Kerala High Court
State Of Kerala Represented By vs Shereef on 28 October, 2019
Equivalent citations: AIRONLINE 2019 KER 590
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941
Death Sentence Ref..No.5 OF 2013
AGAINST THE JUDGMENT IN SC 1222/2011 OF SESSIONS
COURT,THIRUVANANTHAPURAM
PETITIONER/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
RESPONDENT/ACCUSED:
1 SHEREEF, S/O KHALID,
SAMEEHA MANZIL, PUKAYILATHOPPU JUNCTION,
KARAKKADA DESOM, EDAIKKODE VILLAGE
FROM VILAYIL PUTHEN VEEDU,
MUDAPURAM DESOM, KIZHUVILAM VILLAGE.
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD
ON 09-08-2019, ALONG WITH CRL.A.20/2014, CRL.A.40/2014(D),
THE COURT ON 28-10-2019 DELIVERED THE FOLLOWING:
DSR No.5/13 & conn.cases
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941
CRL.A.No.20 OF 2014
AGAINST THE JUDGMENT IN SC 1222/2011 DATED 19-10-2013 OF
SESSIONS COURT,THIRUVANANTHAPURAM
CP 78/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,VARKALA
CRIME NO.702/2011 OF Varkala Police Station,
Thiruvananthapuram
APPELLANT/ACCUSED NO.2:
SANOBAR
S/O.HAMEED, CHARUVILA VEEDU, PREM NAZEER NAGAR,
THENNOORKONAM, MUDAPURAM DESOM, KIZHUVILAM
VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI. M.SUNIL KUMAR.
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.M.VIVEK
DSR No.5/13 & conn.cases
-:3:-
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM 682 031.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-
08-2019, ALONG WITH Death Sentence Ref..5/2013,
CRL.A.40/2014(D), THE COURT ON 28-10-2019 DELIVERED THE
FOLLOWING:
DSR No.5/13 & conn.cases
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 28TH DAY OF OCTOBER 2019 / 6TH KARTHIKA, 1941
CRL.A.No.40 OF 2014
AGAINST THE JUDGMENT IN SC 1222/2011 DATED 19-10-2013 OF
SESSIONS COURT,THIRUVANANTHAPURAM
CP 78/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,VARKALA
APPELLANT/A1:
SHEREEF
S/O KHALID, VILAYIL PUTHEN VEEDU, MUDAPURAM
DESOM, KIZHUVILAM VILLAGE, CHIRAYINKIZH TALUK,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.P.K.VARGHESE
SRI.K.S.ARUN KUMAR
SMT.M.N.MAYA
SMT.RESMI THOMAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT,
REPRESENTED THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-
08-2019, ALONG WITH Death Sentence Ref..5/2013,
CRL.A.20/2014, THE COURT ON 28-10-2019 DELIVERED THE
FOLLOWING:
DSR No.5/13 & conn.cases
-:5:-
JUDGMENT
[Death Sentence Ref.No.5/2013, CRL.A.No.20/2014 & CRL.A.No.40/2014] Dated this, the 28th day of October 2019 Shaffique, J.
These appeals and DSR arise from SC No.1222/2011 arising from Crime No. 702/2011 of Varkala Police Station. Crl.Appeal No.40/2014 is filed by the 1st accused and Crl.Appeal No.20/2014 is filed by the 2nd accused. By virtue of the impugned judgment dated 19/10/2013, first accused was sentenced to be hanged by the neck till his death for the offence u/s 302 I.P.C. The second accused was sentenced to imprisonment for life and to pay a fine of `10 lakhs under Section 120B r/w S.302 I.P.C. and in default of payment of fine, to undergo rigorous imprisonment for four years. In the event of realisation of fine amount, the entire amount was to be given to PW2 under Section 357(1) Cr.P.C. The first accused was further sentenced to rigorous imprisonment for 7 years under Section 328 I.P.C., rigorous imprisonment for 7 years under Section 364 I.P.C. and rigorous imprisonment for 3 years under DSR No.5/13 & conn.cases -:6:- Section 201 IPC. The sentences were to run concurrently and the sentence of death imposed on the first accused was subject to confirmation of this Court. The second accused was entitled for set off u/s 428 of Cr.P.C.
2. DSR No.5/13 has been placed before us for confirmation regarding the death sentence imposed on the first accused.
3. The case of the prosecution is that the accused persons were having financial transactions with deceased Salim. Huge amount of money was due to the deceased Salim from the accused persons. In order to avoid repayment of the money to the deceased, the accused persons committed criminal conspiracy and in pursuance thereof, the first accused on 9/7/2011 at 10.30 am contacted deceased Salim over mobile number of deceased Salim viz., 9895716570 using mobile number 9946385801 obtained by the first accused with a forged identity card and invited deceased Salim to the rented house of the first accused stating that he had arranged a woman for him in the said house. In pursuance of the temptation made by the first accused, the deceased Salim accepted the invitation of the first DSR No.5/13 & conn.cases -:7:- accused. The first accused took deceased Salim in an Ambassador car bearing Regn.No.KL-2/D-6046 from a place near to Parakkulam L.P.School to the rented house of the first accused viz., Sameeha Manzil situated near Pukayilathoppu Junction in Edakkode Village. The first accused took deceased to the hall room of the said house at 11 am on the same day. Thereafter the first accused caused deceased Salim to drink beer with ice cubes containing powdered drug viz., Nitrest-10 tablets, which is a stupefying drug and the first accused administered the drug to Salim and he became unconscious. Thereafter, the first accused inflicted fatal injuries on the head of deceased Salim by cutting with a chopper which was sufficient in the ordinary course of nature to cause death and Salim succumbed to the injuries at or about the same time. The first accused cut the body of deceased Salim into sixteen pieces on the same day at or about the same time with a chopper and a knife and put the same into nine plastic packets. Thereafter, the above said nine packets, chopper and knife, the clothes worn by the deceased Salim at the relevant time, the clothes worn by the first accused at the relevant time, the forged documents used by the first accused for obtaining the DSR No.5/13 & conn.cases -:8:- SIM card, the photograph which was used to make fake ID proof, the cover paper of the SIM card, the empty covers of Nitrest-10 tablets etc., were buried by the first accused in a round pit taken by the first accused, on the eastern side of Sameeha Manzil, with the purpose of causing disappearance of the evidence of the commission of the crime. The prosecution alleged that the aforesaid acts were done by the 1 st accused pursuant to a criminal conspiracy entered into between the first and the second accused from February 2011 onwards when both the accused were in Saudi Arabia and thereafter over mobile phone and internet calls, when one of the accused was in India till the murder of deceased Salim on 9/7/2011 and as abetted by the second accused.
4. The deceased Salim was found missing from about 10 a.m on 9/7/2011. PW1 lodged Ext.P1, FI Statement before PW64, who was the then Senior Civil Police Officer in GD Charge of Varkala Police on 10/7/2011 with regard to the missing of deceased Salim. On the basis of Ext.P1 statement given by PW1, PW64 registered Crime No.702/2011 of Varkala Police Station under the caption "man missing". Thereafter, the investigation DSR No.5/13 & conn.cases -:9:- was taken over by PW74, the Sub Inspector of Police, Varkala Police Station on 11/7/2011. He questioned the witnesses and conducted the investigation. In the meantime, PW2, who is the wife of deceased Salim filed a habeas corpus petition before this Court, on account of which the District Police Chief, Thiruvananthapuram (Rural) entrusted the investigation to PW75, the Deputy Superintendent of Police, Attingal on 18/7/2011. He took over the investigation of the case on 19/7/2011 as per the direction of District Police Chief, Thiruvananthapuram (Rural). The Wagon-R car which was being used by deceased Salim was found abandoned near Chathanpara Junction and the car was seized by the police. Crime No.703/2011 of Kallambalam Police Station was registered by the Sub Inspector of Police Kallambalam in connection with the seizure of the said car. Wife of Salim filed a writ of Habeas Corpus before this Court, alleging that Salim was missing since 9/7/2011. The accused were also made respondents in the case. PW75 during investigation, arrested the first accused on 21/7/2011 at 11.30 am and questioned him. On the basis of the confession statement of the first accused, the remains of Salim along with various other incriminating materials DSR No.5/13 & conn.cases -:10:- were recovered from the compound of the house where A1 was residing. Based on the scientific evidence and DNA typing conducted by Forensic experts, the identity of the victim was confirmed, and after investigation final report was filed by PW75, before the Judicial Magistrate Court, Varkala. The case was committed to the Sessions Court, Thiruvananthapuram.
5. In order to prove the case, prosecution examined PW1 to PW76 and relied upon Exts.P1 to P243. The defence placed reliance on Exts.D1 to D11. On questioning under Section 313 of Cr.P.C., the accused denied the incriminating evidence against them. After completing the procedural requirements, the trial court found both the accused guilty and sentenced them as stated above.
6. The learned Public Prosecutor, Sri.Nicholas Joseph argued for sustaining the death penalty. It is submitted that the large scale financial transactions between the accused and the deceased is the motive for the crime. The accused had preplanned the murder, by inviting the deceased to his house, gave him liquor containing psychotropic substance and committed murder. The body was cut into several pieces and DSR No.5/13 & conn.cases -:11:- buried in his compound along with other incriminating materials. When the body of the deceased itself has been exhumed based on the confession statement of the accused, that itself is a strong circumstance to prove the crime. Though there are no eyewitnesses to the crime, the circumstantial evidence proved in the case itself is enough to convict both the accused. He argued for sustaining the judgment of the trial court.
7. The learned counsel for the first accused Sri.P.K.Varghese argued that there is absolutely no evidence to prove the involvement of the accused to the crime. Exhumation of the remains of a dead body was not on the basis of the confession statement of the accused. It is clear from the evidence that the police was aware of the burial area even before it was allegedly shown by the first accused. Evidence of PW12 proves the fact that it was not the accused who had pointed out the place of burial. It is argued that several incriminating materials were not put to the accused during questioning under Section 313 Cr.P.C., especially regarding the dress of the accused, place of burial etc. That apart, the recoveries were totally improper as no independent witnesses were examined, and Government DSR No.5/13 & conn.cases -:12:- officials alone were made witnesses to the recovery. There is also doubt regarding the collection of samples from the house of first accused, in so far as no incriminating substance was collected from the hall of the house, from which place according to the prosecution the murder was committed and the body was cut into pieces. It is also argued that the scientific evidence is to be discarded as the samples collected by PW75 was not in sealed form. Therefore there is every chance for tampering with the samples. Hence the chemical examination results are to be discarded. Finally it is argued that even if the conviction is sustained, it is not a rarest of rare case to give the extreme penalty of hanging by death.
8. Learned senior counsel Sri.B.Raman Pillai appearing on behalf of the 2nd accused argued that there is absolutely no iota of evidence to connect the second accused to the murder. The only evidence adduced by the prosecution is that the second accused had acquaintance with the first accused and the deceased. Though several documents are produced, prosecution thoroughly failed to prove any motive or involvement on the part of the second accused to have any sort of involvement in the DSR No.5/13 & conn.cases -:13:- crime.
9. Before proceeding further it will be useful to scan through the evidence in the case.
10. PW1 filed a man missing case before the Varkala Police Station on 10/7/2011 as Ext.P1. In the complaint it was stated that Salim was missing from 9/7/2011. He deposed that Salim's car was seen parked near a school in Chathenpara on 10/7/2011 at about 4.00 p.m. While being examined before Court, he also identified MO1 pants, MO2 shirt and MO3 spectacles of Salim.
11. PW2 is the wife of Salim. She narrated the nature of business Salim was having including money lending business. She deposed that Salim had told her that he had given huge amounts to A1 and A2. She identified them before Court. In fact, when there was no response to the man missing complaint filed by PW1, she filed a Habeas Corpus petition before the High Court. It was only on 21/7/2011 that she had come to know about the death of Salim.
12. PW3 is the younger brother of Salim. He is examined to prove the financial transaction Salim was having with A1 and A2. He identified the accused. He has also given evidence DSR No.5/13 & conn.cases -:14:- regarding various financial transactions entered into between Salim along with A1, A2 and others.
13. PW4 is a relative of Salim. He had spoken to Salim on 9/7/2011 at 10.30 a.m. He deposed that while he was speaking to Salim, PW2 was also there. He was told that Salim was proceeding to Chirayinkeezhu with a friend.
14. PW5 had been examined to prove the property transaction he had with Salim and A2. He identified A2. He deposed that Salim had given 60,000 Saudi Riyal to him and it was arranged by A2. He transferred his father's property in favour of A2 who agreed to clear off the debt due to Salim. He also identified A1 as A1 and A2 were residing in the same room in Saudi Arabia. His father's property was assigned in the name of A2 as well as Sulficker. On hearing about the news of the death of Salim, he called Sulficker and later he called the 2 nd accused as well. 2nd accused told him that Salim was missing and he would have been abducted by some person.
15. PW6 was conducting a patchwork cum painting workshop. During July, 2011, his neighbour Shefi had come to his workshop along with an Ambassador car bearing Regn.No.KL- DSR No.5/13 & conn.cases -:15:- 2D/6046 for repairs. While he was carrying on the maintenance work, Shefi again came along with a friend and asked for the vehicle. He took the vehicle and offered to bring it back soon. After a week, he brought back the car for carrying out the remaining maintenance work. A few days after that, he again came to the workshop and stated that the car had an accident and it is to be produced before the Police Station. The car was taken from the workshop on 22/7/2011 by Shefi.
16. PW7 is the mother of Salim. She identified MO5 shoes, MO3 spectacles and MO6 watch belonging to deceased Salim. She also identified the accused. The mobile number 9895716570 used by Salim was in her name. Her DNA profile was taken for the purpose of identifying the body of Salim.
17. PW8 has deposed that at 10.00 a.m. on 9/7/2011 he had seen a white Ambassador car in the premises of the first accused. The first accused was having a Scorpio car which was not found there. The house was seen closed. When he came back by 2 p.m. along with brother-in-law, the said white Ambassador car was still there. By about 5.30 p.m., when he came back, he did not see the Ambassador car.
DSR No.5/13 & conn.cases -:16:-
18. PW9 is a house wife, whose husband is living abroad. She was examined to prove the character of A1. She deposed that, while her husband was abroad he had come home, and made certain sexual remarks about her dress, which she did not like. On 9/7/2011 by around 10 a.m, A1 called her and offered to give her a ring. She disconnected the phone.
19. PW10 is an autorickshaw driver. He deposed that on 9/7/2011, at about 10.30 a.m., while he was proceeding to a workshop at Chathanpara, he saw a Wagon R car being parked on the side of the road. A person came out of the Wagon R car and boarded a white Ambassador car and left the place. After few days, the photograph of the person who came out of the Wagon R car appeared in the newspaper. After about 10 days, he came to know that the said person died.
20. PW11 is a worker in the spray painting workshop belonging to Salim. On 9/7/2011, Salim came to the workshop at 10.00 a.m. He left the place on that day in his blue coloured Wagon R car. He further stated that a few days prior to the missing of deceased Salim, A1 had come to his workshop in his white Scorpio car. He took a photograph of the vehicle and the DSR No.5/13 & conn.cases -:17:- photograph of Salim as well as A1 was also there. Ext.P18 is the photograph.
21. PW12 is a witness to exhumation of the dead body of Salim. He deposed that the exhumation and inquest were conducted in the premises of Sameeha Manzil in the presence of the first accused, the Deputy Superintendent of police and one Raveendran. The Additional Tahsildar was also present. The accused pointed out a pit. The police prepared a mahazar of the pit as Ext.P20. The Additional Tahsildar reached there at 12.45 p.m and exhumation was conducted. PW12 is a witness to the inquest. Ext.P22 is the scene mahazar in which he is a witness. The mahazar was prepared with respect of the hall, bathroom, kitchen etc. of the house Sameeha Manzil.
22. PW13, the President of Kizhuvilam Panchayat has witnessed the exhumation and inquest. Ext.P21 is the report prepared by Tahsildar after conducting exhumation and inquest.
23. PW14 deposed that he is the person doing the job of digging well. At the request of the 1st accused, who paid him `500/-, he had cleared a manure pit. He deposed that first accused had told him that since the septic tank was full, the DSR No.5/13 & conn.cases -:18:- contents had to be removed and it is for that purpose the pit had to be cleared. He received `500/-from the first accused.
24. PW15 is a blacksmith who made MO8 knife and sharpened MO7 chopper at the request of the first accused. He identified the accused as well as the weapons.
25. PW16 has a shop in which he sells various utensils. He identified MO7 chopper. According to him, he had made the handle of MO7. Ext.P25 is the mahazar.
26. PW17 is a witness to Ext.P26 mahazar. PW17 deposed that the first accused had come to the shop and asked for a SIM card stating that a person is admitted in hospital. His employee Valsala gave the SIM card to the first accused. He identified the first accused.
27. PW18 is the wife of the younger brother of deceased Salim. She identified MO1 pants and MO2 shirt of Salim. Salim left the house at 9.30 a.m on 9/7/2011 and thereafter he came back immediately and left again at 10.30 a.m.
28. PW19 is an employee of PW17. She deposed that Ext.P27(a) which forms part of Ext.P27 register was in her handwriting. She identified first accused who collected SIM card DSR No.5/13 & conn.cases -:19:- from her. SIM Card was not activated and accused came on the next day.
29. PW20 is a witness to recovery of MO12 broken mobile phone, MO13 a piece of Malayala Manorama daily dated 4/7/2011 and MO14 a granite piece. Those were recovered from a place near to the Mess of CRPF at the instance of the first accused.
30. PW21 deposed that he used to supply mobile phones to the shop of PW17. PW21 identified MO10 front panel of the mobile phone "Nokia 1280".
31. PW22 is a witness to Ext.P38 mahazar by which the Scorpio car was seized from the car shed of the house of first accused's sister.
32. PW23 is a witness to Ext.P42 mahazar by which police had seized Ext.P43 cheque book of the first accused from Union Bank of India and Ext.P44 passbook of Kizhuvilam Service Co- operative Bank.
33. PW24 had conducted the exhumation of the body of Salim. Ext.P21 is his report. He deposed that on digging the manual pit for about 1½ feet, an yellow polythene cover was recovered. The sand was removed further to a depth of 1½ feet DSR No.5/13 & conn.cases -:20:- more and 9 polythene packets were obtained. After completing the exhumation, each cover was examined. When the yellow cover which was exhumed was opened, it contained MO21 burmuda, MO22 T-shirt and MO23 under wear. MO24 is the yellow cover.
34. PW25 was the Branch Manager of Union Bank of India. He produced the account opening form of the first accused along with a copy of the passbook which are marked as Ext.P61 series. Ext.P64 is the mahazar.
35. PW26 is a person who resides near Sameeha Manzil. PW26 deposed that the first accused, his wife, mother and two children are residing in Sameeha Manzil from 2011 onwards by paying the rent. She also identified A1.
36. PW27 is another relative of Salim who deposed that Salim left the family house at 10 a.m in a Wagon R car to his site where new house construction was under way. Next day he saw the car of deceased Salim parked in front of the school at Chathenpara.
37. PW28 is a witness to Ext.P68 mahazar by which three airmail covers and one diary were seized by the police. DSR No.5/13 & conn.cases -:21:-
38. PW29 is the brother of 2 nd accused. He is a witness to Ext.P69 mahazar by which the police seized the mobile pone and SIM cards of the 2nd accused. MO43 is the mobile pone. MO44 and MO45 are the SIM cards recovered as per Ext.P69 mahazar.
39. PW30 is a Police Photographer. He had taken the photographs during exhumation of the body and during inquest. Ext.P70 series are the 53 photographs taken by him.
40. PW31 was the Scientific Assistant (Biology), Forensic Science Lab, Thiruvananthapuram who conduced exhumation of the body on 21/7/2011. She examined the scene of occurrence, collected bloodstains in cotton gauze from the eastern and western walls of the bathroom and tower bolt of the bathroom door. He also collected yarns and fibres from the cleaning brush used in the toilet. All the items were packed, labelled and handed over to the investigating officer for further detailed examination. Ext.P71 is the receipt issued by the investigating officer to PW31. Ext.P72 is the report of the examination of the scene of occurrence. In her report, it is stated that traces of blood were detected on the corner grooves of the bathroom floor, shower tap and pipes in the bathroom, lower portion of the inner and outer DSR No.5/13 & conn.cases -:22:- surface of the bathroom door frame and panel, corner grooves of the floor of corridor and lower portion of door frames of south- eastern and south-western bed rooms, the southern side wall of the hall and the premises of the corridor.
41. PW32 is a police constable who had handed over the exhumed body to the police surgeon for post-mortem examination as per directions issued by the Executive Magistrate. After post-mortem, he received the body, which was handed over to the relatives of the deceased.
42. PW33 is a friend of first accused. He deposed that first accused gave him `9 lakhs in four instalments for construction of the house of first accused. Ext.P77 is the diary which he had handed over to the Deputy Superintendent of police which shows the expenditure incurred for construction of the house. Mahazar of the construction site was prepared as Ext.P74. Ext.P75 is the plan of the house. PW33 identified the first accused.
43. PW34 is a signatory to Ext.P78, the mahazar by which a white Ambassador car bearing Regn.No.KL-02- D-6046 was seized by the Deputy Superintendent of Police on 22/7/2011. He was the Police Constable of Attingal Police Station. DSR No.5/13 & conn.cases -:23:-
44. PW35 is the Nodal officer of Idea Cellular company. He had given the call detail records relating to phone Nos.9961219751 and 9747683653. The number 9961219751 was in the name of one Sameer. Exts.P79 and P79(a) are the details of the call details and ID proof. No.9747683653 was in the name of one Shoba. Exts.P80 and P80(a) are the details regarding the call details and ownership.
45. PW36 is the Nodal Officer of Bharath Airtel Ltd. He proved the call detail records and the ownership of 4 mobile Nos. Mobile No.9895716570 was in the name of PW7 Subaida Beevi. 9633850780 is in the name of one Arifa Khalid.
46. PW37 produced the call details with reference to mobile numbers 9946385801 and 9946509511. The first number was in the name of One Rajeev Krishnakumar and the second number was in the name of PW15 Mohanan.
47. PW38 was the A.S.I. in the office of Deputy Superintendent of Police. He is a witness to Ext.P87 mahazar by which the R.C. book, insurance policy, fitness certificate and Form 29 relating to vehicle No.KL-02/D 6046 were recovered. He is also a witness to Ext.P93 mahazar by which police seized two Nitrest DSR No.5/13 & conn.cases -:24:- tablets and its bill on 31/7/2011. He is also a witness to Ext.P95 mahazar by which a relative of first accused produced the election identity card of the first accused to the police on 3/8/2011. He is also a witness to Ext.P97 mahazar by which the call detail records, ID proof etc., in respect of Exts.P84, P31 and P32 were seized by the police. He had also witnessed Exts.P98 and P99 mahazars.
48. PW39 Village Officer prepared Ext.P101 scene plan. The plan of the place where exhumation is conducted is produced as Ext.P101(a).
49. PW40 Civil Police Officer was a witness to Ext.P102 mahazar by which articles in a briefcase were seized from the 2 nd accused. He is also a witness to Ext.P103 mahazar prepared by the Dy.S.P. on 11/8/2011.
50. PW41 was the Professor and Head of Forensic Medicine Department during the relevant time. He conducted autopsy on the remains of the body of deceased Salim on 21/7/2011 at 3.00 p.m. Ext.P104 is the post-mortem certificate. The body was seen in 16 pieces as under:-
"1. Head.
DSR No.5/13 & conn.cases -:25:-
2. Chest cage devoid of skin, subcutaneous tissue and chest muscle with upper part of abdomen.
3. Lower half of abdomen and pelvis with external genitalia
4. Right arm.
5. Right forearm including elbow and hand.
6. Left arm.
7. Left forearm including elbow and hand.
8. Right thigh
9. Right leg with foot.
10. Left thigh.
11. Left leg with foot.
12. Flap of skin with subcutaneous tissue and muscle belonging to right side and back of chest.
13. Flap of skin with subcutaneous tissue and muscle belonging to right side of front of abdomen.
14. Flap of skin with subcutaneous tissue and muscle belonging to left side and front of chest.
15. Flap of skin with subcutaneous tissue and muscle belonging to left side of front wall of abdomen.
16. Flap of skin with subcutaneous tissue and muscle belonging to left side of back of chest."
The Doctor noticed the following ante-mortem injuries.
"1. Incised wound 11x2x1.5 cm, horizontal on left side of head and adjacent part of face across ear lobe involving its whole thickness, its front end 2 cm below outer angle of eye. Bone underneath cleanly cut for a depth of 0.9 cm.
2. Incised wound 7.5x1x0.5 cm, oblique on back of head, its upper outer left end 7 cm behind top of left ear.
3. Incised wound 6x1x0.5 cm, oblique and parallel to injury number (2) on back of head 3 cm above injury DSR No.5/13 & conn.cases -:26:- number (2).
4. Incised wound 8x1x0.5 cm, oblique and parallel to injury number (3) on back of head 2.5 cm above injury number (3).
5. Incised wound 4.5x1x0.5 cm, oblique and parallel to injury number (3) on back of head, 0.5 cm above right half of injury number (3).
6. Incised wound 4x1x1 cm coronal on right side of head 4 cm above top of ear.
Underneath injury Nos.(1) to (4) and (6) the skull was seen cleanly cut correspondingly for a depth of 0.5- 0.7 cm. Brain was seen in a liquified state, reddish black in colour and uniformly mixed with decomposed blood.
7. Incised wound 2x1x0.5 cm, oblique on right side of upper lip, its lower inner end 0.5 cm above its lower margin.
8. Incised wound 5.5 x 1cm, involving whole thickness of right cheek, oblique, its lower inner end 2 cm outer to angle of mouth. Right upper second premolar tooth cleanly cut obliquely at the junction of crown and root.
9. Incised wound 5 x 1 x 0.5 cm, vertical on right cheek, lower end just behind upper outer end of injury number (8).
10. Incised wound 5 x 2 x 3 cm horizontal on right side of face 1.5 cm below ear.
11. Incised wound 25x1x0.5 cm on right side of face 1 cm below injury number (10).
12. Incised wound 5 x 4 x 0.5 cm with avulsion of skin downwards on right side of back of head 2.5 cm behind ear.
Injury numbers (7) to (12) showed minimum ante- DSR No.5/13 & conn.cases -:27:- mortem features.
13. Incised decapitating wound 15x13 cm on under surface of head with multiple superficial incised side cuts on right side. The undersurface of body of third cervical vertebra showed multiple clean cuts. Fractured and fragmented vertebrae were remaining attached to muscles. Air passages seen cleanly cut below the level of cricoid cartilage. Other soft tissues including oesophagus and blood vessels cleanly cut."
51. PW41 has stated that the death of the deceased was due to injury Nos.1 to 6 sustained to the head. PW41 has further stated that the injury Nos.1 to 6 sustained to the head are independently and in combination sufficient to cause the death in the ordinary course of nature. PW41 was questioned by the investigating officer with reference to the weapon. PW41 has stated that injuries referred in Para XII to Para XVI in Ext.P104 could be caused with MO7 and MO8. PW41 further stated that the bony injuries referred to in Ext.P104 could be caused with MO7 and the soft tissue injuries could be caused with MO8. PW41 further stated that she examined the first accused Sheriff on 26/7/2011 at 12.45 p.m on the request of the Deputy Superintendent of Police, Attingal. She collected sample of scalp hair, body hair and nail clippings from him. PW41 also sent the DSR No.5/13 & conn.cases -:28:- first accused to the blood bank for determining the blood group. The blood group of the first accused is found to be A Rh+ve. Ext.P111 is the medico-legal certificate issued by PW41. PW41 identified the first accused with reference to the identification marks referred to in Ext.P111.
52. PW42 was the Assistant Chemical Examiner, Chemical Examination Lab, Thiruvananthapuram. On analysis he found that Zolpidem, a hypnotic substance together with ethyl alcohol was found in item Nos.1 and 2 referred in Ext.P105. Item No.1 is the stomach and part of intestine with its contents. Item No.2 is liver and kidney. He further deposed that Zolpidem is commonly called under the trade names Nitrest, Solbrium, Zolpicalm etc.
53. PW43 was the Joint Director (Research), Forensic Science Lab, Thiruvananthapuram. He received 38 sealed packets from the Court and on chemical analysis, he reported that item Nos. 3 to 5, 27 and 28 contained human blood and though item Nos.6, 9, 11 to 13 and 15 contained blood, it was not sufficient to determine the origin. Item Nos.7, 18 to 26, 29 and 30 contained blood which was not suitable for determining the origin. He further reported that DNA typing showed that bloodstains of item DSR No.5/13 & conn.cases -:29:- Nos.3, 4 and 5 and tissues of item nos.27 and 28 belonged to the deceased person to whom the molar teeth in item No.1, femur bone in item No.2(a) and sternum in item No.2(b) belonged. The DNA typing shows that the bloodstains on item Nos. 3, 4 and 5 and the bloodstains and tissues in item Nos.27 and 28 was comparable with that of Mrs.Subaida Beevi, mother of deceased and the DNA profile of deceased Salim was comparable with PW3, his brother. Ext.P106 is the report. MO7 is item No.27, the chopper that was examined by the expert.
54. PW44 was the Scientific Assistant, Forensic Science Lab. He examined 7 unsealed packets and one sealed packet and Ext.P107 is his report. He deposed that wavy deformations found on the blade of MO7 could be caused due to striking on hard surfaces like bone. He also deposed that material objects in item Nos. 16 and 17 and the curtain hook portion on item No.29 are similar.
55. PW45 was the Assistant Manager, Federal Bank, Nedumangad. She had produced Exts.P108, 109 and 110 statement of accounts with reference to the account of Shanavas Muhammed Ismail, the account of the 2nd accused. DSR No.5/13 & conn.cases -:30:-
56. PW46 is a Doctor who had issued Ext.P50 series prescriptions to the first accused. He had prescribed the medicines- Lozar A, Orvas-10 mg. Phenofibrate-200 mg and Nitrest-10 mg. Ext.P50(a) is the prescription for 10 nos of Nitrest. The prescription was given on 27/6/2011. Ext.P112 prescription was given to 2nd accused on 14/8/2009. He also deposed that Nitrest tablets is normally given to patients having "insomnia" which means sleeplessness.
57. PW47 was conducting a medical shop during the relevant time. He produced Ext.P114 copy of a computerised bill dated 28/7/2011. It was issued by Pharmacist Sajeena. He identified her signature. It is for sale of 20 numbers of Nitrest tablets given to first accused on 4/7/2011. He identified the first accused. He also deposed that tablets were given based on Ext.P50(a) prescription.
58. PW48 is a salesman in Aswas Medicals near Medical College Hospital, Thiruvananthapuram. He identified the 2 nd accused who came to his medical shop and asked for some sleeping pills. Since there was no prescription, he did not give it.
59. PW49 is the owner of Mohanam Medicals. He deposed DSR No.5/13 & conn.cases -:31:- that he had sold 20 numbers of Nitrest 10 mg tablets to Shereef (A1) on 4/7/2011. Ext.P117 is the bill book seized as per Ext.P118 mahazar. Ext.P94 is the bill which he had issued for two numbers of Nitrest 10 mg tablets which were issued to the police as required by them.
60. PW50 is the owner of Amrutha Medicals. He deposed that he had sold 5 numbers of Nitrest 10 mg tablets to the first accused along with 10 numbers of Finofibric tablets on 28/6/2011. He identified the first accused and also the bill book and the relevant entry in the same. He had signed Ext.P120 mahazar for seizure of the said bill book.
61. PW51 is a friend of Mohammed Shefi. Shefi was abroad. He knew the first accused. He deposed that he had gone to the house of first accused with the car bearing Regn.No.KL- 02/D 6046 along with Shefi during July, 2011. Car was taken to the workshop of PW6 Sunod. Shefi had driven the vehicle. PW51 followed him in a bike. Car was left at the house of first accused and Shefi came back on his motorbike. The car was later seen in the house of the sister's house of the first accused after one week. Shefi had taken the car from there to the workshop at DSR No.5/13 & conn.cases -:32:- Pothencode.
62. PW52 is a witness to Ext.P122 mahazar. PW53 is the owner of Varkala Medicals. He deposed that salesman of his shop who is now in Gulf country had sold 20 numbers of Nitrest tablets to first accused on 4/7/2011 as per the prescription of Dr.Tharian. Ext.P123 is the bill which was recovered by the police as per Ext.P124 mahazar.
63. PW54 was the Civil Police Officer attached to the office of Deputy Superintendent of Police. He is a witness to Ext.P126 mahazar by which the police seized a copy of passport information services online. He has also witnessed Ext.129 mahazar by which the key of an innova car, the RC book of the said car, the tax receipt of the said car, the innova car, a document etc., were seized by the police. It was with reference to the sale in respect of the 2nd accused.
64. PW55 was a Senior Civil Police Officer attached to the office of the Deputy Superintendent of police. He is a witness to Ext.P130 mahazar regarding seizure of the ownership certificate received from Mundakkal Panchayat. He is also a witness to Ext.P132 mahazar by which Ext.P18 photograph was seized by DSR No.5/13 & conn.cases -:33:- the police on 27/8/2011.
65. PW56 was also a Senior Civil Police Officer. He recorded the exhumation and inquest in video on 21/7/2011. Video was copied into Compact disc and Ext.P134 is the compact disc. He is also a witness to Ext.P137 mahazar by which the mobile phone MO46 of the 2 nd accused was seized. MO46 was produced by his sister, MO46(a) is the SIM card. MO47 mobile phone was produced by the wife of 2nd accused. It was seized as per Ext.P138 mahazar and he has witnessed the same as well. The identity card of Smt.Beema was also recovered as per Ext.P139 mahazar.
66. PW57 is a finger print expert in Finger Print Bureau, Pattom during the relevant time. He had compared the disputed thumb impression with that of specimen thumb impression of the first accused. Q6 was the specimen which was unfit for comparison. As far as the 2nd accused was concerned, the specimen thumb impression which was marked as Q14 was identical with specimen thumb impression S4 of the 2 nd accused. Ext.P10 is the document relating to the thumb impression marked as Q14.
DSR No.5/13 & conn.cases -:34:-
67. PW58 was working as Scientific Assistant (Chemistry), FSL, Thiruvananthapuram. He examined the materials received and Ext.P145 is the report. He deposed that Zolpidem was detected in the material objects in item Nos.32 and 34 in Ext.P145. Item No.32 contained empty strips of 65 tablets. Each tablet is having a label as Zolpidem Tartrate Tablet Nitrest 10. The empty strips of tablets were marked as MO28. Item No.34 was one white coloured plastic tray having 24 shells. The tray is marked as MO48. It contained Zolpidem which is a sedative and a hypnotic drug. Item no.33 was chilly powder and no psychotropic substance or drug could be detected in Item No.35.
68. PW59 was the Manager of Kizhuvilam Branch of Federal Bank. He produced the original application form and other documents pertaining to the account opening form of 2 nd accused which was marked as Ext.P110(a).
69. PW60 was the Regional Transport Officer, Thiruvananthapuram. He produced the registration particulars of KL-01-U-Temp 8400 which is a Wagon R car in the name of Salim (deceased).
70. PW61 was the Station House Officer of Attingal Police DSR No.5/13 & conn.cases -:35:- Station who registered Crime No.1196/2011 on the instruction of Deputy Superintendent of police. Ext.P147 is the FIR. FI statement was given by PW61 himself. The 2nd accused was the accused in the said crime.
71. PW62 is a person who was dealing in used cars. He knew accused 1 and 2. He also knew the deceased. He deposed that he along with 2nd accused purchased a property belonging to PW5. PW5 had some financial problem as he had some monetary transaction with Salim. PW5 had borrowed money from Salim through the 2nd accused. The deceased and 2nd accused had gone to see the property of PW5. Salim did not like the property. Salim therefore asked 2nd accused to purchase the property from PW5 for `50 lakhs. PW62 paid `14 lakhs and purchased the property in the joint name of PW62 and the 2nd accused. The registration was done on 17/6/2011 and Ext.P149 is the said registered deed. Ext.P150 is the tax receipt in respect of the property. It was recovered by the police as per Ext.P103 mahazar in which he is a witness. He further deposed that when he knew that Salim was missing, he contacted 2nd accused who also suspected that Salim would have been murdered. He was informed that the first DSR No.5/13 & conn.cases -:36:- accused was already under arrest.
72. PW63 was the U.D. Clerk of Taluk Hospital. He is a witness to recovery of some of the materials from the house of the first accused. He identified MO48, the ice tray from the refrigerator in the house of the first accused, MO49 series, the hooks seized from the hall of the house, MO50 the cleaning brush seized from the bathroom and MO51 coir mats. Those were recovered as per Ext.P22 mahazar.
73. PW64 was working as Senior Police Officer of Varkala Police Station. He had registered Ext.P1 complaint regarding man missing. Ext.P1(a) is the FIR.
74. PW65 was working as Civil Police Officer in the office of Deputy Superintendent of Police, Attingal. He is a witness to seizure of Exts.P152 to P155 diaries which were produced by the 2nd accused before police. Ext.P156 series of note books produced by the 2nd accused, Ext.P157 passport of 2nd accused, Ext.P158 series cheque books produced by the 2nd accused, Ext.P159 driving licence of 2nd accused, Ext.P160 passbook of the 2 nd accused with the Federal Bank, Ext.P161 ATM card, MO52 series of Saudi currency notes, MO53 series SIM cards 3 in numbers, DSR No.5/13 & conn.cases -:37:- MO54 purse, Ext.P162 series containing the accounts of the 2 nd accused, Ext.P112 prescription of Dr.Tharian produced by the 2 nd accused, Ext.P163 vouchers of Toyota company, Ext.P164 copy of the residence permit and Ext.P165 his driving licence were contained in MO55 cover which was kept in a suitcase MO56 carried by the 2nd accused. MO57 mobile phone containing Ext.P166 SIM card was seized during body search. Ext.P102 was the mahazar prepared in that regard in which PW65 was a witness.
75. PW66 is the Secretary of Ottoor Grama Panchayat. He proved Ext.P167 ownership certificate to the police. The building bearing No.OP-IV/647 belongs to one Balakrishna Kurup.
76. PW67 Secretary of Mundakkal Grama Panchayat produced Ext.P131 ownership certificate of a building. Building Sameeha Manzil is in the name of A.Salim.
77. PW68 was the Joint Regional Transport Officer, Regional Transport office, who produced the RC particulars of two vehicles KL-16-G-8008 and Scorpio car KL-16-G-9003.
78. PW69 is the Joint Regional Transport Officer of Kazhakkuttom. He produced Ext.P169 extract of the RC DSR No.5/13 & conn.cases -:38:- particulars of Ambassador car bearing Regn.No.KL-02-D-6046. It was in the name of Shamim Beegum. He deposed that it was a white Ambassador car.
79. PW70 was the Postmaster of Ezhukone post office from 2/1/2007 to 17/11/2011. He proved Exts.P170 and 170(a) letters and letters sent in that address were returned with the endorsement "not known" and "no such addressee".
80. PW71 was the Station House Officer of Chirayinkil Police Station. He registered Crime No.707/2011 against the first accused on the basis of Ext.P171 letter. Allegation was that he had concocted a passport fraudulently and he was having another passport in the name of Shanavas, S/o Muhammed Ismail.
81. PW72 was the Judicial Magistrate of First Class-II Attingal who recorded 164 statement of two witnesses. PW73 has also recorded the statement of 12 witnesses u/s 164 Cr.P.C. PW74 was the Sub Inspector of Police, Varkala. He had conducted enquiry with reference to the man missing case. He handed over the number of deceased Salim to Cyber bell. He received a report and on verification it was found that the last three calls DSR No.5/13 & conn.cases -:39:- were made to the number of deceased Salim from the mobile number 9946385801. The phone of Salim was switched off. As per the report, mobile no.9946385801 was in the name of Rajeev, S/o Krishnakumar, Thazethodiyil House, Thoovalli P.O., Ezhukone. The said address was found to be fake. When enquiry was conducted to find out the shop from which the SIM card was issued, they found that the same was issued from Royal Watch and Communications, Kallambalam. Sales girl PW19 was questioned. In the meantime, Salim's wife (deceased) filed a Habeas Corpus petition before the High Court and the District Police Chief entrusted the investigation to the Deputy Superintendent of Police, Attingal on 18/7/2011. He therefore transmitted the records to the Dy.S.P. of Police. He also had gone to the residence of first accused on 21/7/2011 as per the direction of the Deputy Superintendent of Police and assisted by the Tahsildar for conducting exhumation and inquest. First accused had pointed out the place to PW24 who conducted exhumation. He also identified the first accused.
82. PW75 was the Deputy Superintendent of police from 2/3/2011 to 20/1/2012. He took over investigation from PW74 om DSR No.5/13 & conn.cases -:40:- 19/7/2011. He deposed that in the writ petition filed by Shamsunath Bai, W/o Salim before the High Court, the 6 th respondent was the first accused and the brother of the 2 nd accused was the 7th respondent. He summoned the first accused and brother of 2nd accused and recorded their statements. He arrested the first accused on 21/7/2011 at 11.30 a.m. He had disclosed that the dead body was buried by him on the back side of his house compound where he was residing on rent and he would show the place. It Is based on his statement that eastern side of the compound of the house of Sameeha Manzil was examined. First accused was residing on rent in the said property. There was a manure pit which was shown by the first accused. He gave a letter to the Revenue Divisional Officer for conducting exhumation and assistance of scientific experts were called for pursuant to which body was exhumed and various other material objects were collected from the said house. He also narrated the entire investigation process in his evidence.
83. PW76 was working as the Assistant Director (Documents), Forensic Science Lab. Thiruvananthapuram. He examined the documents and materials and his reports are DSR No.5/13 & conn.cases -:41:- marked as Ext. P229 and P235.
84. After having heard the arguments on either side and on perusal of the evidence adduced in the case, we are of the view that the prosecution attempted to prove the following circumstances.
A. Last day on which Salim was seen.
Salim was missing since 9/7/2011. PW18, Salim's younger brother's wife deposed that on 9/7/2011 at 9.30 a.m Salim left the house, came back immediately and again left the house at about 10.30 a.m. PW11 is an employee of Salim. He deposed that Salim had come on 9/7/2011 in his blue Wagon R car and left by 10 a.m. PW4 a relative of Salim deposed that he had a conversation with Salim on 9/7/2011 at about 10.30 a.m and PW2 was also present. PW10 deposed that at about 10.30 a.m while he was proceeding to a workshop at Chantanpara, he saw a person coming out of a Wagon R car and the said person boarded a white Ambassador car. A few days after, from the newspaper, he knew that the person who got out from the Wagon R was missing and after several days he heard that the said person died.
B. Recovery of the corpse and other materials. DSR No.5/13 & conn.cases -:42:-
i) The first accused was arrested by PW75 on 27/11/2011. Ext.P20(a) is the disclosure statement of the first accused, on the basis of which the place where the body of Salim was buried was made known to PW75. Police party was taken to the eastern side of the building, Sameeha Manzil, in which the first accused was residing as a tenant. PW24, the Additional Thahsildar and Executive Magistrate conducted exhumation. Dead body packed in sixteen covers were recovered along with MO1 to MO9, MO11 and MO21 to MO42. Ext.P20 is the mahazar. PW12 is a witness, who spoke about the fact that as shown by the accused, the body was exhumed from the place it was buried. He is a witness to Ext.P20 mahazar. PW13 is also a witness to the exhumation and inquest. He signed Ext.P21 report. MO1 pants, MO2 shirt and MO3 spectacles belonging to Salim were identified by PW1, cousin of Salim. MO5 shoes, MO3 spectacles and MO6 watch belonging to Salim were identified by PW7, mother of Salim. The body that was exhumed was that of Salim is further proved by DNA typing conducted with the blood samples of PW3, brother of Salim and PW7, mother of Salim. Hence it is proved beyond any doubt that the dead body found in sixteen packets was that DSR No.5/13 & conn.cases -:43:- of Salim and it was recovered based on the confession statement of the first accused.
ii) The building bearing House No.XV/100, Sameeha Manzil was examined by PW31, the Scientific Assistant. He collected blood stains in cotton gauze from the eastern and western walls of the bathroom and the tower bolt of the bathroom door. Yarns and fibres from the cleaning brush used in the toilet were also collected. The bathroom corridor premises and the hall of Sameeha Manzil were also examined. PW31 found blood stains on the corner groves of the bathroom floor in shower taps and pipes in the bathroom. Traces of blood was also detected in the lower portion of the inner and outer surface of bathroom door, frame and pannel. Traces of blood were detected in the corner groves of the floor of the corridor and southern side wall of the hall. According to the prosecution, the scene of occurrence was inside the southern side of bathroom, corridor and hall. The materials collected were sent for analysis and Ext.P106 is the report. The DNA typing showed that the blood stains which were collected in item Nos. 3, 4 and 5 belonged to the deceased. Ext.P22 is the mahazar in which PW12 is a witness. Ext. P106 report evidences DSR No.5/13 & conn.cases -:44:- the fact that Salim was murdered inside the house, Sameeha Manzil.
C. Preparation to commit murder.
i) PW14 cleared a manure pit in the compound of Sameeha Manzil. He was paid `500/- by the first accused to clear the manure pit. He was told that the septic tank was full and the waste has to be dumped to the manure pit.
ii) Evidence of PW46 who is a Doctor would show that he had issued Ext.P50 series prescriptions to the first accused. He had prescribed various medicines including Nitrest 10 mg. Ext.P50(a) is the prescription for 10 numbers of Nitrest which was given on 27/6/2011. He deposed that Nitrest is given to patients who are suffering from sleeplessness or insomnia. PW47 deposed that he had sold 20 numbers of Nitrest to the first accused on 4/7/2011. PW49 owner of another medical shop deposed that he had sold 20 numbers of Nitrest 10 mg tables to the first accused on 4/7/2011. These witnesses also produced the respective bill books. PW50 is the owner of Amrutha Medicals. He deposed that he had sold 5 numbers of Nitrest 10 mg tablets to the first accused on 28/6/2011. PW53 has deposed that his salesman had DSR No.5/13 & conn.cases -:45:- sold 20 Nitrest tablets to first accused on 4/7/2011.
iii) An Ambassador car was used to take Salim to the house of first accused. PW51 has deposed that he had gone to the house of the first accused with the Ambassador car bearing Regn.No.KL-02/D 6046. The said car was seized by the Deputy Superintendent of Police as per Ext.P78 mahazar in which PW34 is a witness. The R.C. book, insurance policy, fitness certificate and Form No.29 relating to the said vehicle were seized by PW75 as per Ext.P87 mahazar in which PW38 is a witness. The said vehicle was in the name of Shamin Beegum as evident from Ext.P169 extract of the registration particulars of the said vehicle and PW69 deposed that the colour of the car was white. PW8, a neighbour of A1, saw a white Ambassador car in the premises of A1 at about 10 am on 9/7/2011 and again at 2 pm. But later when he came by around 5.30 pm the car was not there. PW6 also deposed that the said Ambassador car was brought to his workshop in July 2011 and it was taken by a person named Shefi. The vehicle was brought back and after a few days it was again taken by Shefi on 22/7/2011.
D. Manner of committing the crime.
DSR No.5/13 & conn.cases -:46:-
i) The viscera of deceased Salim was sent for chemical analysis and it was examined by PW42, Assistant Chemical Examiner and he found Zolpidem, a hypnotic substance together with ethyl alcohol in the stomach, part of intestine, liver and kidney. He also deposed that Zolpidem is commonly called under the trade name Nitrest, Solbrium, Zolpicalm etc.
ii) From among the material objects collected at the time of exhumation of the body was MO28, which are empty strips of 65 Nitrest-10 tablets and MO29 empty strips of 14 Orvas-10 Atrovastatin tablets I.P. The contents of Zolpidem was found in the body of the deceased during chemical analysis, which confirms the fact that Nitrest tablets along with alcohol were administered to the deceased or he had consumed the same prior to this death.
iii) MO48 is an ice tray, which was recovered from the refrigerator found in Sameeha Manzil, the house of A1. It was analyzed by PW58 whose report is Ext.P145. Traces of Zolpidem, which is a hypnotic drug was detected in the tray. It is possible that the accused has mixed the drug with water and made ice with it, and the said ice has been given to Salim while consuming DSR No.5/13 & conn.cases -:47:- liquor, and he was drugged.
iv) MO7 chopper, MO8 and MO35 knives were also recovered from the pit during exhumation. The aforesaid items were sent for analysis to the Forensic Science Lab. MO7 and MO8 contained human blood and MO35 contained blood which was insufficient to determine the origin. Ext.P106 is the report submitted by PW43. Report revealed that the DNA typing of bloodstain in MO7 and MO8 matched with that of the deceased.
v) PW15 a blacksmith, deposed that he made MO8 knife and sharpened MO7 chopper as requested by the first accused. PW16 deposed that he had sold MO7 chopper and he had made its handle.
vi) The building bearing House No.XV/100, Sameeha Manzil was examined by PW31, the Scientific Assistant. She collected blood stains and other materials from the building. Ext.P106 is the report of analyzis. The DNA typing showed that the blood stains which were collected in item Nos. 3, 4 and 5 belonged to the deceased. This fact proves that murder was committed inside the house.
E. Motive.
DSR No.5/13 & conn.cases -:48:- PW2, wife of Salim had deposed that Salim had told her that he had given huge amounts as loan to A1 and A2. PW3 brother of Salim deposed that he was staying with Salim while they were at Riyad. Salim was having financial transactions with A1 and A2. Salim used to lend money to persons suggested by A1 and A2. They used to collect money and repay on a daily basis. At the instance of A2, 60,000/- Riyals was given to Sheriff, Kodungallur (PW5). He could not pay back the loan and offered to assign his property to Salim. Since Salim did not like the property, he asked A2 to take the property and settle his dues. Salim paid `18 lakhs to A2 to purchase the said property. A2 purchased the said property. When Salim was missing, he contacted A2 and he was informed that he had settled the transaction with Salim and only some interest remains to be settled. This version is supported by PW5, Sheriff and PW62. PW62 had given `14 lakhs to A2 for buying the property. Ext.P149 is the document. Immediately after execution of the sale deed, A2 went abroad as insisted by A1. Documents seized from A2's possession also evidence the financial transactions between the accused and Salim. But the liability to pay may not by itself give an indication that the DSR No.5/13 & conn.cases -:49:- accused had decided to do away the deceased. Motive in some cases will be blatant and in some cases it will be subdued. Motive to commit a crime will depend upon the facts and circumstances of each case.
85. One of the argument raised by learned counsel for first accused is that there is no evidence to prove that the first accused was residing in the building, from the compound of which the body was exhumed. PW8 has deposed that the first accused was residing with his mother and family at Sameeha Manzil. He further deposed that at about 10 p.m. on 9/7/2011, he saw light inside the said house. The argument of the counsel is that the house mentioned in Ext.P22 scene mahazar is different from the number of the house in Ext.P65(a). It is argued that there is no evidence to prove that the first accused had resided in the house situated in Ext.P22 mahazar. The house number shown in Ext.P22 is MP-XV/100 and in Ext. P65(a), it is mentioned as MP- X/393. PW31 had filed a report as Ext.P72 stating that the number of Sameeha Manzil is MP-XV/100. In the ownership certificate issued by PW67, the number is shown as MP-X/373. In Ext.P65(a), the building number is wrongly shown as 393 which DSR No.5/13 & conn.cases -:50:- apparently is a clerical error. Ext.P65 is written by mother of the first accused as evident from the deposition of PW26. Ext.P67 is the telephone bill in the name of Arifa Beevi, mother of first accused, wherein also the building number is shown as 373. PW26 is Saida Beegum. She deposed that Sameeha Manzil and the property in which it is situated belongs to her husband and the first accused along with his wife and two children and mother were the tenants residing there. The rent receipt was written by Arifa Beevi, mother of A1. She identified the accused. Ext.P65 series are the rent deeds. But there is sufficient scientific evidence to prove that the crime was committed inside the building Sameeha Manzil and it was from the compound of Sameeha Manzil that the body of the deceased was recovered. Therefore, difference in the number of the building does not enure to the benefit of the defence.
86. Learned counsel further argued that the exhumation of the dead body cannot be considered as a recovery attracting Section 27 of the Evidence Act. It would be apposite to quote the following judgment of the Apex Court in Harivadan Babubhai Patel v. State of Gujarat [(2013) 7 SCC 45]. Paragraphs 16 DSR No.5/13 & conn.cases -:51:- and 17 read as under:-
"16. The next limb of attack relates to the confessions made by the accused persons and the issue of leading to discovery of articles. It is submitted that the confession part is absolutely inadmissible and that apart, when the panch witnesses had not supported the panchnama, the recovery or discovery of the seized articles cannot be utilised against the appellant. There can be no shadow of doubt that the confession part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the fact remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant.
17. In this context, we may usefully refer to A.N. Venkatesh v. State of Karnataka wherein it has been ruled that: (SCC p. 721, para 9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found ... would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 DSR No.5/13 & conn.cases -:52:- [of the Evidence Act] or not...."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admn.). It is worth noting that in the said case, there was material on record that the accused had taken the investigating officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused."
But it could be seen that this is a case in which the dead body of the victim was recovered based on the confession statement of first accused. Learned counsel for the first accused would argue that, from the evidence of PW12, it could be seen that the first accused did not point out the place where the body was buried, whereas it was the Dy.S.P. who asked the first accused whether the body was buried in that place. We do not think that such an inference could be drawn from the testimony of PW12 read with Ext.P20(a), the confession statement and the testimony of the other witnesses who participated in the exhumation process. It is clearly stated in the confession statement of the first accused that he had buried the dead body in the compound behind the house in which he was residing as a tenant and he would show DSR No.5/13 & conn.cases -:53:- the place if he is taken there. It is on the basis of the aforesaid confession that PW75 had taken him to the said site and the dead body was exhumed. Therefore, there is no infirmity in the evidence of PW12 or that of other witnesses to discard the recovery.
87. Yet another argument raised is regarding the handle of MO7 chopper. As per the mahazar, it is a wooden handle. PW16 has stated that the handle of MO7 was made of horn. But in Ext.P106 report, it is stated that MO7 chopper is having a wooden handle. There cannot be any discrepancy in the nature of weapon used, as there is clear finding by PW43 that MO7 chopper and MO8 knife contained human blood and the DNA typing revealed that blood stains and tissues on MO7 and MO8 and hair is that of the deceased Salim. Comparison was also made to the femur and sternum of the deceased which were collected at the time of post-mortem examination. Therefore, there is no difficulty in arriving at a conclusion that MO7 and MO8 were the weapons used for commission of the crime.
88. It was further argued that the owner of the Ambassador car had not been examined and there is nothing to DSR No.5/13 & conn.cases -:54:- indicate that the Ambassador car bearing Regn.No.KL-2 D-6046 was used by the first accused on 9/7/2011. But as already stated, evidence of PW8 confirms the fact that he saw the said vehicle in the house of first accused. PW51 also had given evidence that he was along with Shefi, when the said vehicle was taken to the house of the first accused. Evidence of PW51 would show that the Ambassador car was in the possession of Mohammed Shefi. Of course, he was not examined in the case as he was abroad. But the evidence of PW51 would show that he along with Shefi had taken the vehicle to the house of first accused. The registered owner of the said vehicle was one Shamim Beegum and Ext.P91 series are certain blank forms for transferring the vehicle. Even assuming that the ownership of the car is not proved, the fact that it was seen in the house of the accused is evident from the oral testimony of PW8 and PW51. There is no reason to doubt their credibility. Therefore, the prosecution has established the fact that first accused was using the vehicle at the relevant time. The vehicle was later seized from the house of the sister of first accused which also proves the fact that the first accused was having access to the vehicle.
DSR No.5/13 & conn.cases -:55:-
89. The learned counsel for the first accused further argued that the report of the chemical examiner has to be discarded in so far as the samples taken as per Ext.P22 mahazar were not in a sealed condition. But it is relevant to note from the evidence of PW43, the Joint Director (Research), Forensic Science Lab, Thiruvananthapuram that he had received 38 sealed packets from the Court. PW31 is the Scientific Assistant who had collected the blood stains and other materials from the house of first accused. She deposed that the materials collected by her were packed, labelled and handed over to the investigating officer for being forwarded to the Forensic Science Lab, Thiruvananthapuram. PW12 is a witness to Ext.P22 mahazar prepared at the relevant time. The material objects MO7 and MO8 were recovered from the pit from where the body was exhumed. PW24, at whose instance the exhumation was conducted deposed about the recovery of the chopper MO7 and the knife MO8 in MO39 paper and direction was issued to entrust the articles to the Court. In so far as there is evidence to prove that the materials collected from the house had been sealed and given to the investigating officer, the said contention has no DSR No.5/13 & conn.cases -:56:- force.
90. Yet another argument raised is that there are no independent witnesses except officials of the Government. There is nothing wrong in Government officials becoming witnesses in a crime scene, especially in the present case, in which police was investigating on a man missing case and the body was being exhumed based on a confession statement of the accused. In so far as PW12 and PW13 withstood the cross-examination, their evidence cannot be discarded. It is stated that PW12 has not stated anything regarding collection of blood from the bathroom of the house. This fact is proved by the Scientific Assistant, PW31, who had clearly narrated about the materials collected from the scene. Hence, there is no reason to take a different view altogether.
91. It is also pointed out that the ice tray containing traces of Nitrest was not in a sealed condition when it reached the lab. In fact, PW63 is a witness to the recovery of the ice tray. Even in the mahazar Ext.P22, presence of the refrigerator was clearly stated. PW63 deposed that he was also present when two curtain hooks, cleaning brush, the ice tray from the freezer of the DSR No.5/13 & conn.cases -:57:- refrigerator and certain other materials were collected by the police as identified by the accused. He had signed Ext.P22 mahazar. In cross-examination when he was asked whether those items were seen, he says, they were seen.
92. From the evidence, which we have discussed above, it is clear that the prosecution was able to establish beyond reasonable doubt that on account of financial transactions between the first accused and the deceased, the first accused wanted to do away with the deceased. Of course, motive was not proved in exactitude, but still business dealings between the first accused and the deceased, is quite evident. He invited the first accused to his house at Sameeha Manzil, drugged him by providing alcohol and other psychotropic substance, inflicted injuries on his body and committed murder. He chopped the body into several pieces and packed it in 9 packets. The body parts in packets along with the articles of the deceased, the murder weapon and other knives, dress of the accused and several other articles belonging to the deceased and accused were buried in the compound of his house. When the body had been exhumed on the basis of confession statement of the accused and the DSR No.5/13 & conn.cases -:58:- scientific evidence in the case clearly points out that the offence was committed inside the house, the involvement of the first accused has been established. Therefore his conviction under Sections 302, 328, 364 and 201 of I.P.C. stands confirmed. The sentence for offence under Sections 328, 364 and 201 I.P.C. are also commensurate to the nature of crime committed by him.
93. In order to implicate the 2nd accused to the crime, the trial Court had placed reliance on the call data records and found that as per Ext.P81, it would show that the 2 nd accused contacted deceased Salim on 3 occasions on 4/7/2011 and that the 2 nd accused was in close contact with the 1 st accused on various dates from 6/7/2011 till 13/7/2011. We do not think that the accused contacting Salim, and A1 contacting A2 by itself, can be proof enough evidencing a conspiracy to commit murder. The contents of such telephonic conversations are not available. Even according to the prosecution, Salim had several financial dealings with A1 and A2, who were doing business together. Therefore, the fact that they were contacting each other on several occasions by itself may not be enough to sustain an argument that A2 also entertained an intention to commit murder. Of course, from the DSR No.5/13 & conn.cases -:59:- evidence of PW5 and PW62, it is evident that certain item of property was purchased in the name of A2 and A2 owes money to Salim. It is also in evidence that Ext.P154, a diary which was seized from the 2nd accused contain entries signed by the deceased. From Ext.P157 passport of the 2 nd accused, it is evident that he left lndia on 19/6/2011. Yet another factor which weighed with the trial Court was that 2 nd accused collected an amount of `5,24,690/- from 13 customers after 21/7/2011 as evident from Ext.P162 series. It was also found that when 2 nd accused was contacted by PW3, PW5 and PW62, the reaction of the 2nd accused was as if somebody would have abducted Salim. This, according to the trial Court, was against the normal human conduct of a person. But from the aforesaid circumstances by itself, we do not find any close nexus of a conspiracy between A1 and A2 to commit the aforesaid crime. Apparently, there is no evidence to prove that A2 was involved in committing the actual crime. The only question is whether the crime was committed by A1 pursuant to a criminal conspiracy with A2. The materials placed on record and relied upon by the trial Court according to us are not sufficient enough to arrive at a conclusion that there DSR No.5/13 & conn.cases -:60:- was a criminal conspiracy to commit murder. Therefore, the conviction and sentence of the 2nd accused u/s 120B r/w S.302 IPC has to be set aside.
94. The first accused had been given death penalty. Taking into account the facts of the case, this case cannot be categorized as the rarest of rare case. The Apex Court in Viran Gyanlal Rajput v. State of Maharashtra (2019) 2 SCC 311), held as under:
"23. We now turn our attention to the issue of quantum of sentence, particularly the sentence of death awarded to the appellant. Before proceeding further, it would be pertinent to recall that life imprisonment is the rule and the death penalty is the exception, and the death penalty is to be imposed only when the alternative of life imprisonment is totally inadequate, and therefore unquestionably foreclosed i.e. if it is the only inevitable conclusion, as per the well-settled legal proposition first enunciated in Bachan Singh v. State of Punjab. While determining the sentence, it is equally important for the Court to consider the aggravating circumstances of the crime and the mitigating circumstances of the criminal. Moreover, since the decision in Machhi Singh v. State of Punjab, a balancing approach of such aggravating and mitigating circumstances has been adopted, to see if the crime is among the rarest of rare cases.
24. The trial court and the High Court, on an evaluation DSR No.5/13 & conn.cases -:61:- of the aggravating and mitigating circumstances of the case, have arrived at the conclusion that the death sentence is warranted in this case. Undoubtedly, the courts were correct in giving weight to the dastardly nature and manner of the crime i.e. kidnapping a girl of the tender age of 13 years, taking her to a secluded area and committing the act of rape and subsequently murdering her by strangulation and burying her body in a field, having disrobed her completely, and also in giving weight to the youth and helplessness of the victim, and to the fact that the appellant proceeded to target her to satisfy his lust."........
"26. Thus, neither the circumstances of the crime nor the circumstances of the criminal i.e. the appellant, would go to show that the instant matter falls into the category of the rarest of rare cases, or that the sentence of life imprisonment is unquestionably foreclosed and grossly disproportionate. Therefore, in the totality of the facts and circumstances of this case, we find it fit to commute the death sentence of the appellant to life imprisonment."
95. In this case, the accused did not have any criminal antecedents. It is true that the action of the first accused is brutal, and so are most of the murders. However, taking cue from the aforesaid judgment, we are of the view that the death penalty need not be imposed on the first accused and interest of justice will be served in commuting the death sentence of the first accused/appellant to life imprisonment.
DSR No.5/13 & conn.cases -:62:- In the result,
(i) In DSR No.5/2013 filed by the State, the death sentence is commuted to life imprisonment.
(ii) Crl.Appeal No.40/2014 filed by first accused is allowed in part. The conviction under Section 302 is sustained. The death sentence of the appellant is commuted to life imprisonment. Conviction and sentence for offence under Sections 328, 364 and 201 of I.P.C. are confirmed.
(iii) Crl.Appeal No.20/2014 filed by 2nd accused is allowed. The conviction and sentence under Section 120B read with Section 302 of I.P.C. is set aside. The 2 nd accused shall be released forthwith, if his presence is not required in any other case.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Rp JUDGE