Sabu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 CRL.A NO. 77 OF 2019** **AGAINST THE ORDER/JUDGMENTSC 370/2012 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM** **CP 46/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ERATTUPETTA APPELLANT/S:** SABU AGED 58 YEARS S/O PADMANABHAN, KUMARIYARUPARAMBIL HOUSE, KARYAD KOKKAVALAVU BHAGOM VELLIKULAM KARA, TEEKOY VILLAGE PRESENTLY AT,C .NO. 1368 CENTARL JAIL, VIYYUR, THRISSUR- 680 010 BY ADV ADV.YEMUNA P.(STATE BRIEF) ## **RESPONDENT/S:** STATE OF KERALA REP BY THE CIRCLE INSPECTOR OF POLICE, ERATTUPETTA BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.77 of 2019 2 ## **K. VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** **---------------------------------------------Crl.Appeal No.77 of 2019 ---------------------------------------------Dated this the 2[nd] day of August, 2022** ## **JUDGMENT** ## **K. Vinod Chandran, J.** The accused; a life convict, six months after his release, was again accused of murdering his wife. The earlier conviction was also for the murder of a woman, following the same _modus operandi_ ; smashing the face in with a stone. The accused stood trial in which, the prosecution examined 20 witnesses marked Ext.P1 to 20, some in series and produced MO1 to MO12. The trial court convicted the accused and sentenced him to undergo life imprisonment for the offence under Section 302 IPC and imposed a fine of Rs.25,000/- with default imprisonment for one year. The accused is in appeal and we heard Adv. Yemuna B. , learned State Brief and Smt. S. Ambika Devi, (Special GP For Atrocities against Women and Children). 2. The learned counsel for the appellant argued that the case is one based on circumstantial evidence and it cannot be said that there is a complete chain of circumstances clearly inculpating the accused. The deceased was found dead in a deserted property, the caretaker of which, PW10, spoke of the property being frequented by anti-socials and hooch Crl.Appeal No.77 of 2019 3 distillers. There was always a possibility of the deceased having been killed by anti-socials and the police had not investigated whether the victim was subjected to a sexual offence. The last seen theory cannot be relied on, since the witnesses who first found the body deposed that, the crime scene was around 1 ½ hours walking distance from the house of the deceased. PW4, an 80 year old man, is said to have seen the accused and the deceased near their house, proceeding to the crime scene at around 2'o clock, in which event, the accused would have been back only, earliest, by 5'o clock. PW5, a neighbor, spoke of having seen the accused at around 3.30 infront of his house. The learned counsel would also argue that it cannot definitely be termed as a homicide since the body was found in a place where there were half walls built with boulders and a fall could have resulted in the injuries on the deceased. The learned counsel specifically emphasized the enmity nurtured by the children of the accused and the allegation of the deceased being of loose morals. The children of the accused feigned ignorance of one Murugan, who worked in their property, who was also alleged to have an illicit relationship with their mother, the deceased. However, PW4 spoke of the said Murugan and there was no investigation conducted with respect to the said person. The wild narrative of the children that there were three pits dug by the Crl.Appeal No.77 of 2019 4 accused to bury the mother and two children, remained just an allegation, without any proof. The statement was also not made by them to the police under Section 161; a most relevant omission. The learned counsel asserts that this is a fit case where the benefit of doubt has to be conceded to the accused. 3. The learned Special Government Pleader asserts that the death was a homicide, especially going by the number of injuries, and the last seen theory stands established. Especially in a village setting, there cannot be an overemphasis on the exact time spoken of by the witnesses and merely for that reason, PW4 and 5 cannot be disbelieved. It was the accused who pointed out the place of occurrence and near the body was found, a stone having traces of blood. The lies spoken of by the accused when his wife was found missing, that too, two different versions, and his strange behavior spoken of by his children and daughter in law is yet another strong circumstance against him. The marital discord has been spoken of by the children and the accused was a life convict who employed the same _modus operandi, as_ in the earlier case. To bring home the significance of the last seen theory, the State relied on ## _**Soorajdeo Mahto v. State of Bihar AER 2021 SC 3643.