Remya @ Vavachi vs State Of Kerala on 29 July, 2019

[Cites 8, Cited by 0]

Kerala High Court

Remya @ Vavachi vs State Of Kerala on 29 July, 2019

Equivalent citations: AIRONLINE 2019 KER 583

This is an appeal preferred by the second accused (for short 'A2') challenging the verdict of 5th Additional Sessions Court, Kollam in S.C. No.2044 of 2011 dated 12/06/2014 by which she was found guilty for offences punishable under Sections 449, 394 and 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `20,000/- (Rupees Twenty Thousand only) with a default sentence of rigorous imprisonment for four months months for offence under Section 302 read with Section 34 of IPC; rigorous imprisonment for five years and to pay an amount of `10,000/- (Rupees Ten Thousand only) with a default stipulation of rigorous imprisonment for two months for offence under Section 449 read with Section 34 of IPC; rigorous imprisonment for five years and to pay a fine of `10,000/- (Rupees Ten Thousand only) with a default stipulation of rigorous imprisonment for two months for offence under Section 394 read with Section 34 of IPC. Crl.Appeal No.650/14 -:3:- Sentences were directed to run concurrently. First accused (for short 'A1') was absconding at the time of trial and hence his case is split up and renumbered.

2. The following is the allegation of the prosecution against the appellant:

The incident happened on 31/01/2010. According to the prosecution, during 2010, Raichel Luke, the deceased herein, who was aged 76 years at that time, was residing alone at Thyparambil house situated at Chemmamukku within the limits of Kollam East Police Station. Her younger sister Saramma Varghese along with her family was residing in Mumbai. PW1 Radhika was working as a home nurse in the said house from 2003 onwards assisting Raichel Luke. A2 is the sister of PW1 Radhika. For a short while, A2 Remya was residing at Thyparambil house along with her sister PW1. During that time, A1 Santhosh who hails from Nepal and a gurkha by vocation was residing in the outhouse of Thyparambil house along with some others. While so, A2 Remya fell in love with A1 Santhosh and they went to Nepal. A child was born in the wedlock. On 31/01/2010 at 06.30 p.m., both accused along with their child came to Kollam and contacted PW1 Crl.Appeal No.650/14 -:4:- Radhika over phone and requested to meet them. PW1 went to Sree Lakshmi Lodge, Chinnakkada where accused had taken room. Accused mentioned to PW1 about their desire to come and stay at Thyparambil house. But PW1 refused the same. At about 09.30 p.m., accused along with their child came to their house and informed that they had come to meet Raichel Luke and that they would be returning in the early morning train. At about 11.00 p.m., they went to bed. Accused were sleeping in the front room and PW1 along with Raichel Luke slept in the bedroom which was inside. At about 01.30 a.m., A2 knocked the door and PW1 opened the door of their room. A2 told PW1 that they wanted to talk to her. A2 woke up A1 and thereafter he manhandled PW1 Radhika. Her hands were tied with a rope and she was tied with another rope. Towel was put into her mouth and the hand was also tied with a cloth. On hearing the cry of PW1, Raichel Luke came to the spot and accused attacked her also.

She was also tied with a bed sheet and a cloth was put into her mouth. Her hands were also tied to the back side. Raichel Luke who was an asthma patient died during the course of incident. Accused took gold ornaments from the almirah and also took gold Crl.Appeal No.650/14 -:5:- ring, gold chain and bracelet worn by PW1. They also robbed cash worth `8,000/- (Rupees Eight Thousand only) belonging to Raichel Luke and left the place with the robbed articles and money. Both accused were charged for crimes of house trespass with intent to commit robbery and murder.

3. To prove the allegations, prosecution examined PW1 to PW19 as witnesses, marked Exts.P1 to P26 documents and identified MO1 to MO29 material objects. After closing prosecution evidence, A2 was questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') and she denied all allegations levelled against her. She stated that the case is a false and cooked up one. No defence evidence is adduced.

4. Learned counsel appearing for and on behalf of A2 Remya, Sri.Shabu Sreedharan argued that Court below erred in convicting the appellant for such grave offences. The verdict is without any basis. There is absolutely no evidence to connect the appellant with the crime. The prosecution story itself is unbelievable. Admittedly, prosecution has a case that A1 and A2 came there with their child. By no stretch of imagination, one can Crl.Appeal No.650/14 -:6:- conclude that A2 who is a mother of a little child would commit such a crime in the manner alleged by the prosecution. Evidence of PW1 cannot be believed as it is self-contradictory. No overt act is alleged against A2. Nothing is there in evidence to show that she had any common intention to commit any offence. The alleged recovery is a planted one. No incriminating circumstance is proved by the prosecution against A2 who is the appellant herein. He pleaded to acquit the appellant.

5. Per contra, learned Senior Government Pleader Smt.S.Ambika Devi argued that prosecution proved the case against A2 beyond reasonable doubt. Evidence of PW1 who is an injured occurrence witness proves the case against the accused. Overt acts were specifically spoken to by PW1. A2 is none other than the sister of PW1. Recovery of gold ornaments belonging to PW1 and the deceased would fortify the evidence of PW1. There is nothing to doubt the version of PW1 as she is a truthful witness. Cause of death of Raichel Luke is proved to be a homicide. Accused committed offence of murder and robbery with common intention. When robbery is coupled with murder as part of the same transaction and accused were proved to be in Crl.Appeal No.650/14 -:7:- possession of stolen articles, presumptive evidence squarely applies. Court below is justified in convicting the accused. She pleaded to dismiss the appeal. She placed reliance on the decisions of the Apex Court in Baiju v. State of M.P. (AIR 1978 SC 522) and Jodhan v. State of Madhya Pradesh [2015 (11) SCC 52] to substantiate her arguments on presumptive evidence.

6. Three questions are to be answered to arrive at a conclusion regarding propriety of the verdict of the trial Court. Firstly, whether the death of Raichel Luke was a homicide as alleged by the prosecution. Secondly, whether A2 is guilty for committing offence of robbery by entertaining common intention and active participation with A1 as alleged. Thirdly, whether there was any evidence to show that A2 had common intention to commit murder of Raichel Luke as alleged.

7. Evidence adduced in the case, for short, are as follows:

PW1 Radhika is the injured eyewitness. PW2 is a neighbour of the deceased. PW3 was working as a Senior Civil Police Officer at Kollam East Police Station. He reached the spot on receiving information on 31/01/2010. PW4 is an autorickshaw driver who knows the deceased, PW1, A1 and A2. Later he married PW1. Crl.Appeal No.650/14 -:8:- PW5 was working as a supplier at hotel Fayalvan, Chammakada during 2010. On 31/01/2010 at 07.30 p.m., A2 Remya along with another person came to the hotel and had food. PW6 is an auto driver. He stated that, on 31/01/2010 at 09.00-09.15 p.m., A2 Remya hired his auto from Benzigar hospital and went to Chemmamukku. She was accompanied by a male and baby. PW7 is an attestor to Ext.P3 mahazar prepared at the time of seizing plastic rope, churidar pant and T-shirt. PW8 is the then Village Officer at Kollam-Vadakkevila. Ext.P4 is the scene plan prepared by him. PW9 is conducting a bakery shop by name M/s.Sree Lekshmi bakery. On 31/01/2010 between 09.30 p.m. and 10.00 p.m., A2 came to the bakery and purchased biscuit. She came in an auto along with a man and a baby. PW10 is another auto driver. He stated that on 30/01/2010 at 02.00 a.m., while he was returning after a trip to Ayathil, accused showed signal to stop the autorickshaw at Chemmamukku. They got into the auto and alighted at Railway Station, Kollam. PW11 is the then Head Constable at Eravipuram Police Station. He is an attestor to Ext.P5 mahazar prepared at the time of seizing MO21 maxi of PW1. He is also an attestor to Ext.P6 seizure mahazar of Jeans of Crl.Appeal No.650/14 -:9:- A1. Pant is marked as MO24. PW12 was working as R.M.O. at District Hospital, Kollam. On 31/01/2010 at 01.30 p.m., he had examined one Radhika and Ext.P7 is the certificate issued by him. He noted following injuries on PW1:

"1. Complaint of pain all over the body.

2. Sub conjunctival hemorrhage on both eyes.

3. Abrasion of both wrist.

4. Multiple contusion on face and back.

5. Odema both lips".

8. PW13 was the Assistant Professor in Forensic Medicine, Medical College Hospital, Thiruvananthapuram. On 01/02/2010 at 10.10 a.m. she conducted autopsy on the corpse of the victim and Ext.P8 is the post-mortem certificate issued by her.

9. PW14 is a police constable who went along with Sub Inspector in search of the accused. He is an attestor to Ext.P11 mahazar for gold ornaments from Coimbatore. PW15 is the then Sub Inspector of Poilce, Kilikolloor Police Station. Through Ext.P11 mahazar, articles were seized from A1. Gold ornaments were seized from the possession of A2. He identified MO1 to MO13. Altogether 14 items were seized from A1 and 4 items were seized from A2. PW16 is the then SHO of Kollam East Police Station. Based on Ext.P1 First Information Statement of PW1, he Crl.Appeal No.650/14 -:10:- registered Ext.P12 FIR on 31/01/2010. PW17 is the then Circle Inspector of Police who conducted the investigation and filed charge-sheet. Exts.P9 and P10 are chemical reports.

10. PW18 is the then Scientific Assistant at DCRB, Kollam. On 31/01/2010, she examined the scene of occurrence and collected material objects and handed them over to the Investigating Officer. Ext.P26 is the document by which articles were seized. PW19 was working as Manager of M/s. Lekshmi Tourist Home, Kollam. On 30/01/2010, A2 along with her husband and a baby took a room in the lodge. Room No.22 was allotted to them. Ext.P16 is the copy of ledger. Relevant entry having no.13 is marked as Ext.P16(a). As per Ext.P15 receipt, register was released to PW19.

11. Coming to the first question, there is no dispute about the identity of the deceased. Evidence of PW1 and other witnesses would show that the deceased herein is Raichel Luke aged 76 years. Ext.P22 is the inquest report prepared by PW17 the Investigating Officer. PW13 Dr.K.S. Meena conducted autopsy of the victim and Ext.P8 is the certificate issued by her. She deposed that she had noted the following ante-mortem injuries Crl.Appeal No.650/14 -:11:- on the corpse of the victim Raichel Luke:

"1. Abrasion 2 x 1 cm on the right side of forehead 3.5 cm to the right of midline and 3.5 cm to the right of midline and 3.5 cm above eyebrow.

2. Abrasion 1x0.8 cm on the right side of forehead 5 cm to right of midline and just above eyebrow.

3. Abrasion 1.5x0.5 cm on the right side of face 1.5 cm outer to the outer end of eyebrow.

4. Abrasion 0.5x0.5 cm on the left side of face 4.5 cm to left of midline and 1 cm below eyebrow.

5. Contusion 3x2x0.5 cm overlying outer end of left eyebrow.

6. Abrasion 1.5x0.5 cm on the left side of face 1.5 cm below outer end of eyebrow.

7. Multiple abrasions of sizes varying from 0.5x0.2 cm- 1x0.5 cm over an area 2x1 cm, on the prominence of right cheek.

8. Contusion 1x0.8x0.3 cm on the inner aspect of left cheek 1.5 cm above left angle of mouth.

9. Abrasion 0.5x0.3 cm on the inner aspect of lower lip on the left side corresponding to the canine tooth.

10. Abrasion 5.5x0.5 cm, oblique on the left side of face, lower inner end 1 cm outer to midline and 1 cm above jaw border.

11. Abrasion 1x0.3 cm along the lower jaw margin 3 cm below lobule of ear.

An area of pallor noted at the tip and both alae of nose and chin.

12. Contusion 5x3.5x0.5 cm overlying left parietal eminence. Brain showed diffuse subdural bleeding and patchy areas of subarachnoid bleeding.

Crl.Appeal No.650/14

-:12:- Gyri of brain flattened, sulci narrowed.

13. Abrasion 3.5x 3 cm on the back of right forearm just below elbow.

14. Abrasion 8x3 cm on the outer aspect of right knee.

15. Abrasion 2x1 cm on the inner aspect of right ankle.

16. Contusion 2x1x0.3 cm at the inner aspect of right big toe 4 cm behind its tip.

17. Abrasion 3x1 cm on the outer aspect of left arm 1 cm below tip of shoulder.

18. Abrasion 4x1.5 cm on the inner aspect of left arm 17 cm above elbow.

19. Abrasion 1x0.5 cm on the back of left elbow.

20. Abrasion 0.5x0.5 cm at the back of root of left ring finger.

21. Abrasion 0.5x0.5 cm at the tip of left thumb.

22. Abrasion 3x1.5 cm on the outer aspect of left knee.

23. Abrasion 3x1.5 cm on the outer aspect of left leg 3 cm below knee.

24. Abrasion 4x0.5 cm on the right side of front of chest, horizontal, inner end in midline and 20 cm below top of breast bone.

25. Contusion 2x1.5x0.5 cm on the right side of front of chest 5 cm to the right of midline and 12.5 cm below collar bone.

26. Contusion 4x3.5x0.5 cm on the left side of front of chest, 8.5 cm to left of midline and 1 cm below collar bone.

27. Abrasion 0.8x0.5 cm on the right side of back of trunk 1.5 cm to right of midline and 13.5 cm below top of shoulder".

There were altogether 27 ante-mortem injuries. According to her, Raichel Luke died due to blunt injuries sustained to face and left Crl.Appeal No.650/14 -:13:- side of back head. These evidence would clearly show that Raichel Luke suffered a homicidal death.

12. To answer the next two questions, it is necessary to look into the evidence of some of the key witnesses of the prosecution especially that of PW1 who is cited as an injured eyewitness. PW1 Radhika deposed that she knows the deceased Raichel Luke. She was residing at Chemmamukku. PW1 was working as a home nurse at the house of deceased from the year 2003 onwards. The incident happened on 31/01/2010 at about 02.00 a.m. Herself and mother were the only inmates. A2 Remya who is the sister of PW1 contacted PW1 over phone at 06.30 p.m. and requested to meet her. A1 Santhosh and two month old child of Remya were also there. A2 had stayed with her in the house of Amma for some period. Santhosh who is a native of Nepal also stayed there with other gurkhas on rental basis. A2 Remya went with A1 Santhosh to Nepal. As per request over phone, PW1 reached Sree Lekshmi Lodge at Chinnakkada and met Remya. Demand was raised to come to the house and stay with Amma. PW1 calls Raichel as 'Amma'. But PW1 refused the said request. At about 09.30 p.m., accused along with their child came to the Crl.Appeal No.650/14 -:14:- house. PW1 opened the house as the calling bell was rung. They told that they came to meet Raichel Luke. They also said that after meeting Raichel, they will leave the place in the early morning train. They had a conversation till 11.00 p.m. and thereafter they went to bed. Accused were sleeping in the front room and they (PW1 and the deceased) were sleeping in the bed room. At 01.30 a.m., door was knocked. PW1 opened the room and went to the room of accused. She asked why she was called. A2 replied that they need to talk. A2 called A1. A1 caught hold on the hair of PW1 and slapped on her cheeks. He forcefully kept a towel in her mouth. PW1 had bitten on the three fingers of A1 Santhosh. Her hands and legs were tied with ropes. Head was tied using clothes. Hearing the cry of PW1, Amma came there. Both the accused beat ammachi. Her head and mouth were tied. Hands were kept to the back and tied. Ammachi cried as she was getting suffocated. A2 opened the almirah using key and took gold ornaments. Golden ear studs and golden chain were taken. Bracelet of PW1 was removed from her body by A2. Mobile phone and watch of PW1 were also taken. `8,000/- (Rupees Eight Thousand only) belonging to Ammachi was also taken. As PW1 Crl.Appeal No.650/14 -:15:- cried out, cloth was put into her mouth and her head was tied using cloth. The light in the house was on. Raichel died of suffocation. She was an asthma patient. The person residing in front of them informed the matter to police seeing the gate and door of the house being found open. Accused did all these to rob money and gold. PW1 was having injuries on her face, eyes, hands and legs. She was under treatment at District Hospital, Kollam. Ext.P1 is the FI statement given by her to police which bears her signature. Ext.P2 is the statement given by her before the learned Magistrate on 19/02/2010. She received the gold ornaments from Court on third party receipt and she identified all of them one by one. MO1 to MO11 series are the gold ornaments marked. MO1 is the chain with 'parip' fashion and locket, MO2 is Sachin chain and its locket, MO3 is centipede chain and its locket, MO4 is the machine cut bangle, MO5 and MO6 are other two bangles, MO7 is the hand chain, MO8 is the ring, MO9 series (three in numbers) are other three rings, MO10 series are two set of ear studs, MO11 series are three set of ear studs with a nail, MO12 is her mobile phone of Sony Company, MO13 is her wrist watch and MO14 is the rope with which her hands were tied. Crl.Appeal No.650/14 -:16:- MO15 is the maxi of Raichel. MO16 is the bed sheet used to tie Ammachi. MO17 is the bed sheet used to tie PW1. MO18 is the towel used to tie Ammachi. MO19 is the shawl used to tie her mouth. MO20 is the mosquito net used to tie her hands. MO21 is the maxi worn by her. MO22 is the wig of Ammachi. MO23 is the shawl used to tie the hands of PW1. She identified A2 in Court. The gold was about 15 sovereigns. It's worth was `4,00,000/-. `8,000/- of Ammachi also was stolen. She stated that she told to police the said amount as `20,000/- erroneously. She was cross examined at length. She stated that CW2 Rajkumar Thomson informed the matter to police. She also agreed that Ext.P1 was taken from her after police reaching the spot. Police reached the spot at about 10.30-11.00 a.m. She had given statement to police thrice. PW1 stated that she married PW4 Unni. She agreed that there were two dogs in the house at the relevant time. During night, both dogs were left untied. Dogs were in the habit of barking on seeing strangers. She denied the suggestion that PW4 Unni had come there at that time. She also denied the suggestion that they tried to take away the gold without the knowledge of Ammachi. She reiterated that gold is hers. She also stated that Crl.Appeal No.650/14 -:17:- she told the amount which was lost as `20,000/- because of her perplexed mental state at that time. The notes were of `500/- denomination. She also answered that she had gone to tourist home because A2 contacted her over phone. A2 went with A1 about two years prior to the incident. They were coming back for the first time. Soon after they got down from train, at 03.30 p.m, PW1 was contacted over phone. PW1 did not go to station and told that she could not come to meet them. They told that they would not come from Nepal in the near future and hence they want to meet PW1. At 06.30 p.m., PW1 reached the lodge in an autorickshaw. She spent about 15 minutes there. A2 told PW1 that she should not bring Unni. PW1 came back at 07.00 p.m. Two times they contacted PW1 over landline phone and on both occasions, PW1 told them not to come but still they came at 09.30 p.m. They brought food and A2 and PW1 ate the same. Till 10.30 p.m., they conversed in a friendly manner. It was a Sunday. Accused were sleeping in the hall. But she did not give such a statement to police earlier. She denied the suggestion that she had given statement to police that after 10.30 p.m., accused somehow reached there. She reiterated that it was she who kept Crl.Appeal No.650/14 -:18:- money and gold in almirah. Ear studs and bracelet were on her body. Rest of the gold ornaments were kept in almirah. Almirah was opened using key. She further stated that while accused were arrested, the lost gold were found and that she identified them in the police station. Gold was taken by A2. She understood the same from the sound and voice. Since she was tied up, she could not see accused taking gold ornaments. But she heard the sound. She was tied in such a way that she could see the almirah. A1 Santhosh slapped on her face. He beat on both her cheeks and on head as well. Towel was inserted into her mouth. Her eyes were swollen. Her hands and legs were tied using ropes. As A1 inserted towel into her mouth, she had bitten on his three fingers and his finger got injured and there was blood flow. She do not know whether blood was there in the cloth. A1 had taken gold from her body. Both accused assaulted Ammachi. A2 also helped in tying Ammachi. Both Ammachi and PW1 were lying adjacent to each other. After sometime, there were no response from Ammachi and hence she came to know that Ammachi is dead. Ammachi was a born asthma patient. Ammachi was weak. Apart from salary, Ammachi had helped her by giving money. Ammachi Crl.Appeal No.650/14 -:19:- advised her to keep the gold ornaments for her marriage. She denied the suggestion that she had given gold to Unni for buying the autorickshaw. During 2003, Ammachi was bedridden. Within two years, she regained her health. During the relevant time, Ammachi was able to do things on her own. PW1's further statements were taken after she became normal. Accused switched on the light in the room. In re-examination, she stated that it was A2 who inserted cloth into the mouth of Raichel. Accused reached the house on 30/01/2010 at about 09.30 - 10.00 p.m. To a Court question as to why dogs did not bark, she replied that initially dogs did bark, but since accused were familiar, they stopped barking.

13. PW4 Unni deposed that he is an autorickshaw driver and he usually takes Raichel Luke to hospital and other places in his autorickshaw. He knows PW1 for 6 to 7 years. PW1 was a home nurse in the house of Raichel Luke. PW4 knows A2 also. A2 is the sister of PW1. He knows A1 Santhosh as well. A2 fell in love with A1 and they eloped. On 31/01/2010, as he reached in front of the house of Raichel Luke, he saw a crowd gathered there. He went inside and saw Raichel Luke lying dead in the dining room Crl.Appeal No.650/14 -:20:- with her face tied and hands tied to the back. He understood that it was a murder. PW1 Radhika was sitting in a cot and police officials were giving water to her. He stated that he had seen Radhika wearing gold ornaments. Later, he married PW1 Radhika. During cross-examination, he stated that he came in contact with Raichel Luke's house through PW1. He had the freedom to enter the house at any time. He was taking Raichel Luke to hospital in his autorickshaw. He was not in love with PW1 but it was a friendship. There were two dogs in the house. Dogs were very cordial and friendly with Ammachi. In case strangers attack Ammachi, dogs will bite them even if it was PW1. He stated further that A2 had come to the house earlier and he had occasion to familiarize with A2. He identified the ornaments of PW1. PW1 told him the details while they were at hospital. He denied the suggestion that he had asked PW1 to give money for purchasing autorickshaw. In re-examination, he clarified that he had heard PW1 explaining the incident while they were in the house.

14. PW5 Shivaprasad deposed that during 2010, he was a supplier in Hotel Fayalvan at Chamakkada. He knows A2 Remya. Crl.Appeal No.650/14 -:21:- On 30/01/2010 at about 07.30 p.m., A2 and another person came there to have food. He could not remember whether they had taken any parcel with them. During cross-examination, he stressed that he had seen A2 on 30/01/2010. A2 was shown to him by police and thereafter he sees her at the time of trial only. He do not remember what they had eaten. Police came to the hotel and noted down his statement in the presence of other staff.

15. PW6 deposed that he is an autorickshaw driver. According to him, he used to park his auto in front of Banzigar hospital and at Chinnakkada. He knows A2 Remya. On 30/01/2010 at about 09.00-09.15 p.m., A2 hired his auto. The trip was from the front of Benzigar hospital to Chemmamukku. Another man and a little child were also with A2. From the bakery at Chemmamukku, they purchased something. Thereafter, they alighted in front of the house in which the incident took place. He identified A2 in Court. He also identified accused in police station. During cross-examination, he stated that on that day, he brought accused after he went for a trip from Chemmamukku to Benzigar hospital. He reiterated that accused got into his autorickshaw Crl.Appeal No.650/14 -:22:- from the front of Benzigar hospital. The name of bakery was Sree Lekshmi bakery. Travellers got down from the autorickshaw on the roadside.

16. PW9 Gopakumar deposed that he is running a bakery shop by name Sree Lekshmi bakery. He knew accused. Accused came to his bakery on 30/01/2010 at 09.30 - 10.00 p.m. in an autorickshaw. She came there for purchasing biscuit. A little baby was also with them. One person was sitting in the autorickshaw. After police arresting accused, he had seen them. He identified A2 in Court. During cross-examination, he stated that the autorickshaw was stopped in front of his shop. Autorickshaw reached after 09.30 p.m. A2 is familiar to him even prior to the said incident as she came to purchase goods from his shop earlier. Biscuit was purchased. In the auto, there was driver and another person. He could not see the said person clearly. In re- examination, he stated that street light and light from his shop were available.

17. PW10 deposed that he is an autorickshaw driver and he runs his auto at Puthiyakavu stand. During 2010, he was running autorickshaw bearing registration No. KL 2C 8735. He Crl.Appeal No.650/14 -:23:- knows A2 Remya. On 30/01/2010 at 02.00 a.m., while he was returning after a trip to Ayathil, accused waved to stop the autorickshaw at Chemmamukku. A man and a little baby were also with accused. PW10 stopped his autorickshaw. They told him that they wanted to go to railway station. PW10 dropped them at the railway station. He identified A2 in Court. Accused were shown to PW10 by police. During cross-examination, he stated that since a woman got into the autorickshaw at that time, he took note of them. They boarded from Chemmamukku. They were speaking in Telugu. He replied that Public Prosecutor told him the date 30/01/2010. Also, things which need to be deposed in Court were told to him by a lawyer. But in re-examination, he clarified that he is not able to read summons and that whatever he stated in Court is stated from his own knowledge.

18. Defence has a case that the injuries on the victim were not fatal and prosecution did not prove the nature of injuries. PW13 conducted autopsy of the victim. As already discussed, according to PW13, the victim died due to blunt injuries sustained to face and left side of back of head. Injury nos. 3 to 11 can occur in an action of smothering. Injury nos. 3 to 12 without these initial Crl.Appeal No.650/14 -:24:- effects were fatal. Lips and tongue were seen compressed and tongue was lying in the backmost portion of oral cavity. It was due to local prominence. Injury nos. 25 and 26 can occur due to hitting. Ext.P9 is the chemical analysis report of viscera. There was no poison. No semen and spermatozoa were found. Ext.P10 is the report for the same. During cross-examination, she stated that 21 injuries noted on the corpse of victim were abrasions and 6 were contusions. Deceased was poorly nourished. Time of death is not noted in post-mortem certificate. According to her, death might have taken place 18 hours prior to keeping the body in cold chamber. To a suggestion as to the time of death, she stated that it could be after night 12.00 on 30/01/2010. Injury no.12 is a contusion at the left parietal causing internal bleeding. There was no damage to thyroid cartilage and hyoid bone. There was no marking on neck. All injuries are not possible in a fall. Cause of death was based on post-mortem findings. To a suggestion whether blunt injury can be caused only when body part came into contact with blunt object/weapon, she replied that it can be caused by a blunt impact. There was no symptom of heart attack. In re-examination, she stated that injury nos.1 and 2 Crl.Appeal No.650/14 -:25:- are possible by contact with rough object or surface.

19. PW14 is the then Head Constable of Kilikkolloor Police Station. He deposed that he had assisted in the investigation of the case at hand. They went to Coimbatore in search of accused. He put his signature in Ext.P11 mahazar prepared by CW25. Gold ornaments were recovered on the body search of accused. He identified A2 in Court. In cross-examination, he stated that on 03/02/2010 at 04.00 a.m., they left from Kollam. S.I. (PW15), himself and driver Rajendran were there in the party. They proceeded in a car to a place called Rakhipalayam. They did not go to police station there. They saw accused walking. PW15 was having the photo of A2 with him and hence accused were identified and were arrested. Body search was conducted. At that time, PW14 was present there. One person was also there to assist police. He was a Tamilian who helps police. PW15 arranged him. He was of fair complexion. On body search, from the right pocket of pant, gold was seized. From left pocket, bracelet was seized. In purse, there was money. In the front pocket, there were two mobile phones. With the help of a woman, A2 Remya was searched. Her name was Sreevalli. One chain, one necklace and Crl.Appeal No.650/14 -:26:- two bangles were found in A2's possession. About16 ¾ sovereigns of gold was seized. There were 16 items. There were 34 bank notes of `100 denomination and one bank note of `50. PW15 prepared mahazar at the spot. Local people refused to sign the mahazar. In re-examination, he stated that he do not know with whom all PW15 the S.I. of Police had contacted. A little baby was also with accused.

20. PW15 is the then S.I of Police, Kilikkolloor Police Station during 03/02/2010. As per the direction of Kollam East Circle Inspector Sri. Vijayan, on 03/02/2010 at 04.00 a.m., he along with police party proceeded to a place called Rakhipalayam in Coimbatore in a car in search of accused persons. By about 17.30 hours, at Vetilaikali Palayam Junction, two suspected persons were seen coming through a dark pathway. Since one of them had resemblance with the photo of A2, they were prevented and questioned by them. On questioning, accused confessed that they had committed the crime. Accused were arrested. As per Ext.P11 mahazar, gold ornaments, purse, mobile phone and money were seized from the body of A1. A2 was searched with the help of a woman named Sreevalli. Ornaments were seized. He Crl.Appeal No.650/14 -:27:- identified A2 in Court. Police party proceeded by tracing mobile tower location. In cross-examination, he stated that PW14 and driver Rajendran were accompanying him. There was a police friend also with them whom they come into contact at Rakhipalayam. Since accused were traced using mobile phone location, help of local police was not sought for. A1 was taken into custody by using force. He denied the suggestion that Sreevalli is a stock witness of Police. He also denied the suggestion that mahazars were caused to be signed by PW14 at Kollam.

21. On perusal of evidence on record, we do not find any reason to disbelieve the version of PW1 who is an injured eyewitness. She is proved to be the home nurse of the deceased from 2003 onwards and she is a natural and probable witness as far as this case is concerned. A2 is none else but the sister of PW1. Her evidence need not be doubted. Her presence at the place of occurrence with injuries is proved further by the evidence of PW2 to PW4. Ext.P7 wound certificate proved by PW12 would show that she was having injuries on her body in connection with the incident. Her version is that A1 and A2 along with their 2 months old baby reached Kollam on 30/01/2010 and Crl.Appeal No.650/14 -:28:- stayed in Sree Lekshmi Lodge, Kollam. In spite of her negative response, accused came to the house of the deceased and found an occasion to sleep there. PW1 categorically deposed the overt acts committed by both accused. PW1 was hit badly by A1 and A2. Her ornaments were took away by both accused from almirah and also from her body. Learned counsel for the appellant argued that PW1 had not seen the incident as her face was covered with a cloth even according to the prosecution. According to PW1, she understood by recognizing voice and sound of A2 and came to the conclusion that A2 was the person who opened the almirah and took the gold ornaments and money. Since the face of PW1 was covered, she would not have witnessed the incident. But we are unable to agree with the said argument in the light of evidence on record. Of course, PW1 in her evidence stated that she realized from the voice and sound that it was A2 who opened the almirah and took gold and money. But it in no way mean that she had not witnessed the aggression including overt acts done by both accused against the deceased and PW1. There is nothing on record to show that the face of PW1 was completely covered or that she was unable to see the occurrence from the very Crl.Appeal No.650/14 -:29:- beginning. Her face was tied only after alleged beating and hitting on the deceased and accused. Evidence of PW1 would further reveal that there was nobody else except accused in the house at that time. A2 is the sister of PW1. It is acceptable that she recognized the voice of her sister at that point of time. PW1 has a definite case that accused had removed ornaments from her body as well. Both deceased and PW1 were beaten by A1 and A2. They were tied using clothes and ropes by both accused. Ornaments were snatched from the body of PW1 with violence. There is no doubt about the fact that both accused acted in furtherance of their common intention to commit robbery. In the said process, PW1 was injured and Raichel Luke was dead. Medical evidence fully corroborate the version of PW1. Evidence of PW12 who issued Ext.P7 wound certificate of PW1 and the evidence adduced by PW13 who issued Ext.P8 certificate would corroborate her version. That apart, the following evidence on record would further probabilize or rather fortify her version:

(i) Evidence of PW19 would show that A2 took room no.22 of Sree Lekshmi Lodge, Kollam on 30/01/2010 and her husband and child was there. Copy of ledger is marked in evidence as Ext.P16. Crl.Appeal No.650/14 -:30:-

Relevant entry of the same as no.13 in the ledger book is marked as Ext.P16(a).

(ii) PW5 Shivaprasad who was a supplier in Hotel Fayalvan at Chamakkada deposed that on 30/01/2010 at about 07.30 p.m., A2 and another person came to the hotel and had food.

(iii) PW6 deposed that on 30/01/2010 at about 09.00-09.15 p.m., A2 hired his auto and the trip was from the front of Benzigar hospital to Chemmamukku. Another man and a little child were also with A2. From the bakery at Chemmamukku, they purchased something. Thereafter, they alighted in front of the house in which the incident took place.

(iv) PW9 Gopakumar deposed that accused came to his bakery on 30/01/2010 at 09.30 - 10.00 p.m. in an autorickshaw. She came there for purchasing biscuit. A little baby was also with them. One person was sitting in the autorickshaw.

(v) PW10 deposed that during 2010, he was running autorickshaw bearing registration No. KL 2C 8735 and on 30/01/2010 at 02.00 a.m., while he was returning after a trip to Ayathil, accused waved to stop the autorickshaw at Chemmamukku. A man and a little baby were also with accused. Crl.Appeal No.650/14 -:31:- PW10 stopped his autorickshaw. They told him that they wanted to go to railway station. PW10 dropped them at the railway station.

22. All these evidence prove the attending circumstances in its logical sequence. Accused reached the place on 30/01/2010 and they took a room at the lodge of PW19. They went out for having food at the hotel where PW6 was working as a supplier, by 07.30 p.m. At 09.00-09.15 p.m., accused hired the autorickshaw of PW6 and the trip was from the front of Benzigar hospital to Chemmamukku. On the way, A2 got down from the autorickshaw and went to the bakery shop of PW9 and purchased biscuit by 09.30 - 10.00 p.m. On 31/01/2010 at 02.00 a.m., while PW10 was returning after a trip to Ayathil, accused waved to stop the autorickshaw at Chemmamukku and accused got into the autorickshaw and asked PW10 to drop them at railway station.

23. Evidence of PW15 and PW14 shows that ornaments belonging to PW1 were recovered from the possession of A1 and A2 at the time when they were arrested from Rakhipalayam in Coimbatore. It is proved beyond doubt that robbery and hurt which led to the death of Raichel Luke and injury to PW1 Crl.Appeal No.650/14 -:32:- happened during the course of the same transaction. Ext.P21 FSL report indicates that item nos. 1 to 12, 17, 18, 20 and 22 to 24 contained blood. Item nos.2 to 4 contained human blood belonging to group 'B'. Item No.22 is MO24 pants and Item No.24 is MO29 churidar pant of A2. Both these items contained human blood. No explanation is forthcoming from accused on this incriminating factors. Hence we agree with the learned Sessions Judge on the points that A2 committed robbery and in the process caused hurt to both Raichel Luke and PW1 and due to which Raichel Luke breathed her last. Offence under Section 449 is also proved beyond doubt. It is also proved that accused caused injuries to PW1 during the process.

24. Remaining crucial question is whether there is evidence to show that accused had done the act which resulted in the death of Raichel Luke with the intention of causing death or that it was done with the intention of causing such bodily injury as is likely to cause death. We are not concerned about the involvement of A1 Santhosh as his case is already split up and its trial need to be conducted to arrive at a conclusion regarding his role in the crime. In this appeal we are concerned only about the Crl.Appeal No.650/14 -:33:- role of A2 Remya. The evidence on record would show that primarily the common intention of both accused was to commit robbery. Of course A2 had caused hurt to the deceased and PW1 in that process. Evidence on record would show that accused reached the house of the deceased with their 2 months old child. They were conversing with each other till 10.30 p.m. in the intervening night. Accused were given freedom to lodge in the house as well. No weapon is used for the commission of the offence. The circumstances in its entirety indicate that there was no premeditation or intention on the part of A2 to commit murder of the victim. Admittedly, on hearing the hue and cry of PW1 only, the deceased Raichel Luke reached the spot. Accused tied both victims up. In the process, injuries were inflicted to both victims as well. Intention to cause death is to be gathered from the facts and circumstances of each case. Deceased is a feeble woman of 76 years old. The reason for engaging PW1 as home nurse to Raichel Luke itself is because of her weakness. She was a chronic asthma patient. It is in evidence of PW1 that after hitting deceased, accused tied clothes over her mouth and head. At that time, she cried because of suffocation. It is common Crl.Appeal No.650/14 -:34:- sense that if a person is left with his head and mouth covered with cloth, he would struggle to take breath and finally it can result in his or her death due to suffocation. In this case, knowing fully well that the victim is an aged and weak lady, both accused tied her mouth and head with clothes after injuries being inflicted. In spite of her cry for life, accused were in their pursuit of accomplishing their common intention of robbery. Under such circumstances, we are of the view that accused developed an intention to cause death of Raichel Luke and the act of causing bodily injury on Raichel and tying cloth over the mouth and head of that feeble lady was done backed by such an intention.

25. PW13 who was examined to prove the nature of injuries did not have a case in her chief examination that the injuries found on the victim was sufficient in the ordinary course of nature to cause death. But the Doctor has clearly opined that the death was due to the blunt injury sustained to face and back of the head. When a head injury is inflicted on a lady who is very weak, it is possible to assume that such injuries are sufficient in the ordinary course of nature to cause death. That apart, while being cross-examined, PW13 had clarified that the said injury was Crl.Appeal No.650/14 -:35:- sufficient in the ordinary course to cause death. Therefore, we have no hesitation to conclude that the appellant has also participated in the commission of offence for having committed murder of the deceased while committing robbery. Court below was therefore justified in finding her guilty and imposing the sentence of imprisonment for life. We do not find any reason to interfere with the said judgment.

Appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                          N.ANIL KUMAR

Rp               //True Copy//                JUDGE

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