Kerala High Court
Ayyppankutty vs State Of Kerala on 11 April, 2019
Equivalent citations: AIRONLINE 2019 KER 54
Author: Ashok Menon
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941
CRL.A.No. 1079 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 161/2009 of ADDITIONAL DISTRICT
COURT & SESSIONS COURT - I, KALPETTA DATED 25-06-2014
APPELLANT/ACCUSED:
AYYPPANKUTTY
AGED 49 YEARS, S/O.AYYAPPAN,
KAPUKUZHIYIL HOUSE, PUTHUR, VALAD,
MANANTHAVADY TALUK, WAYANAD DISTRICT.
BY ADV. JOSEPH JERARD SAMSON RODRIGUES(STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(REP. BY S.I. OF POLICE, THALAPUZHA POLICE STATION
(CRIME NO.145/2008) REP. BY STATE PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2019,
THE COURT ON 11.04.2019 DAY PASSED THE FOLLOWING:
Crl.Appeal No.1079/14
-2-
JUDGMENT
Ashok Menon, J.
The appellant is the accused in S.C.No.161/2009 on the file of Additional Sessions Court-I, Kalpetta challenging judgement of the trial court convicting the accused for uxoricide, punishable under Section 302 and 449 of Indian Penal Code, sentencing him to undergo imprisonment for life and to pay a fine of Rs.20,000/-, in default to undergo rigorous imprisonment for one year under Section 302 and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months under Section 449.
2. "Marriage is that relation between man and woman in which independence is equal, dependence is mutual and the obligations reciprocal"-Louis K. Anspracher.
3. The prosecution case is that of an interfaith love marriage going sour with the passage of time, ending in a gruesome murder. The appellant, a Hindu by birth, married Lilly, a Christian, after falling in love with each other, about two decades ago, and begot Crl.Appeal No.1079/14 -3- a son in the wedlock. The couple fell out and started living separately, three years prior to the occurrence. Their son, however, continued residing with the accused. It is the prosecution case that Lilly was constantly harassed, ill-treated and subjected to physical and mental cruelty, by the accused. Criminal cases were also filed against the appellant by the deceased. Ext.P13 is the copy of one such complaint in M.C.No.6/2007 filed by the deceased under the provisions of Protection of Women from Domestic Violence Act, and Ext.P14 is the order of the Magistrate in that petition, granting a protection order and restraining the accused from entering the house where the deceased resided alone. Maintenance at the rate of Rs.1,000/- per month was also directed to be paid to her. Yet, the appellant failed in complying with the order to pay maintenance. Ext.P15 is another complaint filed by her, accusing the appellant of an offence punishable under Section 498A of the I.P.C. and Exts.P15 and P16 are copies of the complaint and F.I.R. in Crime No.111/2007 against the accused. PW19 is the Crl.Appeal No.1079/14 -4- Junior Superintendent of the JFCM-I, Mananthavady, who on request made by the investigating officer issued Exts.P13 to P16.
4. Lilly intended to approach the Court for executing the order of maintenance. Appellant peeved with the matrimonial litigations against him, threatened to liquidate her. Nursing this grouse against his wife, and to accomplish his motive, on 28.08.2008 at about 11.15 p.m., the appellant allegedly trespassed into the house, where Lilly was staying, and attacked her brutally with MO1 chopper, which he had got whetted, a couple of days ago, for the purpose by PW11 a blacksmith, causing fatal injuries to her.
5. Ext.P11 autopsy report prepared by PW16, the Police Surgeon, describes the injuries as thus:-
"1. Incised wound (slash) 19x2 cm, arch shaped, convexity upwards, over left side of head. Front end 3 cm outer to orbit, back end 4 cm above occiput. Upper margin coursed upwards reaching 3 cm each below frontal and parietal eminenaces; lower margin showed a bifurcation curved down 7 cm long 5 cm behind mastoid (11 cm behind - front end). There was a tag of skin 2.5 cm long at middle portion of lower border. This wound showed bevelling down and to right with flap directed obliquely downwards with edges showing mild contusion, hair along the edges seen cut. Underneath the skull showed a transverse cut 9 cm long, with bevelling directed down and to right. The cut involved the entire thickness of left tempero parietal bones and involved the dura and left temporal lobe showed a transverse cut 8x0.3x0.5 cm. Diffuse thin subarachnoid haemorrhage present at left front temporo parietal region.Crl.Appeal No.1079/14 -5-
2) Incised wound (slash) 11x1 cm transverse at left side of neck front end at angle of jaw (produced a cut fracture of ramus underneath) coursed 1 cm below left ear lobule back end was at back of neck 2 cm left to midline. No bevelling edges showed mild contusion. Back end was more deep (5 cm) reached the left half of posterior cranial fossa.
3) A cresentic superficial incised wound 1.5x0.1x0.1 cm with convexity directed upwards and back, over left zygoma 1 cm infront of left tragus.
4) Incised wound 5x3 cm with full thickness scalp avulsion, at vertex of head with a tail 1 cm at outer margin of back right end. Hair seen cut and margins showed minimal contusion.
5) Incised wound 8x0.8x0.8 cm at top of head front end was 15 cm above root of nose and 1 cm left to midline. Back end was 2 cm above parietal eminence (right) margins showed contusion, hair seen cut and skull underneath (parietal bones) showed a nick.
6) Incised wound (slash) 15x3 cm, over right side of face and neck, almost transverse, front end 5 cm right to midline at lower end of zygoma, back end was at back of neck 2 cm right to midline and 3 cm above root of neck. Edges showed bevelling directed downwards and left with minimal contusion.
Upper margin had passed through zygomatic arch cut the lobule and helix of right ear for 4 cm then passed through under aspect of mastoid to back of neck, lower margin had ear lobule and portion of pinna attached to it. Back end showed a bifurcation 0.5 cm long. In depth the right angle of jaw showed a cut, also the soft tissues and muscles involved. The wound edges showed bevelling downwards and to left the minimal contusion. Scalp hair 4 cm behind mastoid seen cut at edges of wound. Depth of back half was more.
7) Superficial incised wound 3 cm over left palm 0.5 cm inner and parallel to hypothera eminence.
8) Linear contused abrasion 2 cm, obliquely, back of right shoulder blade, upper inner end was 5 cm below shoulder and 5 cm right to midline.
9) Linear contused abrasion 2.5 cm oblique at back of root of neck, upper inner end was 4 cm left to midline."
6. The Surgeon opined that the death was due to multiple incised wound with a heavy cutting weapon involving head and neck. He also supports the prosecution version that the injuries could be caused by a weapon like MO1.
Crl.Appeal No.1079/14-6-
7. There were no eye witness to the occurrence. PW7 Tomy, who is the area committee member of CPI(M) was engaged in a meeting in the party office, that night when he received a telephone call from Thalappuzha Police Station about the occurrence, and by about 11.30 p.m., he met the accused, who had come to the party office to inform that he has done away with his wife. On coming to know about the occurrence, PW7 immediately informed the Police about the confession made by the accused to him. Thereafter, he called PW1, the brother of the deceased, over the phone and intimated him about the occurrence. PW1 admits having got the call from PW7 and rushed to the scene of occurrence to find Lilly lying dead in a pool of blood. PW1 went to the Thalappuzha Police Station and gave Ext.P1 F.I.Statement, on the basis of which PW20, the ASI of Police on duty at the Station, registered Ext.P1(a) FIR, as Crime No.145/2008.
8. PW22, the Circle Inspector of Police, Mananthavady conducted the initial investigation. He went to the scene of occurrence and conducted inquest Crl.Appeal No.1079/14 -7- and prepared Ext.P6 report as witnessed by PW7. He also prepared Ext.P4 scene mahazar witnessed by PW4. Thereafter, he sent the body for post-mortem. PW21, the successor-in-office of PW22, completed the investigation and filed final report under Section 173(2) of the Cr.P.C. before the Judicial First Class Magistrate's Court-I, Mananthavady, for offences punishable under Sections 449 and 302, I.P.C. against the accused, which was taken cognizance of as C.P.No.13/2009, and after due compliance of the formalities under Sections 207 and 209, Cr.P.C., the case was committed for trial to the Court of Sessions, Kalpetta.
8. The accused appeared and pleaded not guilty to the charges framed and read over to him by the Court, and faced trial.
10. The prosecution evidence consists of the oral testimonies of PW1 to PW22 and Exts.P1 to P22. The material objects were identified as MO1 to MO16.
11. The above stated prosecution version is narrated in detail by PW1, the brother of the deceased, Crl.Appeal No.1079/14 -8- and other witnesses. The couple were not in cordial terms and lived separately. The accused allegedly had illicit relationship with Philomina, the younger sister of Lilly, and frequented her house. This led to disharmony in their relationship, followed by frequent quarrels between them. Distraught with the clandestine relationship, Philomina's husband committed suicide. The accused was violent in the behaviour towards his wife, and once, broke the doors of her house in vengeance, about which, she made a complaint. In retaliation, she was brutally beaten up by the accused, and he also poured liquor into her mouth, by force. She was admitted for treatment in the Medical College hospital, for a fortnight. Testimony in support of this assault is given by PW1 and also by PW6, the elder sister of the deceased. Apart from them, PW2 Lilly's nephew, and her neighbours PW3, PW4 and PW9, also testify about the troubled relationship of the couple and their frequent rows over the extra-marital affair. The neighbours, the other siblings of the deceased, as also PW7, intervened in mediating the dispute between Crl.Appeal No.1079/14 -9- the deceased and the accused, have all spoken to about the threats to life of Lilly, held out by the accused. PW2 speaks of such a mediation that ensued in setting apart of five cents of property exclusively for Lilly to construct a house and reside.
12. PW2 and PW3 testified about witnessing seizure of MO1 to MO12, vide Exts.P2 and P3 seizure mahazars. Apart from witnessing the preparation of Ext.P4 scene mahazar, PW4 is also a witness to the recovery and seizure of gold chain identified as MO13 and Rs.9,000/- in cash identified as MO14, from the house of PW5, as per Ext.P5 seizure mahazar, based on disclosure made by the accused. PW5 is also a witness to Ext.P5 mahazar. But he turned hostile and denied the prosecution story about the accused having entrusted him with MO13 to MO15. PW6 and PW9 also identified MO9 and MO13 as the gold cross and gold chain worn by the deceased.
13. PW7 is a person, who got to know about the occurrence in the first instance. He is an area committee member of the CPI(M) and states that he had intervened to resolve the strained relationship between Crl.Appeal No.1079/14 -10- the deceased and the accused and it is in accordance with the mediation talk that the couple decided to reside separately. He states about how in a fit of anger, the accused had once destroyed the doors of the house belonging to the deceased. He also was aware that there was a decree to pay maintenance to the deceased by the Court. He was engaged in a committee meeting in his party office, when he received a telephone call from the Thalappuzha Police Station, enquiring about the deceased and informed him about the occurrence. A short while thereafter, by about 11.30 PM, the accused approached him at the party office, and informed him that he has done away with his wife. PW7 informed this to the police and also to PW1. Apart from being an attestor to Ext.P6 inquest report, he has witnessed the seizure of MO1 to MO8.
14. PW8 is the son of the deceased and the accused. He was residing with his father. He admits that the couple used to quarrel frequently and that on the date of occurrence his father did not return home. Crl.Appeal No.1079/14 -11-
15. PW10 is a nun and the Director of S.H.Snehalayam, Kattimoola. She testifies that after having fallen out with her husband, the deceased had sought shelter in her institution for about 3 to 4 months.
16. PW12 and PW13 are jewellers, who testify that they had weighed MO9 and MO13 gold ornaments respectively, at the request of the investigating officer. PW14 is a Police Constable and attester to Ext.P7 mahazar prepared for the handing over of MO16 CD and Ext.P8 photographs clicked by PW17, the photographer. PW15 is the Village Officer, who prepared Ext.P9 site plan on request made by the investigating officer and also issued Ext.P19 Possession Certificate. Secretary of the Grama Panchayat is PW18, who issued Ext.P12 ownership certificate. Ext.P17 is the report of the Forensic Science Laboratory produced by the investigating officer. PW22 produced the material objects as per the property lists marked as Exts.P20 and P21, and filed Ext.P22 forwarding note for sending the material objects for chemical examination. Crl.Appeal No.1079/14 -12-
17. On closure of the evidence, the accused was questioned under Section 313, Cr.P.C. He denied the entire incident and also filed a written statement pleading innocence, and that at the instance of his brother-in-law and other members of his deceased wife's family, a false case has been foisted against him. He denies making any disclosure,recovery or seizure of any incriminating articles through him as alleged by the prosecution. The trial court did not find the case fit for acquittal under section 232 Cr.P.C. No defence evidence was adduced by the accused on being given the opportunity to do so.
18. The circumstantial evidence relied upon by the trial court to hold the accused guilty, is; Motive, Extra-Judicial Confession, Disclosure statement of the accused leading to recovery of the incriminating articles, medical evidence and other corroborative evidence.
19. The learned Counsel for the appellant questions the impugned judgment on the ground that material witnesses supporting the prosecution version examined Crl.Appeal No.1079/14 -13- as PW1, PW2 and PW6, who are all relatives of the deceased. PW7 and PW9 are neighbours, but their testimony do not inspire confidence. It is further pointed out that reliance placed by the trial court on the testimony of PW6, the sister of the deceased, who testifies regarding her having seen the accused coming out of the house of the deceased in the evening, is not believable, because she allegedly saw the accused between 5.00 to 5.30 PM on the date of occurrence coming out of the house of the deceased. Admittedly, the accused and the deceased were living separately and therefore there is no possibility of the accused to go into house of the deceased and if PW6 had seen him, she would immediately have questioned him about the reason why had gone there. It is also suspicious for another reason, because PW6 would say that she had gone to the bank for collecting her title deed deposited there, in the morning, and she claims to have returned only past 5.00 o'clock to see the accused coming out of the house of the deceased. It is highly improbable that she was held up in the bank till the evening. Hence, her Crl.Appeal No.1079/14 -14- testimony is highly suspicious. Moreover, she being the sister of the deceased can only be expected to support the case against the accused, with whom she was in inimical terms.
20. The learned Counsel for the appellant also points out that no DNA finger printing has been conducted to find out the details of blood smears found on the dress of the accused as well as on MO1 chopper. Not even finger prints are lifted from the chopper. Recovery of MO13 to MO15 on the alleged confession made by the accused is also not believable, because PW5, to whom the accused had allegedly entrusted these ornaments, has returned hostile.
21. It is also pointed out by the learned Counsel that it is very surprising that none of the neighbours heard the cries of the deceased when she was chopped brutally to death. It is submitted by the learned Counsel that the prosecution case rests solely on the circumstantial evidence and the chain of circumstances leading to the guilt of the accused has not been linked completed. The extra-judicial confession has not been Crl.Appeal No.1079/14 -15- proved adequately, because PW7 cannot be relied upon, argues the learned Counsel.
22. There is no doubt that the present case is based on circumstantial evidence for there are no eye witness to the occurrence. In cases where there is no direct evidence, and the prosecution case hinges on circumstantial evidence, motive assumes importance, and needs to be fully established like any other incriminating circumstance. It is true that there are no yardstick or golden scales to decide what will operate as sufficient motive for commission of a particular crime. It varies from individual to individual, depending on the character, psychology and various other factors. Motive is something which prompts a person to form an intention to do something. For some individuals, even a very slight motive may be enough to get him provoked, and for some it may be the result of malice or revenge or even to gain a small pecuniary advantage. Therefore, whether the accused had motive to commit a crime such as murder, depends what sort of individual he is and for that purpose Crl.Appeal No.1079/14 -16- evidence must be taken into consideration regarding how the accused had acted or performed on being provoked. Surrounding circumstances, previous and subsequent events, can therefore, be referred to in coming to a conclusion regarding the motive. In cases purely based on circumstantial evidence, motive has to be established by the prosecution. The circumstances should exclude the reasonable possibility of anyone else being the real culprit within the chain of evidence that is produced and the circumstances should be complete so as to hold the accused guilty. In ordinary human conduct, a person cannot be expected to kill another without adequate reasons or motive, and therefore, the proof regarding motive has an important role to play, in cases where the prosecution rests on circumstantial evidence alone. Even though motive may not be necessary or very material in cases depending upon direct evidence, the Honourable Supreme Court has in State of U.P. v. Babu Ram, (2000) 4 SCC 515, held that there is no legal warrant for making such a hiatus in criminal cases as for the motive for committing a Crl.Appeal No.1079/14 -17- crime. Motive is relevant factor in all criminal cases, whether based on testimony of eye witnesses or circumstantial evidence. The question in this regard is whether the prosecution was failed because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive, it would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally different area for any prosecution to bring on record what was in the mind of the accused, even though the investigating officer may have succeeded in knowing it through interrogation. That cannot be put in evidence by them, due to the ban imposed by law. Therefore, motive has to be proved by other means corroborating the prosecution version. Motive in criminal cases based solely on positive, clear, cogent and reliable, ocular testimony of witnesses is not at all relevant. In such a fact Crl.Appeal No.1079/14 -18- situation, the mere absence of strong motive to commit the crime, cannot be of any assistance of the accused. Motive behind a crime is a relevant fact regarding which evidence must be let. The absence of motive is also a circumstance, which may be relevant for assessing the evidence (vide Gurcharan Singh v. State of Punjab, AIR 1956 SC 460, Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322, Datar Singh v. State of Punjab, AIR 1974 SC 1193, and Rajesh Govind Jagesha v. State of Maharashtra, AIR 2000 SC 160.
23. In Sheo Shankar Singh v. State of Jharkhand, AIR 2011 SC 1403 while dealing with the issue of motive, the Honourable Supreme Court held thus:
"Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye- witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye- witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses. (See: Shivaji Genu Mohite v. The State of Maharashtra, AIR 1973 SC 55; Hari Shanker v. State of U .P. (1996) 9 SCC; and State of Uttar Pradesh v. Kishanpal and Ors., (2008) 16 SCC 73)".Crl.Appeal No.1079/14 -19-
24. Applying the precedents to the facts of this case, we would like to examine the evidence on motive. The accused was in no cordial terms with the deceased for a fairly long time, and lived separately. She had filed criminal cases against him under Section 498A, I.P.C. and had also filed petition for maintenance as is evident from Exts.P14 to P16. It is pertinent to note that the accused had earlier gone into her house and destroyed the doors of her house. She made a complaint before the police regarding that incident and she was beaten up black and blue by the accused. After which he even poured liquor into her mouth and she was rendered unconscious. This incident is spoken to by PW1, PW6 and PW7 and even stated in Ext.P13 complaint that was filed before the Court by the deceased. The fact that deceased had questioned the illicit relationship between the accused and Philomina, which led to the rift between the couple has also been spoken by PW1, PW6 and PW9. Ext.P13 complaint also states regarding this fact. It is also stated by the witnesses and in the petition by the deceased this Crl.Appeal No.1079/14 -20- illicit relationship between the accused and Philomina had even abetted Philomina's husband to commit suicide. PW7 is an independent witness, who is a politician and a member of the CPI(M). In Ext.P13 petition the deceased has stated that the accused was a CPI(M) sympathiser and she was provided with a separate place of residence on interference by the members of the party. PW7 also supports this version by stating that he had intervened in their dispute and helped the deceased to set up a separate residence for herself. PW1, PW2 and PW6 would also testify regarding the deceased setting up a separate residence following mediation. The relatives of the deceased, and her neighbours such as PW4 and PW9 would testify that the deceased had frequent quarrels with the accused and that the accused had even threatened to kill her. PW9 is a co-worker and even on the date of occurrence the deceased was engaged under in a MGNREGA Scheme. She states that the work had to be stopped because of the incessant rain and the deceased returned home early. PW9 also states that a week prior to the occurrence, Crl.Appeal No.1079/14 -21- the deceased had disclosed about her apprehension about the threats held out by the accused. PW10 is a nun in whose institution the deceased had taken refuge after being harassed and neglected by the accused. All these incidents would indicate that the accused and the deceased were in inimical terms. The accused was directed by the Court below to pay maintenance to the deceased at the rate of Rs.1,000/- per month, as evidenced by Ext.P14 judgment. This had provoked him enough to form a motive to do way with his wife, and he had even disclosed such an intention to PW7. The disclosure made to PW7 assumes importance, because he is the one who had intervened and mediated in settling the dispute between the accused and the deceased. PW1 does not appear to have any animosity against the accused, having any reason to perjure. His testimony, would therefore, bear much importance. We are of the view that the prosecution has succeeded in establishing the motive for the accused to commit the murder of the wife.