**_ 4. The case is based entirely on circumstantial evidence and we Crl.Appeal No.77 of 2019 5 would first look at the contentions raised by the accused against the theory of homicide. PW 15 is the doctor who conducted postmortem examination and marked Ext.P6 certificate. There were 28 ante-mortem injuries deposed by the doctor; which were lacerated wounds, abrasions and contusions, with loss of eight teeth, four from the upper jaw and four from the lower and the sockets showing infiltration of blood. It is impossible for the numerous injuries so found on the body to have been caused in a fall. The opinion as to cause of death was stated to be the combined effect of injuries sustained to neck, head and face. Injury Nos. 13, 23 and 24 were also deposed to be sufficient in the ordinary course, to cause death. The stone recovered from the crime scene, marked as MO8, was shown to the doctor who confirmed that it can be used as a dangerous weapon and the injuries on the dead body could having been caused by hitting with the stone. The death was by homicide and that too a brutal one of the assailant having repeatedly hit the face and head of the victim with a hard object, presumably MO8, on which was detected blood; in the benzidene test conducted by the scientific assistant, PW18; on the next day of detection of the body. There is also no evidence of a sexual offence having been committed since the corpse found naked was examined thoroughly and the condition of hymen and external genitals Crl.Appeal No.77 of 2019 6 as noted in Ext.P6 did not disclose any such offence having been committed. We also do not find any merit in the contention of the accused that the probable time of death as spoken of by the doctor, ie: between 18 to 48 hours, does not tally with the prosecution case. In fact the postmortem examination as per Ext. P6 was carried out on 3.7.2012 between 2.30 p.m. and 4.30 p.m., while the death, as per the prosecution case was on the afternoon of 1.7.2012. The last seen theory propounded by PW4 puts the time at around 2 p.m. The time spoken of by the doctor perfectly tallies with the prosecution case of the death having occurred within 48 hours before the postmortem was conducted. 5. The circumstances leading to the detection of the body was spoken of by the two children of the accused and the deceased, PW1 and 2 and their daughter in law, PW3. PW1 was the first informant who made Ext.P1 FIS before the Eerattupetta Police Station, on 2.7.2012 at 8 p.m. According to the FIS, the 42 year old mother of the first informant was missing between 10.30 a.m. and 4 p.m. on 1.7.2012. PW1 is a laborer and he has two siblings, his elder sister having been married off. His parents, the accused and the deceased were staying along with his younger brother, aged 15 years. His father was convicted in a case, of murder of a girl and was released on the 14[th] January of that year, after which he was Crl.Appeal No.77 of 2019 7 residing in their family house along with his wife and younger son. On 1.7.2012, at around 10.30, the first informant summoned his younger brother for the purpose of purchasing a home theater. His brother came immediately and spoke of their parents having breakfast, when he left their family house. After the purchase, his brother accompanied the first informant to his house and then went back to the family house. From the family house, the younger brother called the elder one, over the telephone and spoke of their mother having been taken by their uncle, since their grandmother took sick. She was scheduled to come on the next day afternoon and this information was passed on to the younger brother by their father; when he enquired about his mother, who was not found in the family house, when he returned. The mother did not return even on the next day and the first informant enquired with their relatives at Edattu, Moolamattom. He was informed that his mother had never come there and hence they made enquiries at the house of other relatives also. Unable to trace out the whereabouts of their mother, they remembered the threats leveled by the father against the life of the mother. The father had also changed the earlier version and told his sons that their mother had gone with somebody else and there is no need to inquire about her. The FIS obviously was one of man missing. Crl.Appeal No.77 of 2019 8 6. PW1, the first informant spoke in tune with the FIS and he added that his father used to often accuse his mother of having lived a fast life, when he was suffering the sentence imposed in the criminal case. He was also angry with his wife for not having attempted to release him on parole. There was also an incident in which the father dug three pits in their property declaring it to be for the mother and two children. He also deposed that according to PW2, their father had informed him that their mother had been taken to tend to the grandmother by her own brother in law, one Mohanan, the husband of PW14. PW1 hence inquired with PW 7, another sister of his mother, who did not have any information about the illness of the grandmother nor did she have the telephone number of the family at Edattu. On the next day, PW1's father had gone to Kottayam for the purpose of appearing before the police station and on his way back, came to PW1's house. He asked for PW1, to his wife and PW1 came out to see his father in a disturbed state. It was his deposition that then, his father told him that their mother had gone with another person. When PW1 queried his father about the earlier version of his mother having gone with her brother in law, the accused laughed and informed him that in fact she had gone with another person. Later, the younger brother came to the elder one and told him that the Crl.Appeal No.77 of 2019 9 sari and slippers, usually worn by his mother when going out, was still in their house. He also told Pw1 that there was an allegation that their mother had eloped. Being suspicious, the brothers took an auto-rickshaw and proceeded to Edattu, where they found their grandmother hale and hearty and their aunt, PW14, denied her husband having brought their mother to Edattu. They returned back and questioned their father when he repeated that his wife had gone to Edattu. 7. Immediately, PW1 called PW6 and together they went to the police station to give the FIS, which we have to notice is of 'man missing'. The SI and three police men accompanied them back to their house. When questioned, the accused said that his wife had gone out dressed in a red sari and black chappals, both of which were available inside the house itself. Their father was questioned, when he confessed that he went with her to the Thiruvallam property, where he killed her with a stone. Immediately the police party along with PW1, PW6 and one Jaimon, went to the property, as led by the accused. In the property, PW1 saw the dead body of his mother covered in her nighty and with the undergarments placed nearby. He identified MO1 chappal of his mother and the plastic carry bag, MO2, as also a green cloth marked as MO3, used by his father as a shawl. MO4 was identified as the chopper used in Crl.Appeal No.77 of 2019 10 the house and MO5, a plastic sack, MO6, series were dates, presumably plucked from the property and MO7, his mother's dress. MO8 was the blood stained stone found near the body, MO9, the under skirt of his mother and MO11, her brassiere and MO10, his father's dhothi. 8. PW2 is the younger son of the accused and the deceased, who fully corroborated the testimony of PW1. In fact, he spoke of having seen his parents together having breakfast in the morning, when he left for his brother's house, on being summoned to purchase a home theater. When he came back home and inquired about his mother, the accused informed him that his uncle, Mohanan, had taken her to tend to her mother. He informed his brother PW1 who tried to make inquiries with PW7, an aunt, but was unable to get the telephone number of his relatives at Edattu. On the next day, PW6 told PW2 that the accused had told him about his wife eloping with another. It was then that PW1 and 2 went to the maternal family house from where it was confirmed that their mother had not reached there. They returned and again questioned their father, when he repeated that she had gone to Edattu. PW2 had not gone with his brother and the police party in search of his mother's body. PW3, the wife of PW1 also supported the brothers to the last syllable, regarding the conflicting version spoken of by the accused when the Crl.Appeal No.77 of 2019 11 deceased was found missing. 9. PW4 is the witness proffered by the prosecution to prove the last seen theory. He is the paternal uncle of the deceased. On 1.7.2012, he was returning from his brother's house when he saw the accused and the deceased on the way. He queried as to their destination, upon which, the deceased told him that they were going to tie their goat and then, to pluck dates. The deceased was wearing a nighty and the accused a lunki, which he respectively identified as MO7 and MO10. He spoke of a chopper and plastic sack carried by them, which were also identified as MO4 and Mo5. MO3 was identified as the shawl worn by the accused on his shoulders. In cross examination, he deposed that he went to his nephew's house, which was near the house of the deceased, at around 2 p.m, on 1.7.2012, and returned immediately, and that it was raining heavily on the said day. PW4 also spoke of one Murugan having worked in the locality, but it is not clear as to whether he worked in the property of the deceased or that in which the deceased was found dead. In any event he denied the suggestion that Murugan was staying with the deceased. 