Rajeev 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 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** **CRL.A.No. 1661 of 2013** **AGAINST THE JUDGMENT IN SC 382/2011 of 3RD ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA DATED 27-02-2013** **AGAINST THE ORDER/JUDGMENT IN CP 29/2011 of J.F.C.M.-, DEVIKULAM** **CRIME NO. 397 /2009 OF Munnar Police Station , Idukki** ## **APPELLANT/ACCUSED:** **RAJEEV, AGED 25 YEARS, S/O.MOOKKAYYA @ MOHANAN, MGP XIX/502, ANAMUDY DIVISION, PERIAVURAI ESTATE, KDH VILLAGE, IDUKKI DISTRICT.** **BY ADV. SMT. P.B. WAHIDA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **BY ADV.SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2018, THE COURT ON 04.09.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.1661/13 2 ## **J U D G E M E N T** ## _**Shaffique, J.**_ This appeal arises from the judgment of conviction and sentence imposed by the learned 3[rd] Additional Sessions Judge, Thodupuzha in SC No. 382/2011 dated 27/02/2013 in C.P. No. 29/2011 and Crime No. 397 of 2009 of the Munnar Police Station. 2. The prosecution case in short is as under: The appellant/accused herein and Manimekhala (the deceased herein) were neighbours and classmates in school. During 2009, the deceased was pursuing her M.Phil. in Tamil Nadu. On 10.06.2009, the deceased came to her house in Periyavara estate. The accused came and met her and expressed his wish to marry her. However, Manimekhala was not willing for the marriage. Hence, the appellant/accused, on 12/06/2009, with intention to kill her, came to the line building No.VIII/70 in Periyavara estate and strangulated her with her churidar shawl and thereafter took away her gold chain of about one sovereign. 3. Crime was registered against the accused under Sections 449, 302 and 380 of the Indian Penal Code, 1860 (45 of 1860). Final report was filed before the Judicial First Class Magistrate Court, Devikulam. The case was committed to the Court of Sessions, Thodupuzha. It was made over to 3[rd] Additional Sessions Court (ADHOC I), Thodupuzha for trial and disposal. Crl.Appeal No.1661/13 3 4. Court below framed charge against the appellant/accused under Sections 449, 302 and 380 of the IPC. He pleaded that he was not guilty of the charges levelled against him. 5. To prove the charges, prosecution examined PWs 1 to 23, marked Exts. P1 to P21 documents and identified material objects MO1 to MO6. PW1 is the mother of the deceased, PW2 is the father of the deceased, PW3 is the brother and PW18 is the close relative of the deceased. PWs 4, 5 and 14 are the neighbours of the deceased. PW7 is a witness in Ext.P1 inquest report and Ext.P2 recovery mahazar. PW8 is a witness to Ext.P3 recovery mahazar. PW9 and PW10 are the witnesses present at the time of preparation of Ext.P1 Inquest Report. PW11 is a witness to Ext.P4 scene mahazar. PW12 is the person who gave Ext.P1 First Information Statement to the police. PW13 is the Doctor who conducted post mortem and he issued Ext.P6 post-mortem certificate. PW20 is the Head Constable who recorded Ext.P5 statement and he registered Ext.P8, FIR. PW22 is the Circle Inspector of Police who arrested the accused and recovered the gold chain pledged by the accused. MO1 is the gold chain. PW15 is the owner of Eswari Finance from where the MO1 gold chain was recovered and Ext.P7 is the Mahazar prepared at that time. Ext.P7(a) is the disclosure statement of the accused which led to the said recovery. The dresses worn by the deceased were marked as MOs 2 to 4. The dresses worn by the accused were marked as MO5 and MO6. During the course of investigation, Ext.P9 and Ext.P15 reports Crl.Appeal No.1661/13 4 ## showing addition of penal sections were filed. 6. On questioning under Section 313 of the Cr.P.C, accused denied the incriminating evidence against him. He further stated that he has no connection with this incident. On the date of incident, at 6 pm he came to Munnar. He was called to the police station and was detained, threatened and pressurized to admit guilt. His signature was obtained by force. He pleaded innocence. 7. After trial, the accused is found guilty under Sections 449, 302 and 380 of the IPC. He is sentenced to undergo imprisonment for life and to pay fine of `25,000/- in default of payment of fine, to undergo rigorous imprisonment for 3 years for the offence punishable u/s 302 IPC, to undergo rigorous imprisonment for 10 years and to pay fine of `10,000/in default of payment of fine, to undergo rigorous imprisonment for 2 years for the offence punishable u/s 449 IPC and to undergo rigorous imprisonment for 5 years and to pay fine of `10,000/- in default of payment of fine, to undergo rigorous imprisonment for 2 years for offences punishable u/s 380 IPC. 8. According to the learned counsel for appellant, the conviction and sentence against the accused is opposed to facts, evidence and law. The appreciation of evidence is improper and there is no reliable piece of evidence to convict him. The learned counsel for the appellant vehemently argued that in the case at hand, prosecution has miserably failed to prove the chain of circumstances beyond the shadow of Crl.Appeal No.1661/13 5 reasonable doubt. It is argued that the motive for the alleged crime is not at all proved. The love affair and the consequent fixing of the marriage of Manimekhala with another person were quoted as the strong motive for the accused to commit the offence. But prosecution had completely failed to prove it. None of the witnesses deposed their first hand knowledge regarding the love affair between the accused and the deceased. According to the appellant, this love affair story and also, the fixing of marriage of the deceased with one Rajesh is a new case introduced by the prosecution for the purpose of falsely implicating the accused. The said Rajesh was not examined as a witness. None of the witnesses had given any statement to the police regarding the love affair and the fixation of marriage, in their earlier statements u/s 161 Cr.P.C. Hence it is a gross embellishment and an omission amounting to contradiction which cuts at the root of the prosecution case and it goes in favour of the appellant. It is further argued that PW4, PW5, PW8 and PW15 are planted witnesses and therefore their evidence should not be relied upon. An inquest witness, Mr. Moorthy, S/o Sri Rangan, was not examined by the prosecution. He gave a statement in Column No.4 of Ext.P1 Inquest Report that he found deceased in her house at 10.00 am on the date of incident. This when read with the evidence of PW4 and PW5, shows that the accused parted the company of the deceased and the deceased and the accused were not seen together last at 9 am, as deposed by PW4. It shows that even after the accused left the house of Crl.Appeal No.1661/13 6 deceased, the deceased was found alive. Prosecution was bound to explain satisfactorily the discrepancies in the versions of PW4 who deposed that she found accused in the company of the deceased at 9 am in deceased’s home and PW5, who deposed that he found accused/appellant near the shop at 9.30 am, on the same day and the version in the inquest by Mr. Murthy that he saw the deceased alive at 10 am in her house on the very same day. The prosecution version of last seen together theory against the accused had hopelessly failed. The learned Sessions Judge failed to appreciate these crucial aspects in arriving at right conclusions. 9. The learned counsel for the appellant/accused further argued that the arrest of the accused on 17.06.2009 and subsequent recovery of MO1 gold chain at the instance of the accused are totally unbelievable. Ext.P21 which was the alleged pledge register, is nothing but a notebook and is a fabricated document to create evidence for prosecution. Another argument raised by the appellant/accused is that Ext.P13 FSL report would show that MO4 shawl is not the material object with which strangulation was done upon the deceased. 10. On the other hand, the learned Public Prosecutor contended that this is a case based on circumstantial evidence and is proved beyond reasonable doubt by the prosecution with cogent and reliable evidence. According to him, ten solid circumstances which unerringly points to the guilt of the accused were cited and proved by the Crl.Appeal No.1661/13 7 prosecution. Those circumstances wipe out the probability of innocence of the accused as well. The following are the circumstances:- - (i) Manimekhala and the appellant/accused were schoolmates and the accused loved her. This aspect was proved by PW1 and PW18. - (ii) Marriage of Manimekhala with another person has already been fixed. This is brought into evidence through PWs 1, 2 and 18. - (iii) On 12.06.2009, during day time, after 8 am, Manimekhala alone was available in her house. Depositions of PWs 1, 3, 4 and 14 proved this fact. - (iv) On 12.06.2009, in the morning, the appellant/accused was seen in the house of Manimekhala along with her. PW4, the neighbour of the deceased testified it. PW5 deposed that he saw the appellant/accused standing near a shop which is near the house of deceased, at about 9.30 am. - (v) On 12.06.2009 at 4.30 pm, when mother of Manimekhala (PW1) came to her house, dead body of Manimekhala was lying inside the locked house and the gold chain of Manimekhala was not found on her body. Ocular versions of PWs 1, 12 and 14 proves this aspect. - (vi) Death of Manimekhala was due to strangulation. The evidence adduced by PW13, the Doctor who conducted the Crl.Appeal No.1661/13 8 autopsy and the post mortem report proves that fact. - (vii) Appellant/accused did not participate in the obsequies of deceased. PW3 deposed to that effect. - (viii) On 12.06.2009, accused pledged MO1 gold chain of Manimekhala in Easwari Finance. It is brought in evidence through PW15, the owner of the Finance institution. - (ix) On 17.06.2009, based on the confession statement of the appellant/accused, MO1 gold chain was recovered from the shop of PW15 at the instance of appellant/accused. The recovery is proved through PW22, the Investigating Officer. Ext.P7 is the seizure mahazar and Ext. P7(a) is the disclosure statement of the appellant/accused. - (x) Accused was provoked by Manimekhala’s refusal of his request for marriage and fixation of her marriage with another person. 11. As admitted by both sides, there is no direct evidence in this case. Prosecution is relying on circumstantial evidence to prove the guilt of the appellant/accused. 12. According to PW13, the Doctor who conducted the autopsy of the deceased, the death was due to constriction force around the neck. In Ext.P6, the post-mortem certificate, the following ante-mortem injuries were noted: _(i)_ _Abraded contusion on inner aspect of left upper arm_ Crl.Appeal No.1661/13 9 _0.5*0.5 cm._ _(ii) Neck findings: An almost horizontal ligature mark on front and left side of neck 7*3-4 cm. The ligature mark 5.5 cm below right angle of mandible (3cm), 8 cm below chin (3.5 cm) and 5 cm. Below left ear lobe (4 cm)._ _(iii) Flap dissection of neck was done in a blood less field. Tissues underlying the ligature mark appeared pale. Hyoid, larynx, thyroid and other soft tissues of neck were intact._ 13. In fact, there is not much dispute about the cause of death of the deceased. The trial Court rightly concluded that the death of Manimekhala is proved to be a homicide by strangulation. 14. PW1 who is the mother of the deceased and PW18 deposed that they had only hearsay information about the love affair between the appellant/accused and the deceased. Though the factum of appellant/accused’s love to the deceased is not conclusively brought in evidence by the prosecution, it is proved that the appellant/accused and the deceased were classmates and neighbours. 15. PW22 admitted and deposed that, regarding the fixation of marriage of Manimekhala, PW1, PW12 and PW18 had not given statements u/s 161 Cr.P.C. The learned counsel for the appellant/accused pointed it out as an exaggeration and omission. According to him, this is a concocted story, purposefully put forth by the prosecution, to connect the accused to the crime. 16. According to the prosecution, the immediate provocation of Crl.Appeal No.1661/13 10 the appellant/accused to kill the deceased was her refusal to accept the marriage proposal made by the appellant/accused. But there is no direct evidence to show that the appellant/accused made a marriage proposal to the deceased and the deceased denied the proposal. Nothing is brought on record to prove this point conclusively. 17. PW1, PW3, PW4 and PW14 deposed to the effect that on the fateful day, during day time, after 8.00 am, the deceased alone was available in the house. Nothing was brought out by the defence in the cross examination against this version. 18. PW4 Sangeetha is the neighbour of the deceased. She deposed that on 12/06/09 at 09.00 am, she had seen the appellant/accused and the deceased together in the house of the deceased. PW4 further deposed that Manimekhala requested her to tell the accused to go out of the house. She asked the accused to go out. Accused did not go out. At the time she left the house, the accused was sitting on the cot and there was nobody else except appellant/accused and the deceased in the house. This version of PW4 remains unshaken by the defence. Nothing was brought out in her cross-examination favourable to the appellant. 19. PW5 deposed that on 12/06/09 at 09.30 am, he saw the appellant/accused standing near the shop situated near the house of Manimekhala. At that time, he was wearing a shirt (MO5) and lunki (MO6). PW6, the brother of PW5 deposed that he saw the Crl.Appeal No.1661/13 11 appellant/accused near the line building standing under a tree on the previous day of the incident. 20. The question is whether the evidence of PW4, PW5 and PW6 _inter alia_ prove beyond reasonable doubt the last seen together theory put forth by the prosecution. Both accused and the deceased were known to PW4, PW5 and PW6. Defence has no case that PW4, PW5 and PW6 had any animosity towards him. In their cross examination, nothing was brought out to show that they are planted witnesses or that their version is not believable. 21. PW1 deposed that on the previous day of the incident i.e., on 11/06/09, the deceased told PW1 that she would come to hospital with lunch the next day i.e., on 12/06/09. The depositions of PW4 and PW14 throw sufficient light into the aspect that the deceased was preparing to take lunch to her mother who was admitted in the hospital. PW1 was expecting her daughter to bring lunch. But her daughter did not bring lunch. She did not come. That’s why PW1 came to her house in search of her daughter in the evening about 4.30 pm. In her deposition, PW1 stated that the front door of the house was locked from inside and the back door was locked from outside. The key was not found in the place where it was usually kept. She broke the key and found the dead body of her daughter. Gold chain which the deceased was wearing was missing. Therefore, death would have happened between 09.30 am and 01.00 pm. 22. The learned counsel for the appellant/accused relied on the Crl.Appeal No.1661/13 12 decisions of the Apex Court in _**Anjan Kumar Sarma and Ors. v. State of Assam**_ (Crl. A. 560 of 2014) and _**Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P.**_ (AIR 2004 SC 4383) to support his contentions, particularly regarding last seen together theory. In the former case, the accused were charged with gang rape and murder. The deceased was seen along with the accused till 9.00 pm on 27.12.1992 and the dead body was recovered at 3.00 pm on 29/12/1992 from a railway track. There was more than one and a half days of gap between last seen and recovery of dead body of the woman. Failure to properly prove recovery of weapon, non-availability of human blood in the weapon and non-matching of blood sample etc were also there in this case. Hence accused were given benefit of doubt in the case. The factual situation of this case is different from the case at hand. 23. In the latter case also the accused was given benefit of doubt considering lack of other reliable evidences. The facts are not similar to the present case. 24. The definite case of the prosecution was that MO4 shawl was used by the appellant/accused to strangulate the deceased. Relying on Ext.P13 FSL report, the learned counsel for the appellant/accused argued that since no stretching of fibre is noted in the shawl, it was not with MO4 the strangulation was done. But according to the learned Public Prosecutor, the stretching of fibre depends on the amount of force applied, the resistance offered and material of the shawl. The effect Crl.Appeal No.1661/13 13 varies from person to person and situation to situation. But as per Ext.P13 FSL report, MO4 shawl was containing cells. 25. The alleged recovery of MO1 gold chain by the Investigating Officer on 17/06/09 was vehemently opposed by the counsel for the appellant/accused. According to the prosecution, the date of arrest of the appellant/accused was 17/06/09. PW12 deposed that at the time he went to give FIR, he saw the appellant/accused detained outside the police station, based on suspicion. Based on that the learned counsel for the appellant/accused argued that the appellant was under custody of police on 12/06/09 itself. So, the recovery effected subsequently is manipulated and are not valid. 26. But PW22 deposed that the appellant/accused was arrested only on 17/06/09. PW3, the brother of the deceased stated that the police came on the next day only. It supports the version of PW22. 27. As per the deposition of PW1, the deceased was having and wearing a gold chain (MO1) of about 1 sovereign. PW1 stated that at the time of seeing the dead body of her daughter, the gold chain was missing from her body. The said gold chain was recovered from Eswary Finance, the finance institution of PW15, at the instance of appellant/accused. Ext.P7 is the recovery mahazar and Ext.P7(a) is the disclosure statement of the accused. Appellant/accused pledged MO1 on the same day afternoon. He collected `6,000/- from the said finance institution. PW15 deposed to that effect and produced the photocopy of the relevant page Crl.Appeal No.1661/13 14 of the pledge register also. PW22 verified the pledge register. It is marked as Ext.P21. 28. Unlike what is alleged by the appellant, a perusal of the said photocopy reveals that it is a pledge register kept for the purpose of entering pledge details of Eswari Finance and it is not a mere notebook. Token No.37 of the said register refers to MO1 of the present case. PW16 is the appraiser who verified the MO1 gold chain. PW15 and PW16 had no animosity to the deceased. Nothing is elicited in cross examination, in favour of the accused, from these non partisan witnesses. No explanation was offered by the appellant/accused in his 313 statement regarding the recovery of MO1 and depositions of PW15 and PW16. The evidence of these independent witnesses are sufficient to prove that appellant/accused pledged MO1 gold chain with PW15 on 12/06/09 and received `6,000/-. 29. The prosecution case is that immediately after the incident, the accused was found in possession of the lost gold chain MO1 of the deceased and he pledged it with PW15 on the same day. The trial Court rightly had drawn the presumption that the accused who possessed the stolen article soon after the incident is the thief himself. Appellant/accused had no explanation about the possession of MO1 and its recovery at his instance from the business of PW15. This inevitably leads to the conclusion that the appellant/accused had caused the death of the victim, which view the trial Court had rightly taken. Crl.Appeal No.1661/13 15 30. From the evidence of PW4, it can be seen that appellant/accused remained at the house of the deceased even after she asked him to go out, at the request of the deceased. Remaining in the house of the deceased without permission is nothing but house trespass. The said trespass was with the intention of committing murder and theft. Hence offence u/s 449 of IPC is proved. 31. That she was strangulated between 9 am and lunch time is rather clear from the evidence on record, so is the fact that accused was found in the house of deceased. Coupled with the fact that he was in possession of her ornaments clearly spells out his complicity to the crime. In the result, we find no reason to interfere with the conviction and sentence of the lower Court. The appeal is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** **Judge** Rp //True Copy// PS to Judge **Sd/P.SOMARAJAN Judge**