in the ambassador car. The oral evidence tendered by PW3 has to be read along with the oral testimony of PW7 and PW33, the two persons on duty at the check post. PW3 is a lorry driver by profession who happened to be at the check post for getting clearance for his lorry and happened to see accused No.3 and his vehicle at the check post waiting for clearance. PW7 the temporary manning worker at Thalakkodu check post had also given oral evidence that he had seen a white ambassador car between 3 to 4 a.m on 30.07.2004 and had seen stain of blood drops on the back door of the car. So, he asked to open the dickey and all doors of the car, but could not find anything unusual. He enquired about the blood drops. An explanation was given that one person got injury on his fingers and he was admitted in the hospital. It is at that time PW3 lorry driver Crl.Appeal No.692 of 2012 14 came and told that the accused are familiar to him presumably on the reason that accused No.3 is known to him. This would clearly show that accused No.3 joined hands with accused No.1 and other accused to conceal the origin of blood drops found on the door of the car and supported the false representation made by them before PW7. Explanation offered admits that what is found on the backdoor of the car is human blood. It would supply an additional link pointing towards the guilt of accused persons as they had offered a false explanation regarding the blood stain found on the back door of the car. The intimacy and illicit relationship maintained by accused No.3 with the victim would be relevant at this juncture as it would satisfy the prior concert between accused Nos.1 and 3 when read along with the intimacy and illicit relationship maintained by accused No.1 with the victim and her threat against them which would satisfy a clear motive for the commission of offence as against accused Nos.1 and 3. 10. A clear prior concert for the commission of offence is well evident from the fact that accused No.1 and the victim Crl.Appeal No.692 of 2012 15 stayed back at a lodge at Thiruvananthapuram for two days and it is at that time accused No.3 joined with them at Changanassery by bringing the ambassador car and took them to the place wherein the alleged incident happened. The fact that they were found together in between 3-4 a.m. and they were found on the very same day in the company of the victim in the very same car by PW16 Sub Inspector of Police, Muvattupuzha, who was conducting combing duty along with police party supported by the oral evidence of probationary Sub Inspector, PW44, who was present along with him, would show that they were at BOC Junction at 12.00 midnight on 29.07.2004 in a white car, facing to a road leading to Kothamangalam and there is nothing to doubt about the truthfulness of the oral evidence tendered by these two officers. Accused No.3 along with other accused were found proceeding in the very same white ambassador car, bearing registration No.KL 5C 7716, on the very same night in between 3 and 4.00 a.m and they were held at check post on detecting blood stain on the backdoor of the vehicle. A false explanation was forwarded by the accused persons with Crl.Appeal No.692 of 2012 16 respect to the origin of blood stain found on the back door of the car. This would sufficiently show the participation of accused No.3 in the alleged commission of offence. The check post is at a distance of 10kms from the place where the body of Siji was found lying. The direction of the car, as spoken by PW7, would show that they were going back to Kottayam from the place of occurrence. This would also support the prosecution case as they were found in the very same night proceeding back to Kottayam. Accused No.1 stayed with the victim for two days in a hotel at Thiruvananthapuram and it is thereafter accused No.3 came to Changanacherry and joined hands with accused No.1. This would sufficiently show a preconcert, a pre-planned commission of offence, and with the aid of Section 34 of IPC, the conviction against accused No.3 can be confirmed. 11. The learned counsel for the appellant relied on the decisions rendered in _**State of Gujarat v. Bharat alias Bhupendra (1991 Crl.L.J. 978 (para 13); Arun Balakrishnan Iyer and another v. M/s.Soni Hospital and others (AIR 2003 Madras 389); P. Rama Srinivasa Rao**_ Crl.Appeal No.692 of 2012 17 _**v. Dr.N.Ragavan ((2006) 3 M.L.J. 625 (para 10)); Laxman Ganpati Khot and others v. Anusuryabai and another (AIR 1976 Bombay 264 (para 8); Ram Singh and others v. Col. Ram Singh (AIR 1986 SC 3 (para 31); Pohalya Motya Valvi v. State of Maharashtra (AIR 1979 SC 1949 (para 9); and M. Nageshwar Rao v. State of Andhra Pradesh ((2011) 2 SCC 188 (para 29))**_ in support of their case. But on going through the various decisions referred above, we are of the view that those judgments have no application to the facts of the present case and it is not at all necessary to consider the legal position settled in those decisions in the present case. Hence, the appeal fails deserves only a dismissal and we do so. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/AHZ