Jose 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** **FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939** **CRL.A.No. 1141 of 2013** **(AGAINST THE ORDER/JUDGMENT IN SC 172/2010 of ADDL.SESSIONS COURT,KOTTAYAM DATED 11/5/2012) CP 5/2010 of J.F.C.M.,ERATTUPETTA** ## **APPELLANT:** **JOSE, C.NO.7111, CENTRAL PRISON, TRIVANDRUM.** **BY ADVS.SRI.RENJITH B.MARAR SMT.RESHMI JACOB SMT.LAKSHMI.N.KAIMAL SRI.P.S.SYAMKUTTAN SMT.B.DEEPALAKSHMI** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR.** **R1 BY ADV.SMT.AMBIKA DEVI,SPL.PUBLIC PROSECUTOR FOR** ## **ATTROCITIES AGAINST WOMEN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2017,THE COURT ON 12/01/2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal No. 1141 of 2013 ==================== Dated this, the 12[th] day of January, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the accused in SC No.172/2010 of the Additional Sessions Court, Kottayam by which the accused had been found guilty and punished for offence u/s 302 I.P.C. Prosecution alleged that the accused murdered his wife Lovely and his minor daughter Manumol during the early hours of 15/11/2009. 2. The body of Lovely was found under a cotton tree in the property of one Johnny. A rope was tied around her neck and the other portion of the rope was hanging on the tree. The other end of that rope was lying by the side of the victim. Johnny's brother Roby Joseph, PW2 saw the body of Lovely on 17/11/2009 and he informed the matter to the police. While the police was conducting inquest after registering a crime u/s 174 Cr.P.C., the body of Manumol was also found at the bathing bay in Karimala stream. Since, preliminary investigation conducted by the police disclosed Crl.Appeal No.1141/13 -:2:- suspicious circumstances, the Circle Inspector of Police took over investigation on 27/11/2009. He filed a report before the Judicial First Class Magistrate Court, Erattupetta to incorporate S.302 I.P.C. Thereafter the accused was apprehended. Further investigation was conducted and final report was filed before the Court. The Judicial First Class Magistrate Court committed the matter to the Sessions Court and accordingly, the case was made over to the Additional Sessions Court. Prosecution case was that the accused committed murder of his wife, Lovely by strangulation and his minor daughter Manumol by drowning her in the stream. 3. The accused denied the charges levelled against him and the case was taken up for trial. 4. In order to prove the case, prosecution examined PW1 to PW20 and relied upon Exts.P1 to P16. Material object produced was MO1, the rope which was tied around the neck of Lovely. 5. The postmortem of Lovely and Manumol was conducted by PW15 on 18/11/2009 between 9.50 am and 11.50 am. After bringing the bodies from the scene of occurrence, the same were kept in a cold storage after the inquest. Ext.P10 is the postmortem certificate of Lovely and it contains 8 ante-mortem Crl.Appeal No.1141/13 -:3:- ## injuries which are extracted hereunder:- _“1. Pressure abrasion 28.7 cm was found around the neck, with oblique fiber pattern and was placed 6 cm below chin (2cm broad), 6 cm below left ear (2cm broad), 6 cm below right ear (2cm broad) and 7.5 cm below on occiput (3cm broad). Flap dissection of neck was done under a bloodless field. The subcutaneous tissue underneath appeared normal. Contusion (i) 1.7x1.5x0.8 cm around the right horn of hyoid bone. (ii) 2.1x1.3x0.5 cm around the left horn of hyoid bone. Contusion 3.8x1.8x0.8 cm. Involving the left sterno mastoid musssle, 3.7 cm above the lower attachment in the colar bone. Contusion 1.4x0.8 cm involving the cricothyroid mussle on either side. Contusion of pyriform fossae, on either side petechiae and infiltrate of blood seen in the pharynx, larynx upper half of trachae and epiglottis, superficial contusion was noted on the back half of tongue._ _2. Contusion 3x2x0.5cm on the back of root of left ear._ _3. Contusion 3.5x3.5x1.8 cm on the lower abdomen in the midline and 4cm above pubis._ _4. Contusion 14x4.5x0.8 cm on the outer and back aspect of left forearm the upper end just below elbow._ _5. Contusion 4x2x1.3cm on the outer aspect of left forearm 14cm above wrist._ _6. Contusion 5.5x1.5x0.5cm on the outer aspect of right forearm 9 cm below elbow._ Crl.Appeal No.1141/13 -:4:- _7. Contusion 12x6x1.3cm on the back of right hand 29cm below elbow._ _8. contusion 4x2x1 cm on the back of left hand_ _8.5 cm below wrist on the outer aspect.”_ Doctor opined that the postmortem findings are consistent with death due to constriction force around the neck. 6. The ante-mortem injury of Manumol is described in Ext.P11 postmortem report, which reads as under:- _“Contusion 3.2x2.9 cm superficial was seen on the tip of tongue. Postmortem loss of tissues were seen on the left side of including the bridge tip and ala of nose, left palm below the thumb, back of right leg 13.5x7cm exposing the tendous and small areas of places.”_ Doctor opined that her death was due to drowning. 