Prasad vs State Of Kerala on 21 March, 2019

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Kerala High Court

Prasad vs State Of Kerala on 21 March, 2019

This appeal is filed by the accused in SC No.1913/2011 of the Additional Sessions Court-V Kollam. By the aforesaid judgment, the accused is convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- for the offence u/s 364 of I.P.C. with default sentence for 2 months, imprisonment for life and to pay fine of `1 lakh for offence u/s 302 of I.P.C. with default sentence for 20 months and rigorous imprisonment for 2 years and to pay a fine of `5,000/- for offence u/s 201 of I.P.C., in default of payment of fine, rigorous imprisonment for one month.

2. A lady by name Hayarunnisa, aged about 40 years, was abducted and murdered. The crime came to light when a decomposed dead body of a lady was found at Chandanacavu on 14/6/2010 by PW18 Nazarudheen. He informed the matter to the Sub Inspector of Police, Kulathupuzha (PW40) who recorded Ext.P10 statement and registered Crime No.497/10 u/s 174 of Crl.Appeal No.370/14 -:3:- Cr.P.C. A Head Constable was posted for guard duty and at 3.30 p.m, Ext.P11 inquest report was prepared. Dress and chappals of the victim were seized as evident from the inquest report. The body was sent to Medical College Hospital, Thiruvananthapuram for postmortem examination. The Sub Inspector of Police also took other steps like collection of soil from the place of occurrence etc. Further investigation was conducted by PW41, Circle Inspector of Police, Kadakkal Police Station. On enquiry, it was revealed that the dead body involved in the crime belongs to the aforesaid victim in a man-missing case of crime No.873/2010 of Kadakkal Police Station.

3. PW2, brother of the victim identified the dead body kept in the Medical College Hospital. PW33 Professor of Forensic Medicine of Medical College Hospital conducted postmortem on the body of the victim on 16/4/2010. Ext.P30 is the postmortem certificate and she opined that the cause of death was due to constriction force around the neck. After conducting further investigation, accused 1 and 2 were arrested on 16/6/2010. On the basis of confession statement of A1, incriminating material objects were seized and the accused were chargesheeted for Crl.Appeal No.370/14 -:4:- having committed murder and concealing the evidence. Second accused PW39 was made an approver. In order to prove the case, prosecution relied upon the oral testimony of PW1 to PW43. Exts.P1 to P49 were the documents marked, MO1 to MO21 were the material objects produced and identified. On behalf of the defence, Ext.D1 was marked.

4. The accused in his 313 statement denied having any relationship with the victim, that the vehicle does not belong to him and the mobile phone number does not belong to him. He also denied having recovered any of the articles on the basis of any of his statement to the police. He also denied having taken on rent any premises for conducting upholstery business. He had not purchased the medicine Alprax nor the sip on drink. He does not know Rejani Lodge. All the documents produced are false and fabricated. He also stated that the victim had relationship with several men as she was living separately from her husband. She was collecting money from various men after cheating them, which he had come to know after being in their custody.

5. Sri.A.G.Aditya Shenoy was engaged as counsel for the appellant. Learned counsel for the appellant submitted that the Crl.Appeal No.370/14 -:5:- prosecution had not proved the case beyond reasonable doubt. There is no eyewitness to the incident. The case is sought to be proved on the basis of circumstantial evidence and the testimony of PW39, the approver. Approver's evidence has not rendered any corroboration to the prosecution evidence.

6. Learned Senior Public Prosecutor Sri.K.B.Udayakumar appearing for the State supported the judgment of the Court below and contended that the entire circumstantial evidence by itself was enough to convict the accused and the evidence of PW39 corroborates the incriminating circumstances that had been proved beyond reasonable doubt.

7. After arrest of the accused, their confession statements were recorded, on the basis of which the police had recovered various material objects. When the first accused was arrested, Ext.P36 series-custody memo, arrest memo and inspection memo were prepared. At the relevant time, he was in possession of a mobile phone, a purse, ATM card of Federal Bank and a strip of Alprax with one tablet. The sim no of the mobile phone was 9846451412. When A2 was arrested, his mobile phone having sim No.9037803218 and `4,500/- was recovered as per Crl.Appeal No.370/14 -:6:- Ext.P37 mahazar.

8. The 2nd accused gave a confession statement on the basis of which MO5 tiffin box was seized as per Ext.P38 mahazar. Ext.P38(a) is the relevant portion of the confession statement. On the basis of A1's confession statement, an umbrella (MO3) was recovered from Rejani lodge as per Ext.P14 mahazar and Ext.P14(a) is the confession statement.

9. The prosecution case is that the sedative tablets were given to the deceased with a mango juice. Two packets of mango juice were seized as per Ext.P15 mahazar on the basis of confession statement of first accused, which is recorded as Ext.P15(a). The bills for purchase of 15 tablets of Alprax 0.5 mg was recovered as per Ext.P19 mahazar. Only 9 tablets were available in the strip which was sent to the Forensic Science Lab for chemical examination.

10. On the basis of confession statement of first accused, a sale letter, rent deed and one visiting card were recovered as per Ext.P3 mahazar. Ext.P3(a) is the relevant portion of confession statement and the visiting card is Ext.P39. Though the accused was taken to Vattamon bridge where the bag and mobile Crl.Appeal No.370/14 -:7:- phones were thrown away, the police could not recover the same. Ext.P18 is the mahazar for such verification. Ext.P40 is the mahazar with respect to KL-25/1927 Maruthi Car and its records. The motorcycle belonging to the 2nd accused was seized on 27/8/2010 as per Ext.P46 mahazar.

11. As far as the evidence in the case is concerned, PW1 is the mother of the victim. She deposed that the victim had gone for work on 9/6/2010 and did not return. Though she made enquiries in the house of relatives, there was no information and accordingly, she gave a complaint Ext.P1 to the Sub Inspector of Police, Kadakkal on 12/6/2010. She also identified the churidar, pant, umbrella, chappals, tiffin box, one pair of anklet and ear studs of the victim, which were produced as MO1 to MO7 series. She also deposed that she knew the first accused, who used to call the victim and was conducting an upholstery shop near the press.

12. PW2 is the brother of Hayarunnisa. He also deposed having given a man-missing case to the police on 12/6/2010. He identified the dead body of the deceased and MO1 to MO7. PW3 is the daughter of the victim. She also identified the material Crl.Appeal No.370/14 -:8:- objects belonging to the victim. She had seen first accused who was working near the press. She deposed that victim was murdered since she was not amenable for his wishes.

13. PW4 is conducting a press by the name M/s.Master Printers at Anchal, Chandamukku and the victim was working in the press for about 2 years prior to death. He saw her on 7/6/2010 and offered to come on 9/6/2010. She did not come on 9/6/2010 and he contacted her over phone. He was told that she will come back after going to hospital. At about 12 O' clock when he called her, the phone was switched off. He knew the first accused who was conducting an upholstery shop near the press. The victim had complained that the accused was troubling her over phone. The accused was having a black Alto car bearing No.KL-25/1927. On 9/6/2010, accused did not open his shop. He also identified MO1, MO2 and MO3 as belonging to the victim. PW5, a worker in the press of PW4 also deposed in line with the evidence of PW4.

14. PW6 is a person who knew the accused and he deposed that the accused was having a black Maruthi Alto car. He is a witness to Ext.P3 by which the sale letter, rent deed and Crl.Appeal No.370/14 -:9:- visiting card were recovered. He also deposed that, on 8/6/2010 and 9/6/2010, the shop of the accused was closed. PW7 is a worker in the upholstery shop of the accused. He deposed that the accused was having G-Five mobile and a Maruthi Alto car bearing No.KL-25/1927 which is sold to one Nikhil.

15. PW8 is a person who was conducting a medical shop Devika Medicals at Anchal College Junction. He deposed that, on 8/6/2010, accused had purchased Alprax 0.5mg tablets. The prescription copy of the bill is Ext.P4 and the purchase bill is Ext.P5. He deposed that the tablet is a sedative. Accused informed him that the tablets were for his father.

16. PW9 deposed that the accused had purchased two "sip on drinks" from her shop. She identified the packets as MO8 series.

17. PW10 deposed that he saw an Alto car and a motorbike at Poovanathucavu near Kulathupuzha. Four days after, he saw a deadbody of a lady near the place where the car was parked earlier. He remembered the number of the car as KL- 25/1927.

18. PW11 is a person who knew the accused. He deposed Crl.Appeal No.370/14 -:10:- that accused took the upholstery shop on rent from PW6 Gopalakrishna Pillai. He knew that the accused was having a black Maruthi Alto car.

19. PW12 is the father of PW39. He also knew the accused. The motor cycle bearing Regn.No.KL-25/3548 is in his name and it was being used by PW39.

20. PW13 knew the victim. She deposed that MO5 tiffin box was purchased by him for his daughter Roshini. Later MO5 was given to PW3, who is the daughter of the victim. PW14 originally owned the black Alto Maruthi Car which he sold to one Chandrakumar, the registration particulars is marked as Ext.P7 series. PW15 purchased the black Alto Car bearing Regn.No.KL- 25/1927 from Chandrakumar. After using it for one year, he sold it to one Anshad as per Ext.P8 sale letter. PW16 deposed that his son Anshad purchased the aforesaid Maruthi car which was later sold to Prabhath. PW17 Prabhath sold the car to A1 as per Ext.P9 agreement and the witness is PW39. PW37 purchased the black Alto Maruthi car bearing Regn.No.KL-25/1927 from the accused on 10/6/2010. It was purchased as per Ext.P33 agreement. He also deposed that the mobile number of the accused is Crl.Appeal No.370/14 -:11:- 9846451412 and it is written in it.

21. PW18 is a person who saw the decomposed body of the victim. Ext.P10 is the FIS. PW19 is the ward member of Kulathupuzha panchayat. She is an attestor to the inquest report dated 14/6/2010 which is marked as Ext.P11. PW20 to PW29 are attestors to various mahazars by which various material objects were seized. PW30 is the Nodal Officer of Bharathi Airtel. He gave the call details with respect to mobile no 9895132856 which was in the name of the victim. The ID proof is marked as Ext.P24 and call details are Ext.P25. The call details would show that, on 8/6/2010 at 16.29 hrs., there was a call from 9846451412 and on 9/6/2010 at 8.08 hrs., there was a call from victim's number to 9846451412. PW31 is the Senior Manager (Legal) of Vodafone Essar Cellular Ltd. He deposed that mobile No.9846451412 was in the name of one Noushad. The ID proof is Ext.P26. Call details from 1/5/2010 to 15/6/2010 is produced and marked as Ext.P27. He deposed regarding a call on 9/6/2010 from the said number to 9037803218. PW32 is the Nodal Officer of M/s Tata Tele Services. The ID proof of mobile No.9037803218 is marked as Ext.P28 which was issued in the name of Mr.Dharvesh. The call details Crl.Appeal No.370/14 -:12:- from 1/5/2010 to 16/6/2010 is marked as Ext.P29.

22. PW34 is a person who knew the victim and according to him, he used to help her and her children financially. She used to visit him once in a month and he had visited her at the press where she was working. He had given her two sim cards having Nos.9567636684 and 9645003961. He knew the accused who wanted to marry her and she was being compelled for the same. He further deposed that, on 9/6/2010, PW1 had contacted him and enquired about the victim and he had requested her to give a complaint to the police. He also identified MO1, MO2 and MO7 which belonged to the deceased.

23. PW35 is conducting a lodge at Anchal, Chandamukku. He deposed that, on 22/4/2010, the accused had hired a room for one month by paying `1,000/- On 16/6/2010, the Circle Inspector had brought the accused to the lodge. Room No.8 was allotted to the accused. Police seized MO3 umbrella from the room. The register of the lodge is marked as Ext.P31 and the relevant entry is marked as Ext.P31(a).

24. PW36 is the Village Officer who prepared the scene plan which is marked as Ext.P32.

Crl.Appeal No.370/14

-:13:-

25. PW38 is the sister of the accused. She deposed that, on 9/6/21010, at about 1 O' clock in the noon, first accused came to her house in a Black Alto car and returned at 8 p.m. She was residing at Channapetta along with her husband and two children. Thereafter he came back at 10-30-11.00 p.m. She further deposed that his mobile number is 9846451412 and the Regn. No of the car is KL-25/1927.

26. PW39 deposed that, on 9/6/2010, the 1 st accused had contacted him over phone and when he reached Channapetta in a motorbike, he saw the accused along with the victim. The accused was travelling in a car and he was asked to follow him. The car stopped in a forest area. The victim was lying unconscious in the back seat. The accused informed him that he had given her sleeping pills and that he was going to kill her. PW39 sat on the front seat of the car and the accused entered the back seat and pressed on the neck of the victim. Thereafter, PW39 alighted from the car and went to his father's shop. A little thereafter accused called him and he was informed that the victim had died. At 8.10 p.m accused again called him and informed him that he is waiting in the car in front of the shop Crl.Appeal No.370/14 -:14:- along with the dead body. He requested help to abandon the body. The dead body was lying in the back seat and it was abandoned at Chandanacavu. After leaving the dead body, they reached Anchal. The tiffin box, umbrella, mobile phone, bag and other particles were thrown on the way. Another bag and mobile phone were in the car. He got down at the place where the motorcylce was kept and he went back home. Though PW39 was cross examined at length, there is absolutely nothing to discredit his testimony. He also deposed that he told the accused not to harm her and she will wake up and go away the next morning. But the accused told him that if she wakes up, it will affect him adversely.

27. From the aforesaid evidence, it is rather clear that the victim was missing since 9/6/2010. Her dead body was found on 14/6/2010. Postmortem reveals that death of deceased was a case of homicide. The question would be, who had committed the crime? Apparently, the prosecution had relied upon circumstantial evidence which stands corroborated by the evidence of PW39.

28. There is also evidence to prove the motive for committing the crime. The accused wanted to marry the Crl.Appeal No.370/14 -:15:- deceased and he was compelling her for the same and she was not interested. This fact is spoken to by PW34, and also PW4, her employer. That the accused was using mobile No.9846451412 is rather clear from the oral testimony of the witnesses. It is true that the mobile connection having sim No.9846451412 is in the name of one Noushad. But the fact that the accused was using the said mobile phone was spoken to by his sister PW38. That apart, in Ext.P9 agreement executed for sale of Maruthi Car between the accused and the purchaser, the mobile number of accused is written as 9846451412. The registered owner of the vehicle is one Vasudev, but the vehicle was transferred by executing agreements without endorsing change of registered owner. Ext.P33 sale agreement is between Prasad and one Nikhil which was on 10/6/2010 by which accused sold the car to Nikhil. In the said agreement also, the mobile number of Prasad is shown as 9846451412. Therefore there cannot be any dispute regarding the fact that accused was using the said mobile number and going by the call detail records which are produced in the case, it could be seen that the mobile number of the victim was not in use after 9/6/2010, whereas, on the same day, at Crl.Appeal No.370/14 -:16:- 10.13 hrs, there was an incoming call from the mobile number used by the accused.

29. The evidence of PW39 regarding the admission of the accused that he had given sedative to the victim was further proved by the factum of purchase of Alprax 0.5 mg from the shop of PW8 as per Ext.P4 bill. That apart, when PW41 arrested the accused on 16/6/2010, he seized MO11 strip of tablet containing one Alprax. The accused on being arrested has also shown the place where the victim was kidnapped and the place where she was strangulated in the car.

30. The deposition of PW39 is further corroborated by the recovery of articles belonging to the deceased and also the recovery of 2 packets of sip on which were recovered from the side of the road which rather proves that the deceased was sedated and thereafter strangulated.

31. In the light of the aforesaid discussion, we are of the view that the evidence of the approver PW39 had been sufficiently corroborated in all particulars by other circumstantial evidence, recovery of articles, telephone details and the call records. There is not even an iota of doubt about the involvement Crl.Appeal No.370/14 -:17:- of the accused in the commission of the crime.

32. Learned counsel for the appellant submits that the certificate of Chemical Analyst Ext.D1 would indicate that there is no evidence of any sedative being administered to the deceased. But it is relevant to note that the body was recovered four days after administration of the sedative and if mild doses are given, it may not be seen in the viscera. At any rate, the cause of death is on account of constriction force or strangulation applied on the neck and the oral testimony of PW39 is supported by the evidence of the Doctors who conducted postmortem.

In the result, we do not find any ground to interfere with the judgment of the trial Court. Appeal is dismissed.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


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