Rasheed v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938 ## CRL.A.No. 1262 of 2013 (B) AGAINST THE JUDGMENT IN S.C.NO.370/2011 ON THE FILE OF THE COURT OF THE 3[rd] ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA DATED 28.12.2012 C.P.NO.7/2011 OF JFCM, DEVICOLAM ## APPELLANT: ACCUSED: RASHEED, S/O.SUBAIR, C.NO.9423, CENTRAL PRISON, VIYYUR. BY ADV. SMT.V.O.PHILOMINA - STATE BRIEF ## RESPONDENT: COMPLAINANT: STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUNNAR POLICE STATION. (CRIME NO.443/2009 OF MUNNAR POLICE STATION) BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.TOM JOSE PADINJAREKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2016, THE COURT ON 19.12.2016 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.** ----------------------------------------- Crl.Appeal No.1262 of 2013 ----------------------------------------Dated this the 19[th] day of December, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ The sole accused in Sessions Case No.370 of 2011, on the file of the III Additional Sessions Judge (Adhoc-I), Thodupuzha, is the appellant. He challenges his conviction and sentence for the offences under Sections 302 and 392 of the Indian Penal Code. The appellant was sentenced to undergo imprisonment for life and to pay a fine of `25,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three years under Section 302 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `25,000/- and in default of payment of fine, to undergo rigorous imprisonment for three years for the offence under Section 392 of the Indian Penal Code. 2. The prosecution case, in a nutshell, is the following : Crl.Appeal No.1262/2013 2 Jilu, the deceased, was the wife of Suresh (PW17). She was working in an Anganvady. She used to walk to the Anganvady in the morning and come back to her house at about 3.00-4.00 P.M., through old Aluva-Munnar road. On 6.7.2009 also, Jilu went to Anganvady for her work. However, she did not return home till the evening. Her husband contacted his friends and enquired about the whereabouts of Jilu. He went out in search of his wife along with his friends. Somebody found the dead body of Jilu lying in the property of Saramma, close to AluvaMunnar road. It is an isolated area. The husband of Jilu came to the spot and identified the dead body of Jilu. He found stab injuries on her neck. Her ornaments were seen lost. The prosecution case is that the accused committed murder of Jilu and also committed theft of her ornaments. Thus he committed the offences under Sections 302 and 392 of the Indian Penal Code. Crl.Appeal No.1262/2013 3 3. The occurrence was at about 3.20 P.M. on 6.7.2009. Exhibit P1 First Information Statement was lodged by PW1, a friend of the husband of Jilu, on 6.7.2009, at about 10 P.M., on the basis of which PW24 registered Exhibit P11 FIR. The inquest was conducted in the presence of PWs 5 and 6 and Exhibit P4 inquest report was prepared. The accused was arrested on 7.7.2009. On the basis of Exhibit P5(a) confession statement, MO13 knife, which was the weapon of offence, was recovered as per Exhibit P5 scene mahazar. The recovery was witnessed by PW13 and PW14. The postmortem was conducted by PW18 and Exhibit P6 postmortem certificate was issued. 4. Before the Sessions Court, PWs 1 to 28 were examined, Exhibits P1 to P18 were marked and MOs 1 to 17 were identified on the side of the prosecution. DW1 was examined on the side of the defence and Exhibits D1 and D2 Crl.Appeal No.1262/2013 4 were marked. 5. PW1 and the husband of Jilu used to go for the work at the same place. PW1 came to know that Jilu died as a result of stab injuries. PW1 along with his friends went to the place of occurrence by about 10 P.M. He saw the dead body and the injuries sustained by the victim. He did not see the chain and bangle on the body of Jilu. He gave Exhibit P1 F.I.Statement before the police. PW1 also stated that the appellant was an accused in another murder case. 6. PW2 is an Adivasi and she belongs to Muthuvan community. She knew the accused and Jilu. She came to know about the incident during night. Her house is situated at 50[th] mile near Aluva - Munnar road. Jilu used to go to Anganvady through the way near the house of the witness. PW2 stated that on the date of the incident, at about 3 P.M., Jilu passed through that way. PW2 also saw the accused moving stealthily behind Crl.Appeal No.1262/2013 5 Jilu. He concealed himself near a bamboo cluster. Thereafter, he went behind Jilu. PW2 came to know of the death of Jilu when some others informed her during night. On the next day, she saw the dead body of Jilu. The witness stated that Jilu used to wear chain and bangle, but those articles were not seen on the dead body of Jilu. 7. PW3 is a friend of Jilu. She came to know of the death of Jilu at about 6.45 P.M. The witness was running a tea shop. On the date of the incident by about 3 to 4 P.M., she saw Jilu while she was returning from Anganvady. On the western side of the tea shop, there is a TV Centre Kavala. Jilu's house is on the side of Aluva - Munnar road. The house of PW2 is also on the side of the road. At 3 P.M., Jilu came to the shop of PW3 and purchased milk and thereafter, she went home. Jilu used to wear chain and bangle. The witness met Jilu last when she came to the shop on 6.7.2009. She saw the dead body of Jilu Crl.Appeal No.1262/2013 6 during night. The dead body was lying in the property of Saramma (PW16). At that time, the witness did not see the chain and bangle on the dead body of the deceased. She also saw stab injuries on her neck. Blood was oozing out from the nostrils and the ears. The witness stated that the accused used to come to her shop. On the date of the incident, she saw him. Later at about 2.30 P.M., the accused called PW3 over phone and enquired whether Jilu's husband was there. PW3 stated that he was not there. The accused also asked the time when Jilu used to return from Anganvady. The accused stated that he was also coming to the place and snapped the phone. (This part of the statement in evidence that the accused called her over phone was not stated by her to the police). The witness also stated that when she enquired with the accused as to why he want to meet Jilu, the accused stated that he wanted to borrow some money from Jilu. The witness also stated that two or three days before Crl.Appeal No.1262/2013 7 the death of Jilu, the accused had also requested to lend money to him, but she was not having any money. 8. PW4 Palaniswamy knew the accused and Jilu. His house is near the pathway from TV Centre road to Aluva - Munnar road. Jilu used to come to Anganvady through the pathway on the side of his house. On the date of the incident, by about 2 P.M., the accused came to the house of PW4 and talked to him. When PW4 entered into the house, the accused left by about 2.30 P.M.. This witness also saw the dead body of Jilu. 9. PWs 5 and 6 are the witnesses to the inquest report. PW7 knew the accused and Jilu. He is a neighbour of Jilu. On the date of the incident, at about 5 P.M., Jilu's husband met him and stated that Jilu did not return to the house. The witness also went with Jilu's husband and enquired about the whereabouts of Jilu. They saw the dead body of Jilu in Saramma's property. Crl.Appeal No.1262/2013 8 One Sudhakaran was also with them. He informed the police over phone and the police party came to the spot. 10. PW8 Pappu is the father of the deceased. He was informed that Jilu did not return to her house on the fateful day. He went to the spot. When he was at Adimaly, he came to know about the death of Jilu. He saw the dead body and saw the injuries. 11. PW9 Suresh is the brother in law of Jilu. He came to know of the death of Jilu by 7 P.M. After midnight, he went to the spot. He was present at the time of inquest. PW10 resides 300 mtrs. away from the house of Jilu. He knew Jilu and the accused. He came to know of the death of Jilu and saw the dead body at Saramma's property. 12. PW11 Raju is a driver in KSRTC. He knew the accused and the deceased. On 6.7.2009, at about 4.30 - 5 P.M., he saw the accused at sixth mile near the house of the witness. Crl.Appeal No.1262/2013 9 The accused requested him to purchase liquor. The witness owned a jeep. He called his driver and requested him to bring liquor. The witness, the accused, Biju and Robin consumed liquor at the jeep shed and they were together for about one hour. By about 7 P.M., the party was disbursed. 13. PW12 is a neighbour of the accused. He knew Jilu also. The witness runs a tea shop at sixth mile. At about 5.30 P.M., on 6.7.2009, the accused came to his tea shop and took two cups of tea. He had also taken snacks. The accused called somebody over phone. The father of the accused came to the tea shop and the accused and his father remained together for about one hour near the shop. He also saw PW11 at that place. The witness stated that the accused was involved in a murder case earlier. In cross examination, the witness stated that the accused is a dare devil. He would kill somebody again as he has no reluctance to do so. Crl.Appeal No.1262/2013 10 14. PW13 is Linsy Thomas. She is a witness to the seizure mahazar of MO13 knife. She stated that the accused and the police came to the property of one Soman at sixth mile and the accused took out MO13 from a hidden place. PW14 Vijayan also stated that he witnessed the recovery of MO13 knife. He signed as a witness in Ext.P5 mahazar. 15. PW15 is a goldsmith. He examined MO11 chain and MO12 bangle. On examination, he found that those articles were not made of gold. PW16 Saramma is the owner of the property where the dead body of Jilu was found. She stated that the pathway leading to TV Centre is near to that property and Jilu used to go home through that pathway. 16. PW17 Suresh is the husband of Jilu. He stated that Jilu went to Anganvady in the morning. She did not return even by 4 P.M. By about 5 P.M., he enquired about Jilu at sixth mile. But he did not see her and he came back to his house. Bindu, Crl.Appeal No.1262/2013 11 wife of Sunny, came to his house and stated that Jilu was found in the property of Saramma. The witness went there and found the dead body of Jilu. There was blood on her face. She was dead at that time. Jilu used to wear chain, nose stud and bangle. The bangle and chain were not made of gold. 17. PW18, the Assistant Professor of Medical College, Kottayam, conducted postmortem examination of Jilu and issued Exhibit P6 postmortem certificate. The ante-mortem injuries noted in Exhibit P6 are the following : ## “Injuries (Ante-Mortem) 1. Stab wound on front of neck 4 x 0.5 cm. Transverse, 2.5 cm. above angle of Luis and the inner right end at midline. The inner end blunt and outer end pointed with a tailing outwards of 0.5 cm. The wound directed downwards and made a nick on mediastinal connective tissue 2 x 0.5 cm. 2. Stab wound on left side of neck 3x0.5 cm. Transverse, 2.5 cm. vertically below ear lobule. The front end blunt, back end pointed. The wound cut the skin connective Crl.Appeal No.1262/2013 12 tissue, the vagus nerve, the common carotid, artery and left thyroid artery were severed and passed underneath the oesophagus horizontally towards right for a total minimum length of 7.50 cm.” 18. In Exhibit P6 postmortem certificate, the doctor opined that the death of Jilu was due to stab injury sustained to neck. PW19 is the Scientific Assistant in the unit of FSL. He examined the scene of occurrence and collected samples. He also stated that the inner aspects of the finger nails of the accused were examined by him in the presence of the investigating officer. On examination, blood traces could be detected in the finger nails. PW20 is the Village Officer who inspected the place of occurrence and issued Exhibit P8 certificate. PW21 assisted the Circle Inspector to prepare the inquest report. PW22 was on bandobast duty in the place. PW23 Civil Police Officer signed as witness in Exhibit P9 mahazar while the dress of the accused were seized and Exhibit Crl.Appeal No.1262/2013 13 P10 mahazar in respect of the chain and bangle. PW24 registered Exhibit P11 FIR. PW25 is the investigating officer. He narrated the various steps taken during investigation. PW26 is the Village Officer who prepared Exhibit P18 plan. PW27 guarded the scene of occurrence. PW28 took the nail clippings of the accused. 19. DW1 is the mother of the accused. She stated that on the date of the incident, the accused was in her house and the accused had not gone out on that day. She also stated that on the date of the incident, a medicine vendor was near the place of the incident and he must be the person responsible for the death of Jilu. She admitted that the accused was involved in another murder case. 20. From the evidence available in the case, it can be seen that there is no eye witness to the incident. Only circumstantial evidence is available in the case. The court Crl.Appeal No.1262/2013 14 ## below stated that the following circumstances are available in the case. - “a) Deceased Jilu used to return from Anganvady at 3 P.M. - b) Jilu used to travel through an isolated short cut pathway leading from T.V. Centre and thereafter through Old Aluva-Munnar road. - c) Jilu used to wear chain and bangles. - d) On 6.7.2009 at about 2.30 P.M. the accused rang PW3 and enquired about the time of arrival of Jilu from Anganvady. - e) On 6.7.2009 between 2.30 and 3 P.M. the accused was seen stealthily following Jilu through the pathway. - f) Jilu was found missing till the evening. - g) Between 5.45 P.M. and 6 P.M. dead body of Jilu was seen near the pathway. At that time, injuries were seen on her neck and her bangles and chain were seen lost. - h) Between 4.30 P.M. and 5 P.M. the accused was present at 6[th] mile. - i) Jilu died between 3 and 4.30 P.M. due to stab injury. - j) On 7.9.2009 at the time of arrest of the accused, chain and bangles worn by Jilu were recovered from his possession. Crl.Appeal No.1262/2013 15 - k) As per the confession of the accused, MO13 knife was also recovered from the property of Soman. - l) Human blood was detected in the place of incident, lunki of the accused and hairs of the deceased. - m) Accused was in need of money on those days.” 21. The court below analysed the evidence in the case and considered as to how far the prosecution could prove the circumstances beyond reasonable doubt. The findings thereon with respect to each and every circumstance were stated by the court below in paragraphs 39 to 65 of the judgment. 22. When the accused was examined under Section 313 of the Code of Criminal Procedure, he stated that the present case was foisted against him on account of the fact that he was involved in another murder case. The accused stated that on the date of incident, in the present case, he was at his residence. On the next day, he was called to the police station and he was arrested. The police manhandled him and he was falsely Crl.Appeal No.1262/2013 16 implicated in the case. 23. The learned counsel for the appellant submitted that the circumstances brought out in evidence are of doubtful veracity and the circumstances do not constitute a complete chain and the facts established are not consistent only with the hypothesis of the guilt of the accused. It is also submitted that the circumstances are not conclusive in nature and they do not exclude every possible hypothesis of innocence of the accused. 24. The Additional Director General of Prosecution submitted that the circumstances were proved beyond reasonable doubt. The proved circumstances constitute a complete chain of events which would lead to the only hypothesis of the guilt of the accused. 25. The evidence available in the case would disclose the following: On 6.7.2009, at about 3 P.M., while Jilu was returning to Crl.Appeal No.1262/2013 17 her house from Anganvady, the accused stealthily followed her. Thereafter, the dead body of Jilu was found in the property of Saramma near the pathway. She had sustained stab injuries on her neck and ornaments were seen lost. On arrest of the accused, the ornaments were found from the possession of the accused. Based on the confession made by the accused and as led by him, the police went to the place where the weapon of offence was concealed and he took out the same in the presence of the witnesses. Human blood was noted on the dress of the accused. The accused was last seen together with Jilu. There is no other evidence to indicate that any person other than the accused had seen her before her death. The presence of the accused at the place of the incident at the relevant time was established. It has come out in evidence that the accused was in need of money. The motive for the crime is also established. The accused did not offer any explanation regarding the Crl.Appeal No.1262/2013 18 incriminating circumstances against him. The medical evidence in the case would establish that the injuries sustained by Jilu were fatal and those injuries could be caused by a weapon like MO13. There is no case for the accused that the prosecution witnesses had an axe to grind against him. In the answers given by the accused in his examination under Section 313, he did not explain the circumstances against him. On the other hand, he raised a false plea of alibi. 26. In **Pradeep Singh v. State of Rajasthan : AIR 2004 Supreme Court 3781** , the Supreme Court held that it is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 of the Code of Criminal Procedure. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his Crl.Appeal No.1262/2013 19 disclosure statement duly proved is a very positive circumstance against him. This view was taken in **Aftab Ahmad Anasari v. State of Uttaranchal : AIR 2010 Supreme Court 773** as well. These decisions were followed by the Supreme Court in **Neel Kumar @ Anil Kumar v. State of** . **Haryana : 2012 (5) SCC 766** 27. On a careful analysis of the evidence available in the case and on a careful reading of the judgment of the court below, we concur with the view taken by the court below that all the circumstances proved in the case form a complete chain, so as to establish the guilt of the accused and that the circumstances are incompatible with innocence of the accused. The unexplained possession of MOs 11 and 12, the ornaments of the deceased, by the accused is an additional link in the chain of circumstances against the accused. We also concur with the view taken by the court below that all the proved circumstances Crl.Appeal No.1262/2013 20 form a complete chain which unerringly point towards the guilt of the accused. For the aforesaid reasons, we do not find any ground to interfere with the conviction and sentence. The Criminal Appeal is accordingly dismissed. **K.T.SANKARAN Judge** **A.MUHAMED MUSTAQUE Judge** csl