Kerala High Court
Sainudeen vs State Of Kerala on 10 April, 1990
Equivalent citations: 1992CRILJ1644
JUDGMENT S. Padmanabhan, J.
1. Appellant Sainuddin was convicted and sentenced to undergo imprisonment for life for having murdered his fourteen years old daughter Noorjahan. In this criminal appeal filed from jail, he is challenging the conviction and sentence. He engaged his own Lawyer. We heard both sides.
2. Noorjahan was the only child of the appellant and his wife deceased Nadeera Beevi. She was studying in the Nineth Standard. These three were the only inmates of Parayil Puramboke house at Pattithanam in Ettumanoor Village. Prosecution case is that on 26-3-1986 at about 9 a.m. inside their residential building, the appellant committed murder of Noorjahan by smothering her with a pillow in an attempt to have sexual affair with her. That was at a time when the mother was absent as she went out for work. *
3. The plea of the appellant is that he was nowhere in or around the house when his daughter met with tragic end.
4. The prosecution examined 17 witnesses. Exts. P1 to P11 are the documents proved. Ten material objects were identified. No defence witness was examined. The solitary defence document is the case diary contradiction of P.W. 2.
5. In this case the decision must rest on circumstantial evidence. The position of law in that connection is now well settled. The prosecution must prove its case by a complete chain of conclusive circumstantial evidence which should not miss any link at all. The cumulative effect of the chain of circumstances should not only be the guilt of the accused but exclusion of all possibilities of his innocence also. Out attempt from the circumstances is to find out whether Noorjahan had a homicidal death and if so who is responsible for it.
6. The fact that Noorjahan died inside the house in between sunrise and sunset on 26-3-1986 admits of no doubt. It was when her mother came to the house in the evening that she was found lying dead inside the house. On hearing her cries P.Ws. 2, 3, 6 and 10 who are neighbours came to the house and saw the dead body indicating that it is a homicidal death. On getting information P.Ws. 1, 4 and 5 also later came and saw the body. There is also Ext. P9 inquest report prepared by P.W. 15 and Ext. P4 post-mortem certificate prepared by P.W. 11. Exts. P5 and P6 are respectively the certificate of examination of the visera and final opinion as to cause of death.
7. From Ext. P4 and the evidence of P.W. 11 it is seen that the air passage contained blood stained froth. Thick blood stain was there at the mouth and nostrils. Tongue was slightly protruding. Marbling was present on the front of the chest. Eyes were found slightly bulging out. Conjunctives was found reddish. There was discharge from the vagina. Faecal discharge was present. There was contusion 2 x 1.5 cms. on the middle of the back of the chest 30 cms. below the root of the neck. No other external injury was there. P.W. 11 reserved opinion as to cause of death pending report of chemical analysis. He was not able to find any evidence to suggest that the death was from violence or poisoning. However he gave the opinion that the post-mortem appearance are not inconsistent with death due to smothering as alleged. According to him, contusion on the back could be caused by that part of the body coming into contact with any rough substance. That can be due to struggle when the victim resisted a sexual assault. He however said that if the mouth and nostrils were smothered with a pillow like M.O. 5 and it is pressed, there need not be any injuries on the face.. It is his further evidence that if the mouth and nostrils are smothered with M.O. 5 for a short time death may occur. It is therefore clear that medical evidence is consistent with the prosecution case that Noorjahan had a homicidal death inside the house on 26-3-1986. P.W. 11 gave his opinion that death must have been 18 to 36 hours prior to the commencement of the post-mortem. That fact probabilises the prosecution case that the homicidal death must have been in the morning on 26-3-1986 after the mother left the house. That is consistent with the evidence of the neighbours.
8. P.W. 5 is the wife of the elder brother of the appellant. The only attack against her evidence is her antagonism towards the appellant on account of his undesirable habits. That is only because of the legitimate moral indignation which anybody could have. There is no reason to view the evidence with suspicion. Her evidence shows that Noorjahan was entrusted to her by the mother who felt that her virginity was not safe in the company of the appellant, even though he was the father. This is her information both from the mother and daughter. Her direct information is that under some pretext or other the appellant used to go over to her house to bring the deceased back. Finally she came back to the residence of her parents only for a short stay to appear for the examination and then to go back to P.W. 5. The unfortunate incident was on the last day of the examination which Noorjahan was not able to attend.
9. This part of the evidence of P.W. 5 is sufficiently corroborated by the other witnesses. P.W. 2 who is a close neighbour and a disinterested witness said that Noorjahan was left with P.W. 5 only because of the vagaries of the appellant. She knows that the attitude of the appellant towards Noorjahan was the basis of frequent quarrels in the house. One day when sexual assault was attempted by the appellant against Noorjahan, her mother had to use a burning firewood against the appellant and ask him to clear out. These informations are there to another neighbour P.W. 3 also. Both P.Ws. 2 and 3 are aware of the reason why Noorjahan was entrusted to P.W. 5.
10. P.Ws. 2, 3 and 6 are also neighbours. They saw Noorjahan's mother going for her work on the morning of 26-3-1986 to return only in the evening. At that time Noorjahan alone was in the house. Thereafter they heard the conversation of the appellant and the deceased from inside the house followed by a tumult. They also heard the cries of the deceased calling "Bappa", "Bappa" and her laments also. Thereafter they saw the appellant going out after closing the door. They did not look up because this is the usual affair. In the evening they heard the cries of the mother and went to see the body of Noorjahan lying in such a condition that there was presumptive proof of homicide. We do not have any reason to disbelieve the evidence of these witnesses.
11. Though P.W. 3 was declared hostile she practically supported the prosecution case. P.Ws. 1 and 4 later came and saw the dead body on getting information. It was P.W. 10 who informed P.W. 1. P.W. 1 is the first informant also. P.W. 4 is the class-mate of Noorjahan. Her evidence shows that on the date of death in the morning and afternoon there was examination for Noorjahan but she did not attend. That is proof of the fact that even before the morning examination Noorjahan had her end.
12. The evidence of P.Ws. 2, 3, 5, 6 and 10 show that after the appellant left the house in the morning he never returned to the house and that till the mother returned in the evening nobody else came to the house. The evidence of some of these witnesses identifying the voice of the deceased and the appellant from the house on the morning of the date of incident was challenged on the basis of the decision in Joseph alias Avuthakunhi v. State of Kerala 1963 KLJ 369 : 1964 (1) Cri LJ 493 on the ground that identification of persons by voice is risky. We do not have any dispute with the proposition that conviction based on identification of voice alone may not be safe always depending on facts because mistakes are possible. At the same time if the Court is satisfied about the identification of persons by evidence of identification of voice alone no rule of law prevents its acceptance as the sole basis for conviction. The witnesses who identified the voice are close neighbours who have close familiarity with the voices. They are honest and impartial witnesses who could be fully believed. That is not the only circumstance available in this case. It is only one of the circumstances. Later they confirmed the voice when the appellant was seen going out never to return. Nobody else came to the house till the mother returned. Reason for the cries of the deceased was confirmed by her dead body. Possibilities of mistakes in identifying persons by voice especially by those who are closely familiar with voice could arise only when the voices heard are different from the normal voices on account of the situation or when identical voices are possible from other persons also. When those chances are excluded and identity of voices is confirmed from other circumstances, there is no harm in believing the evidence if found acceptable to the Court. Complicity of the appellant is established by his prior and subsequent conduct. In these circumstances, we do not find anything to disbelieve the identification of the voices by P. Ws. 2, 3 and 6 in the morning. The evidence of P.W. 1 and some other witnesses indicate that the skirt of the dead body was untied and lowered. M.O. 5 pillow was also near the dead body. It was stained with human blood as seen from Ext. P8 report.
13. P.W. 7 is a boat-master of K.S.R.T.C. In his boat the appellant travelled on the date of incident after going from the house. Though he was declared hostile, he also practically supported the prosecution case. His evidence shows that when the boat was about to reach Vaikom the appellant jumped into the lake in an attempt to commit suicide but he was saved. He was declared hostile only because he refused to divulge an extra-judicial confession alleged to have been made by the appellant but only said that the appellant told him that the attempt to commit suicide was on account of mental difficulties. In the shivering stage appellant was taken to P.W. 8, a fruit vendor at Vaikom who knew him. He provided facilities for warming. He was given tea and Rs. 4.50 at his request. To him also the attempt to commit suicide was mentioned by the appellant. There is no reason to disbelieve these two witnesses.
14. P.W. 9 is the sister of the appellant. He went to her on the evening of the date of incident in an unhappy mood asking for money. She gave only food and not money. Coupled with this, there is the evidence of P.W. 15, the investigating officer, that the appellant was absconding and he could be arrested by P.W. 17 only on 30-3-1986. His conduct is not that of an innocent father who knew about the death of the only daughter. The evidence of witnesses further show that the wife of the appellant suspected murder of Noorjahan at the hands of the appellant and she committed suicide.
15. From all these circumstances, the only possible inference is that appellant alone is the person responsible for the homicidal death of Noorjahan. The fact that the death is homicidal is beyond dispute. No other person could be the culprit. Conviction for murder and sentence of imprisonment for life do not require any interference. Criminal appeal is dismissed.