10. PW5 is the neighbor of the deceased and presumably the wife of the brother of PW4. She saw the accused sitting in his house Crl.Appeal No.77 of 2019 12 when she came back from Vellikulam, having reached home between 3.30 and 4 p.m. She also inquired with the accused as to where his wife was and she was told that Mohanan (the husband of PW14, the sister of the deceased) had taken her to Edattu, since her mother was unwell. This tallies with the version, as spoken of by PW1 to 3, as told to them by their father, the accused. We do not think that the time frame as pointed out by the learned counsel for the appellant is very significant. The accused was seen along with the deceased on the afternoon on 1.7.2012 by PW4, and later in the evening, the accused was seen sitting in the porch of his house, by PW5. It is not as if, from the house of the accused it takes 1 ½ hours to reach the crime scene; as argued by the learned counsel for the appellant. In the chief and cross examination the testimony of the S.I who led the police party, PW19, was that the crime scene was just 1 ½ kilometers from the house of the accused. PW12, a constable of the Erattupetta Police station who accompanied the S.I, also deposed that they took only ½ an hour, at night, to reach the crime scene, with the accused. From the testimonies it is clear that the death of the wife of the accused, occurred in the afternoon on 1.7.2012 and the husband was last seen with her, proceeding to collect dates. It is from a nearby deserted property that later, the body of the wife of the accused was discovered, Crl.Appeal No.77 of 2019 13 that too on being led there by the accused. The accused has no explanation regarding the death and he had different versions to the queries made to him regarding the whereabouts of his wife; all of which were deliberate falsehood. 11. PW6 is the friend of PW1, to whom, in the afternoon of 2.7.2012, the accused spoke about his wife having eloped with another. When PW6 asked the accused about approaching the police, he dismissed the same saying that those who are gone are gone. PW6 saw PW2 on the way, and told him what was informed to him, by PW2's father. PW2 was also asked to inquire about his mother at her maternal family house. Later PW1 called PW6 and he accompanied PW1 to the police station and then to his family house along with the police party. He saw the Sub Inspector questioning the accused regarding the whereabouts of the missing person, when the accused said that she had gone to Edattu. When he was specifically questioned about the dress worn by his wife, he spoke of a red sari. PW1 and PW2 were instructed to verify whether the sari was in the house; which, on verification, was found to be available in the house itself. Then the accused spoke of what transpired at the Thiruvallam property and agreed to lead the police party there. PW6 also confirmed that it was the accused who led the Crl.Appeal No.77 of 2019 14 police party, accompanied by PW1 and himself, to the body of the deceased. 12. PW7 is the younger sister of the deceased to whom PW1 made a call for getting the phone number at Edattu, which she was not aware of; which fully corroborates the version of PW1. She was present at the time of inquest. In cross examination, she also deposed that Mohanan is the husband of her sister Mini. PW8 is a member of the Panchayat, who witnessed the inquest report Ext.P2. PW9, is the doctor who examined the accused after his arrest. PW10 was the cousin of the owner of the property in which the crime occurred. In cross examination, he said that the said property was lying deserted for four years and a shed situated in the house was locked but the lock, broken. There were complaints of trees having been stolen from the property and also use of the shed by anti-socials. PW11 took Ext.P14 photographs and marked MO12 CD. PW12 is the constable who had guard duty in the scene of crime and he went there with the police party accompanied by PW1 and a friend of his. He spoke of the police party having first reached the house of the missing person and enquiries having been made with the husband of the missing person, who is the accused. The accused first spoke of his wife having gone to tend to her mother and then later led the police to Crl.Appeal No.77 of 2019 15 the scene of crime. As already noticed, according to him, from the house of the accused, it took only half an hour to reach the scene of crime. PW13 is the attestor to Ext.P5 mahazar, by which MO10 lunki of the accused was seized. 13. PW14 is another sister of the deceased whose husband's name was Mohanan. She deposed that her mother was staying near her and they were staying at Edattu at Moolamattom. Between 4 to 5 p.m., on 2.7.12, PW1 and 2 came to her house and enquired about their mother. She was told that, their father told them about her husband having brought their mother to Edattu for reason of their grandmother having fallen sick. PW14 categorically said that her mother had not fallen ill and her husband had not brought her sister to Edattu. She also deposed that PW1 and 2 inquired with her mother and later at around 12' o clock, she was informed of the death. 14. PW16 is the Village Officer who prepared the scene plan Ext.P7, PW17, the Head Constable who recorded Ext.P1, FIS and registered Ext.P1(a) FIR. PW18 is the scientific assistant who took samples from the scene of occurrence as per Ext.P8. She specifically spoke of having examined a stone lying near the dead body, on which blood stains were found. She identified MO8 and also spoke of having Crl.Appeal No.77 of 2019 16 conducted benzidene test, which was positive, confirming the presence of blood on the stone. PW19 and 20 are the Investigating Officers. 15. The marital discord of the parents were spoken of by the sons PW1 and 2 and also PW3, the daughter in law. The sons confirmed that their father used to constantly quarrel with their mother raising allegations of infidelity and also for having turned a blind eye to his sufferings in prison; only to carry on an immoral life. PW3, the daughter in law, spoke of her mother in law having often complained about threats leveled to her life by her husband. It is true that the allegation regarding the accused having dug three pits, allegedly to bury his wife and children, was not proved, but that does not detract from the fact that the close relatives spoke of the marital discord and the threats leveled against the deceased, by the petitioner. PW2, on the fateful day, had left his parents at their house and when he returned, he was informed by his father that his mother had gone to her maternal house. The accused also informed him that the mother was taken by her brother in law, since the grandmother had fallen sick. PW2 informed PW1 and they tried to contact their mother, without any result. Even this attempt was confirmed by PW7, the sister of the deceased who was called to ascertain the telephone number of the brother in law of the deceased, who is said Crl.Appeal No.77 of 2019 17 to have taken their mother. On the next day, the accused had a different version of their mother having eloped, which was spoken of by PW1, PW3 and also PW6, a friend of PW1. PW1 and 2 then inquired at Edattu and found that their mother had not gone there. They returned and questioned their father who again spoke of his wife having gone to Edattu. They were suspicious and asked a neighbor, PW5, to keep an eye on their father and proceeded to the police station. An FIS was given, based on which the police party came to the house of the accused and on his showing, the dead body was detected. ## 16. _**A.N. Venkatesh And Another vs State Of Karnataka**_ ## _**[2005 (7) SCC 714],**_ in paragraph No.9, held so: _"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the Purview of Section 27 or not as held by this Court in_ _**Prakash Chand v. State (Delhi Admn)¹ (1979) 3 SCC 90** . Even if we hold that the disclosure statement made by the accused-appellants (Exts.P-15 and_ Crl.Appeal No.77 of 2019 18 _P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the Investigating Officer and PWs 1,2,7 and PW4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at the place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act. “_ 17. PW4 saw the accused and the deceased going towards the scene of occurrence after which the deceased was found missing. Even before PW2 came back home, PW5 saw the accused on his porch and enquired about his wife. She was told that his wife had gone to Edattu, which story he repeated on that day, to his son, but changed on the next day. The accused does not have any explanation as to how the death occurred nor as to what transpired after he was last seen with the deceased. It was the accused who led the police party to the crime scene, relevant under Section 8 of the Evidence Act _**[A.N.Venkatesh (supra)]**_ . The circumstance including the last seen theory, point a sure accusing finger at the accused. The false explanations given by the accused to his children which also were prevaricating, is yet another link Crl.Appeal No.77 of 2019 19 in the chain of circumstances. We are convinced beyond all reasonable doubt that it was the appellant who committed the murder of his wife, as unerringly proved by the prosecution from the various circumstances proved in trial, which together unequivocally establish the guilt of the accused. We see absolutely no reason to interfere with the conviction or the sentence imposed. We, hence, reject the appeal. Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **C.JAYACHANDRAN JUDGE** uu