7. PW15 further deposed that in the case of Lovely, the possibility is ligature strangulation and in respect of Manumol, it could be accidental drowning or homicidal drowning. 8. Prosecution tried to prove the case by contending that Lovely's death was caused by ligature strangulation and thereafter the rope was thrown over the branch of the tree and an attempt was made for lifting up the body by the free end of the rope and due to the constriction force applied on the neck by the Crl.Appeal No.1141/13 -:5:- rope, she died due to ligature strangulation. In the case of Manumol, prosecution's allegation is that she was murdered by immersing her face in water which resulted in asphyxia and consequent death. 9. First, we shall consider whether the death of Lovely was either a suicide or a homicide **.** The ligature which was tied in the neck of deceased was a plastic rope, having a length of 6 meters and one end of it was tied with an ordinary coir rope having a length of 53 cms. 10. PW1 is the Scientific Assistant who had visited the site and Ext.P1 is his report. Ext.P2 is the photograph of the cotton tree under which the body was found. PW1 opined that the cotton tree was full of pepper wines and there is no evidence of any person climbing the tree in order to tie the rope on the tree. Further, a groove was seen in the tree from where it branched. He had taken samples of the tree bark from the said groove. His opinion was that the said groove would be caused by pulling the rope by a person after the knot was tied on the body. On examination of the particles taken from the groove, by the Forensic Science Lab, it was noticed in Ext.P3, the FSL report, that Crl.Appeal No.1141/13 -:6:- strands of the rope in the groove matched the strands in the ligature. 11. PW15, the Doctor who had conducted postmortem had clearly opined that the horizontal ligature mark found around the neck of the deceased is usual in ligature strangulation. Normally in hanging cases, it will be oblique in nature. The injuries found on the neck according to PW15 are consistent with death due to strangulation. It was also noticed that the injuries found on the muscles around the neck are usually seen in strangulation case which will be absent in hanging cases. 12. Learned Public Prosecutor also placed reliance upon the FSL report relating to the materials collected from the palms of the deceased. It was also sent for scientific examination and the opinion in Ext.P3, FSL report is that the palms of the deceased did not contain any fibre of the ligature. 13. Learned counsel for the appellant raised specific objection to the aforesaid material by contending that there is no evidence to indicate as to who had obtained the sample particles from the palms of Lovely. It is submitted that the scientific expert had not taken it, as he visited the site only after the inquest. Crl.Appeal No.1141/13 -:7:- PW15, the Doctor has not taken the specimen. There is no mahazar prepared by the investigating officer indicating taking of such specimens. Further, even according to the prosecution, the body was lying there for two or three days and it was in a decomposed stage. Even the hairs of the deceased were in a state of detachment from the body. Therefore, there is every possibility that even assuming that ligature particles were there in the hands of the deceased, it would have worn out by that time. 14. But, it could be seen that when the postmortem examination clearly proves it to be a case of strangulation as opined by PW15, and the evidence of PW1 clearly indicates that there was no attempt to tie the other end of the rope to any branch of the tree, whereas a groove alone is seen on the tree from where the branch starts, it only indicates an attempt to pull the body after tying the knot, that is after strangulation and we do not think that this is a case of suicide. If the theory of suicide is to be accepted, then one has to believe that the deceased herself had pulled the other end of the rope and hanged herself which is virtually impossible. It could only be done by another person who would have tied the knot on her neck, strangulated her and Crl.Appeal No.1141/13 -:8:- attempted to hang her to the tree and being unsuccessful, she was left there. The fact that the rope was not tied onto the tree itself is an indication which rules out suicide. Further, the length of the rope was around 6 metres. The height of the branch where the ligature groove was found was 2.42 metres. Height of Lovely was only 1.47 metres. She could not have by herself attempted to tie the knot onto the tree. At best what she could have done is to throw one end of the rope through the branch so that she gets hold of the other end. But committing suicide in such a fashion is unknown. Further, as opined by PW1, there are no marks in the tree or in the branches to indicate that somebody had climbed up the tree to tie the other end to the tree. From these circumstances itself, it is clear that it is a case of homicide and not suicide. 