Rajesh @ Shibu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935** ## **CRL.A. No.1875 of 2009 (D)** **--------------------------(AGAINST THE JUDGMENT IN SC.NO.90/2004 OF ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM).** **APPELLANT(S)/ACCUSED:** **--------------------------------------** **RAJESH @ SHIBU CENTRAL PRISON, TRIVNADRUM.** **BY ADV. ADV.M.DINESH[STATE BRIEF].** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPECIAL PUBLIC PRSECUTOR ADV.SMT.PRAICY JOSEPH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = Crl.A No.1875 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 5[th] day of April, 2013 ## **JUDGMENT** ## **Ramakrishna Pillai, J.** The accused in S.C.No.90 of 2004 on the file of the Additional Sessions Court (Adhoc-I), Kottayam is in appeal before us. He faced trial on a charge sheet laid by the Circle Inspector of Police, Kanjirappally, in Crime No.268 of 2003 of Kanjirappally Police Station for offences punishable under Sections 449, 376, 302 and 397 IPC. ## 2. Briefly put the prosecution case, is as follows: An old lady named Vasumathiyamma, aged 77 years, is the victim. During the period of the alleged incident, she was staying, during day time, in the house bearing door No.II/6 of Kanjirappally Panchayat called “Radha Mandiram”. On 2.8.2003 at about 11.45 a.m., when the deceased came out of her house, the appellant with an intention to commit robbery and murder entered the aforesaid house through the kitchen door and waited in a room on the eastern portion of the house. At about 12.30 p.m. when the deceased entered the room, the appellant sprang up on her and quickly tied her by a plastic cord kept with him around her neck, standing behind her. After subduing the deceased, the appellant forcibly laid her on the floor, raped her, Crl.A.1875/09 **2** and murdered her by strangulation. After that, the appellant took away two gold bangles, a gold wring, a gold chain and a gold locket worn by the deceased. Thereafter, he lifted the body, dragged it to a cot on the western portion of the house and laid it on that cot. 3. On the basis of Ext.P8 information furnished by PW8, Anil Kumar, a neighbour of the deceased, PW25, the Sub Inspector of Police, Kanjirappally, registered a crime under Sections 449, 302 and 392 IPC. The investigation was conducted by PW26, the Circle Inspector of Police, Kanjirappally. During the course of investigation, the appellant was arrested at about 7.30 a.m. on 7.8.2003 and was produced before the court concerned. 4. PW27, who succeeded by PW26, verified the records and laid charge against the appellant before the Judicial First Class Magistrate-I, Kanjirappally, under Sections 449, 376, 302 and 379 IPC, which was taken on file as C.P.No.6 of 2004 by that court. The case which was committed to the Sessions Court, Kottayam, was made over to the Additional Sessions Court for trial and disposal. 5. The appellant, on appearance, pleaded not guilty to the charges levelled against him. He was defended by a counsel of his choice. Thereafter, at trial, on the side of the prosecution PWs.1 to 27 were examined and Exts.P1 to P27 were marked. MO1 to MO26 were identified. When questioned under Crl.A.1875/09 **3** Section 313 Cr.P.C, the appellant maintained the stand that he was innocent. On the defence side, Exts.D1 to D8 were also marked. 6. The trial, court after considering the evidence, found the appellant guilty of the offences punishable under Sections 449, 376, 302 and 397 IPC and accordingly, he was convicted under the aforesaid sections and sentenced to undergo imprisonment for life under Section 302 IPC and to undergo rigorous imprisonment for seven years each under Section 449, 376 and 397 IPC; sentences were to run consecutively. It is against this conviction and sentences that this appeal has been preferred by the appellant from the Central Prison, where he is undergoing imprisonment. 7. As the appellant has not engaged a counsel of his choice, he was defended before this Court by a counsel appointed at the expense of the State. 8. We heard the learned counsel for the appellant and the learned State Public Prosecutor quite in extenso. We have perused the impugned judgment and the lower court records. 9. The fact that Vasumathiyamma died due to strangulation is not in dispute. It was PW24, the then Professor of Forensic Medicine and Police Surgeon, Medical College, Kottayam, who conducted autopsy on the body of the deceased on 3.8.2003 and issued Ext.P20 report which revealed 15 ante- Crl.A.1875/09 **4** mortem injuries. PW24 had opined that the postmortem findings are consistent with death due to ligature strangulation. He also opined that injury Nos.5 to 8 made mention of in the certificate could be caused due to forcible intercourse. He also stated that injury Nos. 9 to 14 could be caused while the victim resists an attempt either to strangulate or rape her. 10. MO1 which is a nylon cord recovered during the course of investigation was shown to PW24. PW24 opined that injury Nos.1 and 2 in Ext.P20 could be caused by MO1. Ext.P20 shows that the deceased died due to injury No.1, which was caused by ligature strangulation. PW24 had collected viscera, blood as well as vaginal swab and smear from the dead body, preserved the same and sent them for chemical analysis. Samples of nail clippings, scalp hair, pubic hair and cotton gauze socked with blood were handed over to the investigating agency. 11. PW5, the Assistant Chemical Examiner of the Chemical Examiner's Laboratory, Thiruvananthapuram, deposed that on analysis, the vaginal swab collected from the body of the deceased revealed the presence of semen and spermatozoa. Ext.P5 is the report issued by her. The evidence of PW5 as well as Ext.P5 coupled with injury Nos.5 to 8 in Ext.P20 postmortem certificate establish that the deceased had been subjected to rape. 12. To connect the appellant with the crime the prosecution relies on Crl.A.1875/09 **5** circumstantial evidence, as there is no direct evidence. The prosecution relied on the testimonies of certain witnesses, the recovery of certain items on the basis of the statement given by the appellant under Section 27 of the Evidence Act and some pieces of scientific evidence to prove the guilt of the appellant. 13. PW8, Anil Kumar was a neighbour of the deceased. He stated that the deceased was a widow. Though she had two children, at the time of her death she was residing alone in her house. Her brother was residing in another house which was situated a few yards away from her house. However, during day time she remained in her house and in the evening she used to go to the house of her brother and stay there during night. According to PW8, by noon on 2.8.2003, he went to Ponkunnam and returned by 5.15 p.m. and when he reached at Thambalakkadu junction his friends told him that the dead body of Vasumathiyamma was found in her house. Immediately he went to the house of the deceased and found her dead body lying on the cot. Later, he went to the Kanjirapally police station and gave Ext.P8 F.I.Statement. 14. PW9 Syamala is the wife of one Radhakrishnan, who was a rubber tapper of the deceased. She stated that on 2.8.2003 at about 12 noon, she went to the house of the deceased carrying a vessel containing latex. After transferring the latex into a drum, which was kept near the house of the Crl.A.1875/09 **6** deceased, she cleaned the vessel and moved towards the house of the deceased. She was accompanied by her husband and child. The deceased was not seen outside. She called her. There was no response. She continuously called the deceased for some time. Then also, there was no response. Hence, she sat in the open veranda on the southern side of the house and began to read a news paper, which was found lying there. Sometime later, PW10 Ponnamma, who was a neighbour of the deceased came there with a vessel containing some curry. PW9 told PW10 that the deceased was not seen there and she replied that the deceased might have gone to purchase vegetables. PW10 opened the kitchen door from outside and placed the vessel inside the kitchen and returned. PW9 could not see the deceased though she waited there for sometime. Therefore, she went to the house of one Sobha, which was situated nearby and enquired about the deceased. Sobha told her that she also had not seen the deceased. Later, PW9 along with her husband and child returned to her house. Her husband went to Kanjirappally At about 5.30 p.m., her husband returned and told her that he came to know that Vasumathiyamma was dead. Getting this information, PW9 along with other witnesses went to the house of the deceased and saw the dead body of Vasumathiyamma lying on the cot in one of the rooms. 15. PW10, Ponnamma, the neighbour of the deceased, deposed that Crl.A.1875/09 **7** very often she used to visit the house of the deceased. According to her, the deceased had two children. PW5 is her daughter, who is married and working in Mathrubhoomi Daily at Thiruvananthapuram. Her son Sreekumar had sold his share in the family property and constructed a house at a place called Chamampathal and is staying there along with his family. According to this witness, the deceased used to stay in her house only during day time and during night she slept in the house of her brother, which was situated nearby. PW10 added that on 2.8.2003 at about 11 a.m., she went to the house of the deceased and had a talk with her for about 10 to 15 minutes and later, she returned. The deceased told her that since no vegetables were there in her house she intended to go to the market to purchase some vegetables. She further stated that at about 1 p.m., she went to the house of the deceased with some curry. There she saw Radhakrishnan, the rubber taper, his wife Syamala (PW9) and their child waiting for the deceased. Radhakrishnan was seen reading a news paper. He told PW10 that they were waiting there for getting wages from the deceased. She placed the vessel containing the curry on a table inside the kitchen, after pushing open the kitchen door, which was not bolted. Then, she returned to her house. In the meanwhile, she saw PW9 along with her husband and child proceeding to the pathway. At about 2 p.m., she saw PW9 and her husband returning to their house. When she saw them, Crl.A.1875/09 **8** they told that the deceased was not seen and they would be coming in the evening for collecting the wages. Thereafter at about 3 p.m. her mother-in-law went to the house of the deceased to ascertain whether she had returned to her house. But, after some time she returned to her house and told her that the deceased was not seen there. She told that the deceased might have fainted down somewhere and somebody should go to find out her. Hence, PW10 went to the green grocery shop of one Appu and enquired about the deceased. But, Appu told her that the deceased had not visited his shop. She returned to her house and informed the matter to Kesava Pillai, who is the brother of the deceased. 16. Immediately Kesava Pillai went to the house of the deceased and pushed open the door. The body of the deceased was found lying on a cot. PW10 noticed that the gold chain, gold bangles and gold ring, which were worn by the deceased, were missing from her body. PW10 further added that she had occasion to see the appellant coming for work to the nearby plot purchased by PW11, who was known as 'Ice Thampi'. 17. PW11 was examined to prove that two years prior to the incident his son had purchased two acres and 80 cents of land from Sreekumar, the son of the deceased. According to him, in the absence of his son he used to manage agricultural operations in the said land. The said property is lying in Crl.A.1875/09 **9** two segments; one segment having an extent of 96 cents is lying on the eastern side of the house of the deceased and the other segment is lying on the western side. According to PW11, he used to take the appellant for agricultural operations in the said land. The father of the appellant is also known to him. According to him, the name of the house of the deceased is Kalluvettamkuzhy. Obviously, the appellant's father resided at a place called Thekkekandam. But, subsequently he had purchased a land at Kalluvettamkuzhy, constructed a house there and shifted his residence from Thekkekandam. He further added that later, the father of the appellant had disposed of his house at Kalluvettamkuzhy and shifted to a place called '18[th] Mile'. 18. PW11 further stated that he used to take the appellant to the plot adjoining the house of the deceased for work. He added that on 30.7.2003, he had engaged the appellant for plucking coconut from the plot. But on 2.8.2003, there was no work. According to PW11 he had taken the appellant to the plot on five different occasions altogether for agricultural operations. 19. PW15 is the daughter of the deceased, who deposed regarding the stay of the deceased at “Radha Mandiram” during day time and at the house of her brother during night. She had also identified MO2 series. She further stated that her mother used to wear gold ornaments which consisted of a gold Crl.A.1875/09 **10** chain weighing 3 ½ sovereigns (MO3) attached with a gold locket (MO4), two gold bangles (MO2 series), a gold ring and a pair of gold studs (MO5 series). The evidence of PW9 would reveal that all the ornaments except the studs were found missing from the body of the deceased. PW15 identified those ornaments. 20. All the aforementioned gold ornaments, except the gold wring, were recovered, as narrated by PW26, the Investigating Officer. According to PW26, on the basis of Ext.P18(a) information given by the appellant on 7.8.2003 at about 12.30 p.m., he along with the appellant went to an establishment called Priya Financiers at Ponkunnam and as pointed out by the appellant, met PW20 Priyamol. He stated that PW20 had produced MO3 chain before him and he had seized it under Ext.P18 mahazar, in the presence of independent witnesses. He also seized Ext.P16 and P17 documents produced by PW18 connected with pledging of MO3. 21. In connection with the aforesaid recovery, PW20 deposed that on 2.8.2003 the appellant went to her establishment for pledging MO3 gold chain. According to her, MO3 was weighing 24 grams and after accepting the same as security, she had advanced an amount of `8,800/- to the appellant as loan. She also stated that the name of the appellant was entered in Ext.P16 application form and the appellant signed it. Ext.P16 was prepared in her Crl.A.1875/09 **11** handwriting and the name of the pawner was given as Shibu V.J. Ext.P16 was numbered as 11460/2003. According to this witness, the appellant had signed at two places in Ext.P16. The details of ornament pledged is given in Ext.P16. She had identified Ext.P17 cover which was used to keep MO3. Ext.P17 also carries the loan number 11460/2003. The name of the appellant and the weight of the chain are noted in Ext.P17 also. The date of the loan was shown as 2.8.2003 and the amount advanced was shown as `8,800/-. According to PW20, those entries were made by her. She further stated that on 7.8.2003 between 12 and 12.30 p.m., police came there along with the appellant and questioned her about the loan arrangement. Thus, she examined the papers, traced out Ext.P16 and handed over the same to the police. The police asked her to produce the concerned ornament also. She informed the matter to Girija, who was the proprietor of the establishment and after perusing Ext.P16, she took Ext.P17 cover which contained MO3 and handed over the same to her. She had entrusted the same with the police and the police had prepared Ext.P18 mahazar. She added that in Ext.P16 and P17 she had signed as an attestor. The testimony of PW26 and PW20 regarding the recovery of MO3 at the instance of the appellant could not be shattered in spite of a lengthy cross examination. 22. It was further stated by PW26, the Investigating Officer, that on the Crl.A.1875/09 **12** basis of Ext.P15(a) information given by the appellant on 7.8.2003 at about 1.25 p.m., he along with the appellant went to Ponkunnam town and as pointed out by the appellant went to the establishment called Angel Financiers and met PW19, who had identified the appellant. PW26 further stated that PW19 had produced MO2 series gold bangles before him and he had seized them under Ext.P15 mahazar in the presence of independent witnesses. He further stated that PW19 had produced Ext.P13 application and Ext.P14 cover, used for keeping MO2 series and they were seized under Ext.P13. 23. Regarding this recovery, PW19 gave the corroborative version. According to PW19, he is the proprietor of the establishment called Angel Financiers situated at Ponkunnam. The licence of the said establishment was in the name of his elder brother's wife and he had been conducting the said establishment. According to him, on 2.8.2003, the appellant pledged MO2 series (gold bangles) weighing 15.900 grams. He added that the appellant had signed Ext.P13 pledge form in his presence. Ext.P13 was prepared by him in his own handwriting. The details of MO2 series were noted in Ext.P13 and the name of the the pawner was shown as Shibu. According to this witness, the loan under Ext.P13 was assigned the number 3596/2003. He also stated that MO2 series were kept in Ext.P14 cover, which also carried the pledge No.3596/2003. The said numbers were written in his own hand writing. He Crl.A.1875/09 **13** further stated that 3596/2003 was the token number and the ornaments that were pledged were two gold bangles. As per Ext.P14, the date of pledge was 2.8.2003. PW19 identified MO2 series as the bangles, which were pledged by the appellant as shown in Ext.P13 and P14. After accepting MO2 series as security, he had advanced an amount of `5,750/- to the appellant. He added that at about noon on 7.8.2003, the Circle Inspector of Police, Kanjirappally accompanied by the appellant came to his establishment and asked him to produce MO2 series which were pledged by the appellant. Hence, he had handed over MO2 series and the police had seized them under Ext.P15 mahazar. 24. The fact that the appellant had gone to the financial establishments for pledging the gold ornaments is proved through the testimony of PW22. PW22 is an autorickshaw driver at Ponkunnam. He owns an autorickshaw bearing Reg. No. KL-5/J-1626. According to PW22, the appellant used to travel by his autorickshaw. He stated that on 2.8.2003 at about 1.30 p.m. the appellant had boarded his autorickshaw from the autorickshaw stand in front of a building called Thakidiyel at Ponkunnam and told PW22 that he wanted to go to Pala. After travelling some distance, the appellant asked PW22 to stop the vehicle in front of a silver ornament shop. The appellant alighted from the vehicle and went inside. After sometime, he returned and asked PW22 to Crl.A.1875/09 **14** return to Ponkunnam town, where he was asked to stop the vehicle in front of a shop called 'Crown Jewellery'. It was at about 1.30 p.m. After 15 minutes the appellant returned and directed PW22 to drive to the outlet of beverages corporation in the town. The appellant entered the liquor shop and returned with a bottle and he boarded the autorickshaw asking PW22 to drive towards Pala road. When they reached the KSRTC bus stand at Ponkunnam, he asked PW22 to stop the vehicle. The appellant alighted from the vehicle and went to a kiosk and purchased a packet of cigarette and returned. Thereafter, they continued their journey towards Pala. They went to the Universal Theatre at Pala, and viewed a Malayalam movie. The show was over at about 5.30 p.m. As directed by the appellant, PW22 drove the autorickshaw to a textile shop at Pala town. The appellant, who went inside that shop, returned with a cover and boarded the autorickshaw again. On the way, he was asked to stop the vehicle in front of a shop, from where the appellant purchased a bottle of 'Fanta', a soft drink. On the way to Ponkunnam, PW22 was asked to drive into a rubber plantation. There, the appellant consumed the liquor purchased from the beverages corporation. PW22 also got a share. After that PW22 was asked to drive the autorickshaw towards Ponkunnam town and on the way, alighted at a barber shop at Chirakkadavu. The appellant went inside and came back after some time. Finally, the autorickshaw was taken to his house. PW22 was Crl.A.1875/09 **15** given `350/- towards fare. The sequence of the events narrated by PW22 reveals the perplexed mental condition of the appellant during the afternoon of the date of the alleged crime. 25. PW23 is a worker of Swapna Jewellery at Ponkunnam. According to him, at about 1 p.m. on 2.8.2003, the appellant came to his shop in an autorickshaw and asked him to test the quality of MO2 series (two gold bangles worn by the deceased which were found missing from the dead body and later recovered on the strength of the statement by the appellant). Accordingly, he tested MO2 series and returned the same to the appellant. The testimonies of PW22 and PW23 are mutually corroborative. 26. MO4 gold locket was recovered by PW26 at about 2.40 p.m. on 7.8.2003 on the basis of Ext.P19(a) information given by the appellant. The appellant took MO4 locket from a ridge and the same was seized under Ext.P19 by PW26 in the presence of PW21 who is an independent witness. 27. The testimony of PW26 would further reveal that on the basis of Ext.P11(a) confession statement given by the appellant, he along with the appellant went at 3.25 p.m. on 7.8.2003 to the property belonging to one Thundiyil Jolly at Chirakkadavu village. The appellant took MO7 bag from a place near the shrubs growing there. It was recovered under Ext.P11 mahazar in the presence of independent witnesses. On examination, it was Crl.A.1875/09 **16** found that MO7 bag contained MO8 wrist watch, MO9 purse, MO10 lungi, MO11 undergarment, MO12 pants, MO13 shirt, MO14 tape recorder, MO15 belt, MO16 series cassettes, MO17 tooth paste, MO18 brush, MO19 cord wire, MO20 series Indian currency notes for `10,600/- and MO21 series coins. The recovery was proved through the testimony of PW26. 28. The recovery of gold ornaments found missing from the body of the deceased at the instance of the appellant is another piece of strong circumstance against the appellant. In **Gulab Chand** v. **State of Madhya Pradesh** [AIR. 1995 Supreme Court 1598], the Apex Court, placing reliance on the decision of the said Court in **Tulsiram** v. **State** [AIR 1954 SC 1] which indicated that the presumption permitted to be drawn under Section 14, illustration (a) of the Evidence Act has to be read along with the important time factor, has observed that if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But, if several months have expired during the interval, the presumption cannot be permitted to be drawn, having regard to the circumstances of the case. 29. In the instant case, it has been established that without delay, the appellant had pledged the gold ornaments belonging to the deceased and the recovery of the same were made from the pawners at the instance of the Crl.A.1875/09 **17** appellant. Such close proximity of the recovery which has been indicated by the Apex Court as an ”important time factor” should not be lost sight of in deciding the present case. 30. Two relevant circumstances to show that the appellant had made up his mind to commit the crime are divulged through the testimonies of PWs.12 and 14. 31. PW12 is an agricultural labourer. The purpose of citing this witness was to show that on 28.7.2003 at about 8 a.m., the appellant was seen standing under a Maruthu tree and watching the surroundings of the house of the deceased. When he saw the appellant at 8 a.m. on 28.7.2003, he had asked the appellant why he was standing there and watching what was happening in the house of the deceased. According to PW12, he saw the appellant when he went there to cut and remove the branches of a rubber tree which was over-hanging on a coconut tree standing nearby. 32. The next witness relied on by the prosecution is PW14, who is a native of Thrissur. He has two daughters. His eldest daughter is married to a person residing at Thambalakkadu. According to this witness, he often used to stay in the house of his eldest daughter which is situated 200 metres away from the house of the deceased. The appellant was known to him, as the appellant used to come to the plot purchased by PW11. According to him on Crl.A.1875/09 **18** 2.8.2003, in the morning, he had taken the cow of his daughter for gazing to the land of one Soman. He saw the appellant passing by between 9 and 9.30 p.m. Seeing the appellant, PW14 asked him, why he was roaming around there. The appellant told PW14 that PW11 would be coming to his plot along with some workers. PW14 asked the appellant whether it was possible to carry out the work as it was already late. Thereafter, the appellant entered the garden land which was lying on the western side. When he entered that land, one of his chapels slipped away and fell in a brook. However, the grand son of PW14 who was accompanying him took the slipper from the brook and handed over to the appellant and the appellant proceeded towards west. PW14 further added that at about 5 p.m. on that day he came to know that Vasumathiyamma was dead. 33. The fact that the appellant was seen by PW12 at 8 a.m. on 28.7.2003 under the Maruthu tree, closely observing what was happening in the house of the deceased and the fact that the appellant was seen by PW14 roaming around the house of the deceased between 9 and 9.30 p.m. on the date of the alleged incident, even though he had no job to perform there on that day, are relevant circumstances which stare against the appellant. The testimonies of PW12 and PW14 inspire confidence as the same remain unshattered. Crl.A.1875/09 **19** 34. Now, we will proceed to consider the scientific evidence collected by the investigating agency, to prove the guilt of the appellant. 35. On 3.8.2003, PW18, the Scientific Assistant examined the scene of occurrence and prepared Ext.P12 scene examination report. During the course of examination, he collected some hair strands from the floor of the bed room and from the cot, loose hair strands from the neck of the deceased and microscopic particles from the palm and neck of the deceased using cellophane tape. He had placed the aforementioned materials in sealed packets and handed over them to PW26, the Investigating Officer, for forwarding them to the forensic laboratory. Ext.P2 is the report received from the forensic laboratory, after chemical examination. In pages 6, 7 and 8 of Ext.P2, those items were described as item nos.(i) to (v). Item No.(iv) was sub-numbered as (iv)(a) and (iv)(b). It appears from page (13) of Ext.P2 that item Nos.(iv)(a) and (iv)(b) contained.- - (1) Particles of dirt, - (2) Epithelial cells, - (3) Light green and brownish green coloured cotton fibres similar to those in item No.17. 36. Item No.17 is the lungi with a green, black and white printed design (MO10) which was found in MO7 bag recovered by PW26 the Investigating Officer under Ext.P11 mahazar, pursuant to Ext.P11(a) information received Crl.A.1875/09 **20** from the appellant. Item Nos.(iv)(a) and (iv)(b) constitute the microscopic particles from the palm and neck of the deceased using cellophane tape. Ext.P2 report reveals that light green and brownish green coloured cotton fibres similar to those found in MO10 lungi of the appellant were found on the palm and neck of the deceased. That would indicate that the palm and neck of the deceased had come into close contact with the MO10 lungi because of the resistance of the deceased at the time of the alleged crime. 37. As already pointed out, PW24, the Professor of Forensic Medicine, while conducting postmortem examination, had collected viscera, blood, vaginal swab and smear from the dead body of the deceased and sent the same for chemical examination. He also collected the sample of nail clippings, scalp hair, cotton gauze socked with blood from the body of the deceased. They were also handed over to the Investigating Officer. The blood stained gauze is item No.14 in Ext.P2 F.S.L report. Ext.P3 is the report of the Serologist. At pages (4) and (5) of Ext.P3 report it is stated that the blood contained in item No.14 belonged to 'B' group. That means, the blood group of the deceased was 'B'. Item No.17 is the lungi (MO10) and item No.18 is the underwear (MO11) which were seen in MO7 bag, recovered by PW26 under Ext.P11 mahazar on the basis of the confession statement given by the appellant. As per Ext.P3, item Nos.17 and 18 in the report (MOs.10 and 11) Crl.A.1875/09 **21** contained human spermatozoa. MO10 and MO11 also contained human blood belonging to 'B' group. No explanation is forth coming from the defence side regarding the presence of human blood belong to 'B' group in MOs.10 and 11. 38. Item No.2 referred to in Ext.P2 report is a short black hair strand collected by PW18, the Scientific Assistant from the room where the dead body of the deceased was found. Item No.20 is a collection of 12 short black hair strands taken from the appellant. It could be seen from Ext.P2 that item No.2 hair was human scalp hair which was similar to the scalp hair samples in item No.20, which was collected from the appellant by PW6 at the time of examination on 7.8.2003. Therefore, it is clear that item No.2 scalp hair, which is similar to the hair of the appellant in item No.20 was found in the place of occurrence, which was collected by PW18, the Scientific Assistant, under Ext.P12 report. The presence of item No.2, which is similar to the scalp hair of the appellant at the scene of occurrence is another strong relevant circumstance pinpointing to the appellant. 39. Item No.5 referred to in Ext.P2 report contained fragments of light yellow coloured nylon fibres similar to those in item No.,15(MO1) and item No.16 (MO6). Item No.5 was collected by PW18 from the neck and palm of the deceased. The aforesaid findings would indicate that either MO1 or MO6 cord had come into close contact with the neck of the deceased. Crl.A.1875/09 **22** 40. PW24, Professor of Forensic Medicine has opined that injury No.1 which resulted in the death of the deceased could be caused by MO1. According to PW26, MO1 was recovered by him in pursuance of Ext.P9(a) statement given by the appellant under Ext.P9 mahazar on 7.8.2003. The remaining part of MO1 was recovered by PW26, the Investigating Officer on the basis of Ext.P10(a) confession statement made by the appellant. It is MO6. It was recovered from a machine shop bearing door No.C-17-497(1) situated on the southern side of the house of the deceased. MO6 is the plastic cord bundle recovered from a plastic bag which was kept on a slab in the middle of a shed. The same was taken by the appellant and was recovered under Ext.P10 mahazar in the presence of PW16, who is an independent witness. 41. The similarity between the fibres collected from the palm and neck of the deceased and the fibres of MO1 and MO6 were established by the scientific evidence. MO1 is a part of MO6. Evidently, the ligature used for strangulating the deceased was MO1 cord. 42. The evidence of PW10 reveals that the deceased was last seen alive at about 11 a.m. on 2.8.2003. Her dead body was found at about 5 p.m. on that day. This would indicate that the deceased was murdered during an unspecified time between 11 a.m. and 5 p.m. on the same day. Immediately Crl.A.1875/09 **23** after the death of the deceased, the appellant was in possession of MO2 series, MO3 chain and MO4 locket, which were worn by the deceased at the relevant time. The appellant pledged MO2 series and MO3 and obtained `5,750/- and `8,800/- respectively from the financial establishments run by PW19 and PW20. 43. We see no reason to discard the evidence tendered by PW19 and 20. The testimony of PW22 reveals that the appellant was taken in an autorickshaw to different places after the incident, including the financial establishments run by PW19 and 20. The rape of the victim, which is proved by the scientific evidence, her murder and the robbery of gold ornaments, form integral part of the very same transaction. 44. When questioned under Section 313(1)(b) Cr.P.C., the appellant submitted that he was never called 'Shibu' and he does not have a house by name 'Vettukuzhiyil'. A futile attempt was made by the appellant to establish the same by producing Ext.D8 certificate. However, the trial court accepted the same. The identity of the appellant as well as his involvement in the alleged crime was established by the prosecution through acceptable legal evidence 45. Going through the evidence on record, we are convinced that the circumstances against the appellant are satisfactorily established by the Crl.A.1875/09 **24** prosecution beyond any reasonable doubt, bringing home the guilt of the appellant. The appellant was unable to explain the circumstances against him by any reasonable hypothesis. It is clear that the appellant had subdued the deceased, raped her, murdered her and robed her gold ornaments in a sequence of events forming part of the same transaction. We, therefore, are of the view that the findings of guilt and consequential conviction against the appellant under Sections 449, 376 302 and 397 IPC are only to be upheld. We do so. 46. The learned Sessions Judge has directed that the sentences imposed on the appellant shall run consecutively. Considering the grievous nature of the crime committed by the appellant, we are of the view that there is no scope for interference with the sentences imposed also. In the result, the appeal fails and accordingly, it is dismissed. ## sd/- **T.R.RAMACHANDRAN NAIR JUDGE** sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj //TRUE COPY// P.A. TO JUDGE