Kerala High Court
Ummer Beary vs The State Of Kerala on 28 July, 2020
Equivalent citations: AIRONLINE 2020 KER 1242
Author: M.R.Anitha
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942
CRL.A.No.448 OF 2016
AGAINST THE ORDER/JUDGMENT IN CP 203/2007 DATED 06-08-2007 OF
JUDICIAL MAGISTRATE OF FIRST CLASS-I ,KASARAGOD
AGAINST THE ORDER/JUDGMENT IN SC 683/2014 DATED 08-02-2016 OF
ADDITIONAL SESSIONS COURT - II, KASARAGOD
CRIME NO.360/2006 OF Kumbla Police Station , Kasargod
APPELLANT/ACCUSED:
UMMER BEARY
AGED 35 YEARS, S/O.IBRAHIM BEARY,MUNDIATHAR
HOUSE, BALLALU VILLAGE,BELTHANGADI TALUK,
D.K.DISTRICT,KARNATAKA STATE.
BY ADVS.
SRI.I.V.PRAMOD
SRI.K.V.SASIDHARAN
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
OF KERALA,ERNAKULAM - 682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHI
R1 BY ADV. SMT.AMBIKA DEVI S SPL.GP ATROCITIES
AGAINST WOMEN AMP CHI
OTHER PRESENT:
SPL PP SMT S AMBIKADEVI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16-07-2020, THE COURT ON 28-07-2020 DELIVERED THE FOLLOWING:
Crl.A.No.448 of 2016
2
JUDGMENT
Dated this the 28th day of July, 2020 M.R.Anitha, J.
1. This appeal is filed against the conviction and sentence passed against the appellant/accused in Sessions Case No.683/2014 dated 8.2.2016 on the file of the Additional Sessions Court-II Kasaragod.
2. Prosecution case is that on 28.12.2006, at about 2.30 am the deceased Fathimath Suhara (hereinafter be referred as deceased) aged 18 years while sleeping in her house at Ulvar village, accused, by removing the tiles of the house, trespassed into the house to commit the murder of the deceased and committed the murder by cutting her neck with a knife. It is alleged that accused who was a worker at Ulvar juma masjid situated near the house of the deceased made sexual advances repeatedly to her which was refused by her. On 27.12.2006 in the morning while he was carrying out the agricultural operation in the property of the mosque, on the western side of the house of the deceased again made sexual advances and the deceased refuted and stated that she would disclose it to Crl.A.No.448 of 2016 3 others and out of that enmity and fearing that if it is made public, he would be evicted from the mosque, decided to do away with her and with that intention on that day he purchased MO1 knife from the shop of PW7 at Kumbala. During night while he was sleeping with PW3 inside the upstairs of the Mosque got awakened by putting an alarm through MO3 mobile phone and concealed MO1 knife in his loin and trespassed into house No.1/81 of Kumbala grama panchayat and committed brutal murder by inflicting a cut injury on the neck of deceased.
3. After the incident at 6.00 am PW1 lodged FIS and PW20 who was the sub inspector of police, Kumbala, during the relevant time, registered the Ext.P1(a) FIR on the basis of the same. PW14 took the body of the deceased to the Medical college for post-mortem and thereafter PW13 Professor of forensic medicine attached to Academy of medical science, Pariaram conducted post-mortem on the body of the deceased and issued Ext.P10 post-mortem certificate. PW22 who was the then Circle inspector of police, Kumbala conducted investigation and filed the final report.
Crl.A.No.448 of 20164
4. On the side of prosecution PW1 to 22 were examined and Ext.P1 to P28 were marked. MO1 to 17 series were identified and marked. After closure of the prosecution evidence, appellant/accused was questioned under Sec.313 Cr.P.C. He denied all the incriminating facts and circumstances put to him. Thereafter both sides were heard. Since there was no reason to acquit the accused under Sec. 232 Cr.P.C, accused was called upon to enter on his defence. There was no defence evidence. On hearing both sides, the court below found the accused guilty under Secs 449, 506(ii), and 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.30,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months under Sec.302 IPC and rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default of payment of fine, rigorous imprisonment for three months under Sec.449 IPC and rigorous imprisonment for 5 years and fine of Rs.10,000/- in default to undergo rigorous imprisonment for 2 months under Sec.506(ii) IPC. Sentences were directed to run concurrently. District Legal Service Authority, Kasargod was also directed to pay adequate Crl.A.No.448 of 2016 5 compensation to the father and mother of the deceased under Sec.357A Cr.P.C. which is also directed to be not less than Rs.1,00,000/-. Aggrieved by the conviction and sentence passed by the trial court, the appellant/accused came up in appeal for the various grounds stated in the memorandum of appeal.
5. Notice was issued to the respondent and learned Special Public prosecutor Smt.S.Ambika Devi appeared on behalf of the State. Lower Court records were called for and both sides were heard.
6. The learned counsel for the appellant/accused (hereinafter will be referred as accused) assailed the conviction and sentence on various grounds. According to him, the prosecution could not establish the identification of the accused beyond any reasonable doubt. The recovery of MO2 lunky is illegal and no blood stains were noted at the time of the recovery either as per Ext.P2 recovery mahazar or Ext.P22 property list. But in the FSL Report, in the description of item No.5 which is the lunki, there is reference with regard to the dark brown stains on it which, according to him, is a fabricated evidence by the Crl.A.No.448 of 2016 6 investigating agency. It is also contended that PW3 is not a reliable witness. There is no recovery of weapon and MO1 knife has been seized from the varandah. So prosecution failed to prove the chain of circumstances and hence conviction entered into by the court below is illegal and unsustainable, contends the learned counsel.
7. The learned Special Public Prosecutor on the other hand would contend that the evidence adduced by the prosecution is more than sufficient to prove the involvement of the accused in the murder of the deceased beyond any reasonable doubt. She would also contend that the evidence of PW21 with regard to the disclosure of the deceased about the sexual overtures of the accused and her protest and making it public and threatening of the accused to meet with dire consequences during night etc. would amount to dying declaration and all the aspects have been considered and discussed in detail by the court below and no interference is called for in the conviction and sentence passed by the court below.
8. Before going to the rival contentions, we will have a cursory glance through the evidence adduced in this Crl.A.No.448 of 2016 7 case. PW1 is the first informant and is a relative of the deceased who came to the spot immediately after the incident at about 3am and saw PW2 the mother of the deceased and the sister of the deceased weeping there and enquired the matter with them and thereafter he gave the FIS at about 6 a.m on the same day, which is marked as Ext.P1. He is in acquaintance with the accused as a worker in the mosque for the last five years. He would state that accused used to sleep in the mosque during night. He would also state that after giving FIS, he came to the house of the deceased and further deposed about the information given by PW3 with respect to the accused. He also stated that after returning from the police station on giving the FIS he saw the knife on the verandah near the kitchen and it is identified by him as MO1.
9. PW2 is the mother of the deceased. She deposed that on that day the deceased and another daughter by name Avvamma and herself were there in the house and they slept in one room and the deceased was lying on the floor. She further stated that accused used to come to their house for doing work and he carried out the electrical work in the their house at the time of the marriage of the Crl.A.No.448 of 2016 8 elder daughter. She would further state that the deceased asked to lock the room on that day but the elder daughter did not lock the room since they never used to lock the room. Further she stated that they go to bed at about 10 p.m and she heard a noise of the deceased and she fall upon her and her body got wet and something like blood was seen. She thought that it is vomiting of blood and saw a person going out of the room and also heard the noise of unlocking the bolt of the doors of the middle- room and also the kitchen. She put on the light and saw the deceased lying in pool of blood with a cut injury on the neck and she screamed and the time was about 2.30 a.m. Then she went towards the kitchen area and the neighbours, i.e PW 4 and his wife, came there along with their children. Somebody has given water to the deceased but that came out of the neck and she spoke about the removal of the tiles and the knife in the verandah of the kitchen, and identified MO1 as that knife. She also stated that the person who ran away had worn dhoti and was not wearing any shirt and further stated that, that person was having similarity with that of the accused. Further she stated that accused talked some unwanted things to the Crl.A.No.448 of 2016 9 daughter before two months of the incident and that was questioned by her husband and brother and he was warned. Further she stated that on the preceding day of the incident, accused had worked on the western side of their house in the property of the Mosque and it was told by the neighbours that he had stated some unwanted things to the deceased on that day and the deceased told him that it would be disclosed to everybody; then he threatened with dire consequences during night.
10. PW3 is the 'mukri' of the Ulvar Juma Masjid. He stated that on the date of the incident, himself, accused and one Farookh (muthahaleel - student) were present in the mosque and they went for sleep at 10 p.m in the upstairs. Usually the accused put alarm at 4.45am since there is Adhan (bank) at 5 a.m. But on that day at 1.30 a.m he got up on hearing the alarm and he got infuriated on hearing the alarm of mobile and questioned the accused about it. But he kept mum and switched off the alarm and again lied down. After half an hour accused got up and he saw the accused in the light from the electric post from outside and accused changed the dhoti and wore a 'kaili' and took something in a paper wrap from the box and put Crl.A.No.448 of 2016 10 it in his loin and stepped down. Then he peeped through the window and saw the accused going outside towards south. Being suspicious of that conduct, he did not go for sleep and after one hour he heard a chaos from the southern side and when he looked through the window accused was found to be rushing towards the Mosque and straightaway went to the bathroom and thereafter he was coming by drying the body using bath towel. Thereafter he came to the room, changed the dhoti and went for sleep. Then he enquired about the noise to the accused, but he kept mum and after sometime two men came and knocked the door and they intimated about the murder of Fathimath Suhara. Though he asked the accused to go there, he was not willing to go there and hence forcefully he was taken there and saw the deceased in a pool of blood and accused tried to went inside the room though he asked him not to go inside the room. Accused put a blanket over the dead body and he was in a hurry to go back. After reaching the mosque he asked the accused about the reason for going out of the mosque. Then accused threatened him stating that samething will happen to him also and was afraid. He also stated that Crl.A.No.448 of 2016 11 during the day before the death of the deceased accused was working in the property near the house of the deceased and he stopped the work at about 11 a.m and came to the mosque and told him that he has to change the mobile card and went to Kumbala. Further he stated that after the arrest of the accused police came with him and as shown by the accused MO2 lungi was recovered by describing in Ext.P2 seizure mahazar. He also gave statement before the Judicial First Class Magistrate Court and that is marked as Ext.P3.
11. PW4 is the neighbour of the deceased. He is also in acquaintance with the accused. He would state that the deceased used to come to his house and his daughter PW21 and deceased were close friends and on the previous day of her death she was in their house till 9 p.m and she used to come to their house. On that day the deceased asked his wife to take her to her house though usually she used to return to her house by herself. When his wife enquired about it to the deceased, she told that she is afraid of the accused and when his wife further enquired, deceased told that accused made sexual advances to her and she refuted and told him to make it Crl.A.No.448 of 2016 12 public. Then he threatened her with dire consequences during night on that day and his wife took her to her house and at about 2.30 a.m they heard a chaos from the house of the deceased and his wife asked him to enquire it. He rushed towards the house of the deceased and saw PW2 screaming at the kitchen area and he went inside and saw the deceased with a cut injury on her neck. He gave water to the deceased and it came out through the neck. Then he alarmed and other people also came and saw the the tiles removed on the northern side of the house. He also stated about the knife found outside the kitchen. He gave 164 statement to the Magistrate, which is marked as Ext.P4.
12. PW5 is the father of the deceased who is doing footpath business in Bangalore and was not present on the date of the incident. He states that before two months of the incident, while he was in the native place of his wife, PW2 informed him about the unwelcome remarks of the accused to the deceased and himself and his brother-in- law questioned the accused in front of the gate of the mosque. Though accused initially denied, towards the end, he offered apologies and stated not to repeat it and Crl.A.No.448 of 2016 13 he also threatened him stating that if at all it is repeated, he would also have to go out like Abdul Razak, PW9. It is an admitted fact that Abdul Razak who was examined as PW9 had love affair with the deceased and subsequently an anonymous letter has been received in the mosque. PW9 was questioned and he admitted the love affair and sending of the love letter and also agreed to marry the deceased after his sisters were given away in marriage. But the mosque people were particular to conduct the marriage then and there, for which he was not willing and hence he was terminated from the service of the mosque.
13. PW6 was the president of the mosque at the time of the incident. He also stated that on the day before the death of the deceased the accused was carrying out agricultural operation in the property of the mosque near the house of the deceased. He also speaks about the altercation between the accused and the deceased at the time of that work. He also speaks about the anonymous letter received by him in connection with PW9 and the subsequent termination of PW9 from service since he was not prepared for marriage at that time since he has to marry away his sisters.
Crl.A.No.448 of 201614
14. PW7 is a shop owner at Kumbala market from where accused purchased MO1 knife on the day before causing the death of the deceased. He identified the accused and also the knife. He also gave Ext.P5 statement to the magistrate.
15. PW8 is the uncle of the deceased who is the witness in Ext.P6 scene mahazar and he also speaks about the knife seen on the verandah and the scene mahazar is marked as Ext.P6 through him. PW10 is residing in the same village and is in acquaintance with the deceased and the accused and is also in contact with the teachers (usthads) in the mosque. His evidence is that on the date of incident he saw the dead body and had been to mosque and met the accused and accused told him that since he had gone near the dead body for wrapping with blanket he is afraid as to whether the police dog would come near him.
16. PW11 is the witness in the arrest memo which is marked as Ext.P7 and also signed in Ext.P8 seizure mahazar for seizing the MO3 mobile phone and also speaks about the seizure of one 50 rupee currency and three 5 rupees currencies from him. PW12 is the witness in Ext.P9 Crl.A.No.448 of 2016 15 inquest. PW13 is the doctor who conducted the postmortem on the body of the deceased and issued Ext.P10 postmortem report, and Ext.P11 FSL report, Ext.P12 covering letter attached to Ext.P11 is also marked through him. PW14 is the constable who took the body of the deceased to Medical College for postmortem. He produced MO4 to MO9 (the clothes worn by the deceased, a chain and the black twain) before the investigating officer. PW15 is the witness in Ext.P13 seizure mahazar and his evidence is that he was present while PW14 produced MO4 to MO9 before the investigating officer and he was also a witness in Ext.P13. PW16 is the photographer who took the photos of the deceased and the knife and produced before the investigating officer, the photographs and negatives were marked as Ext.P14 series. PW17 is the Village Officer who produced the site plan which is marked as Ext.P15. PW18 is the Secretary of Kumbala Grama Panchayath who issued the ownership certificate, Ext.P16 with respect to the house of the deceased. PW19 is the Magistrate who recorded the 164 statement of PW3, 4 and 7 which are marked as Exts.P3 to P5. PW20 was the Sub Inspector of Police, Kumbala Crl.A.No.448 of 2016 16 who registered the FIR after recording the FIS of PW1. PW21 is the daughter of PW4 who is a close friend of the deceased who narrated in detail about the conversation of the deceased on the day before her death which would be dealt with in detail later. PW22 is the Circle Inspector of Police, Kumbala who conducted the investigation of the case. He seized MO1 by describing in the scene mahazar and conducted the inquest of the deceased and questioned the witnesses and completed the investigation and filed the charge against the accused.
17. The fact that the death of the deceased was a homicide is not seems to be in dispute. Moreover, Professor of Forensic Medicine in Academy of Medical Science, Pariyaram, who conducted the post-mortem on the body of the deceased was examined as PW13 and Ext.P10 post- mortem certificate is marked. As per which, the ante- mortem injuries noted are as follows:-
1. Incised wound 9x3x3.5 c.m, oblique, on the left side of front of neck, the upper inner end being 4 cm below the chin and 1 cm to the left of midline. Underneath, the sternomastoid muscle was found cut. Jugular vein was cut into two. Carotid artery was punctured.
Thyrohyoid membrane was cut, just above the thyroid cartilage. Oesophagus was also cut in to two. There was a superficial cut involving Crl.A.No.448 of 2016 17 the body of third cervical vertebra. Trachea contained aspirated blood. Test for air embolism was positive.
2. Muscle deep incised wound 7.5x1 cm, obliquely placed, just behind the right ear, the front upper end being 4 cm below the mastoid. There was another incised wound (4x1cm) 2 cm above the previous injury and merging with it at its back aspect. There was an intact tag of skin and muscle (4x2cm) separating the two injuries on the front aspect
- page no.3-
3. Superficial Linear cut, 1.2x3 cm, horizontal, on the chin, 2.5cm to the left of midline and 2 cm below the left corner of mouth. There was a tailing, 1 cm long, towards the midline.
4. Superficial incised wound, 3x0.5x0.5cm on the back of left palm at the outer aspect of the forefinger, at its base. There was a tailing towards the tip of the finger.
18. The doctor deposed that cause of death is cut throat injury and injury No.1 is fatal and is sufficient to cause death in the ordinary case. The doctor was not cross examined also. So the fact that the death of the deceased was a homicide is proved beyond any shadow of doubt by the prosecution.
19. While coming to the arguments advanced by the learned counsel for the appellant with regard to the proof of identity of the accused through the evidence of PW2, the mother, it is to be remembered that the question of identity of the accused through the witnesses is not at all Crl.A.No.448 of 2016 18 a relevant fact in this case because the case has been investigated and final report has been filed purely as a case based on circumstantial evidence. It is true that during evidence of PW2, the mother, some attempt was made by the prosecution to bring out that she saw a person similar to that of accused going out of the house through the kitchen door by unlocking the bolt of the middle-room door and the kitchen door. But it is brought out during her cross examination that it is not seen in her first statement. At the time of giving inquest statement also she did not state about anybody running away from the house. But she has stated even at the time of inquest that some sound like unlocking the bolt of door of middle- room and kitchen was heard by her and the time was about 2.30 a.m. So her evidence that somebody was found to be running away similar to that of accused may be an embellishment. So the contention of the learned counsel with regard to the failure of prosecution to prove the identity of the accused does not require any consideration at all.
20. The other arguments with respect to recovery of MO2 lungi and the scientific evidence and also the contention Crl.A.No.448 of 2016 19 with regard to the admissibility of the evidence of PW3 would be dealt with while discussing the various aspects with regard to the proof of various circumstances in the coming paragraphs.
21. No doubt, in a case based on circumstantial evidence, motive is the prime ingredient and every crime would also be perpetrated by a motive. The motive alleged in this case is the sexual inclination of the accused towards the deceased and failure on her part to accede to his demands and further the fear that she would disclose his unwelcome sexual overtures on the previous day of the incident to others.
22. So the question is whether the prosecution has succeeded to establish the motive alleged in this case. To prove the motive, prosecution mainly examined PW21 the daughter of PW4 and also PW4 and PW1 to PW3. On analyzing the evidence of PW21 it is very clear that she was an intimate friend of the deceased and the deceased had disclosed all her personal matters to her. PW9 who had a love affair with her earlier also speaks about the close friendship between the deceased and PW21. She Crl.A.No.448 of 2016 20 stated that even after the marriage of the accused he used to state unwanted matters to deceased and asked her to be submissive to him. She would state that on the day before the incident deceased came to her house at 5 p.m and returned only at 9 p.m and deceased told her that she is afraid of going to bed because on that day accused and deceased had some altercation and accused threatened her with dire consequences during night and due to the fear her mother took the deceased to her house during night. During cross examination she reiterated that since the threatening by the accused was taken seriously her mother took the deceased to her house on that day. It is also stated by her during cross examination that deceased told her that she is afraid of lying in the house during night.
23. PW4 the father of PW21 also deposed in corroboration with PW21 in the above regard. He is also the first person who reached the house of the deceased on hearing the alarm and gave water to the deceased. But according to him it was flowed through the wound in the neck. PW1 also stated that he came to know about the unwelcome talk of the accused to the deceased and subsequent Crl.A.No.448 of 2016 21 threatening of the accused. PW2 the mother of the deceased also speaks that on the subsequent day the neighbouring people told her about the unwelcome talk of the accused to the deceased and the threatening of the accused when she refuted. PW2 also stated that on the date of incident the deceased asked the younger sister to lock the door but she did not lock the room since they had no such practice. So all those factors would prove the unwelcome sexual overtures of the accused to the deceased during the daytime while he was working in the property of the mosque near her house and the altercation in between them in connection with the same.
24. It has also come out in evidence that on a previous occasion, before two months' of the incident the father of the deceased and her uncle warned the accused for making unwelcome sexual remarks to the deceased. PW5, the father categorically stated that initially though accused denied the act, when he became infuriated accused offered apology and stated to not to repeat it. He also stated that at that time he told if it is repeated accused would also be evicted from the mosque like PW9. During cross examination of PW5 it was questioned that Crl.A.No.448 of 2016 22 he had not made any complaint to the Mosque committee with respect to that incident. He answered in the negative. But since they themselves had warned him and accused offered apology and undertook not to repeat it he might not have thought it necessary to file any complaint to the Mosque. So the above factors would prove that the father and uncle of the deceased had warned the accused before two months of the incident for his unwelcome talk to the deceased and on the date of the incident also there was an altercation between the deceased and the accused in connection with the unwelcome sexual overtures of the accused and accused threatened her with dire consequences during night and she was actually scared of him and hence wife of PW5(CW7) accompanied her to her house at 9 p.m. So the prosecution has succeeded to prove the motive behind the incident as alleged against the accused.
25. The theory of last-seen- together as such is not applicable in this case because admittedly the accused is residing in the mosque nearby the house of the deceased and deceased is lying in her house. But the evidence of PW3 Moosa would prove in abundance the presence of the Crl.A.No.448 of 2016 23 accused who was sleeping near him in the upstairs of the mosque on the date of the incident. He had also adduced evidence to prove that accused woke up during night at about 1.30 a.m and went out of the mosque after changing the dhoti by inserting a packet at his loin and came back while he heard the alarm from the house of the deceased. So the presence of the accused in the vicinity of the house of the deceased is fully established by the prosecution and whether the accused is the person who has done the act has to be ascertained by analyzing the other scientific evidence and other circumstances brought in evidence by the prosecution.
26. The learned Special Public Prosecutor would vehemently contend that the statement disclosed by the deceased on the day prior to the incident to PW21 with regard to the sexual overtures made by the accused and her refusal to accede to his demands and fear of the deceased to go to the house during night and her mother accompanying her as stated by PW5 and PW21 amounts to dying declaration and admissible in evidence. To make the matters clear, S. 32 (1) of the Indian Evidence Act, 1872, is extracted as follows:
Crl.A.No.448 of 201624
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
27. On going through the above, it could be seen that when a statement is made by a person as to any of the circumstances of the transaction which resulted in his death is relevant when cause of one's death comes into question. Here, the deceased disclosed to PW21 about the sexual overtures made by the accused and her refusal and to make it public and the threatening of the accused to meet with dire consequences during night and on the very same day during night the death has been caused. So the statement given by the deceased to PW21 will amount to the circumstances of the transaction which resulted in her death. The court below also in the judgment has discussed in detail about the evidentiary value of that statement.
28. It is relevant in this context to quote Sharad Crl.A.No.448 of 2016 25 Birdhichand Sardar v. State of Mhaharashtra [1984 KHC 145] : AIR 1984 SC 1622, wherein it has been held while dealing with Section 32(1) of the Evidence Act, 1872 that Section 32 is an exception to the rule of hearsay. It is also held that the test of proximity cannot be too illiterately construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Since that was a case of suicide it was also held that it may be important to note that Section 32 does not speak of homicide alone but includes suicide also and hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. It is also held as follows:
21. Thus, from a review of the authorities mentioned above and the clear language of S.32(1) of the Evidence Act, the following propositions emerge:
(1) S.32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S.32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut and dried Crl.A.No.448 of 2016 26 formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstance of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under S.32.
(3) The second part of clause (1) of S.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity of oath for the simple reason that a persons on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that S.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of S.32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.
29. In this case the statements made by the deceased to PW21 is with respect to the incident took place in the Crl.A.No.448 of 2016 27 morning at about 11 a.m and the deceased disclosed it to PW21 during evening while she was at the house of PW21 and on the same day during night at 2.30 a.m her death took place. So the fear expressed by the deceased because accused had threatened her with dire consequences during night and on the very same day death has taken place is a very relevant fact and constitute substantive evidence coming within the purview of Section 32 (1) of the Indian Evidence Act since the statement made by her relates to the circumstances of the transaction which resulted in her death though the statement was not about the cause of death coming within the first limb of sub-section (1) of Section 32. The same principle was laid down in Rattan Singh v. State of H.P. [AIR 1997 SC 768] in a dowry death matter.
30. The next contention of the learned counsel for the accused was with respect to the recovery of the MO2 lungi and the scientific evidence adduced by the prosecution with respect to that. He would contend that PW2 the mother of the deceased though stated that the assailant was wearing a dhothi, she has no case that he Crl.A.No.448 of 2016 28 was wearing a lungi. He would also contend that either in Ext.P2(a) the recovery mahazar or in Ext.P22 the property list by which MO2 was forwarded to the court, there is any description about the blood stains on the lungi. Only in Ext.P25 the FSL report there is reference with regard to blood stains in MO2 lungi. So according to him that would make prosecution case doubtful and is a planted evidence and if at all there was blood stains in the lungi at the time of recovery it would have find a place in Ext.P2(a) mahazar or in Ext.P22 property list.
31. In this regard it is to be noted that PW3 is the witness in Ext.P2 seizure mahazar of the lungi and he identified MO2 as the lungi recovered. But during his cross examination no question seems to have been put either with regard to the presence or absence of blood in Ext.P2. PW22 is the investigating officer who recovered the lungi by describing in Ext.P2 recovery mahazar and the disclosure statement given by the accused with respect to the recovery of MO2 lungi is also marked as Exts.P2(a). But even during his cross examination no question seems to have been put to with regard to the absence of blood stains in MO2 lungi at the time of recovery. No question Crl.A.No.448 of 2016 29 also seems to have been put to PW22 through whom the property list Ext.P22 have been marked with regard to the non mentioning of blood stains in Ext.P22. So without giving an opportunity to PW22 with regard to the absence of any blood stains in Ext.P22 the accused cannot be heard to contend that blood stains in MO2 has been subsequently planted at the instances of the prosecution to support the case. Ext.P11 the FSL report would clearly prove that the blood group of the deceased was group 'A' and Ext.P25 the FSL report of MO2 lungi would also prove that the hairs collected from MO2 lungi contained six hairs and out of which five hairs were human scalp hairs similar to the sample scalp hairs of the deceased and one of the hairs collected from the lungi is human scalp hair which is not similar to the scalp hair of the deceased and on examination of blood in MO2 lungi as per Ext.P25 also would state that the blood stains in MO2 was found to be belonging to group 'A'. The recovery of MO2 as per the disclosure statement given by the accused has been proved through the evidence of PW22 and Ext.P2 recovery mahazar. PW3 who is a witness in Ext.P2 also deposed with regard to the recovery of MO2 at the Crl.A.No.448 of 2016 30 instance of the accused. The evidence of PW3 would prove that accused went out of the mosque after hearing the alarm at about 1.30 a.m and returned after an hour. While leaving the mosque on hearing the alarm he also changed the dhoti and put on lungi and after returning also he changed the lungi and put it on the washing line and worn the dhoti. PW3 also identified MO2 as the said dhoti worn by the accused on the fateful day while going out during night.
32. The learned counsel for the accused in this context would contend that the MO2 lungi alleged to has been seized from washing line on which there are other several cloths and it is also a place which is accessible to all and hence no sanctity can be given to the alleged recovery of MO2 at the instance of accused.
33. In this context it is relevant to quote Jaffar Hussein Dastagir v. State of Maharashtra (1969 (2) SCC 872) = (AIR 1970 SC 1934) wherein while dealing with Sec.27 of evidence Act, 1874 the scope of section 27 and the impact of the recovery effected at the instance of the accused has been dealt with. It has been held that Crl.A.No.448 of 2016 31 information given by the accused must lead to discovery of the fact which is the direct outcome of such information. The prosecution must establish that the information given by the accused led to the discovery of some fact deposed by him. In that case the prosecution was for theft and statement of accused that "I will show you the person to whom I have given the articles" and it was held that the discovery of fact deposed to in such a case is not the discovery of the articles but the discovery of fact that the articles were kept by the accused. So the discovery of fact in this case is the lungi which was worn by the accused at the time of the commission of the offence and when the lungi has been discovered though other clothes were also there in the washing line it cannot be said as anything lesser than discovery of fact with respect to the lunky worn by the accused. So also it is not a place accessible to public and only PW3 and one student (Muthahaleel) were present during that night in the Mosque. So also the recovery effected in this particular case is a lunki worn by the accused and not a weapon. So the fact that it was kept along with other clothes on the washing line in the room on the upstairs of the Mosque Crl.A.No.448 of 2016 32 will not in any way affect the evidentiary value of the discovery of fact effected as per the disclosure statement of the accused. So the fact that it was put on a washing line on which other dresses were also there by itself will not take away the sanctity of the recovery effected as per the disclosure statement given by the accused.
34. It is also relevant in this context to quote State of HP v. Jeet Singh (AIR 1999 SC 1293) wherein while dealing with S.27 of Evidence Act, it has been held in para 27 as follows : "it is now well settled that discovery of fact referred to in Sec.27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it." It is true that in that case the fact discovered by the police with the help of the disclosure statements and the recovery of incriminating articles on the strength of such statements is that it was the accused who concealed those articles at the hidden places. But in this case, the MO2 lunki was hanging on the washing line but it was on the upstairs and have no access to the public. It is true that it was not in a hidden place. But the fact that the place Crl.A.No.448 of 2016 33 where it has been kept is in the exclusive possession of the accused and PW3 or the inmates of the mosque can not efface the evidentiary value of the recovery since the knowledge of the accused of having kept it there and subsequent scientific evidence proving the presence of scalp hairs of the deceased and blood stains of the same group of the deceased would definitely make the recovery and the disclosure statement Ext.P2(a), relevant in the facts and circumstances of this case. It is also pertinent to note that the evidence of PW3 that MO2 is the lungi of the accused is not seen challenged.
35. It is also relevant in this context to quote State of Kerala v. Rejikumar (2014 KHC 853) (DB) wherein while dealing with Sec.27 of the Evidence Act the question arose whether recoveries made from places accessible to public is admissible and it has been held that when materials which were concealed was not ordinarily visible to others it is immaterial that place of concealment is accessible to others and such recoveries would be admissible in evidence. So also in the same context it is relevant to quote Pavankumar Alias Monu Mittal v. Crl.A.No.448 of 2016 34 State of U.P. (AIR 2015 SC 2050) wherein while dealing with S.27 of the Evidence Act, it has been held that whatever information given by the accused in consequence of which a fact is discovered only, would be admissible in evidence whether such information amounts to confession or not. It is further stated that the basic idea under Sec.27 is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search on the strength of any information obtained from a prisoner, such discovery is a guarantee that the information supplied by the prisoner is true, is also stated that the "fact discovered" as envisaged under Sec.27 embraced the place from which the object was produced the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
36. It is also relevant in this context to quote Manji v. State of Rajasthan (1996 KHC 2823) wherein while dealing with the evidentiary value of the recovery effected under Sec.27 of the Evidence Act, in paragraph No.8 of the judgment it has been discussed as follows : Crl.A.No.448 of 2016 35
(8). "On the basis of the memorandum recorded by the appellant Manji under Sec.27 of the Evidence Act, the knife article Ext.P4 and dhoti Ext.P5 were recovered from the house of the appellant on 3.8.1984 by recovering memo Ext.P11. The recovery memo is proved by PW12 Kanhaiyalal Meena.
The knife and dhoti were send to Forensic Science Laboratory, Rajasthan, Jaipur and it was reported that the knife and dhoti are stained with human blood. The report is Ext.P18. The accused-appellant has not explained the human blood found on the knife and dhoti recovered on his memorandum.
The human blood found on the knife and dhoti which were recovered from the accused's house lend support to the prosecution story. The properties of robbery Tagli and Hansli were identified by the eye witness. The memo of identification of properties is Ext.P7. Nothing has been brought out in cross-examination from the identifying witnesses that the property does not belong to them or that it was not subject matter of robbery. The statement of PW1 Kalki and PW2 Laly positively shall be that they have been robbed their properties by the appellant Manji.
(9). On over all consideration of the evidence of eye witness, the recovery of the knife and dhoti stained with human blood on the basis of the statements of the accused- appellant from his house, the post-mortem report and the doctor's evidence and injury reports of Laly and Kalki, it is proved beyond any reasonable doubt that the accused-
appellant had committed the murder of causing the death of Smt.Vaktu and had robbed the property of Smt.Vaktu and Smt.Laly. In the said circumstance, the appeal is dismissed."
37. So in this case Ext.P2(a) disclosure statement and the seizure of MO2 lungi at the instance of the accused will come within the purview of Sec.27 of the Indian Evidence Act and hence is admissible in evidence.
Crl.A.No.448 of 201636
38. The learned counsel for the appellant further challenges the place from where MO2 was seized and according to him the prosecution has no consistent case with regard to the place from where MO2 was recovered. He would contend that according to PW22 it was taken from the washing line put up on the hall whereas according to PW3 it was put on the washing line erected in the room. But on analyzing the evidence of PW3 it could be seen that what has been stated by him during chief examination is only that after getting up accused changed the white dhoti and wore a kaili and he did not actually state where exactly it was put and further he deposed that when the accused came back he changed the dhoti but the place where it was put was not stated. During cross-examination it was brought out that in the upstairs there is a hall and a room separated using plywood and that is the room where they were lying. Further question put to him with regard to the lungi is with respect to the seizure and he would state that it was taken from the washing line but no question was specifically put as to where was the washing line, whether it was in the hall or in the room. It is true that PW22 the investigating officer who recovered MO2 Crl.A.No.448 of 2016 37 as per the disclosure statement given by the accused would state that MO2 was taken from the washing line in the room situated in the upstairs of the Mosque. And it is the accused who has produced the lunky from the washing line. In Ext.P2 mahazar there is no specific mention as to whether it was from the room and what has been stated is that they reached the spacious upstairs and the lungi was taken from the washing line erected on the north eastern portion of the upstairs. It has also come out in evidence that the room constructed in the upstairs is with plywood only. It may be a temporary construction. So both PW3 and the investigating officer during evidence categorically deposed that it was taken from the washing line erected in the room on the upstairs. But no specific question was put either to PW3 or PW22 with regard to the actual place from where MO2 was recovered whether it was from the hall or room. So at this stage the learned counsel cannot contend about the inconsistency of the place from where MO2 was recovered. So the evidence of PW3 and Ext.P2 and P2(a) the disclosure statement given by the accused and the evidence of PW22 who recorded the disclosure statement Ext.P2(a) and which has been Crl.A.No.448 of 2016 38 proved through him would convincingly establish the recovery of MO2 lungi at the instance of the accused.
39. So when human scalp hair similar to that of the deceased was found on that MO2 lungi on examination at FSL it would be a clinching evidence connecting the accused with the evidence. FSL report also prove that the blood stains contained on MO2 is also of Group A, the same blood group of the deceased.
40. So also almost all the witnesses i.e PW1, PW2, PW3, PW4 would speak in corroboration that blood stained knife was found on the verandah near the kitchen of the house of the deceased after the incident and Ext.P25 report would state that the hairs in MO1 knife were human scalp hairs which were similar to the sample scalp hairs of the deceased. So also the blood stains on the articles taken from the scene of occurrence i.e. MO4 churidar pant, MO5 churidar top, MO6 brassier, MO7 petticoat of the deceased also contained human blood belonging to group 'A'. So the scientific evidence adduced also would point to the fact that blood contained in all the items including the lungi is that of group 'A' belonging to the deceased. Crl.A.No.448 of 2016 39
41. The learned counsel would further contend that PW3 who has been described as a star witness by the Special Public Prosecutor is not at all a reliable witness. But admittedly he is the mukri of the Ulvar Juma Masjid and accused was a worker in that mosque and he has narrated in detail the incident which took place after they went for sleep on the fateful day at 10 p.m on 28.12.2006. On going through his cross examination it could be seen that apart from bringing out some immaterial omissions and contradictions,nothing was brought out to discredit his testimony. He has no axe to grind against the accused also. It is also to be noted that apart from making a suggestion that he has given statement at the instance of somebody and it has been given out of enmity towards the accused nothing could be brought out to show that PW3 has got any enmity towards the accused so as to depose falsehood against him in a heinous crime like this. The reason for his enmity towards the accused is also not even suggested during his cross examination. Being a worker in the mosque and were lying together in a single room normally it cannot be inferred that there would have any serious enmity in between them. So also since accused is Crl.A.No.448 of 2016 40 a worker in the mosque normally a mukri in the same mosque would not have deposed falsely unless he had actually witnessed the facts which have been disclosed by him to the police and before the court. It is also to be noted that even at the time of preparation of inquest immediately in the morning on the same day statement is seems to have been given by the witnesses to the effect that mukri i.e PW3 had seen the accused going out of the mosque during odd-hours. So even at the time of inquest, there is talk in the area with regard to the accused going out of the mosque during odd hours. So when such a person has been questioned by the police and has given statement and subsequently he has given the statement under Section 164 Cr.P.C. before the magistrate and deposed in corroboration about the facts before the court, as has been rightly found by the court below there is no eason whatsoever to disbelieve him.
42. The learned Public Prosecutor in this context also would contend that the evidence of PW3 also would speaks about the subsequent conduct of the accused since according to him when he after returning from the house of the deceased on seeing the dead body when he Crl.A.No.448 of 2016 41 enquired about the accused about leaving the mosque on hearing the alarm accused threatened him stating to not to disclose it to anybody, otherwise he would also have the same consequences. He would state that on hearing the same he was scared.
43. The evidence of PW10 also would go to show that when he went to the mosque after seeing the dead body, he saw the accused and talked with him and accused told him that he went near the body for the first time and hence he is afraid whether the police dog would come near him. The investigating officer also would state that when the dog squad reached the spot accused was not found. PW3 also stated that when he went to the house of the deceased on hearing the alarm the accused was reluctant to come with him and he take him by compulsion and on reaching the house he asked the accused to not to go inside but disregarding that accused went inside, put a blanket over the dead body. So that evidence of PW3 when read with the evidence of PW10 would go to show that accused with his guilty mind wanted to create false evidence by going near the body so as to escape subsequently if at all the police dog come towards him or Crl.A.No.448 of 2016 42 to the mosque.
44. Another material evidence adduced from the side of the prosecution is that of PW7 from whose shop accused purchased MO1 knife on 28.12.2006. He identified MO2 as the knife purchased from his shop by the accused. The accused also has been identified by him. It is true that the learned counsel for the accused in this context would contend that according to PW3 while going to the Kumbala town at 11.am on 28.12.2006 accused was wearing a pant and shirt whereas PW7 would state that the accused was wearing a white dhothi and white shirt and white turban. So probably the statement of PW3 that he went to the town by wearing pant and shirt may not be correct and he might have gone the town with white dhoti, shirt and turban. So that the difference in the dress worn by the accused at the time of purchase of knife in the evidence of PW7 and PW3 also cannot be said as material especially because he identified MO1 knife and the accused and moreover there is nothing brought out in evidence to show that he has got any enmity towards the accused so as to falsely implicate him. So the evidence of PW7 shop owner from whom accused purchased MO1 Crl.A.No.448 of 2016 43 knife is also a clinching evidence to connect the accused with the offence. It is that knife which was found with blood stains on the verandah of the house of the deceased immediately after the incident. As per Ext.P25 FSL report blood stains in MO1 knife is found to be human in origin belonging to Group A, similar to that of deceased. So also the hairs collected from MO1 knife in cellophane tape also reported to be similar to sample scalp hairs of the deceased. PW3 also stated that accused was found to be going out of the mosque during 1.30 a.m by keeping a packet in his loin and after hearing the alarm he had seen the accused coming back from the area where the house of the deceased is situated. Immediately after two people came and knocked at the door and informed him about the murder of the deceased. So when all these circumstances are put together there won't be any doubt to connect the accused with the offence.
45. So on a close scrutiny of the facts and circumstances and evidence adduced, we are also of the view that prosecution successfully established a chain of circumstances which points to the guilt of the accused beyond any reasonable doubt. The court below also have Crl.A.No.448 of 2016 44 considered elaborately the facts and circumstances and evidence adduced in a correct perspective. We do not find any justifiable reason to interfere with the same.
46. In the result, appeal is found to be devoid of any merit and hence dismissed confirming the conviction and sentence passed against the accused.
Sd/-
A. HARIPRASAD JUDGE Sd/-
M.R.ANITHA JUDGE Mrcs/Shg