15. Now coming to death of Manumol, it could be seen that her body was found in the bathing bay. The distance between the bathing bay and cotton tree where lovely was found was about 60 feet. The cotton tree is 300 feet away from the shed where the deceased and the accused were residing. Manumol is a mentally retarded girl and there is no reason why she should commit Crl.Appeal No.1141/13 -:9:- suicide. The Doctor who visited the scene found that there was no heavy flow of water and the water level was also low. There is no possibility for any person getting drowned in the natural course. She was a girl who was suffering from epilepsy. Being a girl who has physical and mental deformities, she may not go alone to the bathing place. Somebody would have accompanied her and she is not of such a condition that she may commit suicide and there is no possibility of any accidental death as well on account of the fact that she does not go alone. Therefore, the only presumption that could be raised is that her death was not accidental. It would appear that two deaths occurred at almost the very same time, probably one after another. Therefore, the only possibility is that her death is on account of a homicide. The ante-mortem injuries seen on the tongue of the deceased also points out to the fact that her face was forcefully immersed and pressed in the water for a sufficient length of time which resulted in her death due to drowning. Therefore the scientific evidence coupled with the factual possibilities arising thereunder clearly proves the fact that the death of Manumol was also a case of homicide and not either suicide or accident. Crl.Appeal No.1141/13 -:10:- 16. Now the only question is regarding the involvement of the accused in the crime. Learned counsel for the appellant Sri.Ranjith B. Marar strenuously argued that there is no evidence to connect the accused with the crime. There is no motive for the accused to commit the crime. Even according to the prosecution, when his wife and minor daughter were found missing, he had gone to the police station and had given a complaint regarding the same, on 14/11/2009 itself. The police had asked him to come on the next day and enquire about her details. According to the defence, immediately an enquiry was conducted by the police as well. But they could not be located. Thereafter, the accused had proceeded to find out whether they had gone to some other place and he had come back on 17[th] . By the time, the body of Lovely and Manumol was located and police had unnecessarily implicated him. According to the learned counsel, there is absolutely no evidence to implicate the accused to the crime and no circumstance has been proved to point out that the accused is guilty of the crime. 17. Learned counsel also submitted that proper investigation had not been conducted by the police. The police Crl.Appeal No.1141/13 -:11:- who is expected to conduct flawless investigation had not investigated on various aspects and had wrongly made the appellant an accused in the case. Appellant had no motive for conducting any such murder and the Court below had not considered the matter in the proper perspective. It is also submitted that the Court below exceeded jurisdiction in directing that the convict shall not be released from prison without completing a period of 20 years despite imposing punishment for imprisonment for life. 18. On the other hand, learned Public Prosecutor while supporting the judgment of the Court below contended that all the circumstances which had been proved in the case only points out to the guilt of the accused. The conduct of the accused and what he had done on 14[th] , 15[th] , 16[th] and 17[th] will clearly prove his involvement in the crime which are all relevant facts u/s 8 of the Evidence Act and stands proved. However, learned Public Prosecutor fairly submitted that in the light of the judgment in ## _**Swami Shraddananda @ Murali Manohar Mishra v. State of**_ _**Karnataka**_ (2008 KHC 5272), the Sessions Court did not have jurisdiction to restrict the right of the convict to seek for their Crl.Appeal No.1141/13 -:12:- statutory right for remission of the sentence, especially in a case where the Court grants punishment of imprisonment for life. 19. The First Information Report was given by PW2. He deposed that on 17/11/2009, at about 9.30 am, a neighbour informed him that Lovely was found dead under a cotton tree. When he went there, he found the dead body under the said tree. The property belonged to his brother Johnny. The body was lying with a knot tied on her neck. The other end was lying down hanging from a branch of the tree. None had tied the rope on the tree. Her body was in a decomposed stage. He immediately went to the Police station and informed the matter. Ext.P4 is the First Information Statement. He further deposed that on 14/11/2009, at about 7.00 p.m, when he reached Mailadi junction, the accused came and informed him that his wife and daughter were not seen. He asked the accused whether he had enquired about them and he said that though he had enquired, they could not be located. Immediately he went along with the accused to the