Kerala High Court
Shajahan @ Shaji vs State Of Kerala on 19 July, 2011
Author: V.Ramkumar
Bench: V.Ramkumar, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 181 of 2007()
1. SHAJAHAN @ SHAJI, S/O.SAHIB ABDUL KHADER
... Petitioner
Vs
1. STATE OF KERALA, REP.BY THE PUBLIC
... Respondent
For Petitioner :SRI.RAJGOPAL PADIPPURACKAL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :19/07/2011
O R D E R
V. RAMKUMAR & P.Q.Barkath Ali JJ.
= = = = = = = = = = = = = Crl.Appeal No.181 of 2007 = = = = = = = = = = = = = = Dated this the 19th day of July, 2011 Judgment V.Ramkumar,J.
In this appeal filed under Sec.374(2) Cr.P.C. the appellant, who was the sole accused in S.C.No.03/2006 on the file of the Addl. District and Sessions Court Fast Track (Adhoc-II), Kottayam for an offence punishable under Section 302 IPC, challenges the conviction entered and the sentence passed against him.
2. The case of the prosecution can be summarised as follows:
The accused namely Shajahan @ Shaji aged 40 years (in the year 2004) was residing in a rented room in the railway puramboke colony at Muttambalam village. 4= year old Shahana and 3 year old Shafana, who were minor daughters of the accused were also residing with him. Shahida, the wife of the accused was employed as a housemaid in Muscat since July 2004. The rented room in which the accused and his daughters were residing belongs to PW7(Kannan) who was insisting on the accused to vacate the said room. Mariam Beevi (PW6) the mother of the accused was residing in the ancestral house by name "Thadathilparambil"
at Kosamattom Colony in Vijayapuram Village. On Crl. Appeal No.181 of 2007 2 account of the frustration and enmity due to the unwillingness on the part of Mariam Beevi to look after both his daughters in the ancestral house and the non-availability of his wife Shahida due to her employment abroad, the accused had picked up quarrel with his mother. He had openly declared that if, by 15.09.2004, the welfare of the children was not taken over by his mother and his wife did not return from Gulf, he along with the children, would commit suicide. Accordingly with a view to do away with his daughters and translate his threats into reality and with the full knowledge that his daughters would thereby die, on 15.9.2001 at 7 pm the accused reached the Mathoth ghat in Perumbaikadu village along with his daughters and dipped both the girls in Meenachil river and intentionally caused their death by drowning. The accused has thereby committed the offence of murder punishable under Section 302 IPC
3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.W.s 1 to 21 and got Crl. Appeal No.181 of 2007 3 marked 25 documents as Exts.P1 to P25 and 7 material objects as MOs.1 to 7.
4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He submitted a separate written statement stating, inter alia, as follows:-
He and his wife along with their two daughters were residing in a rented premises in the Railway Puramboke Colony at Muttambalam. Since it was a love marriage, the relatives of both the husband and wife had alienated themselves from them. On account of the intervention of his sister, his wife, Shahida, was provided with an employment as housemaid in the Gulf. But after his wife reaching the Gulf, he came to know from his wife, whom he had contacted over the phone, that she was being compelled to be taken to different Crl. Appeal No.181 of 2007 4 houses for immoral activities. His wife had also written a detailed letter to him as well as to his mother narrating her bitter experiences in the Gulf. He, therefore, wanted her to be brought back to native place. Meanwhile, his landlord had asked him to vacate the room by 30.8.2004. He thereupon approached his mother seeking permission to allow him and his children to reside in the family house. But PW5 (Nazeer), who is his younger brother and the said brother's wife objected to the same. Yielding to their objections, his mother refused to accommodate him and his daughters in that house. He was at last forced to vacate the rented premises on 4.09.2004. He brought his clothes and household articles to the family house. But his mother, brother and brother's wife sent him and his daughters away. He was driven to the necessity of vacating his rented premisses along with his small daughters. The dress which he had taken to the ancestral house were burnt by Nazeer and his wife Selma (PW2) and a false complaint was lodged against him in the Kottayam East Crl. Appeal No.181 of 2007 5 Police Station. He was summoned to the Police Station continuously for 4 to 6 days and was detained there from morning till evening. During day time his daughters were kept in the Anganwadi and the nights were spent in the Railway Station and private bus stand of Kottayam. On account of his continued detention in the Police Station, he was deprived of earning his bread by doing coolie work. His children also had no spare dresses or blanket and he was unable to provide them with food. In that situation he had informed that he would come and stay in his ancestral home on 15.09.2004. On that day he reached the eastern side of Kosamattom colony by about 6.30 pm. He then noticed that his brothers and their friends and others were waiting for him for denying his entry into the house. In order to avoid a clash, he reached the northern end where the first set of houses in the Kosamattam Colony are located and through the sides of the houses he reached the banks of Meenachil river which runs along the northern side. He reached the ghat on the western Crl. Appeal No.181 of 2007 6 side of the Colony along with his daughters. While sitting on the western structure at the ferry, Shahana, the elder child, accidentally fell in that part of the river where it was deep. He jumped into the river in order to rescue the child. Along with him the small child also accidentally fell in the river. In that perplexed situation and on account of the depth of the river he was unable to rescue both his daughters and take them to the shore desperately rescued his daughters from the deep river.
Both of them were then alive. He took his daughters to his ancestral home. But his mother and other inmates of the house mistook that he had done away with his children. Even though he asked them to rush his daughters to the hospital, his entreaties were in vain. Instead of taking his daughters to the hospital his brothers and others, who were waiting there for him to come, assaulted him and forcibly tied him to a post at Kosamattom junction. The children were lying unattended in the family home. Had they be taken to the hospital in time, their lives could have been saved. After Crl. Appeal No.181 of 2007 7 the children were taken to he hospital, the younger child was given oxygen, as is discernible from the inquest report. Exts.P14 and P15 Wound Certificates were not produced before Court in time. Those Wound Certificates and police intimations were thereafter fabricated and produced before Court. On 15.9.2004 he had not gone to Mathothu ghat nor had he gone to the shop of Bindu Sajikumar. Fearing that he also would have to be given a share in the family property, his mother, brothers and sister-in-law were falsely swearing against him. The slippers produced before Court do not belong to him. His slippers are of the size 7 inches. He had not produced the slippers before the Police nor had he shown them at the place of occurrence. The slippers constitute false evidence created for the purpose of this case. He had not given any confession statement to the Police. The letters allegedly written and sent by him are not in his handwriting and were not written by him. No decision was taken on the petition filed by his mother on 6.9.2004. The so-called decision taken on the said Crl. Appeal No.181 of 2007 8 petition is the product of concoction.
5. Since this was not a case of no evidence within the meaning of Section 232 Cr.P.C, the learned Sessions Judge did not record an order of acquittal under Section 232 Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce any evidence which he might have in support thereof. Except getting marked Ext.D1 which is the relevant portion of case diary contradiction of PW.2(Salma), the accused did not adduce any defence evidence. The learned trial Judge got marked two hospital intimations pertaining to the 2 deceased girls as Exts.C1 and C2 which were available in the Case Diary files. The case was then taken up for arguments.
6. The Addl. Sessions Judge, after trial, as per judgment dated 28.03.2006 found the appellant guilty of the offence of murder of his daughters and on the next day after hearing him on the question of sentence, sentenced him to imprisonment for life. It is the said judgment which Crl. Appeal No.181 of 2007 9 is assailed in this appeal by the accused.
7. We heard Advocate Sri.Rajagopal Padippurackal, the learned counsel appearing for the appellant and Adv.Sri.C.S.Hrithwik, the learned Public Prosecutor defending the State. We also perused the oral and documentary evidence in the case.
8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not.
The Point
9. PW1 (Joy Kurian @ Animon) is the first informant. He is a neighbour of the ancestral home of the accused. He proved Ext.P1 First Information Statement as well as MOs.1 and 2 frocks worn by the deceased girls. PW2(Selma) is the wife of Nazeer, the younger brother of the accused. The said Nazeer was examined as PW5. Selma along with her Crl. Appeal No.181 of 2007 10 husband resides with Mariam Beevi, the mother of the accused in the family house at Kosamattom Colony. PW3 (Bindu Saji Kumar) runs a stationery cum vegetable shop, some distance away from the ghat, where the children were drowned to death. PW3 has been examined to prove that the two girls were last seen together in the company of their father, the accused, at about 6.30 pm on 16.09.2004 and that the accused had purchased sweets for the girls from the shop of PW3. PW4 (Rajani) is a teacher at the Anganwadi in the Railway Puramboke Colony. This witness was examined to prove that the accused used to bring the children to the Anganwadi in the morning and take them back in the evening and he last brought them and took them back on 14.09.2004. PW5(Nazeer) is the younger brother of the accused. He speaks about the ultimatum given by the accused through Exts.P2 to P4 letters sent by the accused to his mother, PW6 and his elder brother Abdul Rahiman @ Andru to the effect that if by 15.9.2004 his wife did not Crl. Appeal No.181 of 2007 11 return from the Gulf and his children were not looked after by his mother, then he and his children would commit suicide. This witness has identified MO3 chappals as belonging to the accused. PW6 (Mariam Beevi) is none other than the mother of the accused. She proved an extra- judicial confession made by the accused in the form of a declaration while he came with the corpses of his daughters that he acted in accordance with the ultimatum given by him earlier. She also proved Ext.P5 complaint lodged by her before the Kottayam East Police Station consequent on the accused coming to the ancestral home on 5.9.2004 along with the children and setting ablaze the clothing when he was denied accommodation in the ancestral home. PW7 (Kannan) is the landlord of the rented premises where the accused was residing along with his daughters. He was examined to prove that even though he demanded the accused to vacate the premises by 30.8.2004, the accused had not vacated the premises. PW8 (Thomas) is the attester Crl. Appeal No.181 of 2007 12 to Ext.P6 inquest report pertaining to the inquest of Shahana, the elder child, held by PW19. PW9 (P.G.Sasi) is an attester to Ext.P7 Scene Mahazar prepared by PW19. MO3 chappals were seized under Ext.P7 scene mahazar. PW10 (Anil Ummen) was the Village Officer of Perumbaikkad village. He proved Ext.P8 scene plan, wherein a mistake had crept in while locating the place of occurrence, and he also proved Ext.P10 revised plan prepared by him without any mistake. PW11 (P.R.Mohandas) is the Police Constable attached to the Kottayam East Police Station. He proved Ext.P11 Petition Register and Ext.P5 complaint preferred by PW6, the mother of the accused, pursuant to the garments burning incident. PW12(Baby) is another Police Constable attached to the same Police Station. He had been deputed to meet the parties and summon them to the Police Station for a decision on Ext.P5 petition. He claims to have met the accused in his rented premises on 6.9.2004 and had asked Crl. Appeal No.181 of 2007 13 the accused to go to the Police Station on that day. PW13 (K.K.Sasi) is an attester to Ext.P13 mahazar as per which Exts.P2 to P4 letters produced by Abdul Rahiman @ Andru were seized by PW19, the Circle Inspector of Police. PW14 (Dr.Bincy T.K.) is an additional witness. She was the Assistant Surgeon in the Taluk Head Quarters Hospital, Kottayam. Exts.P14 and P15 Wound Certificates pertaining to Shahana and Shafna respectively were marked through her. According to this witness, both the children were brought dead in the hospital at 7.15 pm on 15.09.2004 by PWs.1,5 and Abdul Rahiman @ Andru. PW15(Dr.V.M.Rajiv) who was the Senior Lecturer and Asst.Police Surgeon, Forensic Science Department in the Medical College, Kottayam, conducted autopsy over the dead body of Shahana and proved Ext.P16 Postmortem Certificate. He also proved Ext.P17 Chemical Report. PW16(Dr.Tomy Mappalakkayil) who was also the Assistant Police Surgeon in the Medical College Hospital, Kottayam, conducted Crl. Appeal No.181 of 2007 14 autopsy of the dead body of Shafna and issued Ext.P18 Postmortem Certificate. PW17 (Ajith Kumar) is the Scientific Assistant in the District Mobile Laboratory, Kottayam. He had collected in two separate bottles water samples from the vicinity of the ghat, where the children were drowned. He proved Ext.P20 report showing the result of the diatom test. PW18 (K.K.Muraleedharan) was the Sub Inspector of Police, Kottayam. He recorded Ext.P1 First Information Statement of PW1 and registered Ext.P21 FIR. He also held inquest over the dead body of Shafna on 16.09.2004 as evidenced by Ext.P22 Inquest Report. MO2 frock was seized under the said inquest report. PW19 (V.Muhammed Rafeek) was the Circle Inspector of Police, Kottayam East Police Station. He arrested the accused in the night of 15.9.2004 from Kosamattom Colony where the accused was detained by the local public. He held inquest over the dead body of Shahana the elder child on 16.9.2004 at 9 am and prepared Ext.P6 inquest report. MO1 frock Crl. Appeal No.181 of 2007 15 was seized under the Inquest Report. Mos.5 and 6 which are the particles collected by PW17 from the body of the deceased children were marked through him. MO7 cotton gauze was also marked through him. PW19 also proved Ext.P23 report giving the complete address of the accused, Ext.P24 report regarding the exact time of the occurrence as 7 pm and Ext.P25 Inspection Memo. PW20 (N.C.Rajmohan), the Circle Inspector of Police, Kottayam East Police Station who succeeded PW19, questioned the witnesses during the period from 22.10.2004 to 27.06.2005. PW21(V.G.Vinodkumar) was the succeeding Circle Inspector of Police, after verifying the investigation conducted by PWs.19 and 20 laid the charge sheet before the committal Magistrate.
10. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:-
The evidence regarding the extra-judicial confession Crl. Appeal No.181 of 2007 16 allegedly made by the appellant to his mother is so contradictory and discrepant that it cannot be accepted at all. PW1 came out with a case when examined before Court that at about 7.30 pm on 15.09.2004 the appellant came to his ancestral home with the two dead children and laid them before his mother (PW6) and proclaimed that he carried out the ultimatum given by him earlier. But PW1 had no such case in Ext.P1 F.I.Statement. PWs.2 and 6 who have deposed in support of the aforesaid extra-judicial confession made by the appellant to his mother, were inimically disposed of against the appellant. Shahida (the wife of the appellant) was secured an employment in the Gulf as a house maid by the family members of the appellant. But it was only after she reached Muscat that she realised that she was being sexually exploited. When she conveyed this to the appellant and his family members through letters, the appellant was very much aggrieved and he demanded his family members to repatriate Shahida. But they were unwilling to do so. Thereafter the relationship between the accused and his Crl. Appeal No.181 of 2007 17 family members got very much strained. Hence, the testimony of PWs.2,5 and 6 has to be approached with caution. The last seen together theory sought to be propounded through PW3 is totally unworthy of any credence. PW3 went on prevaricating regarding the location of her shop from where the appellant allegedly bought sweets to his daughters. According to her first version, the shop was attached to her house. She confessed that she is residing at S.H.Mount which is 1= km away from Mathoth ghat where the girls were allegedly drowned to death. She had to then wriggle out of the difficult situation by coming out with an improved version that the shop belongs to her husband. Ext.P7 scene mahazar does not make any mention of the shop of PW3. So also Ext.P10 scene plan. The alleged seizure of MO3 slippers as per Ext.P7 scene mahazar is also doubtful. PW19 (C.I. of Police) would say that it was the appellant who showed him the place of occurrence. But Ext.P7 scene plan is silent about it. PW9, the attester to Ext.P7 scene mahazar was made to say that it was the accused who handed Crl. Appeal No.181 of 2007 18 over MO3 slippers to the Circle Inspector. Exts.P14 and P15 are claimed to be the wound certificates prepared by PW14, the Asst.Surgeon at Taluk Head Quarters Hospital, Kottayam when the girls were allegedly brought dead in the hospital and examined by PW14 at 7.50 pm and 8 pm respectively. But Column IX of Ext.P22 Inquest Report pertaining to Shafna contains a statement by Abdul Rahiman, the elder brother of the appellant to the effect that after the girls were brought to the hospital, the doctor gave them oxygen. If so, the prosecution case that the girls were brought dead to the hospital is false. For reasons best known to the prosecution Abdul Rahiman was kept out of the witness box. The prosecution did not consider it necessary to mark the intimations allegedly sent by PW14 to the Police. It was the trial court which got those intimations marked as Ext.C1 and C2 and the same will show that death intimations were not sent promptly. The ultimatum constituting the alleged motive for the occurrence, also is a product of subsequent manipulation. Exts.P2 to P4 letters allegedly sent by the Crl. Appeal No.181 of 2007 19 appellant and containing the ultimatum have not been proved to be in the handwriting of the appellant. The specific suggestion put by the appellant to PW5 was that those letters were written by PW5. No admitted writings of the appellant have been taken. The appellants' specimen writings were also not taken. No expert opinion has been sought. The alleged cloth burning incident is also a figment of fertile imagination by the Police. The appellant has denied the alleged act of burning the clothes. The very fact that the appellant had brought all the clothes of himself, his wife and children to his ancestral house on 5.9.2004 itself probabilises the defence version that the appellant was forced to vacate his rented premises and had taken asylum at his ancestral house requesting his mother to take over his daughters. In Ext.P5 complaint the mother of the appellant has admitted that a situation under which the appellant is forced to vacate his rented premises, has arisen. It was PW5 who had burnt the clothes and Ext.P5 false complaint was given against the appellant.
Crl. Appeal No.181 of 2007 20
11. We are afraid that we find ourselves unable to agree with the above submissions made on behalf of the appellant. PW6 (Mariam Beevi) residing at Thalathiparambil House in Kosamattom Colony in Vijayapuram village has three sons by name Abdul Rahiman @ Andru, Shajahan (the accused) and Nazeer. The appellant had married twice earlier and Shahida who is at present in Muscat, is his third wife. The appellant was of a quarrelsome nature. Eventhough he was initially residing in the family house at Kosamattom colony, on account of his pugnacious disposition, after he married Shahida he shifted to a rented premises in the Railway Puramboke Colony in Muttambalam village. PW7 is the landlord of the said premises. At the intervention of the sister of the appellant, his wife Shahida was taken to Muscat, where she was secured the employment of a housemaid. The appellant along with his two daughters thus continued their residence in the rented premises in the Railway Puramboke at Crl. Appeal No.181 of 2007 21 Muttambalam. The appellant used to take the children to the Anganwadi in the Railway Puramboke Colony where PW4 was the Anganwadi teacher. The appellant would take the children to the Anganwadi in the morning and would bring them back to his rented premises in the evening. During day time he used to do coolie work and thus eke his livelihood. On account of his quarrelsome nature, his mother and brothers were not agreeable to the appellant residing in the family house at Kosamattom Colony. The appellant used to unfoundedly allege that his wife was being subjected to immoral activities while at Muscat and he was in the habit of blaming his family members for that. He used to frequently insist upon repatriating his wife and was demanding his family members to look after his daughters until then. On 05.9.2004 he went to the family house at Kosamattom along with his daughters and demanded his mother to take care of his children. He had also brought with him the clothes belonging to him, his wife and children. Crl. Appeal No.181 of 2007 22 When his mother (PW6) refused to oblige him, he grew wild and burnt the clothes in the courtyard of the family house. It was this incident which provoked his mother and family members culminating in his mother lodging Ext.P5 complaint before the Police. On receipt of Ext.P5 complaint in the Kottayam East Police Station, the parties were summoned through PW12 a Police Constable attached to the said Police Station. PW12 met the appellant in his rented premises at 2.30 pm on 06.09.2004 and asked him to go to the Police Station on the same day. The evidence of PW11 who is the writer in the Police Station would go to show that the appellant and his mother were present in the Police Station and Ext.P5 petition was disposed of giving a warning to the appellant not to create any more trouble in the family house. Except stating in Ext.P5 petition that the appellant has to vacate his rented premises, there is no admission that the appellant had actually vacated the premises in Muttambalam Railway Puramboke. The testimony of PW7 Crl. Appeal No.181 of 2007 23 who is the landlord of the appellant also shows that eventhough he had demanded the appellant to vacate the premises by 30.08.2004, the appellant had not vacated the premises. In the meanwhile the appellant had gone to the family house and had given an ultimatum that if by 15.09.2004 his wife was not repatriated and his children were not taken over by his mother, he and his daughters would go to the family house and commit suicide. The appellant had also sent Ext.P2 to P4 letters on 08.09.2004 to his mother (PW6), brother (PW5) and his wife (PW2) and to his elder brother Andru reiterating the ultimatum. PWs.1,2,5 and 6 have deposed about the appellant translating the ultimatum into reality by barging into the family house at 7.30 pm on 15.09.2004 with the dead bodies of his daughters and laying them in front of his mother and making an utterance that he carried out his ultimatum.
12. It is true that PW1 has not mentioned in Ext.P1 , F.I.Statement about the ultimatum given by the appellant Crl. Appeal No.181 of 2007 24 and the subsequent extra-judicial confession made by him to his mother (PW6) to the effect that he carried out his ultimatum. But then the purpose of lodging Ext.P1 F.I.Statement is only to set the criminal law in motion by reporting the occurrence to the Police. Hence, if PW1 did not care to narrate to the Police the ultimatum as well as the extra- judicial confession, it does not follow that his testimony from the witness box in support of the ultimatum as well as extra-judicial confession is the product of subsequent confabulation. The enmity towards him by his family members as alleged by the appellant is put forward only as a cover to the cruelty shown by him. His mother examined as PW6 has credibly deposed that it was for the welfare of the appellant that his sister and other family members mobilised money and sent Shahida to Muscat as a housemaid. Eventhough the appellant used to allege that his wife had sent to him and to his mother letters to the effect that in Muscat she was being sexually exploited, no Crl. Appeal No.181 of 2007 25 such letters are forthcoming. PW6 has further deposed that after the occurrence Shahida had come to Kerala and had gone back to Muscat after 15 days. This testimony of PW6 was not challenged. In fact, Shahida was one of the charge witnesses and when summons was issued to her the same was returned stating that she had gone back to Muscat. If after taking Shahida to Muscat she was forced to indulge in immoral activities without her consent, as the appellant would allege, then she would not have gone back to Muscat after coming on leave. This suggests that the alleged enmity put forward by the appellant was a cock and bull story conceived by him to salvage himself.
13. The version of the appellant that it was PW5 who had set ablaze the clothes on 05.09.2004 also is not acceptable. If it was PW5 who had burnt the clothes, the appellant would have filed a complaint against PW5. On the contrary, it was his mother who preferred Ext.P5 complaint against the appellant for picking up quarrel in the family Crl. Appeal No.181 of 2007 26 house and burning clothes without any provocation.
14. It is true that the prosecution did not attempt to prove that the handwriting in Exts.P2 to P4 letters allegedly sent by the appellant is that of the appellant by obtaining expert opinion. These three letters were marked through PW2 who is none other than the wife of Nazeer (PW5) who is the younger brother of the appellant. It was not even suggested to PW2 that the appellant was not the author of those letters. No question was put to PW2 to suggest that the handwriting in those letters was not that of the appellant. It was only when PW5 was in the box that a suggestion was put to him that PW5 was the author of those letters and PW5 has emphatically denied the said suggestion and has maintained that the appellant was the author of those letters.
15. The defence attack against the "last seen together"
theory also cannot stand. PW3 (Bindu Sajikumar) stated that she was running the stationery-cum-vegetable shop in Crl. Appeal No.181 of 2007 27 front of her house. She later clarified that it was her husband's house and she was residing at S.H.Mount which, going by Ext.P10 plan is near the Chavittuvari- Velluparambu road. There is no contradiction or discrepancy in her evidence regarding the ownership of the house. There is nothing unnatural if a lady claims her husband's house as her house. From that alone her testimony does not become unworthy of credence. Since her shop is 300 m away from the scene of crime, ordinarily, the Investigating Officer cannot be expected to show the shop in the scene mahazar. Scene Mahazar will only show houses and other structures which are within the vicinity of the scene of crime. Since the scene plan is prepared by the Village Officer on the basis of the scene mahazar, the scene plan also cannot be expected to show the shop of PW3 which is located 300 m away from the scene of occurrence. No sort of enmity or ulterior motive has been attributed to PW3 so as to induce this Court to hold that PW3 was Crl. Appeal No.181 of 2007 28 swearing to utter falsehood before Court. It was at about 6.30 pm on 15.09.2004 that PW3 saw the two girls in the company of the appellant and she distinctly remembers having sold cumin seed candies worth one rupee to each of the girls. She happened to recollect this when she subsequently learned that both the girls had died of drowning.
16. The seizure of MO3 slippers from the vicinity of the bathing ghat from where the two girls were allegedly drowned to death, also is not open to challenge. Both PW9 and PW19 have credibly stated that it was the appellant who handed over his slippers (MO3) to the Investigating Officer at the time of preparation of Ext.P7 scene mahazar. Merely because Ext.P7 is silent as to who showed the Investigating Officer the place of occurrence, it does not follow that the version of PW19 that it was the appellant who showed the place of occurrence to him is unbelievable. Even if PW19 were to state in Ext.P7 scene mahazar that it was the Crl. Appeal No.181 of 2007 29 appellant who showed him the place of occurrence, that statement would be inadmissible in evidence as it is hit by Section 162 Cr.P.C.
17. The defence contention that the children were actually brought alive by the appellant in his family house and the prosecution case otherwise is false, also cannot be sustained. In order to buttress the above version the defence wants this Court to go through the statement given at the time of inquest by Abdul Rahiman @ Andru the elder brother of the appellant to the effect that as soon as they took the girls to the hospital, the younger child was given oxygen by the doctor at the the Taluk Head Quarters Hospital. In the first place, the above statement of Abdul Rahiman given at the time of inquest is hit by Section 162 Cr.P.C and cannot be looked into. The said witness was not examined by prosecution. The defence could have examined him if they wanted. That was also not done. PW14 who was the doctor who examined the girls from the Taluk Head Crl. Appeal No.181 of 2007 30 Quarters Hospital, Kottayam has categorically stated that both the children were brought dead and he examined them at 7.50 and 8 pm respectively. The said fact is borne out by Exts.P14 and P15 wound certificates as well. We are not prepared to accept the defence contention that Ext.P15 wound certificate pertaining to Shafna the younger child is a subsequent manipulation merely from the omissions to fill up some of the columns therein and absence of seal thereon. Both Exts.P14 and P15 wound certificates bear the signature of PW14. If the prosecution wanted to fabricate the wound certificate of the younger child, they could have done so with regard to Ext.P15 wound certificate in such a way as to avoid any suspicion. PWs.1,2,5 and 6 have credibly stated that the appellant came to the family house carrying the corpses of his daughters and after laying them in front of his mother (PW6) the appellant made a remark that he has carried out the ultimatum given by him earlier. It is relevant in this connection that the version put forward Crl. Appeal No.181 of 2007 31 by the appellant is that while he along with his daughters was sitting on the parapet by the side of the river, the elder child accidentally fell into the river and when he jumped to save the girl the younger child also somehow fell into the river. If such an incident had happened, then he would have definitely made a hue and cry and the nearby people would have come to his rescue. In such a situation the first attempt would have been to rush the girls to the hospital rather than to his ancestral home at Kosamattom Colony. The very fact that he walked into his family house carrying the bodies of his daughters in a leisurely way coupled with his utterances as spoken to by PWs.1,2,5 and 6 will clearly show that the appellant very well knew that he was carrying the dead bodies of his daughters. The incident of accidental fall into the river put forward by the appellant is nothing but a cock and bull story. If as a matter of fact the girls had accidentally fallen into the river, there would have been mud particles on their nostrils and mouth. But there was no Crl. Appeal No.181 of 2007 32 such finding either by PW14 or at the time of inquest or autopsy. Even assuming that the doctor had given oxygen to the younger child that does not necessarily mean that the younger child was alive. An unsuccessful resuscitation attempt might have been made by the doctor thinking that the clinically dead child could be brought back to life. If as a matter of fact when the appellant took his daughters to his ancestral home they were alive he would have asked for help to rescue the children. Instead, he had slashed a knife at his brother (PW5). This subsequent conduct of the appellant belies his contention that the children were not brought dead as alleged by the prosecution.
18. Equally misconceived is the defence contention that by 05.09.2004 he was evicted from the rented premises and rendered homeless and it was in that condition that he went to his ancestral home along with the children and their clothes to plead for accommodation of his daughters. There is nothing to show that by 05.09.2004 he Crl. Appeal No.181 of 2007 33 was evicted from the rented premises. Even in Ext.P5 complaint his mother has only stated that a situation has arisen whereby he has to leave his rented premises. Ext.P5 does not say that he has been evicted from the premises in the Railway Puramboke Colony at Muttambalam. On the contrary, PW12 the Police Constable who had been deputed from the Kottayam East Police Station to summon the appellant to the Police Station had found the appellant occupying the rented premises at Muttambalam at 2.30 pm on 6.09.2004.
19. After careful reappraisal of the oral and documentary evidence of the case, we are of the view that pursuant to the ultimatum given by the appellant he had taken his daughters to Mathothu bathing ghat in Perumbaikad village at about 7 pm on 15.09.2004 and had forcibly drowned the girls in the Meenachil river. He along with the girls were last seen together by PW3 at 6.30 pm in the vicinity of the bathing ghat. He has failed to explain Crl. Appeal No.181 of 2007 34 what transpired between 6.30 pm and 7.30 pm on that day. The extra-judicial confession made to his mother (PW6) thereafter and witnessed by PWs.1,2 and 5 further lends support to the prosecution case. The circumstances proved by the prosecution unerringly point to the guilt of the appellant who alone was responsible for the death by drowning of his children. The evidence on record does not even remotely suggest that the death of the girls could be accidental. The antemortem injuries seen around the mouth and nostrils of the girls also confirm the fact that their death was homicidal and if so the appellant who alone was in their company is naturally responsible for the same. His subsequent conduct corroborates the prosecution theory. We are therefore fully convinced that the conviction entered against the appellant for the offence of murder punishable under Section 302 IPC does not call for any interference and we confirm the same.
Crl. Appeal No.181 of 2007 35
20. The sentence imposed on the appellant also does not warrant any interference. The court below has only awarded the lesser of the two penalties provided for under Section 302 IPC.
In the result this appeal is dismissed confirming the conviction entered and sentence passed.
Dated this the 19th day of July, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj