Shiju P.Sam vs State Of Kerala on 31 July, 2023

[Cites 25, Cited by 0]

Kerala High Court

Shiju P.Sam vs State Of Kerala on 31 July, 2023

This appeal under 374(2) Cr.P.C. has been filed by the accused in S.C.No.427/2013 on the file of the Court of Session, Pathanamthitta, challenging the conviction entered and sentence passed against him for the offences punishable under Sections 449, 302, 392, 380 and 461 IPC.

2. The prosecution case as narrated in the charge sheet is as follows - deceased Sulochana is the sister of PW1. The accused on an earlier occasion had trespassed into the house of Sulochana against which she had preferred a complaint before the police. A crime was registered, the accused was arrested and remanded. Due to this incident, the accused was in inimical terms with Sulochana. Therefore, with the intention of murdering and robbing her ornaments and then to abscond, the accused on 27/01/2012 at 06.00 p.m, threatened Sulochana in front of her house bearing Crl.Appeal No.628 of 2017 3 no.X/273, Kombanoli, Vadasserikkara Grama Panchayath. Sulochana took refuge in her house. The accused followed her, removed three tiles from the roof of her house and gained entry into the house. Realising the presence of the accused inside the house, Sulochana bolted herself inside the bedroom of her house. The accused forcibly broke open the door, snatched her mobile phone, caught hold of her and pushed her on to the cot. He then caught her by the neck and strangulated her by using a towel and an old saree. To ensure that Sulochana was dead, the accused bit her on her right armpit, behind her neck, on her back and left flank. After ensuring the death of Sulochana, the accused opened the almirah in the room and robbed a pair of earrings (ജ മ ക ) weighing 5½ gms, a ring and two bangles. He then escaped through the kitchen door situated on the south-eastern side of the house with the stolen articles at about 08.30 p.m. With the mobile phone of deceased Sulochana, he rang up PW3, PW4 and PW27 and informed them that he had murdered Sulochana. Thus the accused is alleged to have committed the offences punishable under the above mentioned Sections.

3. Based on Ext.P1 FIS of PW1, PW26 the then S.I., Ranni registered Crime No.59/2012 that is, Ext.P15 FIR. PW32, the Circle Crl.Appeal No.628 of 2017 4 Inspector, Ranni conducted investigation into the case and submitted the charge sheet alleging the commission of the offences punishable under Sections 449, 302, 392, 380 and 461 IPC.

4. On the final report being submitted, the jurisdictional magistrate, after complying with the statutory formalities, committed the case against the accused to the Sessions Court, which court took the case on file as S.C.No.427/2013. On appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 31/07/2013 the trial court framed a charge for the offences punishable under Sections 449, 302, 392, 461 and 380 IPC, which was read over and explained to the accused to which he pleaded not guilty. The prosecution examined PW1 to PW32 and marked Exts.P1 to P46 and MO.1 to MO.6. After close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has Crl.Appeal No.628 of 2017 5 been adduced by the accused.

6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under the above mentioned Sections. The accused has been sentenced for the offence punishable under Section 449 IPC to rigorous imprisonment for 10 years and to a fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for two years, and for the offence punishable under Section 302 IPC to imprisonment for life; to a fine of ₹2,00,000/- and in default of payment of fine to rigorous imprisonment for a period of one year; and also to rigorous imprisonment for ten years and to a fine of ₹25,000/- and in default of payment of fine to rigorous imprisonment for a period of three months for the offence under Section 392 IPC; to rigorous imprisonment for three years and to fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for one month for the offence punishable under Section 380 IPC; and to rigorous imprisonment for two years for the offence punishable under Section 461 IPC. It has also been directed that if the Government decides under Section 433 Cr.P.C. to commute the substantive sentence of imprisonment awarded, the accused shall be entitled under Section 428 Crl.Appeal No.628 of 2017 6 Cr.P.C. to set off the period of detention undergone by him as an under-trial prisoner. The substantive sentences have been directed to run concurrently.

7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not.

8. Heard Sri. Ajeesh K.Sasi, the learned counsel for the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor.

9. According to the prosecution case, Sulochana was strangulated and smothered to death. To prove the same, prosecution relies on the testimony of PW20, who conducted the postmortem examination and issued Ext.P12 postmortem report. PW20, Additional Professor and Deputy Police Surgeon, Government Medical College Hospital, Kottayam deposed that on 28/01/2012, he had conducted postmortem examination of the deceased and issued Ext.P12 postmortem certificate in which he has noted the following injuries-

"B: INJURIES (Ante-mortem)

1. A nail mark on right upper eye lid 1.2 x 0.1cm transverse.

Crl.Appeal No.628 of 2017 7

2. Abraded contusion on under surface of chin 1.5 x 0.5cm transverse.

3. Abraded contusion on inner aspect of lower lip 2 x 0.5cm, at right angle of mouth region.

4. Lacerated wound on upper lip 0.5 x 0.5cm, muscle deep at right angle of mouth region,

5. Abraded contusion on front of chin 0.5 x 0.3cm, transverse, 1.5cm outer to midline and 12cm below top margin.

6. A linear abrasion on right side of neck 3.5 x 0.2cm, vertical 4.5cm below right ear lobule.

7. Abraded contusion on front of right shoulder 2 x 2 cm, 6cm below tip of shoulder.

8. Abraded contusion on outer aspect of right upper arm 3x 3 cm 12cm below tip of shoulder.

9. An oval wound with dimension of 7 x 5 cm, vertical with multiple inpressions of teeth like marks on at the inner aspect of right upper arm, with central paller noticed.

10. An oval wound on back of right side of chest 7 x 5 cm, with vertical multiple impressions of teeth like marks on at the inner aspect of right upper arm, with central paller noticed.

11. An oval wound on back of right side of chest 7 x 5 cm with multiple teeth like impression situated 16cm below top of shoulder 22cm outer to back midline, transverse, central paller noticed.

Crl.Appeal No.628 of 2017 8

12. A circular wound on back of right side of trunk 6 x 6 cm, with multiple teeth like impression at margins with central paller, 8cm above top of hip bone, 9cm outer to back midline.

13. Contused abrasion on inner aspect of left upper arm 3 x 3 cm, 6cm below arm pit.

14. Scalp contusion on left frontal eminence 3 x 3 cm, skull intact. The brain congested.

15. Contusion on right thyroid gland region 3 x 3 cm with fracture of both corneae of thyroid bone with infiltration of blood around.

16. Contusion on midsternal region 3 x 3 cm sternum intact.

OPINION AS TO CAUSE OF DEATH:

THE DEATH WAS DUE TO COMBINED EFFECT OF THROATLING [sic] AND SMOTHERING."

PW20 deposed that injury no. 9, 10 and 11, whose dimensions are identical, could be bite marks. Injury no.12 could also be a bite mark though its dimension is different. According to PW20, the cause of death was due to the combined effect of throttling and smothering.

9.1. PW32, the Investigating Officer (I.O.) deposed that he had prepared Ext.P8 inquest report on 28/01/2012. PWs.14 and 15 are attestors Crl.Appeal No.628 of 2017 9 to Ext.P8 inquest report. The aforesaid evidence which is not disputed or discredited in any way, establishes that the death of Sulochana was infact a case of homicide.

10. The crime came to light when PW1, the brother of the deceased, on a call from PW3, the daughter of the deceased, reaches the place of occurrence. In Ext.P1 FIS given by PW1 and recorded on 28/01/2012 at 02.00 hrs, it is stated that after the death of Sukumaran, the live-in partner of Sulochana, she was residing along with PW3, her daughter. When PW3 left for her studies, Sulochana was residing alone in her house. For the last two years, a lady used to come and sleep over during nights to keep Sulochana company. On 27/01/2012 at 08.30 p.m. when he was at home, PW3 called him and told him that accused Shiju had called her on the phone and told her that her mother was sick. Thereafter the accused again called PW3 and told her that he had killed her mother and that she could come and take her mother (Shiju എനയ ള phone ച യത ആദ ഷയയ ട പറഞ അമയകവയ ചത ക ടക കയ ണഎന. രണ മത വ ള ച. ന ൻ്ചറ അമചയ ഞ ൻ ചക ന ട ണ . എട ത ചക ണ യപ ക ൻ പറഞ. ................). By saying so the accused disconnected the call. He immediately along with his son, brother and uncle proceeded to the Crl.Appeal No.628 of 2017 10 house of Sulochana. They reached there by 9.45 p.m. When they entered the house and checked, they found Sulochana lying dead on a cot inside a room of the house. They also saw a towel tied to the cot and three tiles from the roof of the kitchen were found removed. (സ*കമമ യ യന ക യയ, ള സയ- ദര ക ടക ന കട ല ല ഒര യത രത റ ചകട യ ര ക നത യ , വ3ട നചറഅട കളഭ ഗചതയമലക*രയ ചലമ*ന ഓട കള ഇളക യ ര ക നത യ കണ ). When he inquired the matter, he came to know that the accused on 27/01/2012 after 16.00 hrs, had been seen in front of his sister's house. Sukumaran's brother Gopi's wife had told him that Sulochana had given a complaint against the accused for trespassing into her house. According to PW1, due to this enmity the accused had trespassed into Sulochana's house and had somehow murdered her and then escaped through the kitchen door. His enquiries also revealed that accused Shiju @ Shiju P. Sam, son of Samuel Easow, is residing near the house of his sister. After the incident the accused is not to be seen in the locality.

10.1. PW1 when examined stands by the case narrated by him in the FIS. The only discrepancy in his deposition and in the facts narrated in Ext.P1 is regarding the position of a towel ( യത രത) seen near the dead body. In Ext.P1 he states that the towel was found tied to the cot, on which Crl.Appeal No.628 of 2017 11 the body was found, whereas in his deposition he states that the towel was wrapped around the neck (കഴ ത ല യത രത റ ചവച ട ണ യ ര ന).

11. As per the prosecution case the accused was in inimical terms with the deceased as she had preferred a complaint against him to the police. To establish this aspect, prosecution relies on Exts.P41 to P46. Ext.P41 is the certified copy of the FIR in crime no.859/2011 registered against the accused alleging the commission of the offences punishable under Sections 452 and 323 IPC. In the said case, the accused on 11/10/2011 is stated to have trespassed into the residence of Sulochana and voluntarily caused hurt to her. Ext.P42 is the final report in the said crime and Ext.P43 is the certified copy of the judgment dated 26/08/2013 in C.C.No.953/2012 which relates to Crime no.859/2011, Ranni police station. In the said case, the accused pleaded guilty and hence he has been convicted and sentenced to varied sentences of imprisonment for the offences punishable under Sections 452, 323 and 324 IPC. Ext.P44 is the certified copy of the FIR in Crime no.1061/2011, Ranni police station, alleging the commission of the offences punishable under Sections 452, 294(b), 506 (ii), 427 read with Section 34 IPC. In this crime, the accused along with another Crl.Appeal No.628 of 2017 12 person is alleged to have trespassed into the residence of Sulochana on 17/12/2011 at 06.00 a.m., abused her by calling obscene words, threatened her with dire consequences and also caused damage to her property. Ext.P45 is the certified copy of the final report in Crime no.1061/2011 and Ext.P46 is the certified copy of the judgment in the said crime, that is, C.C.No.87/2012, as per which the accused pleaded guilty to the offences alleged against him and hence he has been convicted and sentenced to varied terms of imprisonment for the offences punishable under Sections 452, 427, 294(b) and 506(ii) IPC. Exts.P41 to P46 are not seen marked through any witness. It appears that after the close of the evidence, the documents were marked and brought in evidence. The marking is not seen objected to by the accused before the trial court. The accused does not deny the fact that these two crimes had been registered against him based on the complaint given by the deceased. The judgments show that he had pleaded guilty to the offences alleged against him. Therefore the motive alleged by the prosecution in the present case that the accused harboured enmity as the deceased had given complaints against him to the police, stands established.

12. Prosecution relies on the testimony of PW2 and PW3 to establish that the accused and the deceased were last seen together. PW2, a Crl.Appeal No.628 of 2017 13 nearby resident and acquaintance of the deceased, deposed that she came to know about the death of Sulochana on 27/01/2012 at about 10 pm. The pathway to her house runs through the northern side of Sulochana' s house. Earlier the accused used to assist Sulochana (പപത സ യല നയ ചട സ- യ ആയ ര ന), who was not keeping well. Later, Sulochana and the accused fell out. The accused then trespassed into her house and broke the windows of her house, against which Sulochana complained to the police, pursuant to which the accused was arrested. Due to this the accused was in inimical terms with Sulochana. According to PW2, she had last seen Sulochana on 27/01/2012 at 06.30 pm while she was returning home from work. At that time a load of firewood ordered by her, arrived. The firewood was unloaded in front of the house of Sulochana. The accused was also present there. Sulochana came out of her house. She then heard the accused telling Sulochana that he would kill Sulochana and her daughter. Hearing this she asked Sulochana to go inside the house. When Sulochana returned to her house, the accused followed her asking the former to stop. Sulochana went inside her house and closed the door. The accused then came out to the road. She and her son took the firewood to their residence. By around 09:00-10:00 p.m., hearing noises from Sulochana's house, when she went Crl.Appeal No.628 of 2017 14 there, she saw a crowd outside. PW1 and others present there asked her whether the neighbours did not know what had happened there and asked her to go inside the room and see for herself (അവര എയന ട യ ദച ന ങള അയലക ര ഇവ ചട നടനചത ന അറ ഞയ; എന യ ദച . അവര എയന ട വ3ട ല കയറ യന ക ൻ പറഞ ).

She went inside the house with the police who arrived shortly and found Sulochana's body lying on the bed. She used to occasionally sleep at the house of Sulochana. (ഞ ന സ യല നക വ;യ, ഴ ക*ട ക ടക റ ണ) . PW2 identified MO.1 series earrings, MO.2 ring, MO.3 Bangles and MO.4 mobile phone as that of the deceased. PW2 admitted having given Ext.P2 series statement to the Magistrate.

13. PW13 who is running a shop near the house of the deceased, deposed that there is a road running through the front side of his shop, that is, on the southern side of his shop; that the house of the deceased is situated further south of the road and that the distance from his shop to the front side of the house of the deceased is about 50 feet. Sulochana was murdered on 27/01/2012. He is not sure whether the murder was committed during day or night. He knows the accused, who is his neighbour. On 27/01/2012 between 06:00 and 07:00 pm, the accused had come to his shop Crl.Appeal No.628 of 2017 15 to buy cigarettes. The accused had asked for the contact number of the Ranni police station. He rang up one Bini Mathew, got the number and gave it to the accused. He did not notice where the accused headed to/went after that. There were logs in front of the house of the deceased (സ യല നയ ചട വ3ട ന മ ൻപ ല യറ ഡ ല തട കഷണ ഉണ യ ര ന എന ണയത ന നത). He does not remember whether the accused went and sat on the logs. He did not see the accused sitting on the logs. He denied having stated to the police that the accused had gone and sat on the logs. At the request of the prosecutor, permission was granted under Section 154 Evidence Act read with the proviso to Section 162 Cr.P.C. to put questions as put in the cross-examination. The contradiction brought out in his testimony has been marked as Ext.P7. In the cross examination he denied the suggestions put to him that he is deposing falsehood that the accused on the relevant day had come to his shop and asserted that the accused did come to his shop and that his said statement is not a lie.

14. It was argued by the learned defence counsel that the testimony of PW2 cannot be believed as it was improbable for her to have been present at the place at the time as deposed by her. PW2 admits that during the relevant time she was working at a place by name Vadasserikkara and Crl.Appeal No.628 of 2017 16 that she had work till 05.30 p.m. PW2 works as a helper to a mason and in the light of the nature of her work, she could not have reached home before 06.30 p.m. and therefore it was not possible for her to have seen the accused and the deceased as deposed by her, argues the learned counsel for the accused. This argument does not seem to be correct. PW2 asserts that she had returned from work and that she had seen the deceased at 06.30 p.m. No evidence has been brought in to show the distance between the workplace of PW2 and her house to establish that her presence at the spot was impossible or improbable. On going through the testimony of PW2, we do not find any reasons to disbelieve her version as the same has not been discredited in any way.

15. It was further pointed out that the prosecution case is that the accused had broke open the bedroom of the deceased which was fitted with an iron bar. Had that been done by the accused, there would have been a big noise and in all probability heard by PW2, who is residing about 30 feet away from the house of the deceased. However, PW2 never heard any such noise. According to her, she came to know about the incident only at 10.00 p.m. Therefore it was argued that this is yet another aspect to doubt her testimony. Here again we disagree with the argument advanced. As stated Crl.Appeal No.628 of 2017 17 earlier, we do not find any reasons to disbelieve the version of PW2. In fact PW2 deposed that when she reached the scene of occurrence the brothers of the deceased were present there and they had asked her thus - അവര എയന ട യ ദച ന ങള അയലക ര ഇവ ചട നടനചത ന അറ ഞയ; എന യ ദ ച. അവര എയന ട മ റ യ ലകയറ യന ക ൻ പറഞ. Merely because PW2 did not hear any noise or respond to any noise, is also no ground to disbelieve her. Moreover, the incident is something which took place inside closed doors. No evidence has come on record to the effect that though the doors of the house of the deceased were closed, noise could still be heard from outside. That being the position, we do not find any reasons to disbelieve the testimony of PW2.

16. PW13 is partially hostile to the prosecution case. However, he does say that the accused had come to his shop, purchased cigarettes and had asked for the phone number of the police station. Therefore the testimony of PW2 and PW13 establish the presence of the accused near the scene of occurrence on the relevant day. The testimony of PW2 establishes that the deceased was last seen with the accused on the said day. Crl.Appeal No.628 of 2017 18

17. The prosecution also relies on the extra judicial confession alleged to have been made by the accused to PW3, PW4, and PW27. PW3, the daughter of the deceased, deposed that during the time of the incident, she was residing in their ancestral home at Vallamkulam. She had purchased a mobile phone for her mother. On 27/01/2012, at about 8 p.m., she received a call on her mobile with SIM no.9947456112 from her mother's mobile with SIM no.9562385898. From the voice she understood that the caller was the accused. She then asked him where her mother was, to which the accused replied that he had killed her mother. She informed the matter to PW1. The accused used to visit her house even when her father was alive. The accused had trespassed into their house, assaulted her mother and caused loss to them. Her mother complained to the police, pursuant to which the accused was arrested. This enmity prompted the accused to commit the murder. PW3 in the cross examination deposed that her mother had not told her of any issues between the latter and the accused. On the said day she had received two calls from mobile number 9562385898. She admitted that the police had not seized her phone. She denied the suggestion that she was falsely deposing that it was the accused who had called her on the phone the said day.

Crl.Appeal No.628 of 2017

18. PW4, the nephew of the deceased, deposed that on 27/01/2012 while on his way home from his office at Thiruvalla, PW3 rang him up and told him that something untoward had happened to her mother and that she wanted to go to her mother's place. He agreed to accompany her. He waited for her at the place by name Thottabhagom. PW3 accompanied by PW6 Sooraj @ Sunu came in a car and picked him up. PW6 received a call from accused Shiju, who asked the former to hand over the phone to PW3. PW6 handed over the phone to PW3, who disconnected the call. They dropped PW3 at Vallamkulam. According to PW4, SIM number 9562385898, used by the deceased, stands in his name. He had used the aforesaid mobile number for some time. PW4 could not recollect the exact period he had used the said number. He denied the suggestion that he is falsely deposing that he had given his SIM for the use of the deceased.

19. PW17, Deputy General Manager and Nodal officer, Idea Cellular Ltd., Kerala Circle, deposed that Ext.P9 is the call record details of SIM no. 9562385898 for the period from 27/01/2012 to 28/01/2012 and that Ext.P9(a) is the certification given under the relevant provisions of the Evidence Act and the Information Technology Act.

Crl.Appeal No.628 of 2017

20. The accused does not dispute Ext.P9, which is the call record details of SIM bearing No.9562385898. This SIM according to the prosecution was being used by the deceased though it was issued in the name of PW4. According to PW3, her mobile number is 9947456112. Though PW3 says that she had received calls from the mobile number of her mother, the same is not substantiated by Ext.P9. Therefore her version that she had received calls and that the caller, who according to her was the accused, had confessed to the crime cannot be believed.

21. As stated earlier, PW4 has only deposed that while he along with PW3 and PW6 were travelling in a car, the accused had called on the mobile number of PW6 and had demanded the phone to be handed over to PW3. PW4 has no case that the accused had called him or made a confession or that he overheard the accused making a confession to PW3 or PW6. Coming to the version of PW6, a nephew of the deceased, who deposed that on 27/01/2012 while he was in his house at Vallamkulam, a call came to his mob no. 9562988107, from the mobile of his aunt, the deceased. The caller was a man who demanded the phone to be given to PW3. He enquired as to who the caller was. The caller said he was Shiju. He then disconnected the call. He then in his car along with PW3 went and Crl.Appeal No.628 of 2017 21 picked up PW4. They then dropped PW3 back at home and he along with PW4 went to the house of Sulochana where they found her dead on the cot. The testimony of PW6 will make it clear that no confession was made by the accused to the said witness also.

22. Now coming to PW27, Head Constable, Ranny police station, who deposed that on 27/01/2012 while he was in charge of G.D., at about 07.22 pm, a phone call was received at the station, which he attended. The caller identified himself as Shiju Kumar and stated that he had killed Sulochana of Kombanoli, if necessary take the body and go (ചക മയന ല ല സ യല ന എന സപത3ചയ ചക ന ട ണ യവയണല എട ത ചക ണ യപ ക ൻ പറഞ. Ziju Kumar എന ണ പറഞത വ ള ചയ ള ൻ്ചറ യപര). Again at 08:36 pm, another call was received from the same person enquiring as to why the police is late in getting there. When he asked the identity of the caller, the call was disconnected. He informed the C.I. about the call. The police went to the place of occurrence where they found a lady lying dead. It was understood that the lady had been throttled and strangulated to death. In the cross examination, he admitted that he had not recorded the fact that phone calls had been received in the G.D. He also admitted that he had not stated to the police Crl.Appeal No.628 of 2017 22 that a call had been received either at 7.22 p.m. or at 08.36 p.m. at the station.

23. No call records of the landline number of the Ranni police station has been produced before the court. The accused is a complete stranger to PW27. No voice sample of the accused had been taken. Even if the same had been taken, that would not have helped the prosecution because there is no case that the persons who had received the calls, had recorded the calls, which could have been then used for comparison. Therefore the case of the prosecution regarding extra judicial confession alleged to have been made by the accused to PW3, PW4 and PW27 has not been established and so the trial court apparently went wrong in accepting the said case of the prosecution.

24. Now coming to the scientific evidence relied on by the prosecution. PW32, the then C.I., Ranny, is the I.O. in this case. He deposed that he had visited the scene of occurrence pursuant to the registration of the FIR. As it was late in the evening, officers including women police officials were posted for scene guard duty. On 28/01/2012 at about 10:00 am, he went to the scene of occurrence and prepared Ext.P8 inquest report in the presence of witnesses and with the aid of PW21, PW22 Crl.Appeal No.628 of 2017 23 & PW23. PW21, Assistant Director, FSL, Thiruvananthapuram, deposed that as instructed by the Director, he had examined the scene of occurrence, which is the bedroom of house no.10/473, Vadasserikkara Grama Panchayath, in the presence of the I.O. The dead body of a woman was found on a cot in the bedroom. He collected short and long hairs from the cot and the floor; two partially distorted studs gold in colour from the cot; one cotton bathing towel partially torn and twisted containing dark brown colour stains and hairs (the stain on examination was found to be blood); three cigarette butts found on the floor of the bedroom and on the concrete shelf of an almirah; partially distorted hook and iron bar and an almirah lock collected from the floor. These items according to PW21, were packed, labelled, signed and handed over to the I.O. with instruction to forward it to FSL for examination. In the cross examination he admitted that he had not prepared an inventory of the items collected by him. He reiterated that the items collected from the scene were packed and his designation and seal affixed on them.

25. It was pointed out on behalf of the accused that Ext.P8 inquest report alleged to have been prepared by PW32 on 28/01/2012 contains several interpolations. All these interpolations have been subsequently made Crl.Appeal No.628 of 2017 24 to suit the prosecution case. The accused in his 313 statement has a case that after his arrest, he was taken to the scene of occurrence and made to touch on several articles and then his fingerprints were taken. Further, while he was in the police custody, the police had given him cigarettes to smoke, the butts of which were taken and sent for examination and evidence fabricated. It was also pointed out that though cigarettes butts are alleged to have been seized from the scene of occurrence, no lighter, match box or lighted match stick have been seized. The inquest report also does not refer to the presence of these articles. In the absence of these items, there is nothing to show that the accused had infact smoked cigarettes while inside the bedroom of the deceased. These aspects would clearly show that the evidence was cooked up or fabricated by the police, contends the accused.

26. It is true that some interpolations are seen in Ext.P8 inquest report. In page no.5 and 7 of the inquest report, the words scissor filter cover; sealed; steel and handle are seen added.

                                                         സസസർ ഫസൽറർ കവർ


(......................ക?ത@മ റ യ ല ക ണച,ട           സ ഗരറ ക റ കള
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കതക ൻ്ചറ കടളക ല ല            ഫ റ ച യC ര നത എയD           ശക ഉപയയ ഗ ച ളക

തറയ ല         വ3ണ ക ണച,ട        ഇര മ പട       പ*ട ൻ്ചറ       ഇര മ പട   ചകള ത,

ക മ ചകള ത ൻ്ചറ          ദH രചകള ത പട          എന വകള         ഇൻകHസറ    റ യ, ര ട

സമയ - ജര യ ത ര വനDപ ര                 യഫ റ ൻസ ക ലയI റടറ             അസ :ഡയറകKര
 Crl.Appeal No.628 of 2017

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                                                             സസൽ ചചയയല   തന

യഡ കKര വ യന ദ ക മ ര ക?ത@മ റ യ ല ന ന                യശഖര ചചട ത ^ item No.1 മ തല

6 വചരയ ള          യമല ,റഞ സ ധനങള                    ഈ യകസ ചല             ലക@ത ന യ

മ-സറ ല          വ വര ച IDവസ ചലട ക ന ). (......................................Dog Squad ASI.

ത ലകൻ യഡ ഗ ൻ്ചറ യസവന                    ഇത യലക       ഉപയയ ഗ ച ട ളത            Dead body
         യസചല സസൽ                   ഹഹൻറസലലല

ക ടന മ റ        യ ചട അലമ രയ ചട
            ^                        ^ - ൻ സ3ല ല        ത ചഴ ക ടനത യ ക ണച,ട

.............). However PW32, has clearly explained that these additions were made as per his instructions at the time when the inquest report was prepared. PW21, whom we find no reasons to disbelieve has also deposed that the samples were collected by him in the presence of the I.O. PW21 asserts that he had packed, labeled, sealed and handed over the packets to PW32. The accused was arrested only on 29/01/2012. Ext.P8 inquest report is seen prepared on 28/01/2012 at 10.00 a.m. Therefore even before the accused was arrested, the inquest report was prepared and the samples collected. Therefore the stand taken by the accused while questioning under Section 313 Cr.P.C. that these samples were fabricated after his arrest, is obviously false.

27. It is true that the samples collected from the scene of occurrence by PW21 is seen produced by I.O. before the court only on 09/02/2012 as per Exts.P20 and P21 property list. It is true that there is delay in producing the articles before the court. But no material(s) Crl.Appeal No.628 of 2017 26 whatsoever has been brought on record to show that there was possibility of tampering or that some tampering had infact been done. PW32 was never asked any questions regarding the same. It was further argued that PW21 had not prepared any inventory of the samples alleged to have been collected by him from the scene of occurrence, which is another circumstance or reason to doubt the case of the prosecution. PW21 admits that he had not prepared any inventory. But he asserted that all the samples collected by him were packed, labelled, sealed and handed over to PW32. PW32 has stated that though no inventory had been prepared, the inquest report as well as the scene mahazar refers to the samples collected from the scene of occurrence. In such circumstances, there is no reason to disbelieve the version of the prosecution that cigarette butts and hair had infact been collected from the scene of occurrence.

28. Now coming to the testimony of PW22 and PW23. PW22, Fingerprint Expert, Pathanamthitta Fingerprint Bureau (DCRG) deposed that on 28/01/2012, at the request of SHO, Ranny, he had inspected the scene of occurrence and developed 11 chance prints, out of which 7 were found not fit for comparison. On 30/01/2012, the fingerprints of the accused were made available. The specimen was compared with the chance prints. Crl.Appeal No.628 of 2017 27 The chance fingerprint collected from the handle of an almirah at the scene of occurrence was found identical with the specimen of the accused. Ext.P13 is the opinion given by him. Ext.P13(a), the photograph marked 'R1', is the photo of the chance print collected from the scene of occurrence and Ext.P13(b), the photograph marked 'S1', is the right thumb impression of the accused. Both are identical. In the cross examination he stated that the articles from which the chance fingerprints were taken, had not been seized. PW22 denied the suggestion that he was falsely deposing that the fingerprint of the accused had been obtained from the scene of occurrence and that it was without any examination he had fabricated a document at the behest of the police and produced the same before the court. He not only denied the same but asserted that he has clearly stated his opinion in the report which is based on the scientific examination conducted by him.

29. PW23, police photographer, DCRG, Pathanamthitta, deposed that as requested by the SHO, police station, Ranny, on 28/01/2012 he had gone to the place of occurrence and had taken photographs of the deceased and the place of occurrence. He had also taken the photo of the chance fingerprint marked by the fingerprint expert. Ext.P13(c) is the portion in Ext.P13 containing his seal and signature. He had handed over the Crl.Appeal No.628 of 2017 28 photographs of the chance fingerprints taken by him to Fingerprint Bureau, Pathanamthitta. Later when the chance print was identified, he had given the enlarged photos of the identified chance fingerprint and its specimen. Ext.P13(b) is the specimen fingerprint.

30. Ext.P37 series FSL report shows that saliva seen on the cigarette butts and the saliva of the accused had the same DNA profile. Hairs collected from the scene, were found to be similar with that of the accused. Ext.P37 also says that the towel found at the scene of occurrence, showed signs of application of force. Ext.P30 report of the finger-print expert shows that the chance print developed from the scene of occurrence and the right thumb impression of the accused are identical. The prosecution has also a case that the soot particles collected from the roof through which the accused had gained entry into the house and the soot particles seen on the dress of the accused are similar. However, the dress of the accused has not been produced before the court or brought in evidence. Therefore that part of the evidence, relied on by the prosecution cannot be taken into account. But the evidence regarding the hair, cigarette butts and finger prints can certainly be taken into consideration which would establish the presence of the accused at the scene of occurrence. Crl.Appeal No.628 of 2017 29

31. The prosecution also relies on the testimony of PW24, Dog Handler, Police Dog Squad, Pathanamthitta to connect the accused with the crime. He deposed that on 28/01/2012, pursuant to a wireless message received from the police station, Ranny, he had gone to the place of occurrence along with Tessy, dog no.168. The body of the deceased was found lying on the cot. An empty packet of Scissors filter cigarette was found in the room. The sniffer dog after picking up scent from the packet, ran into and outside the room and into the other rooms. Then the dog went outside the house into the public road and headed towards Idathara- Thalachira main road and from Idathara proceeded 100meters. From there the dog turned west and proceeded through a by-road for about 200-300 meters. The dog then entered house bearing no. XIII /565, Vadasserikkara Grama Panchayat and ran to and fro into the rooms of the house. The dog then came out of the house, proceeded about 500 mts to a place called Alungalpadi and kept running around the place. When the scent was again given, the dog halted there without going any further. Under the assumption that the culprit must have left from the said place in a vehicle, they returned to the place of occurrence. On his return, he learnt that house no. 565, into which the dog had entered, is that of the accused. Ext.P14 is Crl.Appeal No.628 of 2017 30 the mahazar that was prepared on the said day. In the cross examination, PW24 was asked whether the dog had entered or attempted to enter any other house, to which he answered that except the house he had referred to, the dog had not entered any other house. He had noted the number of the house into which the dog had entered. He also stated that scientific expert Vinod was also with him.

32. As held in Lalit Kumar Yadav v. State of U.P., (2014) 11 SCC 129 and Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697, law is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog cannot be ruled out. Last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill-afford them. In the case on Crl.Appeal No.628 of 2017 31 hand no evidence has been let in by the prosecution to show that the house into which the sniffer dog entered into, is that of the accused. In the absence of the same, the testimony of PW24 cannot be of much help to the prosecution.

33. The accused after committing the murder is alleged to have committed robbery by stealing a pair of gold ear-rings, a ring and two bangles from the almirah kept inside the bedroom. To establish this aspect, the prosecution relies on the testimony of PW28, PW8, PW9, PW10 and PW11. PW28, a carpenter and an acquaintance of the accused deposed that on 27/01/2012 at about 10.30 pm, the accused had come to his house and said that he had to pledge few gold ornaments of his mother, as he needed money to go to gulf from Thiruvananthapuram. The accused requested for an introduction to Mohanan sir. When he said that he was running a fever and not keeping well, the accused hired the services of PW8, an auto driver. All three of them went to the house of CW13 O.N.Mohanan, who had by then gone to bed. PW9, Mohanan's wife, refused to take the ornaments on pledge. So, they went to PW10, residing nearby. A neighbour of PW10 was also present. The accused requested PW10 to take the ornaments on pledge and to give him ₹10,000/-. However, PW10 had only ₹ 6,000/- with her, Crl.Appeal No.628 of 2017 32 which she gave to the accused. As he was sick, he was dropped back at his house. PW8 and the accused went to Pathanamthitta. He was told that the accused had been dropped at Adoor by 12:45 am. The next day when he reached his workplace, he came to know about the incident. PW8 informed him that the police were enquiring about them. He came to know from the police that the gold pledged by the accused belonged to the deceased. His statement was recorded by the police. He identified MO.1 series to MO.3 series as the ornaments seen in the possession of the accused on the said day.

34. PW8, an auto driver, deposed that he knows PW28 who introduced him to the accused. The accused had travelled in his auto. PW28 hired his auto, at which time the former was accompanied by the accused. PW28 and the accused got into his auto from near the house of PW28 at the place by name Thalachira. They initially went to the house of CW13 O.N.Mohanan. Then they went to the house of PW10 where they pledged the gold for an amount of ₹6,000/-, which amount was received by the accused. The accused told him that PW28 is not keeping well and hence has to be dropped home. He dropped PW28 home by about 11.15 pm. PW28 told him that the next day the accused had to go to gulf and so the latter had Crl.Appeal No.628 of 2017 33 to be dropped at the KSRTC bus stand, at 12:30 am. As instructed by the accused, he enquired about the next bus to Thiruvananthapuram, which was at 5.15 am. ₹450/- was given by the accused as auto fare. The accused got inside a green colour KSRTC bus. By about 01.15 am, he returned home. In the cross examination he admitted he had no prior acquaintance with the person who had accompanied PW28 and that he had not stated any identifying marks of the said person to the police.

35. PW9, a resident of Thalachira, deposed that she knows PW28. Her husband was running a business in the name and style 'Amritha Finance'. On 27/01/2012, at about 10.30-11.00 pm, when she was at home with her husband, PW28 along with another person came and knocked on the door. She identified PW28 by his voice. Her husband asked her not to open the door. She opened the top pane of the door slightly and looked out. She saw PW28 and another person, whom she can identify. She identified the said person as the accused in the dock. They told her that they had come to pledge gold earrings as they were in urgent need of money. She refused the request. The two waited there for some time and then they left. The next day she came to know about the murder of Sulochana. After two days, she was summoned to the police station where she identified the Crl.Appeal No.628 of 2017 34 accused.

36. PW10 deposed that on a day in January 2012, at about 11pm, the accused had come to her house with PW28 and an auto driver to pledge a pair of earrings stating that he needed money to go to gulf. PW11, her neighbour and daughter Soumya were also present at the house then. The accused asked for ₹10,000/, which she did not have and so gave ₹6,000/- only. The accused told her that as he would be going abroad, his father would redeem the pledge. They left in an auto. Her husband is a newspaper agent. When he returned after distribution, he told her that the persons who had come during night had murdered a person. She told her husband that she had taken gold on pledge from them. Her husband immediately called the Circle Inspector, Ranny and informed him of the incident. As instructed by the police, she handed over the earrings to the police. PW10 admitted having given Ext.P5 statement to the magistrate. She denied the suggestion that the accused had never come to her house for pledging any ornament and that she is deposing falsehood. She asserted that she was speaking the truth. PW11, a neighbour of PW10, supports her version.

37. The pair of earrings, the accused pledged with PW10, has been identified by PW2 as that of the deceased. We find no reason(s) to Crl.Appeal No.628 of 2017 35 disbelieve the version of the aforesaid witnesses as their testimony has not been discredited in any way. No reasons has been shown as to why they should depose falsehood against the accused. Therefore, the testimony of the said witnesses show that the accused was found with a piece of stolen jewellery belonging to the deceased.

38. The accused is stated to have been taken into custody by PW29, S.I. Nemom police station, who deposed that on 27/01/2012 he was on night patrol duty. On 28/01/2012 at about 03.30 am, when he reached Malayam junction, he saw a man with a bag proceeding towards K.K. Rocks. On questioning, the man initially said that he was from Vadasserikkara, but later said that he was from Ranni. As the man was not giving definite answers, suspicion arose from the man's behaviour and answers, so he took the man to the police station for questioning. On checking the bag in his possession, it was found to contain a shirt; a dhoti; an underwear; ₹4495/-; a purse; a gold colour ring, 2 bangles and a Nokia mobile phone. On further questioning, the man revealed his name as Shiju and that he resides within the jurisdiction of Ranni Police station. The authorities at Ranni station was informed of the matter. Thereafter PW26, S.I., Ranny Station, came and took the accused stating that the custody of Crl.Appeal No.628 of 2017 36 the accused in connection with a murder case was required. According to PW29, he then realised that the accused after committing the crime, with the intention to abscond, must have reached Nemom. PW29 identified the accused and MO.1 to MO.4; MO.5 Currency worth ₹4,495/- and MO.6 purse. In the cross examination he stated that his deposition is based on the entries made in the GD.

39. It is true that PW29 has identified MO.1 series ear-rings also. This obviously could not have been done by him because as per the prosecution case, the accused had pledged MO.1 series with PW11 and then had proceeded to Thiruvananthapuram where he was apprehended by PW29. Identification of MO.1 series appears to be a mistake which was never noticed by either side. The fact that this was never noticed by the accused also is clear because PW29 is not seen cross examined on the said aspect. Merely because of this mistake, his entire evidence is not liable to be ignored or rejected as his testimony has not been discredited.

40. PW30 is the officer who is stated to have identified the accused before the Nemom police, pursuant to which the accused was brought to Ranny police station, by PW26 and thereafter arrested by PW32. PW30, the then A.S.I., Ranny police station, deposed that Crime No. 859/2011 had Crl.Appeal No.628 of 2017 37 been registered against the accused for assaulting the deceased on an earlier occasion. He had assisted in the arrest of the accused in the said crime pursuant to which the accused had been remanded. According to PW30, as instructed by C.I., Ranny, he had gone to the police station, Nemom and had identified the accused. He identified the accused in the dock also.

41. PW26, S.I., Ranny police station, deposed that on 29/01/2012 information was received that the accused was in the custody of Nemom police. As instructed by the C.I., he went to Nemom and brought the accused to police station, Ranny, where the arrest of the accused was recorded. PW26 identified the accused in the dock. In the cross examination he deposed that he had not arrested the accused and that he had only brought the accused from Nemom police station, for which there are no records. He also admitted that no records had been given from the Nemom police station.

42. PW32, the I.O. speaks of the various steps taken by him during the course of investigation. He also supports the version of PW29, PW30 and PW26. PW32 also deposed that when the articles found in the possession of the accused, that is, MO.2 to MO.6, that is, a ring; two bangles; a mobile phone; MO.5 currency notes and MO.6 purse were Crl.Appeal No.628 of 2017 38 seized, Ext.P6 mahazar had been prepared. PW12 an attestor to the said mahazar supports the prosecution case. PW4 and PW6 also supports this case of the prosecution. PW4 deposed that when he along with PW6 reached the police station, the accused was present there. The police showed them the bag of the accused which contained a gold colour bangle, a ring, a mobile phone, an amount of ₹4,495/-, a dhoti and a shirt. The police had prepared a mahazar in which PW6 is an attestor. PW6 stated that on 29/01/2012, he had gone to the police station, where he saw the accused. PW6 identified the accused in the dock. The accused was in possession of a bag which contained 2 bangles gold in colour; a ring; a mobile phone; a dhoti; a shirt; an underwear; a purse and ₹4,495/-. The police prepared Ext.P3 mahazar relating to the same in which he is an attestor. MO.1 to MO.4 have been identified to be that of the deceased by PW2. The accused does not have an explanation as to how he came in possession of MO.1 to MO.4 articles.

43. In the aforesaid circumstances, it can only be held that the prosecution has succeeded in proving the following aspects - the motive of the accused to commit murder was due to the fact that he was in inimical terms with the deceased ; that he was present near the scene of occurrence Crl.Appeal No.628 of 2017 39 on the relevant day at the relevant time ; that the deceased was last seen in the company of the accused ; the accused absconded immediately after the occurrence and when he was arrested, he was found in possession of articles belonging to the deceased. It has also been brought on record that a gold ear-ring of the deceased had been pledged by the accused with PW11. No explanations whatsoever are forthcoming from the accused regarding the possession of these articles in his possession. Therefore, the presumption contained under Section 114 of the Evidence Act is also attracted. Hence we find that all the links in the chain of circumstances leading to the guilt of the accused have been established by the prosecution.

44. Before we conclude, a word about the manner in which the trial was conducted, which seems to have been conducted in a most lackadaisical manner. On going through the depositions of the witnesses, we were at a loss to understand as to why the MOs. in the case were not marked inspite of the fact that many of the prosecution witnesses deposed in the chief examination that they could identify the MOs. if the same are shown to them. But none of the MOs. were shown to any of the witnesses at the initial stage. The fact that the MOs. were not before the court, seems to have been realised by the trial court only after PW27 was examined. Crl.Appeal No.628 of 2017 40 Thereafter it is seen that the trial was stopped and the MOs. were called for. The trial court ought to have ensured that MOs. were available before the trial started. This practice of starting the trial of the case without the MOs. coming before it, has to be deprecated. Secondly, the manner in which the deposition of the witnesses has been recorded also leaves much to be desired. The sentences are incomplete and some of them are just one-word. We had to read some of the depositions more than once to comprehend what the witness had deposed. Many of the witnesses who had already been examined, are referred to in the deposition as CWs. As a result of this we had to repeatedly refer to the final report of the I.O. to ascertain the identity of the witnesses. As held by a learned single Judge of this Court in Krishnankutty v. State of Kerala, 2015(2) KHC 322, it is an unwholesome practice to refer to the witness as CWs.1, 2 etc. in the deposition of other witnesses and in the judgment. If a witness is not examined, in the deposition of other witnesses and in the judgment, the witness shall be referred to by his/her name and if he/she has already been examined, refer to the witnesses as a prosecution witness suffixing his/her number as PWs.1, 2 etc. In the testimony of PW32, we see the witnesses already examined have been repeatedly referred to as CWs. The trial judge Crl.Appeal No.628 of 2017 41 ought to have followed the guidelines laid down by the Apex Court in In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v., 2017 (4) SCALE 104, in this regard. We see a clear non-application of mind by the prosecutor as well as the trial Judge in getting the MOs. marked as well as in the conduct of the trial, which we note with concern. The trial Judge ought to have borne in mind that it is a case under Section 300 IPC that was being dealt with and it ought to have been dealt with in all seriousness that it deserved.

The appeal is found to be without any merits and hence the same is dismissed.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

P.B. SURESH KUMAR JUDGE Sd/-

C.S.SUDHA JUDGE ami/ak/Jms

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