Karimbil Hamza v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940** ## **CRL.A.No. 230 of 2015** **AGAINST THE JUDGMENT IN SC 141/2011 of ADDL. SESSIONS JUDGE - I, KALPETTA** ## **APPELLANT/ACCUSED:** **KARIMBIL HAMZA, S/O KOYA, C.NO.3348, CENTRAL PRISON, KANNUR.** **BY ADV. SUNIL.J. (STATE BRIEF)** **RESPONDENT:** **STATE OF KERALA (MEPPADI POLICE STATION CR.131/2009)** **BY SR.. PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.12.2018, THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.230/15 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by the 1[st] Additional Sessions Judge, Kalpetta in S.C. No. 141 of 2011 by which he was found guilty under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and also to pay a fine of `50,000/(Rupees Fifty Thousand only) in default of which to undergo rigorous imprisonment of one year for the aforesaid offence. 2. Prosecution case in a nutshell is as under: The deceased Saidalikutty and the appellant Karimbil Hamza were neighbours. The appellant wished to draw an electric line to his house for which he wanted to erect an electric post on the pathway that leads to the house of the deceased. Saidalikutty objected to the same and it made the appellant angry. The objection was raised on the ground that erection of post would be an obstruction to the people in the locality to take the patients to hospital and to take the dead bodies to the burial ground Crl.Appeal No.230/15 -:3:- attached to the Mosque. Allegation is that the appellant had retorted saying that he would see the dead body was taken through the way with an implied indication that he would kill the deceased so that the dead body of the deceased itself would be taken along the pathway. The appellant who was nursing such a grudge towards the deceased was waiting for an opportunity to settle scores. On 17/07/2009, at about 08.00 p.m., while the deceased was on his way to his home, the appellant hit him with a granite stone and thereby inflicted grievous injuries which resulted in his death. 3. To prove their case, prosecution examined PWs 1 to 16 as witnesses, marked documents as Exts.P1 to P24 and identified MOs 1 to 9. On closure of prosecution evidence, the appellant was questioned under Section 313 of Cr.P.C. He denied the incriminating evidence appearing on record and pleaded that he is innocent. He deposed that he had no enmity with the deceased nor he lodged complaint against the deceased. He stated that he lodged complaint against PW2 Mohammedali. No evidence is adduced from the side of the defence. 4. Learned counsel appearing for and on behalf of the Crl.Appeal No.230/15 -:4:- appellant Sri.Sunil J., argued that there is absolutely no evidence on record to convict the appellant herein. He is innocent. There is no direct evidence in the case. Prosecution relied on circumstantial evidence to prove their case. Motive is not proved by the prosecution. Court below thoroughly erred in holding that last seen theory stand proved. Extra-judicial confession allegedly made by the appellant to PW3 is not believable. He has already rejected the same in 313 examination. There is no recovery of any incriminating materials based on the disclosure statement of the appellant. Suspicion alone led the prosecution to fix the innocent appellant. Court below erred in holding that the appellant is guilty. He pleaded for an acquittal. 5. On the other hand, the learned Senior Public Prosecutor Sri.S.U.Nazar argued that prosecution proved the case beyond reasonable doubt. Court below is justified in holding that the appellant caused the death of Baby. Extra-judicial confession is made by the appellant to PW3 and it inspires full confidence. The said evidence is fortified by the last seen together of the appellant and the deceased. Soon after the same, the deceased was found with fatal injury. S.106 of the Indian Evidence Act, Crl.Appeal No.230/15 -:5:- 1872 (for short 'Evidence Act') casts burden on the appellant to explain what had happened thereafter. MO1 granite stone was recovered based on the disclosure statement of the appellant. It is found to be blood-stained. All the available evidence unerringly points to the guilt of the appellant and the trial Court is justified in arriving at the present conclusion. No interference is needed, he pleaded. 6. Having heard both counsel in detail and on perusing the records, the question to be looked into is whether the Court below is justified in arriving at its present conclusion by which the appellant is held liable for the offence under Section 302 of I.P.C. 7. The case rests purely on circumstantial evidence as there is no eye-witness to the alleged incident. Court below arrived at its judgment of conviction by placing reliance on the:- (i) Motive (ii) Extra-judicial confession allegedly made by the appellant to PW3. (iii) Last seen together theory as deposed by PW8. (iv) Recovery of granite stone (MO1) based on the disclosure statement of the appellant. Crl.Appeal No.230/15 -:6:- (v) Seizure of dress worn by the appellant at the time of the offence based on his disclosure statement. 8. Evidence adduced by the prosecution proceeds as under:PW1 is an attestor to Ext.P1 inquest report. He is also an attestor to Ext.P2 seizure mahazar of MO1 granite stone also. 9. PW2 is a relative of the deceased. He deposed that, on the date of incident, at about 8.00 p.m., CW15 came to his house and informed that Saidalikutty was found lying near MPC Estate gate. They took Saidalikutty to Leo hospital where he was pronounced dead. He is an attestor to Ext.P3 seizure mahazar through which MOs 2 to 5 clothes worn by the deceased at the time of incident were seized. MO6 is the umbrella seized. 10. PW4 is a neighbour of the deceased. She was cited to prove the alleged extra-judicial confession overheard by her which was made by the appellant to his wife. She turned hostile to the prosecution. 11. PW5 is the wife of the deceased. 12. PW6 is cited by the prosecution to prove that her son PW7 had told her regarding the presence of the appellant near to the place of incident at the relevant time. Both she and PW7 Crl.Appeal No.230/15 -:7:- turned hostile to the prosecution. 13. PW8 is another witness of prosecution who has cited that the accused and deceased were last seen together. According to him, on 17/07/2009, while he and CW15 were going to Mosque for providing food to Ustad, he had seen the deceased walking along the road. He had also seen the appellant walking 20 metres behind the deceased. It is his version that, on his way back to home, he had seen the deceased lying on the ground near to the gate of MPC Estate with bleeding injuries. He informed PW2 and the deceased was taken to hospital. 14. PW9 is the Medical Director of Leo Hospital. He produced Ext.P5 relevant entry of 'brought dead register' maintained in the hospital seized under Ext.P4 mahazar. Ext.P4(a) is the kaichit (receipt) for receiving back the said register from police. PW10 deposed that she entered details seen in Ext.P5 in the register. PW11 is an attestor to Ext.P4 mahazar. 15. PW12, was the Village Officer, Kottappadi during the relevant time. He deposed that he received a complaint in respect of a dispute between the deceased and the appellant regarding the drawing of electric line. PW13, who is the sister-in- Crl.Appeal No.230/15 -:8:- law of the deceased, also deposed about the said dispute. According to her, though the matter was settled between the parties, issues again arose subsequently. 16. PW14 is the witness who depose about the motive of the appellant for the commission of the crime. According to him, the deceased is his co-worker in Chembra Estate. He was told by the deceased that there was dispute between the deceased and the appellant regarding erection of electric post and the appellant used to threaten the deceased. It is his version that whenever the deceased was late in going home, he would reside in PW14's house as he was afraid of the appellant. 17. PW15 Kunju Moideen is an attestor to Ext.P6 scene mahazar. PW16 is the daughter-in-law of the deceased. She produced MO2 to MO6 before police. PW17 is the Doctor who conducted post-mortem examination on the body of the deceased. Ext.P7 is the post-mortem certificate issued by him. He opined that the death was due to head injury. PW18 is the then Tahsildar, Vythiri who prepared Ext.P1 inquest report. PW19 proved Ext.P18 series photographs taken by him. PW20 is the then Village Assistant, Kottappadi. He prepared Ext.P9 scene Crl.Appeal No.230/15 -:9:- plan. PW21 is the Head Constable of Kalpetta Police Station. He proved Ext.P10 mahazar by which MO7 shirt and MO8 dhothi of the appellant were seized. He is also an attestor to Ext.P11 seizure mahazar by which the copy of the mass petition and general petition register were produced by PW22 to the investigating officer. PW23 is an attestor to Ext.P12 seizure mahazar prepared at the time of seizing MO9 mobile phone of the appellant. Ext.P13 is the report filed by PW24 Scientific Assistant, DCRB, Malappuram. 18. PW25 is the then S.I. of Police, Meppadi. Based on Ext.P14 FIS given by CW1, he registered Ext.P14(a) FIR. He prepared Ext.P6 scene mahazar. Ext.P15 is the report altering the Section of offence to 302 of IPC. 19. PW26 is the then C.I. of Police who conducted the investigation. He arrested the appellant. Ext.P17 is the arrest memo. Pursuant to the disclosure statement of the appellant Ext.P18, he recovered MO1 stone under Ext.P2 seizure mahazar for which PW1 is an attestor. Exts.P20 to P24 were also marked through him. He laid the charge-sheet after completing the investigation. Crl.Appeal No.230/15 ## -:10:- ## 20. As deposed by PW17, Ext.P7 post-mortem certificate ## shows the following ante-mortem injuries on the deceased:- “1. _Linear lacerated wound 2.5cm on glabella, inner lower right end, 1 cm above root of nose._ _2. Linear lacerated wound 2.5x0.2x0.5 cm back of right of head upper right end, 7 cm below and behind root ear. Scalp showed contusion over an area 7x7 cm around the injury more on front and upper portion._ _3. Contused abrasion 7x2 to 2.5 cm right side head transverse, front end just above ear._ _4. Skull showed inverted 'U' shaped, fissured fracture involving right half of frontal bone. This fracture start from root of right orbit ascended to right frontal eminence, then vertically descended through fracture separation of right coronal suture to right zygoma. In addition, there was a depressed fracture segment on right temporal bone; the fracture lines were irregular, but nearly transverse upper one following just below lower right temporal line to area below right parietal eminence._ _The lower one (fracture line) passed just above zygomatic arch and mastoid towards occiput. Both these fracture lines joined 3 cm right to occiput and the segment of skull bone showed depression of 0.5 cm inwards. Anterior cranial fossa showed fracture._ _5. Graze abrasion contusion 14x6x to 8 cm on right front chest, 8 cm outer to midline and 14cm below top of shoulder._ _6. Graze abrasion 12x20 cm vertical (directed transversely) with heaping of skin towards right) on back of right shoulder, 5cm below top of shoulder and 11 cm_ Crl.Appeal No.230/15 ## -:11:- _away midline._ _7. Contused abrasion 10x6 cm vertical back of right forearm at and below elbow._ _8. Contused abrasion over an area 17x3 to 6 cm back of right hip from right side of sacrum, following the iliac crest._ _9. Contusion 12x7 cm outer right leg, 17 cm below knee._ _10. Superficial lacerated wound 0.5x0.1x0.1 cm inner right ankle.”_ 21. According to him, the cause of death of Saidalikutty is injury sustained to the head. Ext.P1 is the inquest report of the deceased prepared by PW18. These would show that the death of Saidalikutty was otherwise than under normal circumstances and probably a homicide. 22. It is in evidence that MO1 granite stone is recovered based on the disclosure statement Ext.P18 of the appellant and it was found with blood. 23. It is also in evidence that Ext.P26 is the FSL report prepared by Sri.Thomas Alexander which is proved through PW26. Report reveals that item nos. 1 (MO1 granite stone), 5 (MO3 swetter) and 8 (piece of bone of the deceased) contains blood, but the origin and group could not be detected. Crl.Appeal No.230/15 -:12:- 24. These evidence need to be looked into in the light of alleged extra-judicial confession and last seen together theory deposed to by PW3 and PW8 respectively. 25. PW3 is a relative of the deceased and a friend of the appellant. He was conducting a tea shop in the locality. According to him, the appellant helped him financially to conduct the said tea shop. Appellant used to come to his shop and on the date of burial of the deceased, the appellant came to his tea shop and confessed to him that it was he who inflicted injuries to the deceased Saidalikutty. Relevant portion of his deposition reads thus: “ ഖബർ അടക�യ ദ�വസ� ര�ത� 9 മണ�ക� പത� കടയ�ൽ വന. കണന�, അന�ല�, പത�യ� കട� auto ൽ വന. പത� മ�ത� കടയ�ൽ വന. . മറളവർ അവരടട വ#ട�ൽ പ&�യ� പത� സ�ഗററ� എട+ കടയ�ൽ ന�ന� വ�ങ� വല�ച. പത�ക� tension കണ. ആ സമയ� ഖബർ അടക�ൻ വന�ലപല� എന ഞ�ൻ പത�പയ�ട പ6�ദ�ച. ഞ�ന� Saidali യ� തമ�ൽ പശമടല അതടക�ണ� വന�ട�ല എന &റഞ. എന�ണ tension എന " പ6�ദ�ച സമയ� ഒര &റ� &റ� എന പത� &റഞ. പ6�ദ�ച സമയ� കടറ ക�ലമ�യ� പന�ക�യ�ര�കകയ�യ�രന " എന� "ഇന�ണ സ�ഹ6രD� ഒതത�" എന� "ഞ�ൻ കല ടക�ണ� Saidali ടയ കത�" എന പത� &റഞ. ടക�ലടGടത� എന�ണ സ6�G�ച�ണ അങടന &റഞത�. ആപര�ട� &റയരത� എന പത� &റഞ.” (On the day of funeral, Crl.Appeal No.230/15 -:13:- accused came to my shop at 9 p.m. Kannan, Anil and accused came in an auto. Accused alone came to the shop. Others went to their home. Accused purchased a cigarette from my shop and began to smoke. Accused was found tensed. I asked him why he had not come for the funeral. He told that as he and Saidali had some problems, he did not come. When I enquired him about the tension, he told me that he had committed a mistake. When I asked, he told me that he was waiting for an opportunity and that today he got an opportunity and he hit Saidali with a stone. By saying so, he meant that he had killed him. Accused also told me not to disclose the same to others.) 26. PW8 is cited to prove last seen together. According to him, on 17/07/2009, while he and CW15 were going to the Mosque for providing food to Ustad, he had seen the deceased walking along the road. He had also seen the appellant walking 20 metres away behind the deceased. It is his version that on his way back home, he saw the deceased lying on the ground near to the gate of MPC Estate with bleeding injuries. He informed PW2 and the deceased was taken to hospital. 27. The principle regarding extra-judicial confession is settled by the Apex Court in _**Sahadevan and Another v. State**_ Crl.Appeal No.230/15 -:14:- ## _**of T.N.**_ (AIR 2012 SC 2435) wherein it is held as under:- _"i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution;_ _ii. It should be made voluntarily and should be truthful;_ _iii. It should inspire confidence;_ _iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;_ _v. For an extra-judicial confession to be the oasis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;_ _vi. Such statement essentially has to be proved like any other fact and in accordance with law."_ 28. The alleged extra-judicial confession made by the appellant to PW3 does not inspire our confidence. Admittedly, he is a relative of the deceased though he claims to be a friend of the appellant as well. According to the prosecution, the motive for the offence is very strong and it is already known to all witnesses. But it can be seen that none of the witnesses, most of whom are relatives of the deceased, never entertained a suspicion against the appellant, the moment they found the dead body of the deceased. None of the prosecution witnesses including the wife of Crl.Appeal No.230/15 -:15:- the deceased entertained any suspicion about the death nor about the involvement of the appellant in the incident until they got hearsay information about involvement of appellant. Though the deceased was taken to the hospital despite the fact that he suffered a head injury, which apparently is the cause of death, post-mortem was not conducted. From the evidence of PW3, it could be seen that there was a general objection from the part of many people regarding the erection of electric post in the pathway. Even accepting the evidence of PW14 to be true, it only shows that there was fear in the mind of the deceased that the appellant may attack or assault him. 29. The evidence of last seen also is not conclusive. PW8's version is that he saw the deceased and the appellant walking along the road about 20 metres behind the deceased. Admittedly, both the appellant and the deceased were neighbours. Prosecution does not have a case that the appellant and the deceased were going together. PW8 saw the deceased lying down injured when he came back. Within how much time, he came back after seeing the accused and deceased is not in evidence. It is not safe to consider it as a situation to apply last seen theory Crl.Appeal No.230/15 -:16:- merely because the appellant was found 20 metres away from the deceased walking, and that too near his house. 30. The thrust prosecution put to the motive for the commission of the crime is betrayed by the conduct of their key witnesses soon after the incident. They never insisted for a police case or even a post-mortem. As far as medical evidence is concerned, it can be seen that the nature of injury is not seen deposed to by the Doctor. Whether the injuries found on the body of the deceased were fatal or sufficient in the ordinary course of nature to cause death is not brought out in evidence by the prosecution. 31. Of course, this is a case in which the proved circumstances may create a strong suspicion that the appellant would have committed the offence. But legal evidence available is insufficient to move judicial minds any further. The chain of circumstance is not complete. Prosecution failed to adduce evidence to prove the case against the appellant beyond reasonable doubt. Hence, we extent benefit of doubt to the appellant. In the result, the appeal is allowed. The conviction and Crl.Appeal No.230/15 -:17:- sentence passed by the trial Judge is hereby set aside. The appellant shall be released forthwith, if his presence is not required in connection with any other case. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp True copy **JUDGE** P.S. To Judge.