State of Kerala v Nazar and Abdul Gafoor

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940** **Death Sentence Ref..No. 2 of 2013** **AGAINST THE ORDER/JUDGMENT IN SC 6/2012 of SESSIONS COURT, KALPETTA, WAYANAD DATED 27-02-2013** ## **APPELLANT:** **STATE OF KERALA** **BY ADVS.SPL.PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN AND CHILDREN SMT.AMBIKA DEVI S.** ## **ACCUSED/RESPONDENTS:** **1. NAZAR, AGE 36/12, S/O SOOPY, KALATHIL HOUSE, PERAL, PADINHARATHARA.** **2. ABDUL GAFOOR, AGE 32/12, S/O.KUNHABDULLA, IRATTAVEEDU, ASAD NAGAR COLONY, CHENNALODE.** **R1 BY ADV.AMINA BEEVI K.M. (STATE BRIEF)** **R2 BY ADV. V.P.RAGHURAJ,** **ADV.V.SHYAM** **THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 17-01-2018, ALONG WITH CRL.APPEAL NOS. 769/13 AND 948/2013, THE COURT ON 28/3/2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ==================== Dated this, the 28[th] day of March, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ The appeals had been filed by accused 1 and 2 against the judgment dated 27/2/2013 in SC No.6/2012 by which they were found guilty for committing the offence u/s 120(b), 364, 201, 397 and 302 IPC and convicted to undergo rigorous imprisonment (RI) for 7 years each and to pay fine of `5,000/- for offence u/s 120(b), RI for 10 years and fine of `5,000/- for offence u/s 364, RI for 7 years and fine of `5,000/- for offence u/s 201, RI for 7 years for offence u/s 397 IPC and the accused to be hanged till death and fine of `25,000/- for offence u/s 302 IPC. The death sentence had been suspended till confirmation by the High Court and sentence of imprisonment and those imposed on default clauses were to run consecutively. 2. Anitha, aged 20 years was found missing from her house since 9/8/2011. She had gone to attend her college at about 9 am. Later, her decomposed dead body was found out in a forest area. Investigation revealed that accused 1 and 2 hatched out a criminal D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:2:- conspiracy to commit rape and murder and in the process, the victim was taken to a dense forest area of Thirunelly forest section. She was taken to an isolated place in Appapara, intoxicated and was subjected to rape. Thereafter, she was strangulated to death using her own shawl and a bath towel. Her face was mutilated by hitting her with a granite block. Her gold ornaments and mobile phone were robbed. Her body was carried to a dense forest and the corpse was abandoned after covering it with a plastic sheet. The 2[nd] accused took her dress materials, vanity bag, books and other belongings and it was concealed beneath mud in a nearby pond. Investigation revealed that after committing the crime, accused 1 and 2 contacted PW14 to pledge the gold ornaments. The gold ornaments were pledged and the amount was shared between them. PW14 was given a short term loan of `1,000/-. First accused went to the house of the third accused who gave shelter for him. Third accused kept the mobile phone in an almirah in his bedroom. It is in the said circumstances that crime was registered against accused 1 to 3. Police after conducting investigation submitted the final report and the case D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:3:- went into trial. Accused pleaded that they were not guilty. Before the Trial Court, prosecution examined 46 witnesses and marked Exts.P1 to P54. MOs1 to MO92 were identified. The accused were questioned u/s 313 Cr.P.C. Court below acquitted the third accused and convicted accused 1 and 2 as stated above. 3. Crl.Appeal No.769/13 has been filed by the first accused and Crl.Appeal No. 948/13 has been filed by the second accused. Learned counsel for the appellants submitted that there is no evidence worth mentioning to find the accused guilty of any of the offences alleged against them. It is submitted that the entire evidence has to be reappreciated in order to find out whether the accused were involved in any of the alleged crimes. The Court below had erroneously came to a finding regarding the guilt of the accused which is liable to be set aside. It is further submitted that as far as the D.S.R. is concerned, even assuming that the accused had committed the crime, there are several mitigating circumstances which had not been considered by the court below and at any rate, the alleged offence cannot be treated as a rarest of rare care warranting capital punishment. D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:4:- 4. Necessarily while considering the above appeals, the entire evidence has to be reappreciated to find out whether the accused had committed the crime. There is no eye witness to the crime and the prosecution case completely rests on circumstantial evidence. 5. Initially, a man missing case was filed by PW1, father of the victim. He reported before the police on 9/8/2011 that the victim had not come back from college even after the usual time. In his complaint he had stated that his daughter had left for college at 8 a.m and she did not return even after the usual college hours. They received a phone message stating that she is at Perambra in the company of one Jineesh. The family conducted a search at several places and in the house of near relatives. But she could not be traced out. PW1 gave another statement on 11/8/2011 as Ext.P1. In Ext.P1, it was further indicated that PW1's sister-in-law received a phone call from a mobile phone stating that it is a call from PW18 and that she was in his custody. It is also stated that they were in love and they are going to get married. The receiver of the call had a suspicion about the D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:5:- person who had introduced himself as Jineesh. The slang of the speaker was that of a Muslim and was not comparable with PW18. The voice resembled that of the first accused who had come to the house of PW1 for construction of a well. PW1 therefore had a suspicion as against the first accused. While examined as PW1, he identified MOs 1 to 3, the ornaments of the victim and her dress MO5 series. 6. PW2 is the sister-in-law of PW1. She deposed that she received a call in the mobile phone of her husband at 6 pm on 9/8/2011. The last digit of the number was 192. When she attended the call, the speaker stated that he was Jinresh from Perambra and that the victim was in his custody and that she was pregnant and they intend to get married. The call thereafter ended. Though she attempted to recall, the mobile was switched off. She suddenly felt that it was not Jineesh. The slang was that of a Muslim and mostly resembled that of first accused. She was also acquainted with the first accused as he was doing the work of construction of a well in PW1's house. This matter was informed by her to her husband when he came after the work. This matter D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:6:- was also informed by her to PW1. 7. PW3 is the brother of PW1 and husband of PW2. He also supported the version of PWs 1 and 2 regarding missing of the victim and receipt of the phone call by PW2. On identifying the voice of the first accused, he along with his nephew proceeded to the house of first accused and met his wife. They were informed that the first accused had not been in the house for two-three days. He spoke about the intimacy victim had with the first accused and that he had seen her travelling in an autorickshaw along with the first accused and talking together in the way side. 8. PW40, the Circle Inspector of Police who was the investigating officer did not have any clue about the victim until 21/8/2011. On 21/8/2011, the first accused was taken into custody and he was interrogated. First accused was arrested on 21/8/2011 at 10.30 hours as he obtained certain clue regarding the victim. From the first accused, PW40 got information regarding the involvement of second accused also. On the basis of the disclosure statement of accused 1 and 2, police party reached Appapara and as led by the accused, they went towards D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:7:- the dense forest area. The first accused led them to the place where corpse of the victim was buried. The corpse was abandoned at a place where there was no human habitation or approach. It was traced out only on account of the fact that first accused had led them to the said place. Ext.P32 is the disclosure statement on the basis of which the body of the victim was found out. Ext.P3 is the mahazar based on which the corpse was recovered and it was identified by the relatives. Ext.P33 is the inquest report. At the relevant time, PW40 collected the material objects MO91 series which are the plastic sheet, foils of eclairs and munch chocolates and two hair bands. 9. PW8, one Shameer a shop owner has given evidence that the first accused had come and purchased MO27 plastic sheet from his shop on 9/8/2011. PW9 another shop owner in his evidence deposed that accused Nos.1 and 2 along with a girl who was wearing MO5 series dress came to his shop and purchased cigarette and toffees of eclairs and munch. 10. The corpse was in a semi decomposed stage and spot postmortem was conducted by PW41. In the meantime, on the D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:8:- basis of disclosure statement by the second accused, PW45 recovered the articles belonging to the victim which he had concealed near a pond. The gold ornaments belonging to the victim which was pledged by PW14 was recovered and the documents in connection with the same have been seized. 11. PW41, the Forensic Surgeon who conducted postmortem opined that the cause of death is due to ligature strangulation. The primary factor in this case is the recovery of the corpse, which was on the basis of the disclosure statement given by the first accused. The articles belonging to the deceased were also discovered on the basis of the disclosure statement by accused 1 and 2. 12. The main contention urged by learned counsel for appellants/accused is regarding the identity of the victim. It is stated that the dead body was in a decomposed stage and the face was mutilated. PW3 had gone to the forest area on receiving information from the police. He in his deposition submitted that he had identified the dead body as that of Anitha. He also identified her blue shawl and a coloured bath towel which was D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:9:- tied around the neck. The shawl is identified as MO6 and bath towel as MO7. As already stated, on the basis of disclosure statement of the 2[nd] accused, PW45 had gone near the pond and had taken a cover which contained a bag having books, lunch box, purse, petticoat, churidar top etc. PW3 has identified those articles as belonging to the victim. The corpse was also identified by PW42, a near relative of the victim. From the evidence of PW3 and PW42, there is no reason to suspect the identity of the victim. Further, the first accused himself had taken the police to the site where the dead body was abandoned. The second accused had showed the place where belongings of the deceased were concealed and it was recovered. The belongings of the deceased were identified by her family members also. Therefore, there cannot be any doubt at all regarding the identity of the victim. 13. The next question is whether accused 1 and 2 were involved in the crime. PW4, an auto driver who is acquainted with accused 1 and 2 deposes that during a journey where the accused 1 and 2 alighted at Padinjarathara, he heard the accused 1 and 2 planning to commit murder of the victim, to commit robbery and D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:10:- to rape her. 14. PW5 is a tea shop owner at Panavally. He deposed that, on 9/8/2011, at about 10 a.m, 5 persons were in his shop. Out of the above, one was a conductor and the other was a driver of a bus and among the remaining three, two were accused 1 and 2. The third one was a girl. Since he found the girl along with accused 1 and 2 and they were total strangers, he asked them where they were going. First accused replied that they were going to a relative's house at Appapara and thereafter they went away from the shop. He also identified the dress MO5 series which the girl was wearing and the bag which she was having with her (MO12). He had also deposed that he had seen the accused along with the police party on 22/8/2011. He is also a witness to recovery of MO22 stone, MO23 glass, MO24 cigarette packet, MO25 packet of ash and MO26 liquor bottle recovered by the police as per the statement given by first accused. Ext.P2 is the seizure mahazar for those articles. 15. PW6 is a taxi-jeep driver. He parks his vehicle at Panavally junction. He deposed that, on 9/8/2011, at about 1 D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:11:- p.m, he saw accused 1 and 2 coming out through a cut road which ends at Appapara forest office and thereafter they boarded a bus proceeding to Mananthavady. He is also a witness to Ext.P2 seizure mahazar and had witnessed recovery of MOs22 to 26. He also identified accused 1 and 2. 16. PW7 is the conductor of a bus plying between Mananthavady and Panavally. In his evidence, he deposed that they started the second trip at 9.10 am on 9/8/2011. He had observed the accused along with the girl as they purchased three full tickets. The girl was carrying a school bag and he noticed her since she did not purchase a concession ticket. They alighted from the bus at the last stop and they were also seen in the tea shop of PW5. 17. PW8 deposed that he has seen the first accused on 9/8/2011 when the first accused was purchasing a plastic sheet from his father's shop. It was a dark green plastic sheet which he identifies as MO27. It was with MO27 that the corpse was covered. His evidence is supported by PW9 the shop owner. 18. PW10 is a witness to Ext.P3 mahazar by which the corpse D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:12:- was recovered. He admits his signature in Ext.P4 search list and identifies various articles which were recovered from the site. He is also a witness to Ext.P5 mahazar. PW11 has been examined to prove the familiarity the first accused had with the victim. PW12 is a witness to Ext.P6 mahazar by which MO5 series to MO21 were recovered. He had also identified MO8 to MO21. PW13 is also a shop owner at Panavally junction who had seen accused 1 and 2 coming from the tea shop of PW5 at about 10-10.15 am on 9/8/2011 and they were proceeding towards Appapara area. He also testified that the victim was wearing MO5 series dress. 19. PW14 is a person who knew the accused 1 and 2. He deposed that first accused had approached him on 7/8/2011 to arrange pledging of some gold ornaments belonging to his aunt as he required some money for purchasing a property. On 9/8/2011, first accused contacted him through mobile and asked him to come near Kavumandam for pledging the ornaments. He reached Kavumandam bus stop by 2.30 p.m and the first accused asked him to be at the Bank premises. When he reached the Bank, accused 1 and 2 were present. The first accused handed D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:13:- over some gold ornaments which included a gold chain, a ring and a pair of ear rings. The ornaments were pledged in the Bank for `19,000/- and the proceeds were handed over to the first accused. He was paid `1,000/- as loan. He also saw accused No.1 giving `5,000/- from the said amount to the second accused. Accused No.1 thereafter came to his house after purchasing some chicken and resided at his house on the said day. He was questioned by the police and he divulged the pledging of ornaments. Along with the police officers he had gone to the Bank. PW1, who was also present identified the gold ornaments as belonging to the victim. Prosecution also produced Ext.P7 an agreement executed by him to the Bank and Ext.P8 the token issued in his favour when the gold ornaments were pledged. 