Crl.Appeal No.1079/14-22-
25. The next point that needs consideration is extra-judicial confession allegedly made by the accused to PW7. As we have already mentioned that PW7 appears to be a responsible and well-meaning social worker and his testimony cannot be brushed aside. On getting some information about the occurrence, even the police had first informed PW7. The accused himself approached PW7 by about 11.30 at night and confessed about eliminating his wife. Even though in the cross-examination and in answer to the query put to him under Section 313, Cr.P.C., the accused had retracted the alleged confession. We will have to scrutinise whether the alleged extra-judicial confession is an important circumstance to find the accused guilty.
26. Extra-judicial confession, as is well known, can form the basis of a conviction. But precedents would suggest abundant caution and therefore, the Court will have to look for corroboration before accepting the extra-judicial confession. The extra-judicial confession, however cannot ipso facto be termed to be tainted. What the Court has to examine is whether the Crl.Appeal No.1079/14 -23- extra-judicial confession was made voluntarily or not. The Honourable Supreme Court in Nazir Khan v. State of Delhi, (2003) 8 SCC 461, held;
"a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt."
Hence, an extra-judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court. The value of the evidence as to such a confession would always depend on the reliability of the witness, who gives that evidence of having received an extra-judicial confession from the accused. The Court cannot start with a presumption that extra- judicial confession is a weak type of evidence, because it always depends upon the nature and circumstances of each case (vide State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, Kulvinder Singh v. State of Haryana, (2011) 5 SCC 258). The Honourable Supreme Court in Jagta v. State of Haryana, AIR 1974 SC 1545 and in State of Punjab v. Bhajan Singh, AIR 1975 SC 258 held that evidence of extra-judicial confession with the very nature of things, is a weak piece of evidence. However, it would not be open to the Court to start Crl.Appeal No.1079/14 -24- with such a presumption and therefore it always depends on the circumstances of each individual case.
27. Coming to the evidence in this case, we have already found PW7 to be very reliable, socially responsible citizen, who had made earnest attempt to settle the dispute between the accused and the deceased. He testifies that accused has been threatening to do way with his wife, so did, PW1, PW6 and PW9 testify. Hence the threat held out by the accused has been sufficiently testified by a number of witnesses. It is in the background of such threats held out by the accused long before the commission of the offence, coupled with the judgment against him to provide maintenance to the deceased that provoked to do what he did. The alleged extra-judicial confession is made by the accused after the occurrence when he went directly to PW7 at the party office and told him that he has accomplished what he desired to liquidate. We strongly rely on the extra-judicial confession spoken to by PW7 as a circumstance against the accused. Crl.Appeal No.1079/14 -25-
28. Apart from the motive and extra-judicial confession, the disclosure made by the accused, are also circumstances leading to the recovery of MO13 to MO15. It is true that PW5 turned hostile. But the identity of MO13 to MO15 has been established as that belonging to the deceased. MO13 is the gold chain worn by the deceased and MO14 is the cash she was holding, wrapped in MO15 paper. As per the confession statement made in Ext.P19 to PW22, who recovered MO13 to MO15 from PW5 the accused had entrusted. There are witnesses such as PW4 to the seizure of these articles as per Ext.P5 mahazar. PW4 is running a business in the same building, where PW5 is residing and therefore he is a natural witness to the recovery and seizure. The prosecution case regarding the recovery cannot be discarded merely because one of the witnesses pertaining to recovery has turned hostile [Ramesh Harijan v. State of U.P., (2012) 5 SCC 5177 and State of U.P. v. Ramesh Prasad Mishra, AIR 1996 SC 2766]. PW5 has admitted his signature on Ext.P5, and therefore, it is very clear that he was deliberately Crl.Appeal No.1079/14 -26- attempting to shield the accused. PW6 and PW9 had testified that the deceased used to wear MO9 cross in MO13 gold chain. The fact that the couple were residing separately for the last 3 years prior to the occurrence and thereafter on disclosure, made by the accused, MO13 being recovered from PW5, is a very strong circumstance to show that the accused had a grudge towards the deceased and had taken MO13 chain from her either before doing away or after he had done away with her.
29. MO1 chopper was got whetted by PW11 on request of the accused a few days prior to the offence and PW11 has identified MO1 as the chopper he had whetted. MO9 cross usually worn by the deceased was also recovered from the accused. As per Ext.P3 mahazar of PW22, which is attested by PW3, who testifies regarding the seizure of the cross from the pocket of the inner garment worn by the accused.
30. The learned defence Counsel has taken exception of none of the neighbours hearing a hue or cry or sound when the deceased was brutally murdered with a chopper. She would definitely have raise some alarm. But the fact Crl.Appeal No.1079/14 -27- that the neighbours did not hear it, raises suspicion against the prosecution case. PW1, PW2 and PW9 have testified that there was heavy rain on the date of occurrence and it is possible that due to showers of the pouring rain, the cries of the deceased got muffled. PW9 has testified that the deceased had returned home early that day and the accused was seen coming out of the house by PW6. Ext.P17 report of the F.S.L. has identified human blood on the dress worn by the accused, as also MO1 chopper. The mere fact that the blood identified from the cloths of the deceased and the chopper is not established as that of the deceased, cannot be a reason for discarding the prosecution case. The learned defence Counsel has also argued that Philomina, with whom the accused was allegedly having an amorous relationship, has neither been cited as a witness by the prosecution nor questioned during investigation. Philomina, the sister of the deceased, was having a clandestine relationship with the accused, which in fact, led to the discordant relationship between the accused and the deceased. It also led to rift in Philomina's own marital relationship with her husband, driving him to commit suicide. The Crl.Appeal No.1079/14 -28- investigating officer states that though he attempted to question Philomina, he could not reach her. We do not think that the non-examination of Philomina is fatal to the prosecution case. Not only did the siblings of the deceased, her neighbours too have testified regarding this relationship, which paved the way in spoiling the romantic relationship of the deceased and the accused.
31. The argument of the learned defence Counsel that finger prints could not be lifted from MO1 chopper is also not of much consequence. Because the chopper was recovered from the place of occurrence and it had human blood on it. That apart, there is extra-judicial confession of the accused, apart from the threat he has been holding out to liquidate the deceased, as spoken to by witnesses. There is sufficient corroboration to assist the prosecution case. The medical evidence, and the scientific evidence, referred to by us earlier would also supply the chain of circumstances. All these put together, would unflinchingly point towards the guilt of the accused. The chain of circumstances has been completed without any links missing. We do not find the Crl.Appeal No.1079/14 -29- probability of anyone other than the accused nurturing a grouse against the deceased to have her eliminated.
We are therefore convinced that the learned Sessions Judge has come to a correct conclusion regarding the guilt of the accused. The conviction and sentence is upheld.
The Criminal Appeal is therefore dismissed confirming the conviction and sentence of the accused.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
dkr JUDGE