Kerala High Court
Ashraf @ Alappante Ashraf vs State Of Kerala on 4 January, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
CRL.A NO. 681 OF 2020
AGAINST THE JUDGMENT DATED 09.10.2018 IN SC 845/2016 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI
APPELLANT/ACCUSED:
ASHRAF @ ALAPPANTE ASHRAF,
S/O.HUSSAIN, C-NO.787/18, CENTRAL PRISON,
KANNUR.
ADV.ADITYA SHENOY A.G.(STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
SRI.ALEX M. THOMBRA SR.PP.
THIS CRIMINAL APPEAL HAVING BEEN HEARD ON
15.12.2023, THE COURT ON 04.01.2024 DELIVERED THE
FOLLOWING:
Crl.A. No.681 of 2020 -: 2 :-
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
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Criminal Appeal No.681 of 2020
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Dated this the 4th day of January, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The sole accused in SC No.845 of 2016 on the files
of the Court of Session, Manjeri who stands convicted and
sentenced for the offence punishable under Section 302 of the
Indian Penal Code (IPC) challenges in this appeal, his conviction
and sentence in the said case.
2. The accused was a friend of the deceased Azeez.
On 05.07.2016, at about 7.30 p.m., Azeez along with the
accused checked in a lodge located at Kuttipuram and after
some time, by about 11.30 p.m. on the same day, the accused
left the lodge. By about 12.45 a.m. on the following day, when
a staff of the lodge went to the room adjacent to that of Azeez,
he heard a sound from the room occupied by Azeez and when
he opened the room, he found Azeez lying down on his chest
with his face down. The staff also noticed blood on his clothes.
On receiving information from the staff, the Manager of the
lodge rushed to the lodge and took Azeez to the nearby
hospital, after informing the matter to the police. As the
condition of Azeez was found to be serious, he was referred to
a higher medical centre from the hospital he was taken to, and
accordingly, the Manager of the lodge took Azeez to the
Medical College Hospital, Kozhikode. The victim passed away
on the way to the Medical College Hospital.
3. A case was registered in connection with the
occurrence by Kuttippuram Police at 5.35 a.m. on 06.07.2016
as Crime No.270 of 2016 on the basis of the information
furnished by one Riyas, a staff of the lodge and the case was
investigated by the then Circle Inspector of Police, Valancherry.
After investigation, final report has been filed against the
accused alleging commission of the offence punishable under
Section 302 of the Indian Penal Code (IPC). The case set out
against the accused in the final report is that on account of the
enmity of the accused towards the deceased for having
required the accused to return the amounts borrowed from the
deceased, and to avoid repayment of the said borrowed
amounts, at about 11 p.m. on 05.07.2016, the accused
attacked the deceased in the room of the lodge which was
being occupied by the deceased, inflicted injuries on him,
strangled him and also suffocated him by pressing a pillow on
his face and left the scene believing that the victim was no
more.
4. As the accused denied the charge framed and
read over to him by the Court of Session when committed for
trial, the prosecution examined 27 witnesses as PWs 1 to 27
and proved through them Exts.P1 to P34 series documents.
MOs 1 to 8 are the material objects identified by the witnesses.
As the Court of Session did not find the case to be one fit for
acquittal under Section 232 of the Code, although the accused
was called upon to enter on his defence, the accused chose not
to adduce any evidence. The Court of Session, thereupon, on
an appraisal of the materials on record including the
explanation offered by the accused to the incriminating
circumstances brought on record in the prosecution evidence
against him, found the accused guilty of the offence, convicted
him and sentenced him to undergo imprisonment for life and to
pay fine. The appellant is aggrieved by the decision of the
Court of Session.
5. Heard the learned counsel for the accused as
also the learned Public Prosecutor.
6. The learned counsel for the accused submitted
that there is no direct evidence in the case to prove the
occurrence and the prosecution is relying only on
circumstances to prove the guilt of the accused. According to
the learned counsel, the circumstances proved in the case do
not establish the guilt of the accused beyond reasonable doubt.
It was also argued by the learned counsel alternatively that
even assuming that the circumstances proved in the case are
sufficient to establish that it is the accused who inflicted
injuries on the deceased in the manner alleged by the
prosecution, inasmuch as the accused did not cause the death
of the victim by the act committed by him, the accused cannot
be convicted for the offence punishable under Section 302 IPC.
It was also the submission of the learned counsel that even
assuming that the death of the victim was caused by reason of
the act committed by him, the accused cannot be convicted for
the offence of murder punishable under Section 302 IPC and
that at the most, he could be punished only for the offence
punishable under Section 304 IPC.
7. Per contra, the learned Public Prosecutor
asserted that the circumstances proved in the case would not
only establish that it is the accused who caused the death of
the victim, but also that the accused had the intention to cause
the death of the victim. According to the learned Public
Prosecutor, in the circumstances, the conviction of the accused
under Section 302 IPC is perfectly in order.
8. The points that arise for consideration are (i)
whether the prosecution has established beyond reasonable
doubt that it was the accused who caused the death of the
victim and (ii) if so, the offence, if any, committed by him.
9. Points: Before dealing with the points, it is
necessary to consider whether the death of the victim was a
homicide. There is no dispute to the fact that both the accused
and deceased were friends and they checked in together at the
lodge at about 7.30 p.m. on 05.07.2016. PW6 is the doctor who
examined the victim at about 2.30 a.m. on 06.07.2016 in the
nearby hospital where the deceased was taken first. PW6
deposed that at the relevant time, the deceased was
unconscious and was in a gasping stage and it is on account of
the said reason that he was immediately referred to a higher
medical centre. As already noticed, by the time the deceased
was taken to the Medical College Hospital, Kozhikode, he died.
PW7 is the doctor who conducted the post-mortem examination
on the body of the deceased. PW7 deposed that the deceased
died of asphyxia due to compressive force on the mouth, nose
and neck. Ext.P10 is the post-mortem certificate issued by
PW7. There was no serious challenge to the evidence tendered
by PW7 as regards the cause of death of the victim. The
evidence aforesaid would conclusively establish that the death
of the victim was a homicide, and the finding rendered by the
Court of Session in this regard is in order.
10. PW1 was the receptionist of the lodge where
the deceased along with the accused had checked-in on the
date of the occurrence. PW1 identified the accused in court.
PW1 deposed that it was he who completed the formalities for
their check-in at the lodge. It was the evidence of PW1 that it is
the deceased who gave his voters identity card for the said
purpose and they were allotted Room No.110. PW1 deposed
that after some time, the accused and the deceased required
him to provide water in the room, and by about 9 p.m., he gave
water to them. PW1 deposed that he then noticed that one
tooth each of the accused on the front upper and lower rows
were missing and when he went to the room for giving them
water, the deceased entrusted to PW1 his passbook and ID
card, after keeping the same in a red cover. PW1 deposed that
by about 11.30 p.m., the accused came down to the reception
and informed him that he is going out for food and kept the key
of the room on the counter stating that the deceased is
sleeping. PW1 deposed that by about 12.45 a.m. on the
following day, one Reji came to the lodge for a room and he
was allotted Room No.101. PW1 deposed that after some time,
when he went to the room allotted to Reji to provide him a
mosquito repellent, he heard a sound from the room occupied
by the deceased and when he opened the room with the key
entrusted to him by the accused earlier at the counter, he
found that the deceased was lying on the floor on his chest
with his face down. PW1 deposed that he also observed then
that there was blood on the dhoti worn by the deceased and
also that the position of the cot in the room was changed
disorderly. PW1 deposed that he immediately informed the
matter to the Manager of the lodge, who came about an hour
later along with another person and took the victim to the
hospital, after informing the matter to the police. PW1 deposed
that when the victim was taken to the hospital, he was in a bad
state of health. PW1 deposed that after sometime he was
informed by the Manager that Azeez died at about 5 a.m. PW1
is the person who gave Ext.P1 First Information Statement, on
the basis of which the case was registered and PW1 identified
his signature in Ext.P1 statement.
11. PW2 was the Manager of the lodge. PW2 gave
evidence more or less on the same lines of the evidence
tendered by PW1. In addition, PW2 deposed that it is he who
took Azeez in an ambulance to Nadakkavu Hospital first and
then to the Medical College Hospital, Kozhikode and that Azeez
died on the way to the Medical College Hospital, Kozhikode.
PW4 is the friend of the deceased. PW4 deposed that he found
the deceased along with the accused on the afternoon of the
day previous to the date of occurrence at Ponnai. PW5 is the
Manager of another lodge. PW5 deposed that the accused and
the deceased came to the lodge where he was working for a
room at about 6.30 p.m. on 05.07.2016 and that he did not
give them a room as he found their conduct to be suspicious.
PW5 also deposed that he particularly noticed them as they
abused him for not providing them a room. PW5 also deposed
that the police verified the CCTV footage in his lodge.
12. PW8 was a doctor attached to the Taluk
Headquarters Hospital, Malappuram. PW8 was examined by the
prosecution to prove that he collected the blood sample of the
accused and handed over the same to the police for forensic
examination. PW9 is the Scientific Officer attached to the
District Crime Records Bureau, Kozhikode, who deposed that
she visited the place of occurrence and collected the various
articles found therein and handed over the same to the police.
PW11 was the Manager of the Town Branch of Ponnani Service
Co-operative Bank where the deceased was maintaining an
account. She deposed that on 05.07.2016, the deceased
withdrew a sum of Rs.10,000/- from his account. PW14 is also a
friend of the deceased and he deposed that on the previous
day, he had tea with the deceased and the accused in the shop
of one Kumaran located at Ponnani town. PW17 is a meat
merchant at a place called Pulikkalkadavu. PW17 is also a
person who is known to the deceased. PW17 deposed that on
the previous day of the occurrence, when the deceased was
standing in his shop, the accused came there and sought
Rs.10,000/- from him, assuring that he will return the same in
two days time.
13. PW26 is the police officer who commenced the
investigation in the case and PW27 is the police officer who
concluded the investigation in the case and submitted the final
report. Ext.P32 series are the list of properties seized by the
investigating officer during the investigation and Ext.P33 is the
note submitted by the investigating officer for forwarding the
seized objects for forensic examination. Ext.P34 is one of the
reports of the forensic science laboratory. Ext.P32 series have
been proved by PW26 and Exts.P33 and P34 have been proved
by PW27.
14. The oral evidence of the witnesses referred to
above would establish beyond reasonable doubt that it is the
accused who accompanied the deceased to the lodge at about
7.30 p.m. on 05.07.2016 and stayed with the deceased till
about 11.30 p.m. on that day. The accused does not dispute
this fact. In the course of his examination under Section 313 of
the Code, the accused has in fact admitted that he was very
much with the deceased on the relevant day and that he left
his company only at night. Of course, the accused did not state
that he stayed with the deceased in the room from 7.30 p.m. to
11.30 p.m. Ext.P32 series property lists indicate that the
objects collected from the scene include a butt of beedi. Sl.No.6
of Ext.P33 is the said beedi butt. Item No.6 of Ext.P34 report of
the forensic science laboratory is the beedi butt referred to in
Ext.P33. Item No.14(a) in Ext.P34 is the blood sample of the
deceased and item No.16 in Ext.P34 is the blood sample of the
accused. It is certified in Ext.P34 that item No.6 partly burnt
beedi butt contains a mixture of the DNA profiles of the
deceased extracted from item No.14(a) and the DNA profiles of
the accused extracted from item No.16. Ext.P34 report rules
out all doubts as regards the presence of the accused with the
deceased in the room on the relevant day and reinforces that it
was the accused who was present with the deceased in the
room of the lodge. As noted, PW1 has categorically stated in his
evidence that when the accused left the lodge by about 11.30
p.m. on that day, he informed PW1 that he is going out to eat
food; that the deceased is sleeping and that the accused
handed over the key of the room to PW1. There is absolutely no
reason to suspect the veracity of the evidence tendered by
PW1. In other words, there was no occasion for anybody else
to enter the room after the accused left the room.
15. There cannot be any doubt to the proposition
that the burden to prove the guilt of the accused beyond
reasonable doubt is on the prosecution. Section 106 of the
Indian Evidence Act, of course, provides that when any fact is
especially within the knowledge of any person, the burden of
proving that fact is upon him. In the context of criminal trials,
the Apex Court has observed in Shambu Nath Mehra v. State of
Ajmer, 1956 SCC OnLine SC 27 that Section 106 is designed to
meet certain exceptional cases in which it would be impossible
for the prosecution to establish certain facts which are
particularly within the knowledge of the accused. The relevant
observation reads thus:
"This lays down the general rule that in a criminal case the
burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts which are
"especially" within the knowledge of the accused and which
he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are
pre-eminently or exceptionally within his knowledge."
No doubt, Section 106 would apply only to cases where the
prosecution has succeeded in proving certain facts from which
a reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused, by virtue of the special
knowledge regarding such facts, offers any explanation which
might drive the court to draw a different inference. In the
instant case, the prosecution has proved beyond reasonable
doubt that the accused checked-in at the room of the lodge
along with the deceased at about 7.30 p.m. on 05.07.2016;
that he remained with the deceased in the room till about
11.30 p.m. and that he left the room after locking the same
from outside in the pretext that the deceased was sleeping
inside the room. As we have already found, there was no
occasion for anybody else to enter the room after the accused
left the room, especially since the key of the room was handed
over to PW1 by the accused at the reception of the lodge.
Inasmuch as PW1 found the deceased in the room almost
within an hour after the accused had left the room in the state
referred to by PW1 in his evidence, according to us, it can
certainly be inferred that the accused is responsible for the
state in which the deceased was found by PW1, applying
Section 106 of the Indian Evidence Act.
16. As noted, the accused who was very much
present with the deceased in the room of the lodge till about
11.30 p.m. on 05.07.2016, in the absence of any occasion for
anybody else to enter the room after the accused left the room,
is obliged under law to disclose to the court as to the cause of
death of the victim or at least offer an explanation as to how
the deceased suffered the various ante-mortem injuries
deposed to have been noted by PW7 at the time of post-
mortem examination. As already noticed, no explanation
whatsoever has been given by the accused in this regard. In
the circumstances, according to us, it can be safely concluded
that it is the accused who caused the act/acts which resulted in
the death of the victim.
17. The next point is as to the offence committed
by the accused. The evidence tendered by PW7 is that the
victim died of asphyxia due to compressive force on the mouth,
nose and neck. The various ante-mortem injuries deposed to
have been noted by PW7 at the time of post-mortem
examination are the following:
1. 'Stellate' shaped lacerated wound 3x2x0.3cm on right side of
head, 6cm above top of ear over the parietal eminence. Scalp
contusion 20x15x0.3cm on the right fronto temporo parietal
region, underlying skull bone was intact.
2. Three small lacerated wounds over an area 2x2x0.3cm on the
superior orbital margin of right eye, 9cm away from midline. Size
of the wounds seen ranging from 0.5x0.5x0.3cm to
1.5x0.5x0.3cm.
3. Lacerated wound 4x1x0.5cm, transversely placed on the superior
orbital margin of left eye along the outer half of eyebrow.
Subcutaneous tissue underneath the area showed blood
infiltration for 7x5x0.3cm.
4. Contusion 1x1x0.5cm on the tip of nose.
5. Contusion of upper lip 4x4x0.5cm involving the inner aspect and
its mucosa, incorporating a lacerated wound 1x1x0.5cm at the
central region. Inner aspect of lower lip also contused over an
area 4x3x0.5cm and incorporating a lacerated wound
0.5x0.5x0.5cm on the right side, 1.5cm away from midline.
Multiple contusions seen on the gums of teeth. There was a
contusion 1x1x0.5cm on the tip of tongue.
6. Contusion 15x9x1cm on the right side of face and neck including
pinna of ear. Margins were illdefined. Lower margin was in
continuity with a huge contusion 22x10x1cm on front of neck.
Flap dissection of neck was done under bloodless field,
subcutaneous tissue and strap muscles underneath the
contusion showed thick blood infiltration. Fracture of left greater
horn of hyoid bone noted. Laryngeal oedema and contusion
present. Air passages contained blood and froth.
7. Lacerated wound 2x0.5x0.2cm along the upper margin of the
pinna of left ear, cartilage at this region was crushed and
exposed.
8. Contusion 5x3x0.5cm on the outer aspect of right arm, 13cm
below tip of shoulder.
9. Superficial skin contusion 3x1.5cm on the outer aspect of left
arm, 11 cm below tip of shoulder.
10. Superficial skin contusion 10x2.5cm on the front of left side of
chest over the collar bone.
11. Chest wall contusion 15x10x0.5cm on the back aspect on left
side; extending from third to 6 th inter costal space; 5cm away
from midline. Ribs were intact.
PW7 also deposed that both lungs of the deceased were found
congested and oedematous. Similarly, PW7 deposed that both
kidneys of the deceased were congested. Even though PW7 did
not depose as to how he arrived at his opinion as regards the
cause of death of the victim in his chief-examination, in cross-
examination, it was clarified by PW7 that facial congestion,
oedema, congestion of all the internal organs, especially lungs
are the characteristic findings of death due to asphyxia and it
was on that basis that he came to the opinion as to the cause
of death of the victim. We do not find any reason to doubt the
veracity of the medical opinion given by PW7. If the medical
opinion given by PW7 is accepted, it has to be found
necessarily that the accused applied compressive force on the
mouth, nose and neck of the deceased. The application of
compressive force on the neck of the deceased is evident from
injury No.6 noted by PW7 also, especially the size of the
contusion noted by PW7 in the said injury on the front neck of
the deceased. Needless to say, it can be inferred from the
opinion given by PW7 and the post-mortem certificate issued
by him that the accused had the intention to cause the death
of the victim, otherwise, there is absolutely no reason for him
to apply compressive force of such a dimension on the neck of
the victim. It has come out from the evidence of PW1 that after
assaulting the deceased, the accused casually closed the door
of the room from outside and left the scene, which would also
indicate that the accused spared the deceased only after
ensuring that he is no more, as alleged by the prosecution. The
said subsequent conduct of the accused also fortifies our stand
that the accused had the necessary intention to cause the
death of the victim. If the accused had the intention to cause
the death, and when the act was one performed by him with
the said intention, there cannot be any doubt that the offence
made out is the offence punishable under Section 302 IPC.
In the circumstances, there is no merit in the appeal
and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
YKB
