Raju 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** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **CRL.A.No. 342 of 2014** **AGAINST THE JUDGMENT IN SC 123/2013 of SESSIONS COURT, KOTTAYAM DIVISION, PALA DATED 24-12-2013** **CP 6/2013 of J.F.C.M.,PALA** **CRIME NO. 560/2012 OF Ramapuram Police Station, Kottayam** ## **APPELLANT/ACCUSED:** **RAJU , C.NO.8807 CENTRAL PRISON, POOJAPPURA, TRIVANDRUM** **BY ADV. SMT.P.RAJATHA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF KERALA.** **BY ADV. SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST WOMEN & CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, THE COURT ON 30.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.342/2014 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the Additional Sessions Judge, Pala of Kottayam Sessions Division in S.C.No.123/2013 by which the appellant herein is found guilty under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of simple imprisonment of three months. 2. Brief facts of the case as alleged by the prosecution are as under:- The appellant Raju and the deceased Cicily were living together for about 28 years and though they had no legal marital relationship, there were frequent quarrels between them. Their relationship was no so cordial that the deceased lived separately from the appellant/accused several times. One week prior to the incident, the deceased and the appellant/accused were living separately. On 16/12/2012, the appellant/accused came to an Crl.Appeal No.342/2014 -:3:- understanding with the deceased that they would live together. Accordingly, he took her to his Kavanakudi house in Valakkattukunnu colony in Ramapuram Panchayath. After two days, the appellant/accused began to pick up quarrel with the deceased. On 21/12/2012, at about 09.00 p.m., the appellant/accused inflicted fatal injuries to the deceased using a recently sharpened chopper all over the body including neck and thereby committed murder. 3. Prosecution examined PWs 1 to 26 as witnesses, marked Exts.P1 to P27 documents and identified MOs 1 to 15. During 313 examination, the appellant/accused denied all incriminating circumstances against him. Though initially he told that he had nothing more to say, later he filed a written statement in which he stated that MO1 chopper belonged to PW6 Joseph. MO1 was never brought to his house and the deceased never used the same in the house. The deceased was living in the rented building of PW6 till her death. According to him, he came to know about the death of Cicily at 10.00 p.m. on 21/12/2012. He was going to his house to enquire about it. He was arrested by the police at 10.30 p.m. on that day from near the toddy shop at Crl.Appeal No.342/2014 -:4:- Valakkattukunnu. The police did not question him. He did not make any confession before the police. MO1 was not recovered as per the information given by him. Deceased Cicily had filed a complaint against him at the instance of PW6 Joseph @ Unni. In that case, Cicily deposed against the prosecution. Joseph @ Unni had enmity towards him because he had asked Cicily to withdraw the criminal complaint filed against him. Due to the said enmity, PW6 has falsely implicated him in the present case. He pleaded innocence. No defence evidence was adduced from their side. 4. Learned counsel appearing for and on behalf of the appellant Smt.Rejatha P.Jacob vehemently argued that the appellant is innocent in this case. He is falsely implicated by police as they failed to find out the real culprit. There is absolutely no evidence to prove the guilt of the appellant. Case rests on circumstantial evidence. The appellant and the deceased were on cordial terms. They lived together for long 28 years and PW7 Rajeev is born out of that relationship. There are inconsistencies in the version of PWs 2 to 4 regarding the socalled utterances the victim had made at the time of incident. It casts doubt upon their evidence. Even FIS is not owned by its Crl.Appeal No.342/2014 -:5:- alleged maker. Motive is not proved by the prosecution. The alleged last seen theory is not proved by the prosecution beyond reasonable doubt. Even according to the prosecution, there was no power connection in the appellant's house. The time at which the incident happened was a dark night. Key witnesses turned hostile to the prosecution. PW6 and PW8 are interested witnesses and are inimical towards the appellant. Evidence shows that conversation happening in the house of the deceased is audible to neighbours. But it can be seen that neighbours do not have a case that they heard any quarrel from the said house. There is nothing to show that PW7 Rajeev was present in the house till 07.30 p.m. No call records were produced to show that the deceased contacted PW7 the son. According to the prosecution, extensive injuries are noted on the corpse of the deceased. Common sense compels us to conclude that such number of injuries are not possible with one weapon and that too by one person as alleged by the prosecution. The case rather shows that it was a gang attack using multiple weapons and no investigation had proceeded in that direction. MO1 chopper does not belong to him or was in his house and the said chopper belongs to PW6 Crl.Appeal No.342/2014 -:6:- Joseph @ Unni. How, that MO1 chopper was taken to the house of the appellant is not proved by the prosecution. Alleged recovery of MO1 is a planted one. All other recoveries are done without any bona fides. Ownership of MO14 chappals is not proved. Remand application would show that the appellant was in illegal custody from 23/12/12 to 27/12/12. There is an unexplained delay of 11 days in sending property list to the Court. Forensic records are manipulated to falsely implicate the appellant. The case lacks merit and the Court below is totally unjustified in convicting the appellant for such a grave crime without any legal proof. She argued for an acquittal. 5. Learned counsel relied on the following decisions of the Apex Court to support her arguments regarding recovery u/s 27 of the Evidence Act, motive and absence of quarrel:- (i) _**Pulukuri Kottaya and Others v. Emperor**_ [AIR (34) 1947 Privy Council 67] (ii) _**Sankara Narayanan and Others v. State of Kerala**_ (2006 (3) KLT 429) (iii) _**Dudh Nath Pandey v. State of U.P**_ [(1981) 2 SCC 166] Crl.Appeal No.342/2014 -:7:- (iv) _**Kulvinder Singh and Another v. State of Haryana**_ [(2011) 5 SCC 258] (v) _**Padala Veera Reddy v. State of A.P.**_ (AIR 1990 SC 79) (vi) _**Manjunath Chennabasapa Madalli v. State of Karnataka**_ [(2007) 9 SCC 160] (vii) _**Gambhir v. State of Maharashtra**_ [(1982) 2 SCC 351] 6. On the other hand, the learned Government Pleader for Atrocities against Women and Children, Smt.S.Ambika Devi contended that there are ample evidence to prove the guilt of the appellant herein beyond reasonable doubt. Court below found certain circumstances as proved and based on them he was rightly found guilty and sentenced. Appellant/accused was seen at the place of occurrence at the time of occurrence by witnesses who are neighbours. Motive for the crime is proved by the prosecution. There were frequent quarrels between the appellant/accused and the deceased and a criminal case was registered by the deceased against the appellant. She and her son shifted the residence also. Before one week of the incident, Crl.Appeal No.342/2014 -:8:- the appellant/accused brought both of them in the pretext of compromise, to his house which is the place of occurrence herein. Just prior to the incident, quarrel took place. Altogether there were 26 ante-mortem injuries noted on the body of the deceased. MO1 chopper was recovered at the instance of the appellant based on his own disclosure statement. FSL report indicate that the items are stained with human blood belonging to O group. Court below convicted the appellant/accused based on proof of his involvement beyond reasonable doubt and is a well-thought and well-considered conclusion and hence no interference is called for. 7. The evidence adduced by the prosecution, in brief, are as under: According to the prosecution, PW1 gave Ext.P1 FIS based on which PW24 registered Ext.P16 FIR. But PW1 disowned the FIS and turned hostile to the prosecution. ExtS.P1 to P1(g) were marked through him. He deposed that PW2's house is only 4 metres away from the house in which the incident happened. He saw the deceased lying in a pool of blood. He helped police to take the deceased to the hospital. PW2 is the immediate neighbour of the deceased and the appellant/accused. She Crl.Appeal No.342/2014 -:9:- supported the case of the prosecution to a large extent. Exts.P2 to P2(f) were marked. PW3 is another neighbour of the deceased. She is also known as Kunjupennu. She is a key witness to the prosecution. PW4 is also another neighbour who deposed about the incident. PW5 is another neighbour who was declared hostile to the prosecution. PW6 Joseph @ Unni gave evidence to the effect that the appellant and the deceased were living in his house for rent and there was frequent quarrel between the spouses and criminal case was also registered. He deposed that MO1 knife was taken from his house by the deceased and the said weapon was available in the deceased's house. PW7 is the son of the appellant and the deceased. He supported the prosecution and stated that, on the date of incident, he saw both the appellant and the deceased together in their house by about 07.30 p.m. PW8 is the wife of PW6. She deposed that she had given MO1 chopper to the deceased at the time when she shifted her house. She also identified MO7 chappals of the deceased. PW9 is another witness who deposed that the incident happened during power cut time and he heard the cry of the deceased and also saw the appellant/accused there and he asked the Crl.Appeal No.342/2014 -:10:- appellant/accused what he had done to Cicily. Appellant/accused did not reply. He entered the main road and went away. PW10 deposed that on the date of incident at about 09.00 p.m., the appellant came to his house and told that something had happened at his house. He left the place by the time PW10 went inside to make a call. PW11 is a blacksmith of the locality and he deposed that he sharpened MO1 at the request of the deceased a few days prior to the incident. PW12 is another neighbour but he turned hostile to the prosecution. PW13 is the brother of PW12. He also turned hostile to the prosecution. PW14 is an attestor to Ext.P7 inquest report. MOs 8, 9 and 10 were marked through him. PW15 is the Doctor who examined the deceased at the hospital and issued Ext.P8 death intimation. PW16 is the Scientific Assistant who inspected the place of incident and prepared Exts.P9 and P10 reports. PW17 is an attestor to Ext.P11 mahazar. PW18 is an attestor to Ext.P12 mahazar for the seizure of MO12 'kaily' and MO13 shirt belonging to the accused. PW19 is an attestor to Ext.P13 mahazar for the seizure of MO1 chopper. PW20 is the Doctor who prepared Ext.P14 post-mortem report. PW21 is the Village Officer who prepared Ext.P15 site plan. PW22 Crl.Appeal No.342/2014 -:11:- carried out scene guard duty. PW23 is the Sub Inspector of Police who, on receiving telephonic information, reached the spot and took the injured victim to hospital. PW24 recorded the statement of PW1 and registered Ext.P16 FIR. PW25 is the then Circle Inspector of Police, Ramapuram Police Station. He took over the investigation, prepared inquest report, scene mahazar, seized material objects, arrested the appellant/accused, recovered MO1 and dress of the appellant based on his disclosure statement Ext.P18 and sent MOs for chemical examination. He questioned the witnesses, completed the investigation and submitted final report. PW26 proved Ext.P17 series photographs and MO15 series video recording of the preparation of scene mahazar. 8. There is no direct evidence in the case. Prosecution relies on certain circumstances to prove the case against the appellant. Court below found that the deceased died due to injuries suffered by her including neck injury and the said injuries were caused by the appellant herein using MO1 chopper as weapon of offence and punished him as detailed earlier. The question to be determined is whether the Court below is justified in arriving at the conclusion challenged herein, in the light of Crl.Appeal No.342/2014 -:12:- available evidence. 9. Ext.P7 is the inquest report prepared by PW25 for which PW14 is a witness and signatory. PW15 is the Doctor at General Hospital, Pala during the relevant time. It is his version that on 21/12/2012 at about 09.55 p.m., a patient namely Cicily was brought to the hospital and on examination by him, she was found dead even before reaching the hospital. Ext.P8 is the intimation to police regarding the same. PW20 conducted autopsy of the deceased on 22/12/2012. Ext.P14 is the post-mortem certificate. The following injuries were deposed to be noted by PW20 on the corpse of Cicily:- _“1. Chop wound 9.4 x 1.5 x 2.7 cm oblique on front of neck aross midline its left end was placed 2 cm left to midline and right end 6 cm right to midline, the left end 6.6 cm above the collar bone. Underneath the strap muscles on right side, right external jugular vein and right carotid artery were cut and separated. Trachea and oesophagus were cut separated obliquely at the level of C5 vertebra. C5 vertebra showed an oblique cut 2.1 x 0.2 x at its front. Air passages contained blood._ _2. Incised wound 7.5 x 1 x 3 cm oblique on left side of front of neck, front lower end 5cm outer to midline and 5 cm above the collar bone._ _3. Incised wound 3.5 x 0.5 x 1.3 cm oblique on left side of_ Crl.Appeal No.342/2014 -:13:- _front of neck, front lower end 9.5 cm outer to midline and 3.2 cm above the injury._ _4. Incised wound 9 x 1 x 1.5 cm, oblique on rigth side of back of neck, the upper aspect bevelled; black lower end placed 2cm outer to midline and 2 cm above root of neck. There was a side cut 3.2 cm oblique on upper aspect of 5cm outer to the inner end._ _5. Abrasion 1.6 x 0.2 cm horizontal on right side of chin 4 cm outer to midline._ _6. An incised wound 13x1.2x2 cm horizontal on right side of head. Its front end placed 0.6 cm behind the right ear and back end on midline 7cm below the occiput._ _7. Inicsed wound 'n' shaped 6 x 0.5 x 1 cm on right side of back of head inner end 1cm outer to midline and at the level of occiput; lower aspect bevelled._ _On dissection, the skull and dura were intact. Brain (1100 gm) appeared normal._ _8. Abrasion 5.5 x 0.3 cm oblique on left side of front of chest, upper inner end 12cm outer to midline and 13cm below top of shoulder._ _9. Incised wound 8 x 1 x 1.4 cm horizontal on right side of back of chest, 12.5 cm outer to midline and 6 cm below top of shoulder; inner end was sharp._ _10. Incised wound 6 x 1 x 2 cm oblique on left side of back of chest, lower inner end 13cm outer to midline and 5.5 cm below the top of shoulder._ _11. Abrasion 6x0.3 cm vertical on right side of back of chest, 18 cm outer to midline and 10 cm below the top of shoulder._ _12. Abrasion '7' shaped on left side of back of chest and adjoining part of the arm; the horizontal limb 7 cm and_ Crl.Appeal No.342/2014 -:14:- _oblique limb 9.5 cm placed 15 cm outer to midline and 5.5 cm below the top of shoulder._ _13. Abrasion 3 x 0.2 cm on back of chest across midline the left lower end placed 1cm outer to midline and 2 cm below top of shoulder._ _14. Abrasion 1.5 x 0.2 cm oblique on right side of back of chest, upper inner end 2 cm outer to midline and 7.5 cm below top of shoulder._ _15. Abrasion 2 x 0.3 cm oblique on right side of back of chest, upper inner end 4 cm outer to midline and 4.5 cm below top of shoulder._ _16. Abraded contusion 24 x 0.2x1.4 cm oblique on right side of back of chest and adjoining area of right arm, the inner end placed 6 cm outer to the midline and 10 cm below top of shoulder and outer end on outer aspect of right arm, 12cm below tip of shoulder._ _17. Abraded contusion 2 x 0.3 cm oblique on outer aspect of right arm 3 cm below tip of shoulder._ _18. Incised wound 10.5 x 0.5 x 0.8 cm oblique on back of right hand placed between inner aspect of the wrist and back of root of index finger. The 3[rd] , 4[th] and 5[th] metacarpal bone were cut underneath._ _19. Incised wound 5.5 x 0.5 x 0.9 cm oblique on right palm, 3.5 cm below the wrist._ _20. Incised wound 2 x 0.2 x 0.4 cm oblique on front of root of right thumb._ _21. Incised wound 5 x 0.3 x 0.5 cm oblique on back of left arm, 11 cm below top of shoulder, upper margin bevelled. 22. Abraded contusion 4 x 0.5x1 cm oblique on back and outer aspect of left arm, 1.5 cm below tip of shoulder._ _23. Incised wound 9 x 0.5 x 1cm oblique on back and_ Crl.Appeal No.342/2014 ## -:15:- _outer aspect of right leg, 17 cm below the knee._ _24. Abrasion 10 x 0.3 cm oblique on outer aspect of right thigh, 1 cm above the knee._ _25. Abraded contusion 1.2 x 0.5 cm oblique on outer aspect of right knee.”_ According to PW20, the death of Cicily was caused due to injuries sustained on the neck and other parts of her body. Injury no.1 is independently sufficient to cause death. Medical evidence read with other circumstances clearly show that death of Cicily was a homicide which the trial Court also rightly concluded. 10. Next question to be answered is whether the injuries which led to the death of Cicily was inflicted by the appellant herein. It would be appropriate to look into the evidence of key witnesses in detail to come to a conclusion on that point. 11. PW7 is the son of the appellant and the deceased. He deposed that his mother was the second wife of the appellant. There was no legal marriage between his mother and the appellant. When they came to Ramapuram, the appellant, the deceased and himself began to reside in the house of PW6 Unni for rent which was at Pulparamukku. As the appellant was in the habit of quarrelling with his mother, both of them started living Crl.Appeal No.342/2014 -:16:- separately from the appellant. The appellant/accused purchased the house at Valakkattukunnu Colony and all the three lived together for two to three months in the said house. During that time also, the appellant manhandled the deceased. Hence, they again shifted to PW6's house and resided there. It is his version that the appellant always came there and picked up quarrels with his mother. So, PW6 asked them to vacate the house. Hence, his mother shifted their residence to a house at Amanakara, four months prior to the death of his mother. He further deposed that on 16/12/2012, his mother telephoned him and told him that she had started residing with the appellant at Valakkattukunnu Colony. On the date of incident, he went to the said house as PW8 Sophy telephoned him and told him that his father and mother were quarrelling. He reached the house at 07.30 p.m. and he saw his mother on the main road. Both of them went to the house and when they reached the courtyard, he found the mat and pillow of his mother lying in the courtyard. His father was lying inside the house on the cot. His mother told him that the appellant/accused had thrown the mat and pillow to the courtyard. There was a criminal case between Deepesh and his mother. The Crl.Appeal No.342/2014 -:17:- appellant/accused wanted Cicily to withdraw the said case. It is his version that he requested his father not to quarrel with his mother. His mother sent him away stating that if he remained there, there would be a brawl. According to him, when he went back, his mother and father alone were there in that house. He went to the house of PW8 and informed her about the incident. From there, at 08.05 p.m., he went to the house of his colleague at Ramapuram. While so, PW8 telephoned him and told that his father had caused hurt to his mother. Immediately he came to Valakkattukunnu Colony. At that time, he saw the local people and the police lifting his mother to take her to hospital. His father was not seen there. He accompanied his mother to the hospital. He also deposed that MO1 chopper was used in their house. MO2 churidar top, MO3 churidar bottom, MO4 mat, MO5 pillow, MO6 mobile phone and MO7 series chappal were identified by him as his mother's. During cross-examination, he deposed that he has no enmity towards his father. His father started to stay with them after he attained the age of 13 years. His mother filed a complaint against his father before Court at Pala and he was a witness in that case. He deposed that while they shifted to Crl.Appeal No.342/2014 -:18:- Amanakkara, his mother had given MO1 for sharpening and repairing. He took his mother to smithy for doing the same. 12. PW8 Sophy is the wife of PW6. She knows the appellant and the deceased for the last seven years. The appellant, the deceased and their son PW7 came from Ezhakaranadu and began to reside in their rented building at Pulparamukku. According to her, after some time, they shifted their residence to Valakkattukunnu Colony. After shifting to the said colony, the deceased and her son alone came back and stayed in their building due to the quarrel picked up by the appellant which was a daily affair. The appellant even came to the said rented house at Pulparamukku and made quarrels with the deceased. Cicily had filed a complaint against the appellant to the police and PW8 is a witness in that case. It is her further version that as the appellant had come there and made quarrel and scene, PW6 and herself asked the deceased to vacate their building and as a result, both the deceased and PW7 shifted their residence to Amanakara. On 16/12/2012, Cicily started residing with appellant Raju in the house at Valakkattukunnu Colony. It is her further deposition that on 21/12/2012, Cicily came to her Crl.Appeal No.342/2014 -:19:- house at noon. Cicily told her that the appellant was quarrelling with her and was threatening to kill her. At 05.00 p.m., Cicily again came back with the wheat purchased from the ration shop as requested by PW8. There was a criminal case pending between Cicily and Deepesh in connection with an assault on Cicily. Raju wanted to settle the said case for which Cicily was not willing. PW8 advised Cicily to agree with the appellant and live peacefully. Cicily asked for food. PW8 packed some food and gave it to Cicily and she left to her home with the same. After some time, PW8 contacted the deceased over phone. At that time, Cicily told her that the appellant was threatening to kill her by showing MO1 chopper. PW8 advised Cicily to go out of the house. But Cicily was determined not to go out. Immediately, she telephoned Rajeev (PW7) and asked him to go and pacify his parents. Rajeev came to their house at 08.00 p.m. and told her that he had gone to their house at Valakkattukunnu Colony and requested not to make quarrel. He also told PW8 that his mother advised him to leave the place to prevent further aggravation of the issue. PW8 again telephoned Cicily and asked why she had sent back Rajeev (PW7). Cicily explained that if PW7 remained Crl.Appeal No.342/2014 -:20:- there, the appellant would have quarreled with him also. It is the version of PW8 that at that time, she heard the appellant/accused shouting to Cicily to switch off the phone. PW8 again advised Cicily to move away from the house in vain. Between 08.30 p.m. and 09.00 p.m., PW3 called her over phone and told that the appellant had killed Cicily. She deposed that MO1 was given to the deceased by her while Cicily was shifting to Amanakara. She also identified MO7 chappal of Cicily as it was bought by them together. 13. PW6 Joseph @ Unni is the husband of PW8. He deposed that both the appellant and the deceased are known to him. Regarding the stay of the appellant and the deceased in their building and their subsequent shifting to Amanakara house, he deposed in tune with the version of PW8. According to him, on 16/12/2012, Cicily shifted her residence from Amanakara to the house of the appellant at Valakkattukunnu Colony for which himself and his wife PW8 helped Cicily. It is his version that Cicily had come to his home at noon on 21/12/2012 and stated that the appellant is always quarrelling with her. He advised her to live separately. He also deposed that at the time of shifting residence Crl.Appeal No.342/2014 -:21:- to Amanakara, his wife had given MO1 chopper for Cicily and Cicily had repaired it and she was using it in her house. 14. PW3 Sukumari is one of the key witnesses of the prosecution. She is a neighbour of the deceased. She deposed that she is known by name Kunjupennu. The deceased was her colleague in MGNREGA scheme. The appellant is the husband of the deceased and they were living together in the colony for 5 to 6 years. PW7 is their son. According to her, the appellant and the deceased were living separately because of quarrel. Cicily and Rajeev were living in a rented house at Pulparamukku. Cicily had died 3 to 4 days prior to Christmas in the year 2012. Cicily had come to the house of the appellant at Valakkattukunnu Colony one week prior to that incident. The said house is 10 to 12 metres away from her house. The house of PW4 Vilasini is in between the two houses. It is her evidence that there was power cut at 08.30 p.m., on the date of incident. The incident happened after 3 to 4 minutes of power failure. According to her, she had heard the cry of Cicily:"കുഞഞ്ഞിപപ്പെണഞ്ഞി ചചേചഞ്ഞിചയേ എപന്നെ പകകൊല്ലുകയേകൊചണ.” She took a torch and reached the house of Cicily. When she reached the Crl.Appeal No.342/2014 -:22:- kitchen side of the house of Cicily, she saw the appellant/accused coming out of the house and walking towards the panchayath well. It is her version that she asked the appellant as to what had happened. The accused replied that nothing had happened and he went away. She went to the courtyard of the said house and found Cicily lying in a pool of blood. She cried aloud and the neighbours came there. According to her, the appellant and the deceased alone were present in that house at that time. During cross-examination, she deposed that the deceased was younger to her. She also stated that she had not telephoned anyone. 15. PW4 Vilasini is another neighbour. She deposed facts regarding the stay of the appellant and the deceased in line with other witnesses. They were residing separately from the appellant. According to her, Cicily and Rajeev (PW7) started to reside together in the house of the appellant which is in their colony and in their neighbourhood, one week prior to the incident. Since then, there were quarrels between the appellant and the deceased. She deposed that Cicily died between 08.30 p.m. and 08.45 p.m. It was during power cut. She heard the cry of Crl.Appeal No.342/2014 -:23:- Cicily: “എടടീ പപെണഞ്ഞിചയേ, എപന്നെ പകകൊല്ലുകയേകൊചണ.” According to her, PW3 Sukumari is also known as Kunjipennu. It is her version that to go to the main road from Raju's house, one need to pass near the Panchayath well. She identified the appellant in Court. 16. PW2 Shyamala is a close neighbour of the appellant and the deceased. Her house is four metres away from the said house. According to her, there was no power supply to the colony. Incident happened during the time of power cut. She was cleaning fish in the kitchen. When she came out of the house, she saw a lot of people in the courtyard of the house of the appellant. It is her version that the appellant was residing alone in that house. One week prior to the incident, the deceased was seen in the house. While she came out to throw away the dirty water, she heard Cicily crying: ““കുഞഞ്ഞിപപ്പെണടീ ഓടഞ്ഞി വകൊചയേകൊ ഇവപനെപന്നെ പകകൊല്ലുകയേകൊചണ..” She rushed to the spot and found Cicily lying in a pool of blood with injuries. PW3 Sukumari @ Kunjippenni also reached there and cried aloud. People gathered there. She did not see the appellant there. She identified the appellant in the Court. 17. PW9 deposed that he was residing in the same colony Crl.Appeal No.342/2014 -:24:- 2 to 3 houses away from the house of the appellant. He stated that Cicily was killed on 21/12/2012 during a power cut time. He heard the cry of Cicily and went to the place. It is his version that at that time, he saw the appellant/accused coming through the pathway near the Panchayath well. He asked the appellant/accused as to what he had done to Cicily. The appellant did not reply. Appellant entered the main road and went away. According to him, the appellant was residing alone in that house. Cicily had come one week prior to the incident. During cross examination, he deposed that he heard the cry of Cicily and saw the appellant five minutes after hearing Cicily's cry. 18. PW10 turned hostile to the prosecution. But he deposed that on the date of incident, the appellant came to his house at 09.00 p.m. and called him through the window. He opened the door and asked why he had come at that odd time. The appellant replied that some incident had taken place in his house. The appellant asked for a beedi and PW10 gave it. He asked what had happened, to which the appellant did not reply. When PW10 went inside the house for making a call, the appellant went away. Crl.Appeal No.342/2014 -:25:- 19. PW11 is a blacksmith. He deposed that he sharpened and put a new handle to MO1 chopper as per request of a woman. He came to know from police that the said lady is dead. According to him, the lady who came and collected MO1 from him came in a vehicle with some luggage and she told him that she was shifting her house. 20. On going through the evidence of the aforesaid witnesses, it can be seen that the following aspects stand proved either as unchallenged or is inferred by necessary implication: (i) The appellant and the deceased were living together as husband and wife for about 28 years in different places though there was no valid marriage between them. PW7 Rajeev, is born out of that relationship. Out of the above 28 years, most of the time they were not living together. For seven years prior to the incident, they were living together and there was frequent quarrel between them. (ii) The appellant and the deceased resided together in the house of PW6 Joseph @ Unni at Pulparamukku for one year on rental basis and there also were frequent quarrel between the appellant and the deceased and a criminal case was registered Crl.Appeal No.342/2014 -:26:- by the deceased against the appellant. Evidence of PW7 Rajeev who is the son of the appellant and the deceased shows that the appellant had manhandled the deceased earlier also and that she lodged a complaint in connection with the same. PW6 and PW8 corroborate the said version. (iii) The deceased and PW7 were living separately from the appellant as there were frequent quarrels. PW6 and PW8 corroborate his version. One week prior to the incident, the appellant approached the deceased and entered into a settlement and brought her back to his house namely Kavanakudi House, Valakkattukunnu Laksham Veedu Colony in Ramapuram Panchayat, which is the place of occurrence. (iv) The appellant, the deceased and PW7 started living in the said house from 16/12/2012. Within two days, the appellant started quarrelling with the deceased. (v) The deceased bought MO1 chopper for household purposes from PW8, who is the wife of PW6 and brought it to the house of the appellant and the said chopper was sharpened and a handle was put on it by PW11 and it was available in the house of the appellant during the relevant time. Crl.Appeal No.342/2014 -:27:- (vi) PWs 1, 2, 3, 4, 5 and 7 deposed that on 21/12/2012 between 08.30 p.m. and 09.00 p.m., which was the time of power supply cut by KSEB in the locality, Cicily was found lying in a pool of blood on the verandha of Kavanakudi house, Valakkattukunnu Colony in Ramapuram Panchayath, with fatal injuries on her body including neck injury. She was taken to the hospital by police with the help of PW1 and was brought dead to Taluk Hospital, Pala. Ext.P8 is the death intimation prepared by PW15. (vii) PW20 who prepared Ext.P14 post-mortem report opined that death of Cicily was caused due to the injury sustained to the neck (injury no.1). Out of the five injuries on the neck, injury no.1 had cut the wind pipe, oesophagus and jugular vein. It was sufficient in the ordinary course of nature to cause death. According to him, the said injuries could be caused by MO1. (viii) On the date of incident, the deceased came to the house of PW6 and PW8 and told them that the appellant was making quarrels with her and he is threatening to kill her. (ix) On the same day, at 05.00 p.m., the deceased came to PW8 and told her about the same threat and her fear over the same. PW8 consoled her and sent her back to the house of the Crl.Appeal No.342/2014 -:28:- appellant with an advice to live peacefully with the appellant. (x) PW8 contacted Cicily over phone at about 07.00 p.m. and Cicily told her that the appellant is threatening to kill her with MO1 chopper. She advised Cicily to go away from the house but Cicily did not agree. Immediately, PW8 contacted PW7 over phone and told him to go and pacify his parents from quarrelling. (xi) PW7 reached the house at 07.30 p.m. and he saw his mother on the main road. Both of them went to the house and when they reached the courtyard, he found the mat and pillow of his mother lying in the courtyard. His father was lying inside the house on the cot. His mother told him that the appellant/accused had thrown the mat and pillow to the courtyard. There was a criminal case between Deepesh and his mother. The appellant/accused wanted Cicily to withdraw the said case. It is his version that he requested his father not to quarrel with his mother. His mother sent him away stating that if he remained there, there would be a brawl. According to him, when he went back, his mother and father alone were there in that house. He went to the house of PW8 and informed her about the incident. (xii) By 08.00 p.m., PW8 again contacted the deceased Crl.Appeal No.342/2014 -:29:- over her phone (MO6) and asked why she had sent back PW7. She explained the reason and at that time PW8 heard the appellant shouting to Cicily to switch off the phone. Cicily also told PW8 that the appellant is threatening her by showing MO1 chopper. PW8 advised her to move away from the house but Cicily did not heed. (xiii) PW3 deposed that there was power cut at 08.30 p.m. on the date of incident. The incident happened after 3 to 4 minutes of power failure. PW3 heard the cry of Cicily: "കുഞഞ്ഞിപപ്പെണഞ്ഞി ചചേചഞ്ഞിചയേ എപന്നെ പകകൊല്ലുകയേകൊചണ _.”_ She took a torch and reached the house of Cicily. When she reached the kitchen side of the house of Cicily, she saw the appellant/accused coming out of the house and walking towards the Panchayath well. It is her version that she asked the appellant as to what had happened. The accused replied that nothing had happened and he went away. She went to the courtyard of the said house and found Cicily lying in a pool of blood. She cried aloud and the neighbours came there. The appellant and the deceased alone were present in that house at that time. Crl.Appeal No.342/2014 -:30:- (xiv) PW4 deposed that there were quarrels between the appellant and the deceased. Cicily died between 08.30 p.m. and 08.45 p.m. It was during power cut. She heard the cry of Cicily: _“_ എടടീ പപെണഞ്ഞിചയേ _,_ എപന്നെ പകകൊല്ലുകയേകൊചണ _.”_ According to her, PW3 Sukumari is also known as Kunjipenni. (xv) PW2 deposed that the appellant was residing alone in that house. One week prior to the incident, the deceased was seen in the house. She heard Cicily crying: _“_ കുഞഞ്ഞിപപ്പെണടീ ഓടഞ്ഞി വകൊചയേകൊ ഇവപനെപന്നെ പകകൊല്ലുകയേകൊചണ _..”_ She rushed to the spot and found Cicily lying in a pool of blood with injuries. (xvi) PW3 Sukumari @ Kunjippenni also reached there and cried aloud. People gathered there. She did not see the appellant there. (xvii) PW10 deposed that on the date of incident, the appellant came to his house at 09.00 p.m. and called him through the window. He opened the door and asked why he had come at that odd time. The appellant replied that some incident had taken place in his house. The appellant asked for a beedi and PW10 gave it. He asked what had happened, to which the appellant did Crl.Appeal No.342/2014 -:31:- not reply. When PW10 went inside the house for making a call, the appellant went away. (xviii) PW25 recovered MO1 chopper as per Ext.P13 mahazar based on Ext.P18 disclosure statement of the appellant from the place shown by the appellant which was within the exclusive knowledge of the appellant. PW19 is a witness to the said recovery. (xix) Ext.P26 is the FSL report. Item no.13 is the lunki worn by the appellant. Human blood was detected in the said item and the appellant had no explanation for the same in 313 examination. 21. The above evidence would clearly show that the appellant was keeping a grudge with the deceased and on the date of incident also, he quarrelled with the deceased. Their son PW7 had seen the appellant and the deceased last together at about 07.30 p.m. PWs 2, 3, and 4 categorically deposed that they heard a loud cry of the deceased from the house of the appellant. It is true that there are minor variations in the deposition of these rustic witnesses regarding the words the deceased yelled at the time of incident. The fact that they heard a loud cry, calling Crl.Appeal No.342/2014 -:32:- Kunjipenni at the time while she was being hit/stabbed is clear from the said evidence. Even if there is some difference in the actual words, that by itself is not sufficient to discard their evidence. They are rustic witnesses, whose recollection of the actual words may not exactly match with that of each other. We are of the view that they are truthful witnesses and their evidence can be relied upon. Further the evidence indicates that the deceased cried aloud calling Kunjippennu and stated that she was being killed. PW3 and PW9 saw the appellant leaving the house from behind through the Panchayath well towards the main road. It is also brought in evidence that apart from the appellant and the deceased, there was none in that house. Within a very short span of time, when cry of the deceased was heard, the appellant was found by PW3 and PW9 near the Panchayath well. The identity of the appellant is clearly established by the prosecution. 22. Though there is no eyewitness to the incident, the accused and deceased were last seen together at 7.30 pm in their house by their son PW7. Thereafter, prosecution examined PW2, PW3 and PW4, who heard Cicily crying. PW4 stated that Crl.Appeal No.342/2014 -:33:- Cicily died between 8.30 p.m. and 8.45 p.m. PW3 saw accused walking away from the house at about 8.30 p.m. Her evidence is supported by PW9 also. Therefore, the presence of the accused at the time when Cicily suffered the injury is proved by cogent evidence. It is settled law that last seen together itself is not a conclusive proof to presume guilt of the accused. But when the accused was last seen along with the deceased and when considered along with other circumstances like relation between the accused and deceased, enmity between them, previous history of hostility and non-explanation of the death of the deceased etc., may lead to presumption of guilt of accused { _**Ashok v. State of Maharashtra**_ [(2015) 4 SCC 393]}. 23. Recovery of MO1 chopper at the instance of the appellant based on his disclosure statement Ext.P18 stands proved. The dress of the appellant was found with human blood for which he had no explanation. 24. Altogether 26 ante-mortem injuries were noted in the dead body of Cicily. The injuries were brutal. His intention is evident from his acts. All the circumstances proved by the prosecution unerringly points to the guilt of the appellant herein. Crl.Appeal No.342/2014 -:34:- The trial Court is fully justified in arriving at its conclusion and we find no room to disturb the same. In the result, the appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge