Kerala High Court
Dated This The 6Th Day Of June vs Unknown
Bench: P.R.Ramachandra Menon, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939
Death Sentence Ref..No. 2 of 2012 ()
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AGAINST THE JUDGMENT DATED 20-12-2011 IN SC NO. 384/2011 of PRINCIPAL SESSIONS
COURT,ERNAKULAM
( CP NO. 1/2011 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (EO), ERNAKULAM
(CRIME NO.2204/2010 OF E.T.NORTH POLICE STATION)
COMPLAINANT:
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STATEOF KERALA, REP. BY THE C.I. OF POLICE,
E.T.NORTH POLICE STATION.
BY SPECIAL PUBLIC PROSECUTOR FOR OFFENCES AGAINST WOMEN AND
CHILDREN SMT.S.AMBIKA DEVI.
ACCUSED:
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RASHEED, AGED 35 YEARS, S/O.KASSIM,
PUTHIYEDATH VEEDU, CHENDAKUNI DESOM,
MEENANGADI, PURAKKADY VILLAGE,
WYNAD DISTRICT.
BYADVS. SRI.RENJITH B.MARAR (STATE BRIEF)
SRI.C.V.MANUVILSAN
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON
07.03.2017, ALONG WITH CRL.APPEAL NO. 514/2012, THE COURT ON 06-06-2017
DELIVERED THE FOLLOWING:
"C.R."
P.R.RAMACHANDRA MENON & A.HARIPRASAD, JJ.
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D.S.R.No.2 of 2012
&
Crl.Appeal No.514 of 2012
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Dated this the 6th day of June, 2017
COMMON JUDGMENT
Hariprasad, J.
We heard the Death Sentence Reference (DSR) made by the Sessions Judge and the Criminal Appeal filed by the convict together since common questions of fact and law arise in both these matters.
2. Prosecution case, revealed from the final report, is as follows:
Accused/appellant was utterly desperate over his business failure. At the same time, his siblings were leading enviable lives. Accused, in order to tide over the difficulties, availed loans from individuals and a nationalised bank. He intensely aspired to seek employment abroad for which he had to pay `50,000/- immediately. At the relevant time, he was in a dire financial stringency. On account of his lust for money, he committed the murder for gain. The victim Bindu, aged 37 years, was brutally killed on 16.11.2010 at D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 2 about 3.30 in the afternoon and her gold ornaments were robbed. Husband of the victim was conducting a lodge in the upper portion of their residential building and she was managing its affairs. The accused gained entry into that portion in the pretext that he was seeker of an accommodation on monthly rent. He attacked the victim with a chopper after confining her in a room. Multiple cut wounds were inflicted on the head and face by using the chopper. With these allegations, the investigating officer filed a final report under Section 173 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C.") alleging offences punishable under Sections 449, 347, 302, 397 and 201 of the Indian Penal Code, 1860 (in short, "IPC"). It is relevant to note that the learned Sessions Judge also framed charges indicting the accused for the aforementioned offences, the significance of which shall be dealt with later.
3. Prosecution examined 47 witnesses, marked 48 documents and 23 material objects. No defence evidence was adduced. After closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. Thereafter the learned Sessions Judge heard both sides and pronounced the judgment, whereby the accused was convicted under Section 302 IPC and a death penalty was imposed. He was convicted under Section 449 IPC and sentenced to undergo rigorous imprisonment for life and directed to pay a fine of `5 lakhs. Again, he was convicted D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 3 under Section 394 read with Section 397 IPC and directed to undergo rigorous imprisonment for life and to pay fine. Further, under Section 347 IPC he was again convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine. Apart from the above, he was convicted and sentenced under Section 201 IPC and ordered to undergo rigorous imprisonment for five years and to pay fine of `1 lakh. After pronouncing the conviction and sentence, the learned Sessions Judge submitted the proceedings for confirmation under Section 366 Cr.P.C.
4. We heard Sri.Renjith B.Marar, learned counsel appearing for the accused/appellant and Smt.S.Ambika Devi, learned Special Public Prosecutor for the offences against women and children. We also carefully perused the written argument notes submitted by Sri.Renjith B.Marar.
5. The investigative machinery was set in motion by filing Ext.P1 first information statement (FIS) by PW1. Gist of the averments in Ext.P1 FIS is as follows:PW1 is a home maker. On 16.11.2010 at about 3.30 hours in the noon, she was engaged in cooking food for her children, who were expected in a short while from school. At about 3.45 hours, she heard a shriek from the second floor of the victim's house. PW1 could identify that it was Bindu screaming. It is an unchallenged fact that house of PW1 is next to the victim's house and they were thickly known to each other. Victim's husband Ramakrishnan is an architect. On hearing the scream, D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 4 PW1 went to Ramakrishnan's office, where PWs 4 and 10, his employees, were working. PW1 along with them went upstairs and searched for Bindu in the first and second floors. There are four rooms in the second floor, which are intended to be let out to the tenants on monthly rent. She went towards the eastern most room, in the second floor, from where she thought the distress call emanated. But she found the room locked from inside. All the other three rooms were locked from outside. Since they could not find out Bindu, all of them came down. They searched for Bindu in the remaining parts of the building. As she could not be seen anywhere in the house, they again went to the second floor. This time an unknown person was seen standing in front of the room at the eastern end. His right eyebrow was injured and swollen and blood oozed out. The informant (PW1) asked him what happened. He replied that somebody attacked him and they escaped to the railway track, running close to the building. When PW1 asked about Bindu, he stated that he came there on hearing a cry of a lady in distress. And he further stated that the aggressors and Bindu ran out. PW1 and others were not convinced about the answers given by him. However, he climbed down the stairs. PW1 and others also came down. Thereafter he stopped a motor bike and requested the rider to take him to a nearby hospital for first aid. Unconvinced PW1 and others again went up to the second floor. To their surprise, this time the room on the eastern end D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 5 was seen closed from outside. PW5 broke open the lock by using a hammer, iron rod, etc. When PW1 climbed the stairs to see what had happened to Bindu, PW4 called out that she should not come as the sight was unbearable. Nonetheless, she went in front of the room and peeped inside. She found Bindu lying in a pool of blood with multiple injuries. She had lost her gold chain and bangles. Then it flashed through their minds that the person who was seen in front of the room with a bleeding eyebrow could be the murderer. She gave the FIS at about 4.10 hours on the date of occurrence itself.
6. PW1 testified completely supporting the recitals in Ext.P1 FIS. In the chief examination, she stated that on hearing the scream from the second floor of Bindu's house on the fateful day, she went in search of her and met her eldest child. When asked, the child replied that Bindu had gone upstairs. Thereafter PW1 went to the office of PW13 Ramakrishnan (husband of Bindu) and enquired with the employees where Bindu was. Since none of them had seen Bindu, PW1 along with PW4 Sini and PW7 Ajin Sikkera went upstairs in search of Bindu. Thereafter they went to the portion of the building where lodging facility was provided. All the three rooms were locked and one room was closed from inside. PW1 deposed that later she found a stranger standing in front of the last mentioned door and when questioned, he was alleged to have been attacked by someone D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 6 and they caused an injury on his eyebrow. When asked about Bindu's cry and where she was, the person answered that he came to rescue her and in that process, he sustained the injury. When repeatedly asked about Bindu, he answered that she also ran out with the aggressors. Thereafter, he came down and went to a hospital on a motor bike. PW1 suspected that he must have gone to Lourde Hospital, Pachalam, which is very close to the place of occurrence. PW1 deposed that she had occasion to identify the accused from police station in the same evening. PW1 identified the pants and shirt worn by the accused at the time of occurrence as MOs. 1 and 2. She was subjected to rigorous cross examination. To a query, if PW1 stated to the investigating officer about chancing upon Bindu's child and enquiring about Bindu, her answer was that she was in a state of panic and did not remember the minute details. Despite a searching cross examination, absolutely no discredit could be made in the forthright testimony of PW1, especially regarding the presence of the accused right in front of the room where the victim was lying dead with multiple cut injuries.
7. Along with the testimony of PW1, it will be apposite to go through the testimony of PW4 Sini, PW5 Shyjan and PW7 Ajin Sikkera. PW4 Sini along with PW7 Ajin Zikkera was working in PW13 Ramakrishnan's architectural enterprise by name 'Plan Point'. PW13 D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 7 Ramakrishnan is husband of the deceased. Ramakrishnan's office was functioning in a portion of his residential building. He used to spend much time in attending various offices and work sites. These witnesses emphatically testified that the incident was after 3.30 hours in the afternoon on 16.11.2010. PW13 had gone at 2.30 p.m. to Kochi Corporation office. Till then he was present in his office. According to PW4, after 2.30 p.m., Bindu asked whether Ramakrishnan had gone out. After a short while, PW1 came and met PW4 and told that she heard a loud cry from Bindu's house. She suspected that it was Bindu screaming. Along with PW1, PWs 4 and 7 went upstairs and searched for Bindu. PW1 made a search in the ground floor and the first floor as well. PW1 met Bindu's son Aravind and asked where his mother was. He replied that Bindu had gone upstairs. Again PWs 1, 4 and 7 went upstairs and found three rooms, out of four, were locked. One room (room No.101) was bolted from inside. PW1 knocked at the door closed from inside, but there was no response. Thereafter all the three came down. Since they could not meet Bindu anywhere in the building, they again went upstairs and this time they found the accused standing in front of room No.101 facing them. He was identified by PWs 4 and 7 also. They also identified MOs 1 and 2, dress materials worn by him. PWs 4 and 7 also noticed a swelling on his right eyebrow. All these happened between 3.30 - 4.00 p.m. PW1 questioned D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 8 the stranger who stood in front of the door and he answered that he came to rescue a lady who cried out for help. When further questioned, he said that Bindu, along with the aggressors, ran towards the railway track, situated near the building. These witnesses also noticed a bleeding injury on his eyebrow. He climbed down and on reaching the side of a road, he requested a motor bike rider to take him to a hospital. Suspicion felt by PWs 1, 4 and 7 could not be quenched by the unconvincing answers given by the stranger. They decided to keep an eye on him. They further decided to break open the room. PW1 went for fetching a hammer. By that time, PW5 Shyjan and CW15 Shabith came. PW1 handed over the hammer to CW15. PW5 broke open the door and they saw the horrendous scene. While PWs 1 and 4 were climbing up, PWs 5 and 7 restrained them as it was an unbearable sight.
8. Testimony of PWs 7 Ajin Zikkera, who is another employee of PW13 Ramakrishnan, is exactly in the same lines. PW5, as stated above, came upstairs after the incident and after the accused had left the place. He is a neighbour of the deceased Bindu and had long standing acquaintance with PW13, husband of the deceased. He helped to break open the door of room No.101 and having seen the extreme sad plight of Bindu, he called PW13 Ramakrishnan over mobile phone asking him to come back urgently. Cross examination on these prosecution witnesses D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 9 yielded absolutely no result. Their presence at the time and place and their witnessing the material aspects immediately after commission of the crime as testified by them remain unshaken. Therefore, we are of the firm opinion that testimony of PWs 1, 4, 5 and 7, if taken together, will clearly give a vivid picture about the things happened immediately after the gruesome murder and the presence of the accused right in front of the room, where the victim was lying chopped to death by inflicting 38 wounds. Identity of the accused is also clearly established by the straight forward and convincing evidence adduced by these witnesses.
9. PW10 Shyjan is the other witness whose testimony is relevant in this context. He was residing at Vaduthala and was running a shop by name 'B 4 Batteries' at Edappally. He was owning a Honda Activa motor bike bearing No.KL 7 AX 3620. CW35 Paulson is a friend of him. On the date of occurrence, Paulson's motor bike had been given to the service station for repairing. PW10 took CW35 Paulson on his motor bike to the service station and after collecting the bike, both of them returned to Pachalam. They saw a person with a bleeding eyebrow, standing by the side of the road in front of PW13's house. He had closed the wound with a kerchief. PW10 and CW35 heard people talking that a robbery had happened in the house. When PW10 asked the accused as to what had happened, he answered that he was passing through the road and on D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 10 hearing a commotion and a shrill cry, he went inside the house. He was attacked by certain persons and therefore he came out. The accused wanted their help to go to a nearby hospital. As PW10 was wearing a white T-shirt, he asked CW35 Paulson to put the accused on the pillion of his motor bike and both of them took the accused to Lourde Hospital, Pachalam. Since CW35's bike was almost dried out, they kept it in the parking area and returned on PW10's motor bike. Later they understood that a lady was murdered in the house where they saw the accused. PW10 disclosed to others that a person, who was said to have been attacked by robbers, was hospitalised. He pointed out the accused person to the mob gathered at that time in front of the hospital. Despite cross examination, the version spoken to by this witness remains unshaken. Testimony of this witness, read along with that of PWs 1, 4, 5 and 7, would show that immediately after the incident, the accused had gone to a local hospital seeking medical aid.
10. PW2 Manoj is a neighbour of slain Bindu. He is a witness to Ext.P2 inquest report. He identified MOs. 3 to 5 dress materials worn by the deceased.
11. PW3 Ajayakumar was a tenant residing in room No.103 on the top floor of Bindu's residence. He described about the lay out of the building. He also testified that on 16.11.2010 the incident had happened D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 11 and he saw her dead body at the time of inquest.
12. PW6 Thomas is a witness to Ext.P3 scene mahazar. It was prepared on 17.11.2010 at about 8 o' clock in the morning. On 16.11.2010 he had seen the dead body of Bindu lying on the floor. He found MO6 chopper placed on a cot in the room. Three cots were placed in the room. Bloodstained pillow cover and bed sheet were identified by this witness. Although he was cross examined, no material could be brought out to find that the recitals in Ext.P3 scene mahazar were unreliable.
13. PW8 Revathy was also examined to prove that on 16.11.2010 after 3 o' clock in the afternoon, two ladies were talking to one another in front of Bindu's house and a person with a bleeding forehead started off on a motor bike.
14. PW9 Mani had occasion to see the accused a couple of weeks prior to the incident. Prosecution wanted to project a case that the accused was exploring to find out a vulnerable house for committing robbery. It is argued by the learned counsel for the accused that the evidence adduced by this witness is highly artificial. Even if we accept that argument, there are plenty of other materials in the prosecution evidence to implicate the accused in the crime.
15. PW11 Chanthu is father of the victim. PW12 Srijitha was studying for B.Com. at that time. She was a regular visitor in Bindu's D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 12 house. She deposed that on 16.11.2010 at about 9.30 a.m. she had seen the accused in Bindu's house. Testimony of this witness, if read along with that of PW13 Ramakrishnan, would show that on 16.11.2010 the accused had approached deceased Bindu and PW13 Ramakrishnan in the morning for availing an accommodation.
16. PW13 Ramakrishnan, husband of slain Bindu,deposed that he asked Bindu to show a room with two beds in the upstairs when the accused came in search of lodging facility. That happened at about 9.30 a.m. However, Bindu could not open the room No.101 because the only person residing in the room had gone to his native place to celebrate Bakrid and he had taken the key with him. Therefore, Bindu came back and asked the accused to come in the evening. PW13 deposed that till 2.30 p.m. he was present in his office. Thereafter he had lunch and went to Kochi Corporation office. At about 3.50 p.m. PW5 called PW13 over phone and informed that Bindu had some problems with tenants and PW13 was asked to come home immediately. When he reached home, he found lot of persons assembled there. Frantically PW13 asked for Bindu and at that time PW5 euphemistically informed him that his wife was murdered. Her gold chain and two bangles were found missing. PW13 identified MO14 and MO15 series as the robbed gold chain and bangles. We have carefully gone through the cross examination on this witness by the learned D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 13 defence counsel. We have no hesitation to hold that absolutely no reason could be brought out to discard his testimony.
17. PW14 identified the accused as he had earlier worked in the vegetable shop belonging to him. It is his deposition that the accused owed more than `25,000/- to him. Testimony of this witness, that the accused was having financial difficulties, remains credible despite cross examination.
18. PW15 is yet another witness examined to show that the accused had worked about ten days as a salesman in his shop. These witnesses account for the presence of the accused, who hails from Wayanad, in and around the area where the crime had happened.
19. PW16 also heard the cry emanated from Bindu's house. He handed over the hammer to PW5 to break open the lock and PW5 opened the door. He also testified that he saw Bindu's dead body drenched in blood.
20. PW17 worked as Manager, Canara Bank, Meenangadi branch. The accused had operated an account in that branch. He produced forms submitted by the accused for opening a savings bank account. Ext.P4 specimen signature card, Ext.P5 account opening form, Ext.P6 extract of account, etc. have been proved through this witness. It is further deposed by PW17 that on 09.04.2009 the accused had availed a loan of `50,000/- D.S.R.No.2 of 2012
& Cr.Appeal No.514 of 2012 14 from the bank. Though it was to be closed before 09.04.2012, the accused was having an outstanding liability of `47,867/- towards the loan account. Besides, he had three other gold loans. Unimpeached testimony of this witness would show that the accused at the material time was reeling under financial pressure.
21. PW18 was working in the comfort station attached to the North Railway Station, Ernakulam. He identified the accused as the person who used to come for taking bath. Testimony of PWs.14, 15 and 19 would show that the accused had no permanent place of aboard at the material time.
22. PW20 Sreedharan was a salesman in a hardware shop belonging to PW21 Habeeb. The shop is located near North Railway Station. These witnesses were examined to prove that the accused purchased MO6 chopper two days prior to Bakrid. PW20 deposed that after arresting the accused, Police had brought him to the shop with the chopper. He identified MO6 chopper as the one sold from PW21's shop. PW21 would depose that the writing seen on MO6 was in his handwriting. He also identified MO6 as the one sold from his shop. These witnesses were subjected to searching cross examination. Learned counsel for the accused would contend that these witnesses are planted by the prosecution to link MO6 with the accused. However, cross examination did not yield much result to reject the evidence adduced either by PW20 or D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 15 PW21.
23. PW22 Janardhanan Achari is a gold smith. As directed by the Police on 16.11.2010, he appraised the purity of two gold bangles and a gold chain. He identified MO14 and MO15 series. Ext.P9 is the report given by this witness. Bangles together weighed 15.4 grams and chain weighed 26.5 grams. Both were of 20 ct. purity. He identified the accused as he was present when the purity and weight of the ornaments were checked. He is a witness to Ext.P10 mahazar. A kerchief recovered as MO16 was also identified by this witness.
24. Another relevant witness is PW24 Bijoy Xavier. He was the casualty-in-charge of the hospital during 2010. He produced Ext.P13 extract of casualty register. The register showed that the accused was admitted in the hospital as a medico-legal case. There was no effective cross examination on this witness.
25. PW29 Dr.Sivakumar, while working as Junior Consultant in ENT department in Ernakulam General Hospital, collected the nail clippings of the accused on 17.11.2010 at 1.30 p.m. He identified the accused from the dock and also MO17 bottle, containing the nail clippings.
26. PW30 Dr.Akhilesh, while working as Casualty Medical Officer in Ernakulam General Hospital, collected the blood sample of accused on 24.11.2010. He also identified the accused from the dock. D.S.R.No.2 of 2012
& Cr.Appeal No.514 of 2012 16
27. PW35 Susan Antony was working as Scientific Assistant in Forensic Science Laboratory, Thiruvananthapuram during the relevant time. She was asked to examine the crime scene. On examination, it was seen that the room wherein the murder took place was opened from outside by using force. Her testimony tallies with the testimony of PWs.1, 4, 5 and 7.
28. PW38 Dr.Liza John's testimony is very important. She, while working as Assistant Professor and Deputy Police Surgeon, T.D.Medical College, Alappuzha, had conducted autopsy on the body of Bindu on 17.11.2010. Following are the antemortem injuries noticed.
"1. Incised wound 4 x 0.8 cm., bone, oblique on the top and front of head, its outer lower end, 3 cm. to the left of midline and 5 cm. above inner end of the eye brow.
2. Incised wound 3.3 x 0.5 cm. bone deep vertical on the right side of forehead, 2 cm. outer to midline and 3 cm. above eyebrow.
3. Two superficial incised wound, 1 x 0.1 cm. and 1 x 0.2 cm. oblique and parallel on the left side of face outer to outer canthus of the eye.
4. Incised wound 1.5 x 0.3 cm. bone deep vertical on the middle of right eyebrows.
5. Superficial incised wound 1.2 x 1 x 0.1 cm. involving the right eye lid, 3 cm. outer to midline. D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 17
6. Two abraded contusion, 4.5 x 1 cm. each, horizontal and parallell placed, with an area of central pallor of 0.3 cm. on the right cheek.
7. Incised wound 1.5 x 0.2 x 0.1 cm. with surrounding contusion on the right side of face 3 cm. outer to the angle of mouth.
8. Superficial lacerated wound 1 x 0.2 x 0.2 cm. on the inner aspect of lower lip 2.5 cm. to the left of midline.
9. Lacerated wound 1 x 0.3 x 0.8 cm. involving the freanulum of upper lip.
10. Multiple small abrasions and lacerations over an area 5 x 3 cm. on the under aspect of the chin.
11. Superficial incised wound with surrounding contusion 1.5 x 1 cm. on the right side of head, behind the mastoid.
12. Superficial incised wound 1 x 0.1 cm. involving the upper part of pinna.
13. Incised wound 4.5 x 0.5 cm. bone deep on the right side of the head oblique 5 cm. above tip of right ear, overlying the right parietal eminence.
14. Incised wound 3 x 0.5 cm. bone deep horizontal on the right side of the head, 6 cm. above and behind tip of the ear.
15. Incised wound 4.5 x 0.5 cm. bone deep oblique on the left side of head, 7 cm. above top of the ear.
16. Incised wound 5 x 0.5 cm. bone deep horizontal on the left side of the head 3 cm. behind and above D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 18 the ear.
17. Incised wound 6.5 x 0.1 cm., bone deep horizontal on the left side of the head, 10 cm. outer to the midline and 1 cm. above top of ear. Underneath the skull was seen fractured.
18. Incised wound 2.5 x 0.5 x 1.5 cm. with tailing on both side, on the left side of face, entering into the orbital cavity, 1 cm., below the lower eyelid.
19. Incised wound 2 x 1 cm., communicating the cranial cavity through the nasal cavity, on the root of nose and inner canthus of the left eye.
20. Incised chop wound 6 x 2 cm. with surrounding contusion oblique across the front of face, extending from the inner angle of right eye, root and bridge of nose, till the left cheek, communicating into the nasal cavity and entering in its the base of skull.
The base of skull involving the anterior and middle cranial fossa were fractured, fragmented with chipped off pieces, brain showed subrachnoid haemorrhage and laceration in the under aspect of the frontal and temporal lobes.
21. Crasentic abrasion 0.5 x 0.1 cm. on the right side of back of neck, 9 cm. below the mastoid.
22. Cresentic abrasion 0.5 x 0.1 cm. on the right side of the neck, 5 cm. outer to midline and 9 cm. below the angle of jaw.
23. Linear abrasion 3 x 0.1 cm. oblique, on the left side and front of neck, its upper inner end, 6 cm. D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 19 below chin.
24. Abrasion 9 x 0.8 cm. with interrupted pattern on the front and sides of the neck, being 4.5 cm. above breast bone in midline, its left outer extend 3 cm. outer to midline and 7 cm. below jaw margin right outer end being 7 cm. outer to midline and 7 cm. below jaw margin.
25. Contusion 10 x 7 x 2 cm. on the inner aspect of right arm and elbow 13 cm. below top of shoulder.
26. Incised wound 8 x 0.3 x 0.1 cm. on the inner aspect of right elbow.
27. Multiple small abrasion over an area 7 x 2 cm. on the back of right forearm 13 cm. below elbow.
28. Cresentic abrasion 0.5 x 1 cm. On the inner aspect of right forearm 4 cm. Below elbow.
29. Abrasion 3 x 2 cm. inner aspect of right forearm 6 cm. below elbow.
30. Superficial incised wound 2 x 0.1 cm. on the inner aspect of right thumb.
31. Abrasion 1 x 1 cm. outer aspect of root of left thumb.
32. Two incised wound (i) 2 x 1 x 0.5 cm. oblique on the inner aspect of left indexfinger and (ii) 2 x 1x 0.5 cm. oblique on the inner aspect of left middle finger, being 4 cm. below the tip and were in a same linear oblique plane.
33. Contusion 5 x 3 x 2 cm. incorporating a superficial incised wound, on the back of left hand 4 D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 20 cm. below wrist.
34. Multiple small abrasions over an area 5 x 5 cm. on the back of left elbow and forearm.
35. Superficial incised wound 7 x 0.5 cm. oblique on the inner aspect of left forearm, 2 cm. below the elbow.
36. Contusion 1.5 x 1 x 0.5 cm. on the outer aspect of left shoulder, 5 cm. below top of shoulder.
37. Abrasion 4 x 1 cm. on the front of left shoulder, 5 cm. below its top.
38. Multiple small abrasions over an area 5 x 5 cm. on the front or left side of chest, 8 cm. outer to midline 6 cm. below top of shoulder."
She gave a definite opinion as to the cause of death in the following terms:
"Death was due to the injuries sustained to the head.
Injury numbers 1, 2, 4, 13, 14, 15, 16, 17, 18, 19 and 20 are collectively sufficient in the ordinary course of nature to cause death. Injury Nos. 17, 18, 19 and 20 are independently and necessarily fatal. Injury numbers 21 and 22 could be caused in an attempt to throttling. Injury No.9 could be caused by the forceful application of blunt force on the mouth of the victim in an attempt to make her silent. Injury No.23 could be caused by the forceable snatching away of M.O.14 (a gold chain) from the neck of the victim. Injury Nos.29, D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 21 30, 31, 32 could be defensive wounds while the victim was trying to catch of the weapon or defending off of the weapon. Injury No.34 is also a defensive wound. Injury Nos.35, 36 and 37 could be caused on a fall on a hard and rough surface.
(M.O.6 shown to the witness). It is possible to cause injury numbers 1 to 20 by cutting with M.O.6."
29. We find no reason, despite cross-examination, to think that the multiple injuries referred to by PW38 were not the cause of death. Number of injuries, vital part of the body on which the injuries were inflicted and the force with which they were inflicted are determinative factors to reveal the intention of the aggressor. We are in full agreement with the learned trial Judge for attaching due weight to the testimony of this witness to find that the aggressor intentionally committed murder by incessantly chopping the head and face of the victim.
30. PW39 Bushra Beegum was working as Scientific Assistant (Biology) in Forensic Science Laboratory, Thiruvananthapuram during the relevant time. As requested by the investigating officer, she visited the scene of occurrence on 20.11.2010. She collected blood stained materials and flakes of dry blood from the floor. Ext.P23 is the report prepared by this witness.
31. PW41 Dr.Junaid Rahman, while working as the D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 22 Superintendent, General Hospital, Ernakulam, collected blood sample of the accused on 20.09.2011 as directed by the court. The blood group found to be O+ve. Certificate in this regard issued by PW41 is marked as Ext.P25.
32. PW43 Abdul Samad was a resident in room No.101, where the crime had been committed. It was a room with three beds. During the relevant time, he was the only person staying in the room. He was working as marketing surveyor in a concern by name A.C.Nelson Company. On 15.11.2010, he locked the room and went to his office. On the same night, he went to Calicut, his native place, without returning to the room. In otherwords, he went straight to Calicut from his office. Bakrid was on 17.11.2010. As he took the room key with him, deceased Bindu had contacted him between 9.00-10.00 a.m. on 16.11.2010 and demanded the key. Later in the evening, he received a phone call from the North Police Station intimating that the house owner had filed a complaint against him for keeping the rent in arrears. He informed the Police that he had paid rent up-to-date. However the Police insisted that he should report to the Police Station the next day after Bakrid. Later he understood that he was called for questioning in connection with the murder happened on 16.11.2010. In chief examination as well as in cross examination he deposed that some of his belongings, like dress materials and books, were kept in the room. D.S.R.No.2 of 2012
& Cr.Appeal No.514 of 2012 23 Testimony of this witness would support the prosecution case that the accused had come before 10 o' clock in the morning on 16.11.2010 in search of an accommodation and later he came in the evening as directed by PW13 and the deceased.
33. PW44 Vijaysankar was the Sub Inspector of Police, Town North Police Station, Ernakulam. On 16.11.2010 at about 4.00 p.m., he received a telephonic information that a lady was hacked to death in a house near Pachalam Market. The information was recorded in the General Diary. Thereafter PW44 went to the place of occurrence with Police party. He found Bindu lying dead in PW13 Ramakrishnan's house. After completing the formalities, he registered Ext.P1(a) First Information Report (FIR). As part of investigation, PW44 got an information that the accused had been admitted to the casualty in the Lourde Hospital, Pachalam. At 5.15 p.m. PW44 and party reached the hospital and found the accused. At 5.30 p.m. he was discharged with the permission of the Doctor and he was questioned. He was then arrested and Ext.P26 arrest memo was recorded. Ext.P27 is the inspection memo. Body search of the accused was conducted, which revealed possession of a bloodstained kerchief and two gold bangles and a gold chain in a secret pocket of his pants. Those materials were recovered as per Ext.P10 mahazar. PW22, the appraiser, was summoned to assess purity and weight of the gold D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 24 ornaments. The investigation was carried forward by PW47 Ramesh Kumar.
34. In cross examination, this witness completely adhered to his versions in the chief examination. Suggestion by the defence counsel that he caused the accused to be discharged by force is denied by him. Despite cross examination, his testimony remains credible and there is no infirmity in the initial part of investigation conducted by this Officer.
35. PW45 Tom Jose was running a stationary shop in Pachalam. He knew deceased Bindu much prior to the incident. It is his version that on 16.11.2010 at about 3 o' clock in the noon deceased Bindu had purchased certain locks. MO10 was one of the locks purchased by Bindu from his shop. Prosecution established a case that as PW43 had gone to Kozhikode after locking the room and there was no spare key, the lock had to be changed and it was replaced with MO10 lock. In spite of cross examination, there is no reason to discard the testimony of PW45.
36. Another important witness is PW46 Dr.Vinu George Abraham. On 16.11.2010 he was working as the Casualty Medical Officer in Lourde Hospital. At about 4.10 p.m. the accused came to the casualty. According to the prosecution, the accused informed this witness that a mob attacked a lady in a nearby house and he went to rescue her. He also received injury on his eyebrow. PW46 administered T.T. injection and stitched the D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 25 wound. Ext.P29 is the treatment certificate. At that time, 3-4 persons barged into the casualty and informed PW46 that a murder had taken place in a nearby house and the person standing in front of him was the suspect. As they insisted that he should not be let free, PW46 contacted the Police. Later, Police came and the intruders were sent out. Police questioned the accused in the presence of PW46. They could find out a bloodstained kerchief in the possession of the accused, which is marked as MO16. Besides, Police had recovered a gold chain and two bangles (MO14 and MO15 series) from a secret pocket in his pants. PW46 signed on Ext.P10 mahazar and he witnessed arrest of the accused. He is a signatory to Ext.P26 arrest memo. Ext.P30 case sheet was prepared by PW46. Since he entertained a doubt about the involvement of the accused, PW46 took a photograph of the accused on his mobile phone. No serious effort was made to impeach his credibility and all the aspects spoken to by this witness remain believable.
37. PW47 Ramesh Kumar conducted the investigation. In chief examination, he has emphatically stated about the steps taken in the course of investigation. He effected the recovery of material objects, prepared scene mahazar and questioned the material witnesses. He submitted a forwarding note for sending up the material objects to the Chemical Lab for analysis. During cross examination, PW47 deposed that D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 26 as part of investigation, the financial difficulties experienced by the accused, at the material time, were also ascertained. Cross examination on this witness could not cause any dent or discredit in his credibility. Totality of the evidence adduced by this witness would show that the investigation was fair, free and systematic.
38. Learned trial Judge relied on the testimonies of PWs. 1, 4, 5, 7 and 10 to implicate accused in the crime, as he was found in front of the room, where the incident had taken place, immediately after the gruesome murder. Furthermore, the version narrated by the accused to those witnesses that some aggressors attacked Bindu and he ventured in to the building to save her and also that all of them, including Bindu, ran away are found to be falsehood. Similarly, testimonies of other witnesses revealing that the accused had sustained injury and sought medical aid were also relied on by the trial court. That apart, medical evidence, especially that of the Doctor, who conducted the autopsy, and the testimony of the investigating officer were heavily relied on by the trial court.
39. Learned counsel for the appellant/accused contended that the court below seriously went wrong in the matter of appreciation of evidence. Besides, it had gone wrong in not drawing an adverse inference against the prosecution for serious lapses in the investigation which caused prejudice to the accused. It is also contended on behalf of the accused that, this D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 27 being a case solely resting on circumstantial evidence, it should have been found that the prosecution failed to explain the cleavages in the chain of circumstances. Stated precisely, the first contention raised by the learned counsel is that the accused is innocent of all allegations and the prosecution failed to establish his involvement in the murder. One of the alternative contentions is that the accused did not get a fair trial and therefore, the matter requires to be remanded for adducing defence evidence or for enquiring under Section 367 Cr.P.C. whichever course needs to be adopted as the justice of the case demands. It is also contended, at any rate, this is not a fit case to impose the extreme penalty.
40. Learned Prosecutor, controverting all the arguments, contended that the prosecution has established guilt of the accused beyond any possible doubt, leave alone a reasonable doubt, and this is a case, where the voluminous evidence adduced will only take us to the guilt of the accused and no hypothesis of his innocence is possible in the light of the unchallenged testimony of the material witnesses. That apart, recovery of bloodstained ornaments, worn by the deceased at the time of homicide, from the possession of the accused, that too shortly after the incident, and his inability to account for the possession of the same are indicators of his involvement. Moreover, MO 14 and MO 15 series ornaments belonged to deceased Bindu cannot be questioned because of the clinching D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 28 unimpeached testimony of PW13 Ramakrishnan. That apart, the accused himself had put forward a story that he and Bindu were attacked by some unknown assailants and she also ran away with them towards the nearby railway track. This story was exposed to be false by the presence of corpus delicti in the room, in front of which the accused was found by the material prosecution witnesses. According to the prosecution, there was no lack of fair trial and the accused suffered no prejudice. It is forcefully contended that the conviction and sentence awarded by the trial court should be maintained.
41. We have already dealt with the quantity and quality of evidence adduced by the prosecution to establish that the accused, pretending as a prospective tenant, approached the victim and her husband during the morning hours on 16.11.2010. And, since he was asked to come in the afternoon, he came to the victim's house after 3 o' clock, when her husband had gone out, and attacked her after locking the room from behind. It has also come out by reliable evidence that the accused was in dire financial stringency at the material time and he was desperately trying to surmount the difficulties. The fact that he sustained injury in the incident and he sought medical help from Lourde Hospital, Pachalam is also established by testimonies of the witnesses mentioned above. Doctor, who examined the accused from the casualty ward in the D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 29 hospital, also supports the prosecution case that the accused had a bleeding eyebrow. As contended by the learned Prosecutor, accused's versions to PWs. 1, 4 and 7 that some unknown persons had attacked deceased Bindu and while he attempted to save her, he sustained injuries and all of them, including deceased Bindu, ran towards the railway track were proved to be false stories. In addition to this, the written statement filed by the accused, at the time of examining him under Section 313 Cr.P.C., would show a different story. There he stated that he went to Bindu's house at about 4.00 p.m. for taking a room on rent. He rang the calling bell, but could find none. When he was about to return, he heard a scream from the upstairs. He rushed to the second floor and found two persons attacking Bindu from within room No.101. When she was about to fall down, he supported her and at that time one of the assailants attacked him. They ran away. He covered the wound on his eyebrow with a kerchief and went to Lourde Hospital for treatment. Importantly, he has not stated anything in the written statement as to what happened to Bindu. He did not even mention whether Bindu received any serious injury in the alleged attack by the two aggressors. This version is completely shattered by the reliable testimonies of PWs.1, 4, 5 and 7. Therefore, the learned Prosecutor is right in arguing that the accused has no consistent case, although he admitted his presence at the crime scene during the time of D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 30 occurrence.
42. Sri.Marar contended, the prosecution has no case that the accused attempted to abscond or flee from the place of occurrence despite being seen by the prosecution witnesses. It is therefore clear from Section 8 of the Evidence Act, 1872 (in short, "the Act") that the conduct of the accused in remaining at the place of occurrence indicates his innocence. Learned Prosecutor opposed this contention by saying that testimony of the reliable prosecution witnesses would show that he tried to skulk on the pretext that two persons attacked the deceased and himself. Learned Prosecutor contended that the accused did not remain in front of the room with a benevolent intention of helping the deceased, but he himself was the perpetrator of the crime. This case of the prosecution is well established by evidence.
43. Sri.Marar forcefully argued that identification of gold ornaments was not proper in this case. It is his contention that PW11, father of the deceased, was not questioned with respect to the ownership of MO14 and MO15 series ornaments. However, the unchallenged testimony of PW13, husband of the deceased, will amply prove that the ornaments recovered from the person of accused belonged to the deceased. No suggestion was made during cross examination either of PW11 or PW13 that the ornaments were given by PW11. There is no unnaturality if PW11 could D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 31 not identify the ornaments as it could have been purchased by PW13. In the written statement filed by the accused at the time of Section 313 Cr.P.C. examination it is mentioned that his mother had entrusted some ornaments for sale. But no attempt was ever made to suggest such a case at the time of cross examination of any of the material prosecution witnesses, especially PW11 or PW13. Learned Prosecutor would contend that there is no chance of his mother entrusting MO14 particularly, a "Lakshmi mala" traditionally worn by Hindu ladies, when admittedly the accused and his mother are Muslims. To get over this difficulty, the accused in his written statement has mentioned that his mother borrowed the chain from a Hindu neighbour and handed it over for sale. All these versions remain unestablished and no suggestion was put to any of the prosecution witnesses to account for the lawful possession of the gold ornaments by the accused.
44. Sri.Marar further contended that there are serious doubts regarding the place of arrest of accused and the place from where Ext.P10 seizure mahazar was prepared. Testimony of PW46, if taken along with that of PWs. 44 and 22, would show that arrest of the accused was made from Lourde Hospital at about 5.30 p.m. on the date of occurrence itself. And recovery of MO14 and MO15 series was also effected from the same place. Minor discrepancy in time, as spoken to by PW1 and other D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 32 witnesses, to the effect that they saw the accused at 6 o'clock in the evening at Police Station will not help the accused to destabilise the completely reliable prosecution case. All the material witnesses have pointedly deposed against the accused and their cross examination, as mentioned above, did not yield any result. Therefore, the contentions regarding irregularity in the arrest of accused and seizure of ornaments cannot be accepted.
45. Another argument advanced by the learned counsel for the accused is that the learned Sessions Judge has split up the statements of the accused recorded under Section 313 Cr.P.C. and it caused serious detriment to his legal rights.
46. On a reading of Section 313 Cr.P.C., it can be seen that the purpose of examining an accused under the said provision is to enable him personally to explain any circumstance appearing in the evidence against him. It further shows that the court has power to put such questions at any stage of enquiry or trial, without previously warning the accused, as the court considers necessary. It is mandatory on the part of the court to question the accused generally on the case after witnesses for the prosecution have been examined and before he is called on for his defence. There is a line of thinking that object of Section 313 Cr.P.C. is to establish a direct dialogue between the court and accused. If an important D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 33 point in evidence could be used against the accused and conviction could be awarded based upon it, then it is only right and proper that he should be questioned about the matter and be given an opportunity to explain it. On a close reading of Section 313 Cr.P.C. it can be seen that though questioning an accused under Clause (1)(a) is discretionary, the questioning under Clause (1)(b) is mandatory.
47. We notice one irregularity in this case committed by the learned Sessions Judge. Nevertheless, we do not think that the accused had suffered any prejudice on account of the imprudent practice adopted by the learned Sessions Judge. The accused, admittedly, is not a highly educated person capable of understanding the nuances of English language, especially the legal language. It is true that Exts.P4 and P5 documents produced and proved by PW17 bank manager would show that he could write his name in English. From the nature of job he pursued, it is clear that he belonged to a working class. Most of the witnesses testified in Malayalam. Their statements were also recorded in Malayalam. However, it is seen from the records submitted along with the DSR and appeal that questioning of the accused under Section 313 Cr.P.C. was done in English. Stated precisely, the trial Judge framed questions in English and recorded the answers given by the accused in Malayalam. Actually, recording the questions and answers was in Anglo-Malayalam, a hybrid form. According D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 34 to us, this could have been avoided. We came across a decision by a Division Bench of this Court in Dasan v. State of Kerala (1987 Cri.L.J.
180). One of the questions raised therein touch upon the propriety of preparing questions under Section 313 Cr.P.C. The Division Bench held thus:
"Preparing S.313 questions in English cannot be said to violate any of the provisions of the Code. Whenever the accused is unable to understand English the questions could be translated into the language which he understands and the answers recorded. There is no irregularity or illegality in translating English questions into Malayalam, the language known to accused, and recording the answers in Malayalam. It is true that it is always safe for the Magistrate or the Judge to certify under his writing and signature that the English questions were correctly translated and explained to the accused, that he understood and answered in Malayalam and the answers were correctly recorded. In fact Section 281(5) of the Cr.P.C. so provides also. That may add assurance to what takes place in S.313 questioning. This could be had in addition to or independent of compliance of rule 57 of the Criminal Rules of Practice. But to insist that Malayalam translation of the English questions also should be recorded is D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 35 an unnecessary formality involving waste of judicial time and energy."
48. It is pertinent to note that the learned Sessions Judge in this case did not certify that the questions were translated to Malayalam at the time when they were put to the accused. However, in this case, the accused has not raised any complaint at any stage that he did not understand the implication of the questions. He has denied all the material allegations in the prosecution evidence. Moreover, he had given a written statement explaining the circumstances. Therefore, we do not find any reason to hold that the accused in this case suffered any sort of prejudice by this not so advisable practice adopted by the Sessions Judge.
49. It is our definite opinion, considering the scope and purpose of examining an accused under Section 313 Cr.P.C., that it will be always better to prepare the questions in a language in which the accused is well versed. True, if the accused hails from another part of the country or even a foreigner for that matter, the trial Judge may prepare the questions in English. But still, it must be clearly conveyed to the accused in a language, which he is able to understand. In some cases help of an interpreter may also be required. Even though it could be generally stated that there is nothing illegal in preparing the questions in English, it should be borne out from the records that the questions were duly translated to the accused in a D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 36 language known to him and he clearly understood the implications of the same. In order to avoid such disputes at the time of hearing, the criminal courts should frame questions in a language understandable by the accused to the extent possible. If in a given case, the questions are to be framed in English on account of the peculiar nature of the facts and circumstances, it should be translated to the accused in a familiar language and a certificate by the Judge at the bottom of the questions that he had so translated must be placed. We reiterate, no prejudice has been suffered by the accused in this case.
50. Sri.Marar argued, based on a decision by Supreme Court in Raj Kumar Singh @ Raju v. State of Rajasthan ((2013) 5 SCC 722) that answers given by the accused to Section 313 Cr.P.C. examination and his written statement cannot be made the basis of conviction. In the above decision, it was held that a statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation to the incriminating materials which came out in the trial. It was further held that his answers to the questions put under Section 313 Cr.P.C. cannot be used to fill up the gap left by the prosecution witnesses in their deposition. This broad statement of law by the Supreme Court has to be considered in the light of a three Judge Bench decision of the apex D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 37 Court in State of U.P. v. Lakhmi (AIR 1998 SC 1007). Supreme Court has lucidly laid down the proposition of law regarding the purpose for which a statement under Section 313 Cr.P.C. can be used, as follows:
"8. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under S.313 of the Code does not deserve any value of utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose.
It enables the Court to be apprised of what the
indicated persons has to say about the
circumstances pitted against him by the
prosecution. Answers to the questions may
sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 38 circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. (sic.)
9. Sub-s.(4) of S.313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in sub-s.(4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.
10. Time and again, this Court has pointed out that such answers of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offence charged against him; vide : Sampath Singh v. State of Rajasthan, (1969 (1) SCC 367 : AIR 1969 SC
956); Jethamal Pithaji v. Assistant Collector of Customs, Bombay, (1974 (3) SCC 393 : AIR 1974 SC 699); Rattan Singh v. State of Himachal Pradesh, (1997 (4) SCC 161 : 1997 AIR SCW 587).
11. We make it clear that answers of the accused, when they contain admission of circumstances D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 39 against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence."
51. To sum up this point, it can be held that answers given by an accused to questions put under Section 313 Cr.P.C. may not be by themselves sufficient to convict him. However, it has to be taken into consideration in deciding whether the prosecution evidence can be relied on and the accused is liable to be convicted for the offence charged against him. Such answers are not altogether irrelevant in the realm of appreciation of evidence, but they by themselves may not be sufficient to enter a conviction.
52. Facts and circumstances in this case clearly show that all the material prosecution witnesses have definitely put forward a consistent case and all the circumstances alleged against the accused were affirmatively and clearly proved against him completing the chain of circumstances leading only to the guilt of the accused, without a possible hypothesis of his innocence.
53. We need not elaborate on the principles of appreciation of evidence in a case resting solely on circumstantial evidence as they are well established. Circumstances alleged by the prosecution against the accused must be complete and conclusive, to be read as a whole and not D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 40 separately, and must indicate guilt of the accused with certainty. It has been held in host of decisions that in a case depending wholly upon circumstantial evidence, the evidence should be capable of explaining with certainty the circumstances indicating the guilt of which the accused is charged. Learned trial Judge has cited many decisions to support acceptability of the circumstances brought out in the prosecution evidence against the accused. On a careful consideration of the evidence on the record, we are of the view that the trial court is right in holding that the circumstances have cogently and affirmatively established the guilt of the accused to find that he was responsible for the murder by inflicting large number of injuries on the victim, that too on the most vital parts of the human body, viz., head and face. Therefore, we affirm the finding of the learned trial Judge that the appellant/accused was solely responsible for the murder in question. Hence, conviction of the appellant under Section 302 IPC is only to be confirmed. We do so. But on the question of sentence, there is a serious dispute which we shall mention in the succeeding paragraphs.
54. Now, we shall deal with the contention raised by Sri.Marar that the accused did not get a fair trial and the matter needs to be remanded to the trial court. Learned Prosecutor strongly opposed this contention. Sri.Marar argued that Section 367 Cr.P.C. enables this Court to direct D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 41 further enquiry to be made or additional evidence to be taken in a proceeding submitted to the High Court under Section 366 Cr.P.C.for confirmation of a sentence of death. One plausible view is that this Section is similar in its terms with Section 391 Cr.P.C. relating to appeals, which has been extended by Section 401 Cr.P.C. to cases before the High Court when exercising revisional powers.
55. No authority is required for the proposition that the High Court should examine the evidence in a DSR with great care and circumspection as it has a very serious impact on the life and liberty of the citizens. This has been reiterated in Rameshbhai Chandubhai Rathod v. State of Gujarat ((2009) 5 SCC 740). High Court may even take fresh evidence, if it so desires. Section 367 Cr.P.C, on a careful scrutiny, will show that it is the duty of the High Court, while dealing with a reference under Section 366 Cr.P.C., not only to see whether the order of conviction passed by the Sessions Judge is correct, but also to examine the case for itself and even direct further enquiry or take additional evidence, if the court considers it necessary, in order to ascertain the guilt or innocence of the convicted person. These propositions are fundamental and therefore unchallengeable.
56. It is further contended by Sri.Marar that the restrictions in Section 391 Cr.P.C., in the matter of receiving additional evidence by an D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 42 appellate court, may not apply to Section 367 Cr.P.C. proceedings. If we juxtapose Sections 391 and 367 Cr.P.C., it can be seen that in a proceeding under Section 391 Cr.P.C. the appellate court shall record its reasons for allowing additional evidence, whereas in Section 367 Cr.P.C. no such statutory mandate is provided for directing the subordinate court to make a further enquiry or to collect additional evidence. What is required under Section 367 Cr.P.C. is only the satisfaction of the High Court that additional materials are required either for establishing the guilt or innocence of the convicted person. The judicial discretion conferred on the High Court under Section 367 Cr.P.C. is much wider in scope and amplitude than the power given under Section 391 Cr.P.C. on an appellate court, even if it be the High Court.
57. Now, the question that falls for decision is whether it is necessary for this Court to exercise the discretion in favour of the accused and direct the trial court to collect additional evidence. Sri.Marar forcefully argued that there was no posting for defence evidence and after questioning the accused under Section 313 Cr.P.C., the case was straight away posted for hearing. This submission cannot be accepted in the light of the answer given by the accused to the last question, where he was specifically asked if he intended to adduce any defence evidence, for which he answered in the negative.
D.S.R.No.2 of 2012
& Cr.Appeal No.514 of 2012 43
58. Regarding the compliance of formalities in Sections 232 and 233 Cr.P.C., a Full Bench of this Court in Moidu v. State of Kerala (2009 (3) KHC 89) spoke thus:
"There is a dispute raised as to whether the procedural stipulation in S.232 to 234 are mandatory or directory. All stipulations of the statutes must be held to be mandatory in the sense that the Legislature has mandated the authorities to follow such procedure. Such procedure has got to be followed and should not be violated. There can be no doubt on that aspect. The authorities including Courts are bound to follow the procedure prescribed by the Legislature seriously, earnestly and with commitment. There cannot be two opinions on that proposition at all. The Code generally stipulates the procedure to be followed in all cases. Myriad may be the facts and events which present themselves in different cases. Ordinarily, therefore the procedural stipulations cannot, be held to be mandatory. We have considered the provisions of S.232 to 234 CrPC carefully and we are convinced that the purpose of the stipulation is to ensure prompt compliance with requirements which we have already identified in para 18 above. An accused should not be compelled to endure the trauma of unnecessary continuation of proceedings in a Sessions Case, if there is no evidence at all against D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 44 him. If there is evidence against him and the matter is to proceed further, the accused must be given an opportunity to adduce evidence in support of his defence. If these two requirements are substantially satisfied, we are unable to agree that there is any need to consider the stipulations of S.232 and 233 CrPC mandatory as to result in invalidation of the proceedings. In that view of the matter and in that sense it has to be held that the procedural stipulation in S.232 and 233 are not mandatory and infraction of the said stipulations does not ipso facto vitiate trial."
Therefore, contention of the appellant that there was no opportunity given to him for adducing defence evidence and he suffered substantial prejudice on account of that fact cannot be factually and legally accepted. We find no justification for the plea raised by the accused urging this Court to invoke the power under Section 367 Cr.P.C.
59. Yet another reason that we see for declining the prayer is that the contention raised by the accused in the written submission, after Section 313 Cr.P.C. examination, that his mother entrusted MO14 and MO15 series gold ornaments for sale was not even suggested to any of the prosecution witnesses, despite the accused had full opportunity to cross examine them. Therefore, we find no scope for any defence evidence in this matter. Remitting the matter to the Sessions Court by invoking the D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 45 power under Section 367 Cr.P.C. will only result in unnecessary procrastination of the case. Besides, the straight forward, clear and consistent prosecution evidence adduced in a fair trial dauntlessly established the guilt of the accused beyond any reasonable doubt. Considering the entire facts and circumstances, we are of the firm view that the power vested in this Court under Section 367 Cr.P.C. cannot be invoked on demand by the accused in this case. This argument of the learned counsel for the appellant deserves to be rejected. Hence we do so.
60. Learned counsel for the appellant pointed out an illegality in the matter of conviction awarded by the learned Sessions Judge on one count. As mentioned above, the accused was charged, both in the final report and in the court charge, with an offence punishable under Section 397 IPC only. He was not charged under Section 394 IPC. These two provisions are extracted hereunder for a better understanding.
"394. Voluntarily causing hurt in committing robbery.- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 46 also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.-If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievious hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Section 394 IPC deals with the liability of robbers, some of whom caused hurt and others jointly concerned in committing or attempting to commit such robbery. This Section speaks of two distinct classes of persons, viz., those who actually caused hurt and those who did not, but are jointly concerned in the commission of the offence of robbery. From this standpoint, this Section can be compared with Section 34 IPC embodying the principles of constructive criminal liability. The punishment provided for the offence under Section 394 IPC is harsher than the one provided under Section 397 IPC. Predominant view is that Section 397 IPC do not create any offence, but merely regulate the punishment already provided for robbery and dacoity. Section 397 IPC thus provides for minimum punishment for some offences under certain circumstances. That is, when deadly weapon is used or grievous hurt is caused or attempted to cause death or grievous hurt. It is therefore clear that without charging the D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 47 accused for an offence under Section 394 IPC, it is clearly illegal for a criminal court to impose a harsher punishment than the one provided under Section 397 IPC, that too, in this case, a life imprisonment. It is a fundamental principle in criminal jurisprudence that a person cannot be tried and convicted for an offence with which he is not charged. We are afraid, the trial Judge lost sight of this basic aspect. This illegality in the trial caused substantial prejudice to the accused and it should be done away with. We, therefore, set aside the conviction of the accused under Section 394 IPC and confine it to the contours of Section 397 IPC. We shall modulate the sentence appropriately in the succeeding paragraphs.
61 . Final, but very forceful, argument advanced by Sri.Marar is that this case cannot be qualified as one falling within the category of rarest of rare cases, deserving the extreme punishment. According to him, the sentence and fine imposed on the accused are extremely harsh and not commensurate to the socio-economic status of the accused. It is brought to our notice that the appellant/accused has been ordered to pay a total amount of `11,10,000/- as fine for various offences under Section 449, 394 read with Section 397, 347 and 201 IPC. It is paradoxical to impose this much huge amount of fine when the prosecution itself cited extreme poverty of the accused as a predominant motive for committing the crime. We are of the view that it will be highly inequitable to direct an accused in D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 48 penury to pay more than `11,10,000/- as fine and further, for non-payment, direct him to suffer long default sentences. Interestingly, the total length of default sentence awarded is 11 years and six months. Supreme Court, time and again, has pronounced on the distinction between substantive sentence of imprisonment and default sentence for non-payment of fine. Indiscriminate imposition of default sentence, without having regard to the socio-economic condition of the accused, has been deprecated in Shanti Lal v. State of M.P.((2007) 11 SCC 243) in the following words:
"The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or 'otherwise'. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the Court to keep in D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 49 view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine."
It is also observed in the said decision that general principle of law reflected in Sections 63 to 70 IPC is that the amount of fine should not be harsh or excessive.
62. Sri.Marar placed reliance on Shahejadkhan Mahebubkhan Pathan v. State of Gujarat (2013) 1 SCC 570) to reinforce the above proposition and also to urge that it is the duty of the court to keep in view the nature of offence, circumstances in which the crime was committed, position of the offender and other relevant considerations such as pecuniary circumstances of the accused person, as to character and magnitude of the offence, etc., before ordering the offender to suffer imprisonment in default of payment of fine. Considering the allegations against the accused and over all circumstances brought out in evidence, we are of the view that the fine imposed on the accused is highly excessive and the default imprisonment is also unjustifiably long. We shall modify them in the operative portion of the judgment.
63. Award of capital punishment, it was persuasively argued by the learned counsel for the appellant, is without any legal justification. Learned D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 50 Prosecutor, however, insisted that in the facts and circumstances of the case, it has to be found that this is one among the rarest of rare cases, where the death penalty is warranted.
64. Framers of the Code of Criminal Procedure, 1973, in their report observed thus:
"First among the punishment provided for offences by this case stands death. No argument that has been brought to our notice has satisfied us that it would desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparingly inflicted; and we propose to employ it only in cases where either murder or the highest offence against the State has been committed.
We are not apprehensive that we shall be thought be many persons to have resorted too frequently to capital punishment. But we think it probable that many even of those who condemn the English Statute book as sanguinary may think that our Code errs on the other side. They may be of opinion that gang robbery, the cruel mutilation of the person, and possibly rape ought to be punished with death. These are doubtless offences which, if we looked only at their enormity, at the evil which they produce, at the terror which they spread through society, at the deparavity D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 51 which they indicate, we might be inclined to punish capitally. But atrocious, as they are, they cannot, as it appears to us, be placed in the same class with murder. To the great majority of mankind nothing is so dear as life. And we are of opinion that to put robbers, ravishers and mutilators on the same footing with murderers is an arrangement which diminishes the security of life."
(see - Note A 'of chapter of punishment').
65. Learned authors Ratan Lal and Dhiraj Lal on "The Indian Penal Code", 33rd Edition, (page 362) observe thus:
"Death sentence in murder case is permissible in rarest of rate case and only for special reasons. In ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 52 consider the circumstances of the crime and the circumstances of the criminal in two separate water- tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist."
66. The Supreme Court speaking through a Constitution Bench in Bachan Singh v. State of Punjab and other connected cases (AIR 1980 SC 898) considered the constitutional validity of death penalty for murder provided under Section 302 IPC. After elaborate discussions, it was found that provision of death penalty as an alternative punishment for murder is not unreasonable and it is in the public interest. Therefore, it was held that the provision in Section 302 IPC violates neither the letter nor ethos of the Constitution.
67. Following this decision, three Judge Bench of the Supreme Court in Machhi Singh v. State of Punjab (AIR 1983 SC 957) held in paragraphs 33 to 35 as follows:
"33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 53 emerge from Bachan Singh's case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime';
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment havng regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
34. In order to apply these guidelines inter alia the following questions may be asked and D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 54 answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
35. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
68. Apex Court in Sushil Sharma v. State of N.C.T. of Delhi ((2014) 4 SCC 317) held thus:
"In the nature of things, there can be no hard and fast rules which the Court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 55 background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the Criminal Court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case."
69. Long and short of the prosecution case is that the accused committed the diabolic crime only to satiate his lust for gold worn by the victim. In other words, lust for the lustorous yellow metal, weighing almost 5 sovereigns, weighed with the accused more the moment he decided to kill the hapless victim for grabing the same. He was in utter penury is no justification for the cold-blooded murder. Large number of injuries inflicted on the victim by using MO6 chopper, as revealed from the post-mortem certificate, expose the work of a devilish mind that he had at that time. No one can dispute the proposition that the accused in this case deserves condign punishment for the murder. The victim was confined in a room and thereafter he rained cut injuries on her face and head only with an intention D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 56 of robbing the gold ornaments. Most relevant aspect is that the accused had no previous enmity towards the victim, not even previous acquaintance. These aspects certainly are relevant considerations. Nevertheless, it is common knowledge that murders for gain are not uncommon in this country. We shall not be wrongly understood as justifying in any way such acts or holding a view that in any such murder for gain capital punishment shall not be given. Quantum and severity of punishment, especially capital punishment, direcly depend on the nature of the crime, brutality with which it was done, nature of the weapon/weapons used, the condition or situation of the victim/victims, the manner in which it was committed, the societal impact of the crime, the antecedents of the offender and the like factors. In this case, the material aspects, revealed from the prosecution evidence, would show that the accused was in dire financial constraints and he was struggling to support a family. Prosecution has no case that he is a hardcore criminal involved in any other offence. Young age of the accused is also a favourable factor. On applying the principles enunciated in the precedents touching on the award of death penalty, we find that this is not a fit case to be classified as the rarest of rare cases warranting a death penalty. We are unable to support the trial court's view that the appellant deserves the extreme punishment. However, brutality with which the murder was committed and motive for the heinous D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 57 crime prompt us to think that imposition of imprisonment for life in the usual course may not be sufficient and it will be a travesty of justice .
70. As we have resolved to do away with the capital punishment, we may bring out one more illegality committed by the trial court in the matter of sentencing. Substantive punishment for murder under Section 302 IPC is either death or imprisonment for life. And in addition to either of the above, fine shall also be imposed. The expression "and shall also be liable to fine" occurring in Section 302 IPC makes it abundantly clear and therefore it becomes mandatory for the courts to impose fine, of course commensurate to the financial condition of the accused. The word "and" employed in the Section does not mean "or" as it may be under certain other situations. In this case, the trial Judge omitted to impose fine for the offence proved under Section 302 IPC, which amounts to an incorrect sentencing for the offence. We will be obliged to correct the mistake, if only we decide to set aside the capital punishment; otherwise addition of fine will amount to enhancement of sentence, which is impermissible in an appeal by the accused. We shall rectify the mistake as shown below.
71. Axiomatic principle that a life imprisonment in terms of Sections 53 and 45 IPC means imprisonment for rest of the life of the convict till his last breath has been reiterated by a Constitution Bench of the Supreme Court in Union of India v. Sriharan ((2016) 7 SCC 1). It has D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 58 been held that life imprisonment in terms of Section 53 read with Section 45 IPC means the entirety of life of the prisoner unless it is curtailed by remissions validly granted under Section 432 Cr.P.C. or Article 72 or Article 161 of the Constitution.
72. Further question considered by the Constitution Bench is whether, as held in Swamy Shraddananda (2) Alias Murali v. State of Karnataka ((2008) 13 SCC 767), a special category of sentence, instead of death, for a term exceeding 14 years and by putting that category beyond the application of remission, can be imposed?
73. In Swamy Shraddananda's case, a three Judge Bench of the Supreme Court, after considering various provisions and precedents, held that there is a good and strong basis for the court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order as the case may be. In that case, the Supreme Court substituted the death sentence given to the appellant by the trial court and confirmed by the High Court by imprisonment for life and further directed that he shall not be released from prison till the rest of his life. Correctness of this direction was also considered by the Constitution Bench in Sriharan's case. Question Nos.(i) and (ii) raised before the Constitiution Bench in Sriharan's D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 59 case are as follows:
"(i) As to whether the imprisonment for life means till the end of convict's life with or without any scope for remission?
(ii) Whether a special category of sentence instead of death for a term exceeding 14 years can be made by putting that category beyond grant of remission?"
We find the discussion on these questions from paragraph 50 to 178. The Constitution Bench, after elaborately considering various provisions of the Cr.P.C. and also the precedents, declared the law lucidly that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and it can be put beyond the application of remission. The majority view expressed in the decision is as follows:
"177. Imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for the rest of the life of the convict. The right to claim remission, commutation, reprieve, etc. as provided under Article 72 or Article 161 of the Constitution will always be available being constitutional remedies untouchable by the Court.
178. We hold that the ratio laid down in Swamy Shraddananda (2) that a special category D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 60 of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative."
Following this decision, another three Judge Bench of the Supreme Court in Tattu Lodhi @ Pancham Lodhi v. State of Madhaya Pradesh (AIR 2016 SC 4295) considered a case where the trial court awarded capital punishment under Section 302 IPC along with punishments for other offences, which was confirmed by the High Court. Supreme Court referring to the principles in Sriharan's case and also observing that the accused was 27 years of age at the time of committing the gruesome offence, substituted death penalty with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment.
74. On applying the legal principles described above to the facts proved in this case, we arrive at the following conclusions:
(i) Prosecution succeeded in establishing beyond reasonable doubt that the accused committed murder of Bindu after confining her in room No.101 in the second floor of her residential building, by cutting with MO6 chopper with an intention to rob the gold ornaments worn by her. The facts and circumstances established by the prosecution D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 61 evidence form a complete chain, without any cleavage, and the evidence lead us only to the guilt of the accused and any hypothesis of his innocence is impossible.
(ii) The accused has committed house trespass in order to commit an offence punishable with death, notwithstanding the fact that he, having lawfully entered the building, has bolted the room and attacked the victim after confining her. Therefore his conviction under Section 449 IPC is perfectly legal. The sentence of imprisonment for life imposed thereunder is also proper, except the quantum of fine.
(iii) Trial court's finding that the accused has committed an offence under Section 347 IPC is justifiable from the evidence adduced and therefore, the conviction and sentence are confirmed.
(iv) In the absence of any charge under Section 394 IPC, conviction of the accused under Section 394 read with Section 397 IPC is bad in law. Hence we set it aside and alter his conviction to one under Section 397 IPC. Punishment shall be indicated in the succeeding paragraphs.
(v) There is no material on record to hold that the accused attempted to cause disappearance of evidence of the offence in any manner. In fact, even according to the prosecution, he left the chopper in the room itself and walked out in front of the material prosecution D.S.R.No.2 of 2012 & Cr.Appeal No.514 of 2012 62 witnesses. Charge under Section 201 IPC is unwarranted in the light of the allegations and evidence in this case. Therefore, we set aside the conviction and sentence under Section 201 IPC.
For the said reasons, we dispose of the Death Sentence Reference and Criminal Appeal with the following directions:
(i) Conviction of the appellant/accused under Section 302 IPC is confirmed. We set aside the death sentence imposed on him and modify the sentence to imprisonment for life and also a fine of `50,000/-
(Rupees fifty thousand only). We further direct that the accused shall not be released from prison till he completes an actual period of 40 (Forty) years of imprisonment. Needless to mention, the nature of imprisonment shall be rigorous. In default of payment of fine, he shall suffer default sentence for a period of one year.
(ii) Appellant shall undergo imprisonment for life for the offence punishable under Section 449 IPC and he shall pay a fine of `50,000/- (Rupees fifty thousand only). In default of payment of fine, he shall suffer default sentence for a period of one year.
(iii) The appellant shall further undergo rigorous imprisonment for seven years under Section 397 IPC and pay a fine of `30,000/- (Rupees thirty thousand only). In default of payment of fine, he shall suffer default sentence for a period of six months. D.S.R.No.2 of 2012
& Cr.Appeal No.514 of 2012 63
(iv) The appellant shall suffer rigorous imprisonment for three years under Section 347 IPC and pay a fine of `5,000/- (Rupees Five thousand only). In default of payment of fine, he shall suffer default sentence for a period of one month.
(v) He is acquitted for offences under Sections 394 and 201 IPC.
The Sessions Court shall take appropriate steps to enforce the modified sentences. Substantive sentences shall run concurrently. If the fine amounts are realised, it shall be paid as compensation to PW13 Ramakrishnan under Section 357(1) Cr.P.C.
The cases are disposed as above. .
P.R.RAMACHANDRA MENON, JUDGE.
A. HARIPRASAD, JUDGE.
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