20. PW15 is the Manager of the Bank who had identified MOs 1 to 3 as well as Exts.P7 and P8. He is an attestor to Ext.P9 mahazar under which MOs 1 to 3, Exts.P7 and P8 were recovered. PW16 is the paternal uncle of the victim. He is a witness to Ext.P4 search list as per which MOs 28 to 43 were identified and recovered. He has also identified the corpse as that of Anitha. He D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:14:- has also signed Ext.P5 mahazar by which the articles MO28 to 43 were recovered. PW17 is a witness to Ext.P9 mahazar by which MOs 1 to 3 were recovered by the police from the Bank. 21. PW18 is Jineesh who deposed that he was in love with the deceased 3 years prior to the date of incident. He deposed that he had given a SIM card of vodafone company with number 9846756192 to Anitha. He last saw her on 2/8/2011 on her birthday in the college premises. He had received a gold ring 8 months prior to the incident from Anitha as a gift. They decided to get married after the marriage of his brother. He deposed that on 9/8/2011, she called him and stated that she is pregnant. He had given back the ring which she had given after having known about the death of Anitha. The said ring is produced as MO4. He was interrogated by the police on 27/8/2011. He also deposed during cross examination that on 9/8/2011 Anitha had called him 10 to 15 minutes before 8 a.m and they had a conversation for about two minutes. 22. PW19 had deposed that he along with PW3 went in search of Anitha in the house of first accused. They met wife of D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:15:- first accused, but she had no knowledge about his whereabouts as he had left three days before. Enquiry was extended to one Sulaiman who gave clue that the first accused is likely to be with the third accused. They therefore along with a few other persons went to the house of third accused on 17/8/2011 and met him. He got information that the first accused had come to meet the third accused and returned to Wayanad itself. He further deposed that when it has come to the knowledge that a corpse was abandoned at Appapara, he had gone there and identified the same as that of Anitha. He further deposed that along with the investigating officer PW45 and the brother of the deceased, PW20, they had gone to the place of third accused and he was interrogated regarding the mobile phone. Accused No.3 told them that he was in possession of the mobile phone handed over to him by the first accused. The said mobile phone was recovered by PW45 and identified as MO44. PW20, brother of the deceased supported PW19's version. He also deposed that the first accused had come to their house in connection with a work relating to a well. Further, first accused was engaged in necromancy and he D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:16:- along with his mother and Anitha had attended the shed in which first accused was conducting some sort of poojas. He also proved Ext.P10 mahazar by which the mobile phone of Anitha was recovered from the third accused. 23. PW21 is the wife of first accused. They have been married for the last 17 years and have four children. The first accused married another lady three years back on account of which there were family disputes. However, first accused withdrew from the said marital relationship. Thereafter, he had an illicit relationship with a lady by name Tharuvana. This also created matrimonial issues and quarrel. She was declared hostile by the prosecution. She however deposed that there were several missed calls in the mobile phone of the first accused and when she called back in the number, Anitha attended the same. According to her, first accused had some intimacy with Anitha and she had questioned first accused in that regard. 24. PW23 is a classmate of the deceased. She deposed that Anitha did not attend class on 9/8/2011. On the evening of the said date, Anitha's father contacted her through phone to check D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:17:- up whether Anitha had attended the class and she said that Anitha was not present. PW1 informed her that Anitha was missing and the matter was informed to the police. She identified MO19(c), the note book which bears her name, which she had given to Anitha. 25. PW24 is a police constable who had witnessed recovery of a mobile with SIM cards and two other SIM cards from the first accused, photographs MO48 to 74, negative MO75, photos MO76 to 85 and negative MO86. He identified the material objects and documents. 26. PW25 is a witness to recovery of mobile phone and SIM cards as per Ext.P12 mahazar which were marked as MOs 45 to 47. He is also a witness to Ext.P16 mahazar by which MO87 and MO88 series, a set of bangles and pair of anklets were handed over by the Police Surgeon to the Circle Inspector of Police. He deposed that he saw PW26 surrendering a packet to PW40 taken as per Ext.P17 mahazar. His version is supported by PW26 who deposed that he had collected a packet given to him by the Police Surgeon and handed over to Circle Inspector as per Ext.P17 D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:18:- mahazar on 30/9/2011. 27. PW27 is the mother of the deceased. She also deposed that she knew the first accused and that first accused had taken herself and her children to his shed where he was conducting some poojas. They were promised divine benefits if they conduct pooja to his deity. She deposed that they believed the first accused. She also identified MOs 1 to 3, which according to her was worn by Anitha on 9/8/2011 when she left the house. She also identified MO87 and MO88 series. 28. PW28 is the Deputy Ranger of Thirunelly forest section who deposed that the corpse was abandoned in a place haunted by wild animals and even forest officials on beat duty skip that area fearing death. 29. PW29 is the Village Officer who prepared Ext.P18 location sketch after inspecting the place of incident on 3/9/2011. PW32 is the Nodal Officer of Vodafone SIM card company. He had produced the application in the name of PW18 for the SIM card No.9846756192 and the call details from 1/8/2011 to 20/8/2011 which contains the tower locations from where the calls were D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:19:- made. Ext.P21 series is the application and call details. Evidence would show that at 6.00 p.m, a call is generated from the said number to mobile No.9605398628 which is that of PW3. 30. PW34 is the Doctor who had examined accused 1 and 2 to determine their potency and Exts.P23 and P24 are the potency certificates. It is opined that there was nothing to suggest that accused 1 and 2 are incapable of performing sexual acts. 31. PW34 had also collected the scalp and pubic hair of accused 1 and 2, properly wrapped and labelled the same, packed and sealed and handed over to PW45. 32. PW35 is the police photographer. On the request of Circle Inspector of Police, he took the photographs in the place of incident. He identified MO76 to MO85 as photos and MO86 their negative. 33. PW36 is another photographer. On the request of Circle Inspector of police he took photograph of the corpse. He identified MO48 to MO74 and negatives MO75. MO22 is a granite stone which had been recovered from the scene near the corpse and Ext.P54 report shows that it proves existence of human blood D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:20:- in MO22. 34. PW37 is the Forensic Scientific Assistant. She had accompanied the investigating group and reached the dense forest area at Appapara where the dead body of the victim was abandoned. She collected the hair which was scattered over the place where the corpse was lying and Ext.P28 is the report regarding the same. 35. PW38 is a witness to Ext.P29 mahazar by which PW34 had handed over the hairs collected from accused 1 and 2 through PW45. PW39 has recorded Ext.P1 statement. Initially the case was registered u/s 57 of the Kerala Police Act. Ext.P30 is the FIR relating to the same. 36. PW40 is the Circle Inspector of police who conducted the initial investigation. He had explained the manner in which the investigation had proceeded and how they have found out the dead body of the deceased and other material objects. 37. PW41 is the Forensic Surgeon who conducted postmortem and Ext.P45 is the report. Ext.P33 is the report relating to the postmortem which was identified by PW42. PW43 D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:21:- and 44 were examined to prove that Anitha attended the class only till 8/8/2011 and thereafter she was continuously absent. Exts.P46 and P46(a) are the relevant registers relating to the same. 38. PW45 is the Sub Inspector of Police who arrested the second accused on 21/8/2011 and had interrogated him. He also took the disclosure statement Ext.P49 by which the second accused had concealed MO5 to MO21 in a mud pit near a pond on the southern side of the place where the dead body was recovered. 39. PW46 continued the investigation and had submitted the final report before Court. 40. Trial court found that there was no legally ascertainable evidence to prove the offence of rape and accordingly, accused 1 and 2 were granted the benefit of doubt and acquitted for the offence u/s 376(2)(g) I.P.C. The trial court also found that the third accused was not involved in the crime and there was no evidence to prove that he had knowledge about the crime as well. Accordingly, third accused was acquitted. As far as accused 1 D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:22:- and 2 are concerned, trial court found that the evidence led by the prosecution clearly substantiates the involvement of accused and therefore they were found guilty. 41. The main contention raised by the learned counsel is regarding the identity of the victim. Learned counsel appearing on behalf of accused 1 and 2 points out that even according to the prosecution, death had occurred on 9/8/2011 and the body was recovered on 21/8/2011. At the time of recovering the body, it was in a decomposed stage. Further, there was defacement and no one can identify the corpse on looking at the face. The witnesses who had identified were close relatives and they did not point out any specific feature to identify the victim. Further, the only evidence that has been brought out is with reference to the presence of the accused along with the deceased at Panavally at about 10 am and thereafter the evidence indicates that accused 1 and 2 were leaving Panavally by around 1 pm. This circumstance by itself will not indicate the involvement of the accused in the crime. The recovery made is also bad in law and the evidence is fabricated. D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:23:- 42. But, on an appreciation of the entire evidence on record, we are of the view that the following facts stand proved on the basis of the evidence adduced by the prosecution. - (i) That the first accused was known to the deceased. - (ii) The first accused was having some intimacy with the deceased. (iii) That the deceased left her house on 9/8/2011 at 9.00 a.m stating that she was going to College. (iv) Her friend as well as college authorities had deposed that the deceased had not attended the college on 9/8/2011. - (v) Conductor of a bus which starts from Panavally deposed that the accused along with a girl got down at Panavally on the said date and they were also seen together in a tea shop. - (vi) A tea shop owner at Panavally had seen accused 1 and 2 along with a girl in the tea shop at 10.30 a.m. (vii) Another shop owner at Panavally also deposed that the accused along with a girl had purchased cigarettes, D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:24:- chocolates etc., from his shop. (viii) PW6 saw accused 1 and 2 coming through a cut road ending with Appappara forest office at about 1 pm on 9/8/2011 and they boarded a bus going to Mananthavady. (ix) Accused 1 and 2 met PW14 on 9/8/2011 by about 3 p.m and handed over MOs 1 to 3 for pledging. The same was pledged in a Bank in which PW15 was the Manager. It was recovered by the police as per Ext.P9 mahazar. MO's1 to 3 belonging to deceased Anitha were identified by her father PW1. (x) PW14 deposed that out of `19,000/- received by pledging the gold ornaments, he was given a loan of `1,000/-, and `5,000/ was handed over to the second accused. Thereafter first accused proceeded to reside at the house of PW14 after purchasing chicken and he left the next day. (xi) Call came in the mobile phone of PW3 stating that the speaker is one Jineesh (PW18). Call was taken by PW2. The call came at about 6 p.m. on 9/8/2011 from a number, the D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:25:- last digit of which was 192. She immediately knew that it was not Jineesh as it was the slang of a Muslim person. This matter was informed to PW3 and they had suspicion about the first accused and that she was in the company of the first accused. The matter was informed to the police also. (xii) The police could not find out the whereabouts of the first accused initially. However, he was arrested by PW40 on 21/8/2011. (xiii) On the basis of disclosure statement of first accused, the dead body of the victim was found out in a dense forest at Apappara near Panavally. The body was wrapped in a polythene sheet. (xiv) The polythene sheet was purchased by the first accused from the shop of PW8 who has identified him. (xv) PW45 had arrested the second accused and on the basis of his disclosure statement, the school bag and other dresses of the deceased were recovered from a pit near a pond, which was also a place near the forest where the dead body was abandoned. D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:26:- (xvi)The relatives and other witnesses had identified the dress of the victim worn by her at the time when she had left the house and was in the company of accused 1 and 2. (xvii) Scientific evidence would show that the death was on account of strangulation. (xviii) The face of the victim was defaced with a stone which was also recovered and blood was identified in the said stone. 43. When all the above facts stand proved by oral and documentary evidence, it only points out to the complicity of the accused to the crime. The accused have no explanation as to how they had come in possession of the gold ornaments MOs1 to 3 belonging to the deceased. They were seen along with the deceased at Panavally near Appapara forest at about 10 a.m and PW6 saw accused 1 and 2 leaving the said place at about 1 pm. As to what happened between 10 am and 1 pm and what happened to the girl who was accompanying accused 1 and 2 were the challenge to the prosecution. But when the body was recovered on the basis of the disclosure statement of the first D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:27:- accused himself and the material belongings of the deceased were recovered on the basis of the statement of first accused as well as second accused, and as material belongings are identified and supported by other witnesses, the complicity of the accused to the crime stands proved beyond reasonable doubt. 44. Therefore, we do not find any error on the part of the court below in finding the accused guilty. The witnesses had been thoroughly cross examined by the counsel appearing on behalf of the accused. But nothing has been brought out in cross examination to discredit that testimony. Therefore, all the circumstances arising in the case stand clearly proved and no other hypothesis can be drawn other than the guilt of the accused. 45. A girl aged 20 years was lured and taken to a forest area with an intention to commit murder. She was strangulated to death using her own shawl. The body was covered in a plastic sheet and dumped in a forest area with an intention that nobody would identify the said body. Her belongings except gold ornaments were buried in a pit little far away from where the D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:28:- body was abandoned near a pond and the gold ornaments were pledged for money. 46. Having found that the crime stands clearly proved against the accused, the only other question remaining is whether the imposition of death sentence can be confirmed or not. The principle in regard to grant of death sentence has been clearly stated in a long line of judgments starting from _**Bachan Singh v. State of Punjab**_ [(1980) 2 SCC 684] and later clarified in _**Machhi Singh v. State of Punjab**_ [(1983) 3 SCC 470]. A three Judge bench of the Apex Court in _**Machhi Singh**_ (supra) held at paragraphs 32 to 38 as under:- _**“32.** The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of_ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:29:- _the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder_ _**33.** When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,_ _(i) when the house of the victim is set aflame with the end in view to roast him alive in the house._ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:30:- _(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death._ _(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner._ _II. Motive for commission of murder_ _**34.** When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland._ _III. Anti-social or socially abhorrent nature of the crime_ _**35.** (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance._ _(b) In cases of “bride burning” and what are known_ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:31:- _as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation._ _IV. Magnitude of crime_ _**36.** When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed._ _V. Personality of victim of murder_ _**37.** When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons._ _**38.** In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:_ _“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme_ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 ## -:32:- _culpability._ _(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’._ _(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances._ _(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”_ 47. In yet another judgment in _**Sushil Sharma v. State**_ _**(NCT of Delhi)**_ [(2014) 4 SCC 317], it was held that there can be no hard and fast rule which the Court can follow while considering whether an accused should be awarded death sentence or not. 48. In _**Swamy Shraddananda @ Murali Manohar Mishra**_ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:33:- _**v. State of Karnataka**_ [(2008) 13 SCC 767], a three Judge Bench of the Supreme Court, held that if there is a good and strong basis for the court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, it could be done. The Constitution Bench of the Supreme Court in _**Union of India v. Sriharan**_ (2015 KHC 4778) held that life imprisonment in terms of Section 53 read with Section 45 IPC means the entirety of life of the prisoner unless it is curtailed by remissions validly granted under Section 432 Cr.P.C. or Article 72 or Article 161 of the Constitution. It was held that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and it can be put beyond the application of remission. 49. The learned counsel for the appellants submits that this is not a case where death sentence is to be awarded. He relied upon judgments in _**State of U.P. v. Arun Kumar Gupta**_ [(2003) 2 SCC 202] and also the judgment in _**Rambraksh alias Jalim v.**_ D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:34:- ## _**State of Chhattisgarh**_ [(2016) 12 SCC 251]. 50. In _**Arun Kumar Gupta**_ (supra), the Apex Court held that when recovery of the material objects are made from the house of accused and the residents of the house or persons from the immediate proximity was not cited as a witness for recovering the articles, it was held that the witness who was cited by the prosecution was not a resident in the immediate proximity and there is no reasonable explanation why such a person was called to be witness to the recovery. The evidence of such a person was found to be discrepant. We do not think that this judgment has any application to the facts of the present case. This is an instance where the body itself was identified at the instance of the first accused who had given a disclosure statement. Secondly, the gold ornaments were recovered from a Bank where it was pledged by PW14. The dresses and other articles of the deceased were recovered on the basis of the disclosure statement of the second accused which were identified by her relatives. Therefore, even if there is any discrepancy in the person who was not in the locality to be a witness, it does not affect the D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:35:- prosecution case in any manner. That apart, independent witnesses had also signed the mahazar for recovery of articles. 51. In _**Rambraksh**_ (supra), the Apex Court considered the question regarding last seen theory. It was held that a conviction cannot be based only on the circumstances of last seen together. The principle underlying is that the last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and deceased is found dead is so small that possibility of any person other than the accused being the perpetrator of crime becomes impossible. The law is thus well settled. But in the case on hand, the deceased was seen last along with the accused 1 and 2 by PW6 at 10 am. Thereafter at 1 pm accused 1 and 2 alone were seen coming from the side of the forest. Ultimately dead body was found inside the forest. When the body is found inside the forest, it necessarily means that accused 1 and 2, who were seen with her at 10 am, knew about the death of deceased and how it happened. At any rate, as far as this case is concerned, the conviction is not solely based on the last seen theory. There are various other materials which D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:36:- have already been discussed to arrive at the conclusion that the accused had committed the crime. 52. Learned counsel appearing for first accused placed reliance upon a judgment in _**Amrit Singh v. State of Punjab**_ (AIR 2007 SC 132). That was a case in which a minor girl was raped and murdered. Medical evidence indicates that she died on account of excessive bleeding from her private part. It was held that in so far as there was no specific overt act on the part of accused, nor he had premeditation for committing the offence, it cannot be said to be a rarest of rare cases. She also relied upon _**Machhi Singh**_ (supra) to emphasise the point that before awarding the extreme penalty of death, various aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before exercising the option. 53. Learned Public Prosecutor while placing reliance on various judgments which we have already quoted argues that this is also an instance where a girl aged 20 years being lured to go D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:37:- with her lover to a forest area along with a friend was brutally strangulated to death and attempts were made to destroy the evidence by abandoning the death body covered in a plastic sheet in the midst of a forest. First accused is a person who got acquainted with the family members and had taken the girl to the forest area for committing rape and thereafter strangulated her. There is no evidence for rape on account of the fact that the body was received in a decomposed stage. But even assuming that there was no rape or any sexual activity, still the girl was taken with some form of a promise to an interior forest area either to have sex or for some other purpose. Accused 1 and 2 definitely had in mind to commit murder since both of them had the intention to take her properties especially her gold ornaments and for that purpose they have collected her gold ornaments and thereafter murdered her. 54. As far as the second accused is concerned, he participated in the crime at the behest of the first accused. But, it is well evident from what they have done before the commission of the crime and after commission of the crime that they have a D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:38:- common intention to commit murder. The fact that second accused accompanied the first accused along with the victim clearly indicates that they have a premeditation to commit murder. Otherwise, second accused is not acquainted with the girl in any other manner and under normal circumstances, there was no reason for the second accused to accompany them. After commission of the crime, they proceeded to meet PW14. The gold ornaments were pledged and the booty was shared. First accused stayed with PW14 and on the way to his house, he even purchased chicken for consumption. This incident which stands proved clearly proves their premeditation to commit murder. The fact that first accused had purchased a polythene sheet prior to the commission of crime also proves the fact that he had a premeditation to commit murder and to conceal the body inside the forest which was totally uninhabited, with wild animals. As per the evidence of the Forest Range Officer, even the officers do not dare to go to that area. The crime was so brutal that after strangulating her, they defaced her by hitting her with a large stone MO22. Therefore, both of them were involved in a brutal D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:39:- crime which does not require any form of sympathy. 55. However, taking into account the fact that the second accused had gone along with the first accused at the instance of the first accused and he had no connection whatsoever with the deceased and his intention was to share the booty, the award of death sentence to the second accused is to be interfered with. 56. But, as far as the first accused is concerned, the argument of the prosecution is that he does not deserve any mercy. One factor which precludes us from confirming the death sentence is the voluntary approach of the deceased in going along with the first and second accused. Apparently, the first accused was well connected with the family of the deceased. In the guise of going to college, she had gone with him to a distant place. There was no compulsion nor force. She voluntarily went with him. In other words, the accused got an opportunity to commit the crime on account of the concession extended to the accused by the deceased herself. Why did she go deep into the forest along with two men of which one was a total stranger is not known. If she had remained away from such untruly elements, D.S.R.No.2/2013, Crl.Appeal Nos. 769 & 948 of 2013 -:40:- she would not have suffered at the hands of the accused. 57. Taking into consideration all the aforesaid facts, we are of the view that the award of death sentence against the accused has to be set aside. In the result, these cases are disposed of as under:- (i) In Crl.Appeal Nos.769/2013 and 948/2013, the sentence against the accused/appellants are converted to rigorous imprisonment for life. However, we make it clear that the accused shall not be released from prison until expiry of a period of 25 years, and during the said period they shall not be entitled for any remission. (ii) In DSR No.2/2013, we modify the sentence of death penalty u/s 302 I.P.C. to imprisonment for life as stated above. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge