Unknown vs By Adv. Sri.Sunny Mathew on 12 April, 2019

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Kerala High Court

Unknown vs By Adv. Sri.Sunny Mathew on 12 April, 2019

1. Appellant was the sole accused in S.C.576/2013. That was a case on the file of the court of session, Thalassery division. The appellant was tried, convicted and sentenced by the first additional sessions judge of the said court. The offences for which the appellant was convicted and sentenced were those punishable under Secs 302 and 447 of the Indian Penal Code (IPC).

2. Prosecution case is this : Shafna was a college student. She was residing with her parents. The appellant proposed to Shafna to have a love affair. She refused. He therefore had a grudge against her. He criminally trespassed into the courtyard of her house. He chopped her to death. He with a billhook cut her on her neck, head, hands and other parts of her body. The incident occurred at 12.45 pm on 23.1.2014 at the courtyard of her house.

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3. Charges were framed against the appellant under Secs 302 and 447 of IPC. He denied the charges. PWs 1 to 20 were examined and Exts P1 to P25 and MOs 1 to 11 were marked on the side of the prosecution. Exts D1 and D2 were marked on the defence side during the course of prosecution evidence. Exts C1 an C2 were also marked. The appellant was examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and circumstances relied on by the prosecution. He was not acquitted under Sec.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He chose not to adduce any evidence.

4. The trial court found the appellant guilty of both the offences charged against him. He was sentenced to imprisonment for life and a fine of Rs 50,000/- under Sec.302 of IPC. Under Sec.447 of IPC, he was imposed a punishment of rigorous imprisonment for three months and a fine of Rs 500/-. Separate sentences in default of payment of the fine amount were also imposed. The substantive sentences of imprisonment were directed to run concurrently. The mother Crl.Appeal.1221/2014 4 of the victim was awarded a compensation of Rs 40,000/- from out of the fine amount.

5. Heard Sri.Sunny Mathew, the learned counsel for the appellant and Smt.S.Ambika Devi, the learned special public prosecutor for cases involving atrocities against women and children.

6. Shafna had her untimely death at the age of 18. She died on 23.1.2004. It was a homicide. Her homicidal death is an admitted as well as a proved fact. She was brought dead to the government general hospital at Thalassery. PW8, assistant surgeon, confirmed the death and sent the body to the mortuary. PW17, the district police surgeon, conducted autopsy. Ext P19 is the report of autopsy. PW17 found 29 ante-mortem wounds on the corpse. He described all those wounds in Ext P19. He deposed to those wounds in court. The learned trial judge extracted all the wounds in the impugned judgment. Therefore those injuries need not be reproduced once again. Injury Nos 1, 5 to 11, 13 to 18, 21 to 25 and 28 are incised wounds. Injury Nos 2 to 4, 12, 19 and Crl.Appeal.1221/2014 5 20 are chop wounds. Injury Nos 26, 27 and 29 are multiple small abrasions, abrated contusion and contusion respectively. Wounds were mostly inflicted on the neck and the head. The prosecution proved that Shafna was murdered. Ocular evidence and circumstantial evidence are relied on by the prosecution to prove the complicity of the appellant.

7. PW2 is the ocular witness for the prosecution. She is the mother of the victim. PW2 spoke as follows : The incident occurred at 12.45 pm on 23.1.2004. She alone was in the house at the time of the incident. Being a Friday, her husband had gone to the mosque for his juma prayer. PW2 was sitting in her house in the varandah which was covered with grills. Her daughter came in an autorikshaw. The daughter came to the mother for money to pay the fare to the driver of the autorikshaw. The fare was paid to the driver. PW2 went to the kitchen. She heard the cry of her daughter. PW2 came to the front of her house. At that time Shafna was running towards the rear side of the house. She was chased by the accused holding a billhook in his hand. The accused pushed Shafna down. He cut on her head, neck and cheek Crl.Appeal.1221/2014 6 with the billhook. She defended with both hands some of the cuts. He chopped her repeatedly. PW2 cried aloud. Hearing it, PW1 and a few others arrived. The appellant ran away with the billhook. PW2 went near her daughter who lay in a pool of blood in prone position. PW2 sought the help of PW1 to take her daughter to a hospital. A few persons including PW1 took the victim in a car to the hospital.

8. PW2 narrated the incident as stated above. She identified the appellant in court as the person who attacked the victim. PW2 identified MO1 to be the billhook with which her daughter was cut and chopped by the appellant. PW2 was cross-examined. But no damage was caused to her evidence. She withstood cross-examination. Many questions were put to her as if the absence of her husband in the house at the time of the incident was something unusual. PW2 stated that her husband had gone to the mosque for his Friday prayer. Her such evidence is acceptable. It was attempted in cross- examination to elicit that PW2 and her husband wanted to save the real culprit as the culprit was a relative of theirs. PW2 denied it. No sensible parent would normally do that. Crl.Appeal.1221/2014 7 The learned counsel for the appellant highlighted the delay in recording the statement of PW2 under Sec.161 of Cr.P.C. She spoke that her statement was recorded only ten days after the incident. Her evidence suggests that she was in a shock after the incident. The learned counsel submitted that the delay in questioning PW2 was not 10 days, but 20 days. The submission seems to be correct. PW20 who investigated the case explained the delay. He stated that PW2 was panic and was mentally depressed after the loss of her daughter. It was not an explanation given by PW20 to save the situation. Ext P25 is the report filed by him before the magistrate on 7.2.2004 requesting to extend the remand period of the appellant. One of the reasons stated in Ext P25 by PW20 for seeking such extension was that PW2 who was in a bad shape after the incident could not be questioned yet. We are satisfied that the delay was not purposeful or for any manipulation. The delay in recording the statement of PW2 by PW20 is no ground for the appellant to take advantage of. The defence could, however, elicit in the cross-examination of PW2 that the appellant was a stranger to her before the incident. This is only what the defence gained in the cross- Crl.Appeal.1221/2014 8 examination of PW2. We accept the argument that the appellant was a total stranger to PW2 before the incident. Conduct of a test identification parade would have been better, but the failure to conduct it is not sufficient to reject the evidence of PW2 identifying the appellant. What we should insist on to accept such identification is corroboration.

9. Shafna came to her house on the ill-fated day in the autorikshaw of PW3. He deposed in court as under :The girl who hired his autorikshaw collected money from a woman in her house and paid him the fare. While the girl was returning to her house after paying the fare, a young man followed the girl holding a yellow bag in his hand. The girl ran towards her house. The man took a billhook from the bag, dropped the bag in the courtyard and chased the girl. PW3 gave an alarm to a person, who came out of the neighbouring house, that the girl was being chopped. PW3 left the place out of fear.

10. PW3 identified MO1 to be the billhook he saw in the Crl.Appeal.1221/2014 9 hand of the young man. We do not see anything in the cross- examination of PW3 to disbelieve his narration of what he saw. But his evidence identifying the appellant needs corroboration. Although PW3 spoke that he had occasion to see the appellant before the incident, he did not state so to the investigating officer. His such omission to state to the investigating officer has been proved and it amounts to a contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. We accept the evidence of PW3 except his assertion that the appellant was a person known to him.

11. PW4 was also an autorikshaw driver. He was examined to prove that it was in his autorikshaw the appellant came and alighted near the house of the victim. PW4 stated that on 23.1.2004 his autorikshaw was hired by the appellant. PW4 swore that the appellant had travelled in his autorikshw many times before the incident. PW4 spoke that he saw PW3's autorikshw which came in the opposite direction and stopped in front of the house of the victim. The evidence of PW4 suggests that the appellant alighted from the autorikshaw near the house of the victim. It was also the evidence of PW4 Crl.Appeal.1221/2014 10 that the appellant was holding a bag. The witness identified MO3 to be the said bag. There were only a few suggestions in cross-examination to challenge the evidence of PW4. He denied all those suggestions. The evidence of PW4 is acceptable. His evidence suggests that he knew the appellant even before the incident as the latter had travelled in the autorikshaw of the former several times. The only aspect which was brought out as an omission was that PW4 did not state to the investigating officer that the former could identify the appellant. But the evidence of PW4 that the appellant had travelled in the autorikshaw of the former was not destructed in cross-examination. We accept the evidence of PW4 and also him identifying the appellant. The evidence of PW4 proves that the appellant did come in PW4's autorikshaw and that MO3 plastic bag was held by the appellant. It is already seen from the evidence of PW3 that MO3 plastic bag contained MO1 billhook and that MO3 was dropped in the courtyard by the appellant. It is proved that the appellant was the person who came on 23.1.2004 to the courtyard of the house of the victim with MO1 billhook. Crl.Appeal.1221/2014 11

12. PW5 is a person who knows the appellant. PW5 spoke so. His such evidence was challenged in cross-examination only by putting a suggestion that he was lying in court that he knew the appellant before the incident. The witness denied the suggestion. Nothing is available in the cross- examination of PW5 to suspect his evidence that he knew the appellant even before the incident. PW5 identified the appellant in court. PW5 spoke that the appellant was known to the former for quite some time. According to PW5, he saw the appellant running away. The evidence suggests that the appellant ran away in front of PW5. He spoke that the appellant was running wearing a blood stained shirt. The said evidence of PW5 was also challenged only by putting a suggestion which he denied. The cross-examination mostly concentrated on the evidence of PW5 about the colour of the pants and shirt of the appellant which he wore at the relevant time. We are not considering the evidence of PW5 on the colour of the shirt and pants of the appellant since PW5's such evidence has been proved to be an omission within the meaning of the explanation to Sec.162 of Cr.P.C. The evidence of PW5 positively proves that he knows the Crl.Appeal.1221/2014 12 appellant, that he saw the appellant running away and that at that time the shirt of the appellant was blood stained. The evidence of PW5 goes a long way against the appellant.

13. PW6 is an autorikshaw driver. He was examined to prove that it was in his autorikshaw the appellant travelled immediately after the incident. PW6 spoke that it was on 23.1.2004. He identified the appellant in court. PW6 spoke that when the appellant travelled in his autorikshaw, the former noticed blood stains on the shirt of the latter. PW6 even asked the appellant as to how the shirt was blood stained. According to PW6, he was told by the appellant that the appellant sustained an injury from a fall. The evidence of PW6, which we discussed above, was not effectively challenged in cross-examination. The cross-examination was on the evidence of PW6 about the colour of the shirt and pants of the appellant. We do not give credence to the evidence of PW6 on the colour of the shirt and pants. But his evidence proves that immediately after the incident the appellant travelled to the destination in the autorikshaw of PW6 wearing a blood stained shirt.

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14. After having considered the evidence of PWs 2 to 6, we conclude that the appellant was the assailant who cut and chopped young Shafna on 23.1.2004. There is scientific evidence also favourable to the prosecution and against the defence. PW20 arrested the appellant at 6.50 pm on the date of incident, 23.1.2004. The shirt and pants worn by the appellant at the time of his arrest were seized from him by PW20. Ext P9 is the seizure mahzar pertaining to the said seizure. PW20 identified MOs 10 and 11 as the shirt and pants he seized from the appellant. Seizure of MOs 10 and 11 was not disputed in cross-examination except by putting a suggestion to PW20 that he prepared Ext P9 seizure mahazar at the police station. He denied the suggestion. PW20 seized blood stained soil from the scene of occurrence. The same is MO4. MO1 billhook found lying in the lane adjacent to the house of PW2 was also seized by PW20. MOs 5 to 9 cloths worn by Shafna at the time of the incident were also seized by PW20 after the post-mortem examination. All the material objects referred to above were subjected to chemical examination at the forensic science laboratory, Crl.Appeal.1221/2014 14 Thiruvananthapuram. Ext P24 is the report of chemical examination. Human blood of group 'O' was detected in MO5 churidar top, MO6 churidar pants, MO7 shawl, MO8 brazier and MO9 underwear which the victim wore at the time of the incident. That means she belonged to the blood group 'O'. Human blood of 'O' group was detected in MO4 soil collected from the scene of occurrence. It was her blood. Human blood of 'O' group was detected on MO1 billhook too. It suggests that the same was the weapon with which the victim was inflicted with injuries. MO11 pants of the appellant was free from blood stains, but blood of human origin and of 'O' group was detected in MO10 shirt of the appellant. It is thus proved scientifically that MO10 shirt of the appellant which he wore at the time of his arrest on the date of incident was stained with the blood of the victim. It is thus scientifically proved that the person who committed the murder was the appellant.

15. PW17 who conducted autopsy opined that the victim died of the injuries sustained to her neck and spinal chord. He swore that injury No.4 which had resulted in air embolism Crl.Appeal.1221/2014 15 and injury No.12 which had resulted in a cut on the spinal chord were the fatal injuries. He spoke further that the blood loss due to other injuries also could have contributed to the death. PW17 spoke that injury Nos 15 to 25 and 28 were defence wounds. His such evidence corroborates the ocular evidence of PW2 that the victim defended the attack on her with both hands. PW17 spoke that the weapon used for inflicting the injuries appeared to be a sharp heavy cutting chopping tool. PW17 was definite that the incised and chop wounds inflicted on the victim were possible to be inflicted with MO1. The expert opinion corroborates the other evidence that Shafna was brutally cut and chopped with MO1 billhook.

16. At the time of seizure of MO10 shirt and MO11 pants of the appellant, PW20 found a cash bill in the pocket of the shirt. The said bill was marked as Ext P4. It bears the date 23.1.2004 which was the date of incident. The name of the shop from where it was purchased is also shown in the bill. It was issued by PW9 who was the owner of the said shop. He spoke that he sold MO1 billhook to the appellant on Crl.Appeal.1221/2014 16 23.1.2004 and issued Ext P4 bill. Ext P5 is the bill book maintained by PW9 in his shop. Ext P5(a) is the copy of Ext P4 in Ext P5. It was suggested to PW9 in cross-examination that he was lying in court to help the prosecution. We do not find anything in the evidence of PW9 to disbelieve him. It is true that his evidence identifying the appellant as the purchaser of MO1 may not be a strong piece of evidence. For, even according to PW9, he was unable to remember every person purchasing things from his shop. The appellant was not a person known to PW9. It is also true that the name of the appellant is not stated in Ext P4 bill. But the fact remains that Ext P4 was seized as it was kept in the pocket of MO10 shirt which the appellant wore at the time of his arrest. We are satisfied that the person who purchased the billhook from PW9 was the appellant himself. Many suggestions were put to PW9 in cross-examination to the effect that Exts P4, P5 and P5(a) were fabricated documents. If those documents were fabricated, certainly intelligence would have been applied to mention the name of the appellant in the bill. We accept the evidence of PW9 that he sold MO1 billhook to the appellant on the date of incident.

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17. The prosecution proved positively that the appellant purchased MO1 billhook on the date of incident, that he travelled in the autorikshaw of PW4 with MO1 covered in MO3 plastic bag, that PW3 saw the appellant taking MO1 from MO3 bag and chasing the victim, that the appellant was seen wearing blood stained shirt by PWs 5 and 6 and that he cut and chopped the victim in the view of the victim's mother, PW2.

18. PW1 gave the FI statement, Ext P1. He was the neighbour of PW2. PW1 did not see the incident. Nor did he see the appellant at the place of incident. We have already referred to the evidence of PW3 that he told a person that the girl was being attacked. The person to whom PW3 told so was PW1. PW1 also spoke to what he was told by PW3. The said evidence of PW1 is admissible in evidence and is relevant under Sec.6 of the Indian Evidence Act as res gestae. The said evidence of PW1 was not at all challenged in cross- examination.

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19. The FI statement was recorded without much delay. The FIR was registered promptly. But there was some delay in forwarding the FIR to the magistrate. The delay was not inordinate. We do not see anything to suspect any manipulation in the FI statement and FIR. Therefore the slight delay is not sufficient to view seriously.

20. We now conclude. The evidence in the case does prove the complicity of the appellant. He did commit murder of Shafna. It is true that there is no acceptable evidence in support of the prosecution version that the appellant had taken revenge as his proposal to have a love affair was refused by the victim. Want of evidence on the said aspect cannot be highlighted at all. For, motive loses importance when the evidence is strong. The appellant criminally trespassed into the courtyard of the house of the victim to commit a crime. The appellant thus committed criminal trespass also. He was liable to be convicted and sentenced under Secs 302 and 447 of IPC. The sentences imposed on the appellant are also not liable to be interfered with. The appeal deserves only a dismissal.

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21. Dismissed.

Sd/-

A.M.SHAFFIQUE Judge Sd/-

A.M.BABU Judge Mrcs/11.4.

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