SHEHANADHU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **CRL.A.No.460 OF 2016** **AGAINST THE JUDGMENT IN SC 65/2012 DATED 10-04-2013 OF ADDITIONAL SESSIONS COURT,PATHANAMTHITTA.** **CP 80/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PATHANAMTHITTA.** **CRIME NO.735/2011 OF PATHANAMTHITTA POLICE STATION , PATHANAMTHITTA** **APPELLANT/ACCUSED :** **SHEHANADHU, S/O.SHABU, PALLIPADINJATTETHIL VEEDU, VILAKAM PURAYIDATHIL,CHITTOOR MURI, PATHANAMTHITTA VILLAGE.** **BY ADV. SRI.THOMAS J.ANAKKALLUNKAL** ## **RESPONDENT/STATE :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SPL.PUBLIC PROSECUTOR SMT.S.AMBIKADEVI.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.460 of 2016 2 ## A.HARIPRASAD & N.ANIL KUMAR, J J. -------------------------------------- Crl.Appeal No.460 of 2016 -------------------------------------Dated this the 22nd day of June, 2020 ## J U D G M E N T ## A.HARIPRASAD, J Sole accused in Sessions Case No.65 of 2012 before the Sessions Court, Pathanamthitta, who is found guilty and convicted for offences punishable under Sections 324, 449 and 302 I.P.C, challenges the judgment of the trial court. 2. Heard the learned Senior counsel for the appellant and the learned Special Public Prosecutor for the State. 3. Case borne out from Ext.P1 First Information State (FIS) is thus : Informant (PW1) is the mother of deceased Bibitha. She, along with Crl.Appeal No.460 of 2016 3 the deceased and her seven year old grandchild, was residing in a house at Omalloor. Deceased Bibitha was a divorcee. She had married two times. On 25-09-2011, the informant (PW1), her daughter, deceased Bibitha, and her grandson were present in the house. As per the averments in Ext.P1 FIS, deceased had illicit relationship with 2-3 persons in the neighbourhood. PW1 used to advise against her illicit relationships with persons in the neighbourhood, but Bibitha did not heed to it. One Firoz and the appellant Shehanadhu were among the persons, who had relationship with the deceased. On 25-09-2011, at about 11 O' clock in the night, the appellant came to PW1's house on a motorbike. He knocked at the door and deceased Bibitha opened the door. Appellant entered the house. They started talking from a hall. It was about 12 O' clock at night. PW1 and her grandchild went to bed. After sometime, PW1 heard sound of something falling down. When she came to the hall, she found the appellant catching Crl.Appeal No.460 of 2016 4 hold of Bibitha's hair-lock. He was wielding a knife and was threatening to kill her. PW1 found the appellant slitting Bibitha's (deceased) throat. When the victim saw PW1, she cried for help as he was cutting her throat. PW1 caught hold of the appellant and at that time, he flashed the knife causing injuries to her. When PW1 made an alarm, he ran out and fled from the scene on his motorbike. Even though PW1 frantically sought help from her relatives and the persons in the neighbourhood, nobody came until a policeman came at about 4.00 am on 26-09-2011. Though the victim was taken to a hospital, she was declared dead. PW1 was treated in casualty in the hospital on 26-09-2011 and Ext.P1(a) was registered. 4. PW31 recorded Ext.P1. He was the Additional Sub Inspector of Police, Pathanamthitta. At 9.00 am, on 26-09-2011, he went to the General Hospital, Pathanamthitta and recorded Ext.P1, Statement. In cross- examination, he deposed that PW1 was conscious when she deposed. Crl.Appeal No.460 of 2016 5 Thereafter, PW32 registered Ext.P20 F.I.R. 5. On 26-09-2011 itself, PW33, the Circle Inspector of Police, Pathanamthitta took over the investigation. At about 12 noon, he conducted inquest on the body of deceased Bibitha from the mortuary in the Government Hospital, Pathanamthitta. Ext.P2 is the inquest report, which was properly proved through him. He questioned the witnesses at the time of inquest and prepared a scene mahazar, which is marked as Ext.P3. He brought in police photographer and scientific expert for collecting evidence. He has clearly described the place of occurrence and the room, where the gruesome murder had taken place. Blood samples, cigarette butts and other materials found at the scene of occurrence were collected. Blood stained dress worn by the victim and PW1 were also seized. All the materials collected from the place of occurrence were forwarded to Forensic Science Laboratory for analysis. Ext.P27 is the forwarding note. Crl.Appeal No.460 of 2016 6 The body was sent for post-mortem examination. 6. As part of investigation, PW33 questioned the material witnesses. It came out in the investigation that the appellant/accused was hiding at Madurai in Tamil Nadu. PW33 along with police party went to Madurai and after identifying him, he was brought down to Pathanamthitta on 10-10-2011 at 1.30 pm. He was presented before PW1, who identified him. Thereafter, he was arrested. Ext.P30 is the arrest memo. After the incident, PW1 started residing in Gandhi Bhavan, Pathanamthitta from where she identified the appellant. After arresting the appellant, he was taken in police custody as per order on Ext.P31. While the appellant was in custody, he confessed that he had concealed the knife used for slitting the victim's neck at a place, which was recovered at the instance of the appellant in the presence of witnesses. 7. Ext.P18 is the mahazar evidencing the recovery. Relevant Crl.Appeal No.460 of 2016 7 portion of the confession is Ext.P18(a). MO10 knife, used by the appellant to commit the crime, was shown to the doctor, who conducted post- mortem examination. After obtaining the material objects sent for analysis from Forensic Science Laboratory, Thiruvananthapuram, a report was produced before the Court and after closing investigation, he filed a final report. 8. Evidence in this case consists of the direct testimony of PW1, mother of the victim. According to her chief examination, on 25-09-2011 at about 11 'O' clock in the night, the appellant came on a motorbike to their house and knocked at the door. Deceased Bibitha opened the door. At that time, PW1 and the deceased were watching television. Deceased Bibitha's son had slept at 9 'O' clock. When Bibitha and appellant were engaged in conversation from the hall, PW1 went inside to lie down with her grandson. After 12 'O' clock in the night, she heard the sound of a chair Crl.Appeal No.460 of 2016 8 falling down. She came out to the hall and found the appellant chopping the victim's neck by using MO10 knife. She intervened in the matter and at that time he flashed the knife causing injuries to her. When PW1 and victim cried out for help, immediately the appellant went out and left the place on his motorbike. PW1 caused the victim to sit on a chair. She was perfusely bleeding. PW1 gave drinking water to the victim and she was not sure whether the victim had drunk it or not. PW1's testimony is in harmony with the recitals of the incident in Ext.P1. However, the mention in Ext.P1 that her deceased daughter was having illicit connections with 2, 3 persons was denied by her at the time of evidence. It is understandable for the reason that, being a mother, she would not have been willing to speak ill about her deceased daughter. But we find the testimony of PW1, exactly matches with the material recitals in Ext.P1. 9. In cross-examination, certain contradictions were marked that Crl.Appeal No.460 of 2016 9 she had not mentioned anything about the bad character of her deceased daughter. As mentioned earlier, those contradictions may not affect substratum of the prosecution case regarding the incident. 10. Despite cross-examination, PW1 adhered to her version that the appellant had come to their house at 11 O' clock in the night on 25-09-2011 and committed the crime at about 1 'O' clock on 26-09-2011. It is also deposed to by this witness that she had previous acquaintance with the appellant and she had sufficient opportunity to see the incident as there was enough light in the room. Besides, television was also working at that time. Suggestion by the defence counsel, that PW9 came there and when PW9 and the appellant were fighting, PW1 used a kitchen knife to attack them, which caused inadvertently an injury on the victim, is strongly denied by this witness. Questions relating to presence of more blood in the dress worn by PW1 than the victim's dress have been Crl.Appeal No.460 of 2016 10 explained by her stating that she was holding the victim on a chair for a long time. We find no reason to discard the testimony of PW1 which is straight and reliable. The court below rightly relied on the testimony of PW1 to accept the incident as projected by the prosecution. 11. PWs 2 to 5 are the witnesses to Ext.P2 inquest report. 12. PW6 is a witness to Ext.P3 scene mahazar. 13. PW7 is a neighbour. He is a police constable. On 26-09-2011 he was posted on duty at Amrithanadamayi Mutt in connection with a festival. He woke up at 4.00 am. At that time, he heard a distress cry from the victim's house. When he went there, he found Bibitha (deceased) sitting on a chair motionless with extensive bleeding. PW1 was also found with injuries on neck and hand. A pool of blood was present in the hall where Bibitha was found. Immediately, he contacted Pathanamthitta Police Station. Police men came and the injured were taken to a hospital. This Crl.Appeal No.460 of 2016 11 aspect spoken to by PW7 remains credible despite cross-examination. 14. PW8 is a friend of the appellant. According to his testimony, he did not know Bibitha (deceased). But he used to bring the appellant to her house. Testimony of this witness will go to show that the appellant was a frequent visitor to the house of the deceased. This aspect in the prosecution case was supported by PW8. But, at another portion, he refused to support the prosecution. Prosecution wanted this witness to say that after the incident, the appellant had gone to the house of PW8 and at that time he was wearing blood stained clothes. But this prosecution case did not derive any support from PW8. 15. PW9 and appellant are friends. He knew PW8 as well. PW9 knew house of the appellant. They used to meet at Pathanamthitta town on a daily basis. PW9 had known the deceased Bibitha through the appellant. On 26-09-2011 at about 5 'O' clock in the morning, he knew that Bibitha Crl.Appeal No.460 of 2016 12 was killed. The information was passed on by the appellant himself. At that time, the appellant went to PW9's house and informed him that he had cut Bibitha's throat on account of some disputes. Appellant was having blood stains in his body and dress. He came on a motorbike bearing registration No.KL26/B-5934. He was wearing a red T-shirt and a blue colour jeans. The appellant informed PW9 that he was leaving the place. He was having a bag at that time. In cross-examination, PW9 deposed that for about 6 to 7 years they were friends. Though it was suggested that PW9 was also a visitor in Bibitha's house, he denied. The extra-judicial confession made by the appellant to PW9 remains unchallenged despite cross-examination. 16. PW10, the uncle of the appellant, was the registered owner of the motorbike bearing registration No.KL26/B-5934. This witness deposed that the appellant was using the motorbike at the material time. After the incident, police had come to his house and searched for the appellant. No Crl.Appeal No.460 of 2016 13 cross-examination was done on this witness. 17. PW11 was a native of Ariyapuram Panchayat in Thirunalveli District, Tamil Nadu. He knew the appellant, because he purchased motorbike bearing registration No.KL26/B-5934 from the appellant. Along with the motorbike, helmet and original registration certificate were also handed over to PW11. PW11 was misled that the appellant himself, was the R.C owner of the motorbike. The bike was recovered in the course of investigation. Testimony of this witness also remains believable. 18. PW12 was a witness to Ext.P6 mahazar evidencing recovery of the motorbike. PW15 was the Sub Inspector of Police, Pathanamthitta. He was on night patrol duty on 26-09-2011. At about 4.00 am, he got information that two injured ladies were languishing without help to be taken to a hospital. Immediately, PW15 along with party went to PW1's house and found the deceased in a chair with extensive bleeding. Crl.Appeal No.460 of 2016 14 Ambulance was brought in and she was taken to General Hospital, Pathanamthitta. On examination, doctor declared that the victim died two hours before her hospitalization. PW1 had injury on neck and index finger on the left hand. She was admitted in the hospital. Hall, inside the house, was full of blood. A fluorescent tube light was on and a television was also working in the hall. He identified MO1 maxi worn by the victim. In cross- examination, nothing worthwhile could be elicited from this witness to discredit. 19. PW16 went along with PW15 to the hospital. PW17 recovered mobile phone belonging to the deceased, as per Ext.P9 mahazar. PW18 was present with PW33 at the time when he prepared scene mahazar and inquest report. 20. PW19, Dr.Lekshmi Rakha examined the victim and PW1. PW19 found the victim dead at the time of examination on account of a Crl.Appeal No.460 of 2016 15 serious injury on her neck. PW1 was admitted in the hospital. As per the injuries noted on Ext.P11 wound certificate, she was having a small incised wound on right side of neck and a small incised wound over the left index finger. 21. In cross-examination, it was brought out from PW19 that the assailant, who inflicted the injury was an unknown person. Learned Senior counsel argued that Ext.P11 being the first statement in point of time does not contain the name of the assailant. It can be an indication that the appellant must have been falsely implicated later. In answer to this contention, learned Public Prosecutor drew our attention to the fact that the information noted on Ext.P11 was furnished by the bye-standers and not by PW1. We find no reason to discard the testimony of PW1 only on this basis. 22. PW20, Dr.Kuruvila George collected the nail clippings, saliva Crl.Appeal No.460 of 2016 16 and pubic hair from the appellant/accused, after his arrest, when he was produced before PW20 for medical examination. 23. PW21, Dr.Salini also collected specimen from the body of the appellant/accused after arrest. She collected body hair and scalp hair of the accused. 24. PW22, Dr.Jiju conducted autopsy on the body of the victim. The ante-mortem injuries noted in Ext.P12 post-mortem certificate reads as follows : “1. Incised wound 11.5 x 3 to 4cm x 4cm almost horizontal across the front of neck below the level of thyroid cartilage its left end was 3 cm left to midline and 3 cm below angle of jaw bone, right end was 6.5 cm below ear lobule. Strap muscles on right side right jugular vein were seen cut and Ist tracheal ring partially cut. Strap muscles on left side of neck partially out. The hyoid bone, thyroid cartilage, carotid Crl.Appeal No.460 of 2016 17 vessels were intact. Test for air embolism was done and found negative. Air passages contained blood. 2. Contusion 1.5 x 1 x 0.5 cm on outer aspect of right arm, 6 cm below tip of shoulder.” There cannot be a dispute that the victim died of the incised wound sustained on her neck which is 4 cm deep. Nature of injury described shows the force with which her neck was slit. Despite cross-examination, PW22 deposed that the injury could have been caused by MO10 knife and that injuries could have caused death of the victim. 25. PW23 is a Bank Manager cited to prove that the appellant was having a bank account and he had withdrawn money through ATM from Kannyakumari and other places. This witness would prove the fact that the accused was absconding after the incident and his conduct is also relevant under Section 8 of the Indian Evidence Act. 26. PW24 is a witness to Ext.P15 mahazar prepared at the time of Crl.Appeal No.460 of 2016 18 body search of the appellant. 27. PW25 is a Police Constable, who was present at the time of recovery of MO10 knife at the instance of the accused after his arrest. 28. PW33 along with PW25 and other independent witnesses were led to a place, where the knife was concealed by the accused after the crime. The appellant took out a plastic cover from the bottom of two palm trees and it was handed over to PW33. On opening the plastic cover, MO10 knife was found inside. As mentioned earlier, Ext.P18 mahazar was prepared based on Ext.P18(a) confession. Ext.P9 is the mahazar prepared for recovery of mobile phone used by deceased Bibitha. 29. Despite cross-examination, this witness adhered to his version that MO10 knife was recovered at the instance of the accused and all the formalities under Section 27 of the Evidence Act have been complied with. PW27 was the Scientific Assistant in DCRB, Pathanamthitta. As required by Crl.Appeal No.460 of 2016 19 PW33, he went and collected blood samples, cigarette butts, hair etc. and they were properly packed and sealed. On 25-10-2011, the motorbike used by the appellant was also closely examined. Its foot rest, handle grip were removed and sent up for analysis. Blood was collected in cotton gauze as well. His evidence assumes importance for the reason that these articles tested positive for human blood of a particular group indicating the involvement of the appellant in the crime. Despite cross-examination PW27's testimony remains credible. 30. PW28 is the police photographer, who took the photographs of the victim from the place of occurrence. 31. PW30 is an independent witness to Ext.P18, who had spoken about the recovery of MO10 knife at the instance of the accused in custody. Despite cross-examination, he remains firm of his previous statement evidencing that there was a proper recovery of MO10 knife at the instance Crl.Appeal No.460 of 2016 20 of the accused. 32. PW34 is the Assistant Director, Biology Division, Forensic Science Laboratory (FSL), Thiruvananthapuram. He examined the parcel sent for analysis. Ext.P45 is the certificate issued by him after analysis of various items. As per TR486/11 in the above crime, three items were sent up for analysis. Cigarette butts said to have been discarded by the appellant at the crime scene and hairs collected from bed used by the deceased and also blood stains collected on a cotton gauze were sent up for analysis. In the foot rest and the handle grip of the motorbike, 'O' positive blood was detected in the analysis. MO10 knife was also tested positive for 'O' blood group. Five nail clippings taken from appellant were also subjected to analysis. T-shirt and jeans worn by the appellant were found to be having insufficient quantity to identify the blood group. But saliva on cigarette butts showed the appellant's blood group indicating his presence at the Crl.Appeal No.460 of 2016 21 place of occurrence. Similarly from the hair samples, some matched with that of the appellant. 33. PW35 is the another Scientific Assistant, Biology Division, Forensic Science Laboratory (FSL), Thiruvananthapuram. He proved the above facts. Presence of the appellant in the house, at the time of occurrence is fortified, not only by PW1's believable testimony, but also by the scientific evidence collected during the investigation. 34. Three witnesses were examined on appellant's side to show that his father's name was wrongly mentioned. From the testimony of defence witnesses, we do not find any valid reason to accept the challenge made against identity of the appellant/accused raised at the time of trial. To sum up, the prosecution has established that the appellant was responsible for the brutal killing of Bibitha by cutting her throat with MO10 knife in the presence of PW1 on 25-09-2011 at about 1 O' clock in the night. The Crl.Appeal No.460 of 2016 22 extra-judicial confession and recovery of MO10 knife at the instance of the appellant also lend support to the prosecution case that the appellant was the only person responsible for the murder. 35. Having regard to nature of the injuries sustained by the victim as revealed from Ext.P12 post-mortem certificate, we have no hesitation to find that the court below is perfectly right in holding that this is a case of murder as defined in Section 300 I.P.C. It is quite evident that the appellant intended to cause a deep wound on the victim's neck by using a sharp weapon of MO10's dimension. By no stretch of reasoning, it can be said that the act of the appellant/accused did not fall within the definition of murder. 36. Learned Public Prosecutor relying on a decision in Ajayan alias Baby v. State of Kerala (2011(1) KHC 1) contended that despite the absence of authorship of concealment, Ext.P18(a) confession is legally acceptable. Crl.Appeal No.460 of 2016 23 Nobody can dispute that proposition in the light of the pronouncement by a Full bench of this Court. On going through the impugned judgment, we find no reason to take a different view. The appellant is guilty of murder in the light of the overwhelming evidence adduced in the case. In the result, we find no merit in the appeal. Hence, the appeal is dismissed confirming the conviction and sentence. All pending interlocutory application will stand dismissed. A. HARIPRASAD, JUDGE. N.ANIL KUMAR, JUDGE amk