police station at Thidanad and the matter was informed to them. Police had questioned him and enquired about his wife and daughter. Police asked him to come the next day morning. On 15/11/2009, at Crl.Appeal No.1141/13 -:13:- about 11.30, when PW2 was about to go to Pinnakkanattil, he saw the accused. He enquired about his wife and daughter. The accused informed him that his wife and daughter had gone to Mundakkayam. The accused also travelled with him in the car and got down at Pinnakkanattil for the purpose of going to Mudakkayam. Thereafter he did not know where the accused had gone. He also deposed that on 15/11/2009 morning, accused had gone to the house of PW2's brother and asked for money. When he came back from Pinnakkanattil, PW2 saw the house of the accused locked. He further deposed that on 15/11/2009, accused had called his brother Thomas over telephone and informed him that he was calling from Mundakkayam and was in search of his wife and daughter. He told him that he was proceeding to Kattappana. PW2 says that his brother was called from a land line from Pala. He knew that the accused was bluffing. He further deposed that he called the son of accused on 14/11/2009 by night and informed that his mother and sister were missing. By around 6 pm on 15/11/2009, son of the accused called PW2. He also informed about the conversation he had with his father, who told him that he was proceeding from Kattappana to Mundakkayam in Crl.Appeal No.1141/13 -:14:- search of his wife and daughter. His son himself told PW2 that the accused was calling from Pala. After seeing the dead body of Lovely, PW2 deposes that the dead body of Manumol was located 1½ hours thereafter. He proceeded to that place also. The body was lying in the water channel. That was also in a decomposed state. According to him, both the death was on account of homicide. He also deposed the accused was not seen worried in any manner and he did not show any anxiety when the accused informed him that his wife and daughter were not seen. Further evidence indicates that accused had pledged his television for an amount of `1,000/- on 15/11/2009. According to PW2, he had gone with the said money to Pala and purchased lottery tickets for `500/-. He further deposed that the accused came on 17/11/2009, by around 6 p.m, at the time when the dead bodywas being taken in an ambulance. He was not even willing to look at the dead body. On seeing all this, he felt that the murder would have been committed by the accused himself. The accused used to quarrel with his wife and they were not in good terms. He was also in financial trouble. Daughter was not well. During cross examination, Ext.D1 was marked. It was the statement from his Crl.Appeal No.1141/13 -:15:- earlier statement given to Circle Inspector of Police, wherein he has stated that on 14/11/2009, by 6.15 p.m, Kavunkal Chackochan called him and informed that Lovely and her daughter were missing. When questioned, PW2 answered that on that day, Chackochan had not called him. Chackochan called him only on 17/11/2009, which matter was informed to the Circle Inspector of Police. 20. PW3, Vijayan is also a person who knew the accused. He deposed that on 15/11/2009, accused had asked for `1,500/-. He said that he does not have so much amount. However, he said that if any article is given as pledge, he could arrange the funds. Accordingly, the accused bought a television set and he gave him `1,000/-. When he enquired as to why he required the money, accused told him that he was going to Idukki and Kattappana searching for his wife. 21. PW4 is one Abhilash who is working in an estate at Desamangalath in Trichur District. He deposed that he was working in the estate till February, 2010. According to him, the accused had come for a job. He informed him that there is no job in the said season and he was asked to come later. Thereafter, he Crl.Appeal No.1141/13 -:16:- saw the news item which appeared in the newspaper. The accused had come in search of a job on 16/11/2009. 22. PW5 was the Supervisor of Desamangalath Rubber estate. He also deposed that a person by name Jose, Naduthottiyil house, Konippadu had came in search of a job. Since he did not have any job, he was asked to go to the next estate. When he enquired about identity card and mobile number, the accused said that he had neither of them and that it was lost at Mundakkayam. He suddenly felt some doubt. However, he asked the accused to proceed to the next estate and he had sent him to the estate of Abhilash who was the supervisor of the nearest estate. The accused again came back to him at 5.30 on 16/11/2009 and asked for `50/-. He said that he does not have the money. But, he gave him some rice and chilly powder. He stayed in a room normally used by workers. He sent him away the next day morning at 6.00 a.m. After three four days, he found in the newspaper, the photograph of the accused with the news that he had committed murder of his wife and daughter. 23. PW6 is a person who knew the accused as he was residing in the shed belonging to PW2, who is the brother of CW4 Crl.Appeal No.1141/13 -:17:- (PW16). He deposed that he had business dealing with the accused. He purchased a tree from the accused for `15,000/-. Though the tree was cut, he could not take away the timber. He had to spent `37,000/- for cutting down the tree and accordingly, he suffered a loss of `52,000/-. When he asked for the amount, his son had given a cheque for `35,000/-. He did not present the cheque for collection as the son of accused told him that he will give the money. He was told by the accused that his daughter and wife were not seen on 14/11/2009 and that he had given a complaint. 24. PW7 is a witness to the inquest report, Ext.P5 with regard to the dead body of Lovely. He stated that he saw a rope pulled to a branch of the tree. The other portion of the rope was near her body. The dead body was in a decomposed state with maggots crawling on it. 25. PW8 is another witness who had signed the inquest report. It is stated that the area where Lovely was lying was full of shrubs and a rope was tied around her neck and the other end was hanging from a branch of the cotton tree as if it was thrown to the other side through the branch. If somebody is lying under Crl.Appeal No.1141/13 -:18:- the tree, unless you reach near the tree, nobody could see the same. Body was in a decomposed state and foul smell was emanating from it. The tapper had informed the owner about the dead body. 26. PW9 is a witness to the inquest report Ext.P6 with reference to the dead body of Manumol. PW10 is another witness to Ext.P6 inquest report. 27. PW11 is the son of the accused and Lovely. He is working in an Event Management Company at Ernakulam. He deposed that he did not know that mother and sister were missing on 14/11/2009. Father called him, however he did not come to enquire about the missing of his mother and sister. He came on 17/11/2009, as informed by the Sub Inspector of Police. He was asked to come and identify the body of his mother. It was after he had come that the body was taken. Father was not there at that time. He does not know the reason for the death. There was no reason for the mother to murder his sister and commit suicide. In cross examination he stated that there was no quarrel between his father and mother. He further stated that he had come to know about the death of his mother and sister when the police Crl.Appeal No.1141/13 -:19:- called him. 28. PW12, the vendor of lottery ticket has turned hostile. PW13 has prepared the site plan Exts.P8 and P9. 29. PW14 is the brother of Lovely. He deposed that the hobby of accused was taking lottery tickets. They were residing in a rented house at Aladi during which time he was not taking care of family matters. After 6 months, without saying anything to the near relatives, they left the place. They were not living happily and he knew about it on the basis of what his sister has told him. He also narrates an incident in 2007 when Lovely was injured at the hands of somebody else, and the assailants intention was to assault the accused. 30. PW16 is Thomas Joseph, who is the owner of the rubber plantation where the accused was working. He deposed that accused was staying in the shed of PW2 at the relevant time along with his family. On 14/11/2009 evening by 6.30 p.m, accused told him that his wife and daughter were missing and thereafter he went away. After some time, PW16 went to the shed and he saw the accused sitting there. Next day morning, accused came to him and asked for money to go in search of his wife and Crl.Appeal No.1141/13 -:20:- daughter. He asked for `70/- and informed him that he is going to Melukavu. He came back by 10.30-11.00. Accused told him that they were not at Melukavu and since her bother is at Kattappana, she would have gone to that place. He asked for further `50/which he gave. At about 2.00 p.m, accused again called him and stated that he was at Mundakkayam and was proceeding to Kattappana. The call was received in his mobile phone and he knew from the caller ID, that the accused was lying that he was calling from Mundakkayam. Thereafter there was no information about him. He knew about the incident of death by around 9.30 on 17/11/2009. His brother Roby (PW2) called him while he was in Pala. He reached the scene of occurrence by about 10.30 am and saw the body of Lovely near the cotton tree, with a rope tied on her neck, decomposed, with full of maggots crawling over her body. The other end of the rope was hanging from a branch of the tree. On seeing the body, he felt that somebody would have done it. 31. PW17 is the Circle Inspector of Police who conducted the inquest of Manumol's body after which body was sent for postmortem. He also recovered a churidar top from a bucket Crl.Appeal No.1141/13 -:21:- which was lying by the side of the body. Water was also collected. It was sent for chemical analysis. 32. PW18 was the Sub Inspector of Police during the relevant time. He stated that on the basis of a statement given by Ruby on 17/11/2009, case was registered u/s 174 Cr.P.C. Thereafter, preliminary investigation was conducted and crime was registered. He conducted inquest of Lovely's body and Ext.P5 is the inquest report. Thereafter, he had conducted investigation and questioned witness and further investigation was done by Circle Inspector of Police. 33. PW19 had conducted further investigation into the matter and PW20 has filed the final report before Court. 34. Once we have already come to a conclusion that it is a case of homicide, the question is whether prosecution has proved the case against the accused beyond reasonable doubt. Apparently, the prosecution had relied upon the conduct of the accused and the presumption available under S.114 of the Evidence Act to prove the guilt of the accused. 35. The following are the circumstances that had been highlighted by the learned Public Prosecutor in order to prove the Crl.Appeal No.1141/13 -:22:- conduct of the accused at or immediately after the crime. (i) That the accused tells PW2 that his wife and daughter were missing. (ii) At the instance of PW2, accused goes to the police station and informs about the missing of his wife and daughter. (iii) On 15/11/2009, accused pledges his television set and obtained `1,000/- from PW3. (iv) On 15/11/2009, he locks his shed and approaches PW16 for money. He informs PW16 that he has to go in search of his wife and daughter. (v) PW2 sees the accused in the junction and he informs that he is going to Mundakkayam in search of his wife and daughter. (vi) The accused gets down at Pinnakkanattil. (vii) The accused calls PW2 stating that he is calling from Mundakkayam, but he was lying as he was calling from Pala. During the call, accused informed him that he was proceeding to Kattapana in search of his wife and daughter. (viii) Accused also calls PW16 and informs him about the same. PW16 also finds that the accused was calling from Pala. (ix) Accused informs his son PW11 about the missing of his wife Crl.Appeal No.1141/13 -:23:- and daughter. (x) Evidence of PW4, PW5 and PW6 indicates that the accused had gone in search of a job in an estate at Trichur. They did not provide him with any job. Accused stayed in the room provided by PW5 on 16/11/2009 night and he was sent away the next day morning. (xi) The accused does not go to the police station after 14[th] though still his wife and child were missing. He comes back only after the dead body of his wife and daughter was recovered. 36. In an instance where a person's wife and daughter was missing, especially a daughter who was retarded and aged 16, normally any person would go in search of them in and around the locality. Accused was living very near to the place where the body of Lovely as well as Manumol was found. Distance from the shed where he was living to the body where Manumol was found was only 80 metres and from the place where the body of Lovely was found was 300 metres. He had only informed PW2 at whose instance he had gone to the police station. There is evidence to show that he along with the police had gone to a few places to search. But nobody searched at the place where the dead bodies Crl.Appeal No.1141/13 ## -:24:- were found. 37. If the accused had felt that she had gone to Mundakkayam or Kattappana, definitely he would have made enquiry regarding the same. On 15[th] , he tells PW2 that he is going to Mundakkayam in search of his wife and daughter. This can happen only if he has some impression that they have gone to Mundakkayam. He makes a call from Pala stating that he is in Mundakkayam and is proceeding to Kattappana. PW2 and PW16 had spoken to this fact. There is no reason to doubt their credibility. But the evidence indicates that the accused had gone in search of a job at Trichur and had met PW4 and PW5 seeking for job. This clearly proves that he was aware of the whereabouts of the deceased and his intention was to remain away from the place of occurrence. The fact that he was in requirement of money was for the purpose of eloping from the scene. Since he did not have sufficient money with him and no place to go, he had come back. All these facts having been proved in the case on the basis of which this Court can as well raise a presumption clearly indicates that the accused knew as to what happened to the deceased at the relevant time when he left the place on Crl.Appeal No.1141/13 -:25:- 15/11/2009. These facts clearly indicates that he alone knew the whereabouts of the deceased wife and daughter. 38. The prosecution had attempted to prove this case purely based on the conduct of the accused u/s 8 of the Evidence Act either before or immediately after the crime. 39. Learned counsel for the appellant however would submit that the time at which the death of Lovely and Manumol had occurred, is not proved by any scientific evidence. Of course, the body was in a decomposed stage. PW15, the Doctor who conducted postmortem rules out the possibility that the crime was committed between 45 and 72 hrs. As per the court charge and the prosecution case, the death is assumed to have taken place in the early hours, i.e., at about 1 am on 15/11/2009. The body was discovered on 17/11/2009 and it was kept in a cold storage by about 6 pm on the said day. In that event, the death would have occurred prior to the said time and date mentioned by the prosecution. But as far as the time of death is concerned, we do not think that any person can state the same with any arithmetical precision. The investigating officer is also handicapped in that regard. The time of death is only an Crl.Appeal No.1141/13 -:26:- assumption based on the nature of decomposition. The decomposition also differs on account of various factors. Even the Doctor PW15 has stated that if it is in an open ground, the decomposition may be faster than in a covered space. Therefore, even the scientific expert may not be in a position to tell the exact time at which death had occurred. They can only give an approximation of the said time limit. Therefore, merely for the reason that the investigating officer had specified the time of death as during the early hours of 15[th] and a different view is possible, will not and it cannot be a reason for discarding the other evidence, if it proves the complicity of the accused to the crime. In this case, all the circumstances now pointed out by the prosecution regarding the abnormal behaviour of the accused having gone in search of a job at a time when he says his wife and daughter were missing itself indicates that he was aware of their death. Then the question is why did he hide the said information. 40. At this stage, it would also be relevant to take note of the answers given to the questioning under S.313. In fact he had given a statement in writing through counsel wherein he has stated that at the relevant time, he was working as a rubber Crl.Appeal No.1141/13 -:27:- tapper. He was residing with his wife Lovely and daughter Manumol in a shed. His daughter was having epilepsy for which wife was very sad. He had gone for rubber tapping on 14/11/2009 in the morning. He came back after receiving `500/- as his wages. He also bought household items and bakery items for his daughter. He came back by around 6-6.30. His wife and daughter were not there. He immediately went to the nearby houses and other places. He knew that they had gone to collect water at 4.30. He went to his employer's house and informed them. Then he came to the junction and informed the people in the locality. He called his son and informed him. His son asked him to check up in the house of the relatives and in places where he was residing earlier at Pala, Desamangalath etc. Before going to those places, as insisted by the people in the locality, Roby, his employer's brother took him to the police station at 8.30 p.m. Sub Inspector was not there. After Sub Inspector had come, he enquired about the details from Roby and accused. He took him to Gopi's house. In the meantime, Roby went to his house. He was asked to remain in the police station and on 15/11/2009 at 6 am, he was asked to go to the relatives house and make enquiries. He Crl.Appeal No.1141/13 -:28:- therefore went to his employer's house at 7 am and asked for `500/-. He gave `70/-. He got `1000/- from Vijayan and proceeded to the places where he had worked earlier and to the relatives houses for enquiry. He also stated that in the meantime he did not call his employer and he did not go for enquiring for any job. Though he tried to inform these matters to his son, he could not contact him. On 17/11/2009 by 5.30 p.m, when he came back to Mailadi, he knew about the death of his wife and daughter. At that time, their body was taken for postmortem. He requested to the police to permit him to see the body. The police told him that the body could be seen only after postmortem. Body was taken to Medical College Hospital, Kottayam. Thereafter the Sub Inspector had took him to the police station. He was questioned on several days and he was permitted to go, on finding that he was not involved in the crime. Thereafter the Circle Inspector of police took him into custody on 29/11/2009 and he was tortured. Thereafter they have recorded his arrest. According to him, he had not committed any crime as alleged. He is innocent and he does not know how they died. During 313 questioning, he denied having seen PW2 on 15/11/2009. He however admitted having Crl.Appeal No.1141/13 -:29:- gone to the house of Thomas (PW16) at 7 am on 15/11/2009. When question was asked regarding his conversation over telephone by which he had stated that he was proceeding to Kattappana, his answer was that he had not gone to Kattappana and he had not mentioned so. He however denied having gone to the estate of PW4 requesting him to provide a job. He however admitted having gone to PW5 and asked for an employment and he had sent him to the estate of Abhilash. He also admitted that he had come back at 5.30 and resided in a room and he left the place next day morning. So one fact which he had admitted was that he had gone in search of a job to PW5. This is a very strange conduct. When a person complains that his wife and minor daughter were missing and is not found, could any such person go in search of another job. Such a conduct can as well be taken note of by Court. It is quite unusual. In normal circumstances, any man who is in search of a missing wife and daughter will not sleep until they are found. In the statement, he says that the police sent him on 15[th] morning. He went in search of his wife and daughter. He states that he had not gone to Kattappana. To the question, where he has gone, he deposes that he had gone in search of a job with Crl.Appeal No.1141/13 -:30:- PW5. There is also reason to believe the evidence of PW4. There also the accused had gone in search of a job. Therefore, it is clear that he knew as to what happened to his wife and daughter at the relevant time. It is after knowing about their demise that he had left the place. This is an instance where three of them were living together in a shed. He was well aware of their whereabouts. Still to make it appear that they had eloped from the shed, he informs the same to PW2. PW2 takes him to the police station and as per the evidence of PW2 police asked them to comeback the next day morning. Next day morning, he goes along with PW2 and gets down at Pinnakkanattil. All these instances when put together clearly indicates that he was aware of the death of both of them and he wants to go away from the said place. He had to come back probably knowing that the dead bodies were found. Therefore, when three of them alone were in a house residing together, when the body of his wife and daughter were found within a reasonable distance, and without searching in the locality, he goes in search of a job, which conduct itself is enough to implicate the accused to the crime. He knew about their death and how it was caused. But he pleads ignorance. He leaves the Crl.Appeal No.1141/13 -:31:- place informing people in the locality that his wife and daughter had gone to some other place. He comes back only on knowing that the body was found. He alone knew what happened to these two persons. There is no evidence to show that anybody else is responsible. Under such circumstances, we are satisfied from the evidence available on record that the above crime was committed by the accused and he is not entitled for acquittal on account of benefit of doubt. 41. The remaining question is with regard to the sentence which can be imposed on the accused. In _**Swami Shraddananda**_ (supra), the Hon'ble Apex Court held that the power of Court to direct the actual period of incarceration to be undergone by the convict can be resorted to only in extremely rare situations and in special circumstance. Relying on the said decision, in _**Union of India v. Sriharan and Other**_ **s** [(2016) 7 SCC 1], the Apex Court held that special category of sentence barring remission under I.P.C. for specified terms beyond 14 years can be imposed only by the High Court or the Supreme Court and not by the trial court. In the instance case, though it is true that the murder is admittedly a gruesome act, we are of the opinion that while the finding of Crl.Appeal No.1141/13 -:32:- guilt is not liable to be disturbed, the special sentence awarded by the trial court was not proper. In the above view of the matter, confirming the finding of guilt entered by the trial court, we modify the sentence u/s 302 I.P.C. to one of life imprisonment. 42. Yet another issue is regarding double sentence of imprisonment. This also is not permissible in view of the constitution judgment of the Apex Court in _**Muthuramalingam**_ _**and others v. State represented by Inspector of Police**_ [(2016) 8 SCC 313]. The Apex Court having considered the issues involved in the matter held at paragraphs 34 and 35 as under:- _**“34.** In conclusion our answer to the question is in the negative. We hold that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be superimposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other._ _**35.** We may, while parting, deal with yet another dimension of this case argued before us, namely,_ Crl.Appeal No.1141/13 -:33:- _whether the court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The trial court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 CrPC. The court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31 CrPC. The converse however may not be true for if the court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. Whether or not the direction of the court below calls for any modification or alteration is a matter with which we are not concerned. The regular Bench hearing the appeals would be free to deal with that aspect_ Crl.Appeal No.1141/13 -:34:- _of the matter having regard to what we have said in the foregoing paragraphs.”_ Therefore in this case, the sentence shall stand modified as under:- That the accused is convicted for the offence of murder of Lovely and Manumol. The accused is convicted and sentenced to imprisonment for life for the murder of Lovely and imprisonment for life for the murder of Manumol and the sentence is to run concurrently. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge