Kerala High Court
State Of Kerala vs Muhammed Ameer-Ul Islam on 20 May, 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 S.MANU
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
DSR NO. 2 OF 2018
AGAINST THE JUDGMENT DATED 12.12.2017 IN SC NO.662 OF
2016 ON THE FILES OF THE COURT OF SESSION/SPECIAL JUDGE
FOR SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989 AS AMENDED BY ACT 1 OF 2016,
ERNAKULAM DIVISION
PETITIONER:
STATE OF KERALA
BY N.K.UNNIKRISHNAN, SPECIAL PUBLIC PROSECUTOR
RESPONDENT:
MUHAMMED AMEER-UL ISLAM
AGED 22 YEARS, S/O. NIZAMUDHEEN, RAMPURSATHRA
PANCHAYATH, WARD NO.8, NEAR BAITHUR MUHARAM JUMA
MASJID, DOLDAGRAMAM, NAGAON DISTRICT, ASSAM
STATE.
BY SR.ADV.SASTHAMANGALAM S. AJITHKUMAR
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY
HEARD ON 12.04.2024, ALONG WITH CRL.A.113/2018, THE COURT
ON 20.05.2024 DELIVERED THE FOLLOWING:
D.S.R. No.2 of 2018
&
Crl.A. No.113 of 2018 -: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
CRL.A NO. 113 OF 2018
AGAINST THE JUDGMENT DATED 12.12.2017 IN SC NO.662 OF
2016 ON THE FILES OF THE COURT OF THE PRINCIPAL SESSIONS
JUDGE, ERNAKULAM
APPELLANT/ACCUSED:
MUHAMMAD AMEER-UL-ISLAM
S/O.NIZAMUDHEEN, AGE 23 YEARS, OCC: LABOURER,
R/AT-RAMPURSATHRA PANCHAYATH, WARD NO.8, NEAR
BAITHUR MUHARAM JUMA MASJID, DOLDAGRAMAM,
DISTRICT NAGOAN, STATE: ASSAM.
BY ADVS.
SASTHAMANGALAM S. AJITHKUMAR (SR.)
RAYJITH MARK
SREEJITH S. NAIR
V.S.THOSHIN
P.A.MEERA
E.A.HARIS
SATHEESH MOHANAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH SUB INSPECTOR OF POLICE, KURUPPAMPADI
POLICE STATION, ALUVA, ERNAKULAM, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY N.K.UNNIKRISHNAN, SPECIAL PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 12.04.2024, ALONG WITH DSR.2/2018, THE COURT ON
20.05.2024 DELIVERED THE FOLLOWING:
D.S.R. No.2 of 2018
&
Crl.A. No.113 of 2018 -: 3 :-
C.R.
P.B.SURESH KUMAR & S.MANU, JJ.
-----------------------------------------------
Death Sentence Reference No.2 of 2018
&
Criminal Appeal No.113 of 2018
-----------------------------------------------
Dated this the 20th day of May, 2024
JUDGMENT
P.B.Suresh Kumar, J.
We are called upon in these cases to adjudicate the
sustainability of the conviction and the death sentence
imposed on the accused in a horrifying case of rape and
murder. The facts are deeply disturbing and represent an
egregious violation of human dignity and sanctity of life, for
after committing rape in an inhumane manner, the victim has
also been murdered horrendously. Its impact on the society was
profound and far reaching as it instilled not only fear, but also a
sense of vulnerability, particularly amongst women. It eroded
the trust reposed in institutions responsible for ensuring public
safety. It sparked public outrage and calls for justice, leading to
&
demands for reforms in law, policies and social attitudes
towards violence against women and vulnerable groups. No
doubt, social impact of a crime of this nature needs to be
tackled through a multifaceted approach including judicial
response by holding the perpetrators accountable through a
fair trial and appropriate sentencing, in order to give a strong
message that such acts will not be tolerated by the society. Let
us examine the sustainability of the conviction and sentence
imposed on the accused, keeping in mind the background
aforesaid of the case.
Background
2. The Death Sentence Reference and Criminal
Appeal arise from S.C.No.662 of 2016 on the files of the Court
of the Special Judge for Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Ernakulam. The sole accused in
the case stands convicted for the offences punishable under
Sections 449, 342, 376, 376A and 302 of the Indian Penal Code
(IPC) and sentenced among others, to death. Since the trial
court passed a sentence of death, the proceedings has been
submitted to this Court for confirmation in terms of Section
366(1) of the Code of Criminal Procedure, 1973 (the Code). The
&
appeal is instituted by the appellant challenging his conviction
and sentence.
3. Inasmuch as the conviction of the accused and
the sentence imposed on him are under challenge, it is
necessary to consider the sustainability of the conviction and
sentence before dealing with the DSR. The accused who is a
native of Assam was a migrant labourer. He was residing during
April, 2016 at Vaidyasalapadi near Perumbavoor. The accused
was aged 22 years then. The victim, a 30 year old law student
was one who was brought up in an impoverished background
by her mother, and the latter was deserted by her husband
during the early childhood of the victim. The victim and her
mother were since then residing in a small three room house
put up in the puramboke land on the side of an Irrigation Canal
in a place named Vattolipady near the place where the accused
was residing. The mother of the victim belongs to Ezhava
Community and her father belongs to Pulaya Community, a
Scheduled Caste.
4. On 28.04.2016, the victim was alone in the
house during day time, as her mother had gone to visit on that
day, some of her acquaintances. When the mother returned
&
home by about 8.30 p.m., the front door of the house was
found to be locked from inside and there was no response from
the victim when she was called out. The mother then informed
the matter to one of her neighbours and he, in turn, informed
the matter to the police. The Sub Inspector of Police,
Kuruppampady who was on patrol duty came to the house of
the victim forthwith, and on a search made by him, it was
found that the back door of the house was kept ajar. When the
Sub Inspector of Police entered the house through the back
door, he found the body of the victim in the middle room lying
in a pool of blood, half naked with grievous injuries throughout
her body. A part of the internal organs of the victim was also
seen pulled out. A case was registered immediately on the
basis of the statement given by the member of the Panchayat
who was also present at the house when the body was found
by the Sub Inspector of Police. The investigation in the case
revealed that it was a case of rape and murder committed by
the accused, and final report was accordingly submitted in the
case, alleging commission of offences punishable under
Sections 449, 342, 376, 376A, 302 and 201 IPC and Sections
3(1)(a), 3(1)(w)(i) & (ii) and 3(2)(v) of the Scheduled Castes
&
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Prosecution Case
5. The case of the prosecution as disclosed in the
final report is that on 28.04.2016, between 5.30 p.m. and 6
p.m., the accused barged into the house of the victim with the
intention to rape her; that when the victim resisted his attempt
to rape her, the accused covered her nose and mouth; that
when the victim continued to resist the attempt of the accused,
he bit her on her left shoulder after strangulating her with a
churidar shawl that was on her neck; that when the resistance
on the side of the victim continued, the accused became
frustrated and out of such frustration and vengeance, he
mercilessly attacked the victim with a knife which he carried;
that one of the injuries inflicted by the accused to the victim
includes a grievous penetrating injury deep inside her genitals
caused by inserting the knife repeatedly through her vagina in
such a manner that a portion of her internal organs came out of
the body. It was alleged by the prosecution that after
committing the crime, the accused left the house through its
back door, walked towards the canal, threw away the knife to
&
the property on the northern side of the house, crossed the
canal to reach the southern side of canal-bund road and
escaped to his home State, Assam, by catching a train from
Aluva Railway Station, in the early hours of the following day.
Proceedings before the trial court
6. On the accused being committed to trial, the
trial court framed charges against him for the offences
punishable under Sections 449, 342, 376, 376A, 302 and 201
IPC and Sections 3(1)(a), 3(1)(w)(i) & (ii) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. When the charges were read over and
explained to the accused, he denied the same and pleaded not
guilty.
7. The prosecution, thereupon, examined 100
witnesses as PWs 1 to 100 and proved through them 291
documents as Exts.P1 to P291 series. MOs 1 to 36 were the
material objects identified by the witnesses. Exts.D1 to D14
were the documents proved by the accused through the
prosecution witnesses.
8. After closing the evidence, when the
circumstances appearing against the accused in the evidence
&
of the prosecution were put to the accused, he admitted that (i)
he was residing at Vaidyasalapadi prior to the date of
occurrence in the building of PW10; (ii) that his mobile phone
number is 8893608594; (iii) that the mobile number of his
brother, PW79 is 9633892260; (iv) that the mobile number of
his mother is 9126556923; (v) that he was taken into custody
by the police from Kanchipuram and; (vi) that he was using
mobile number 7397097067 at Kanchipuram. In the context of
the evidence tendered by PW55, the doctor who examined the
accused on 17.06.2016, that he noted a healed injury on the
right index finger of the accused, the explanation offered by
the accused while being questioned under Section 313 of the
Code is that the said injury was caused by one Rajan Mesthiri
using a knife. The answer given by the accused in this regard
reads thus:
"കൂലലി തർക്കതത്തെ തുടർനന്ന് രരാജൻ മമേശലിരലി എതന കത്തെലി തകരാണന്ന് മുറലിവന്ന് ഏലലിച്ചതരാണന്ന് ഉണങലിയ
മുറലിവരായലി കണതന്ന് . മേറ്റുള്ള കരാരരര്യം അറലിയലില."
When the accused was asked whether he wants to state
anything in addition during his examination under Section 313
of the Code, he prayed for an opportunity to file a written
statement, and thereupon, he filed a written statement reciting,
among others, that the victim was murdered by Anarul Islam
&
and Hardath Baruwa; that since they are his friends and since
he had already planned to leave to his native place on the
following day and also since he suffered an injury on his hand,
he worked till the afternoon and left the locality after collecting
money from his brother. The relevant portion of the said
statement reads thus :
"അനരാറുൾ ഇസരാമുര്യം ഹർദത്തെന്ന് ബർവയര്യം 27.04.2016-)o തതീയതലി സര്യംഭവസ്ഥലത്തെന്ന് വലിവരലിക്കുന
വതീടലിൽ തവച്ചന്ന് ഒരു തപെൺകുടലിതയ തകരാലപെരാതകര്യം തചെയ്യുകയര്യം ശരതീരത്തെലിൽ ആകമേരാനര്യം മുറലിവുകൾ
ഏൽപലിക്കുകയര്യം തചെയ്തു എനറലിഞ്ഞതു തകരാണര്യം ടലിയരാർ എൻ്ന്ന്തറ കൂട്ടുകരാർ ആയതുതകരാണര്യം
പെലിമറ്റേദലിവസര്യം ഉച്ചവതര പെണലിക്കു മപെരായലി നരാടലിമലക്കന്ന് മപെരാകരാൻ തതീരുമേരാനലിച്ചലിട്ടുള്ളതുര്യം ആയതലിനുമശഷര്യം
പെലിമറ്റേദലിവസര്യം ഞരാൻ പെതലിവുമപെരാതല മജരാലലിക്കന്ന് മപെരായലി . ആ സമേയര്യം മുതലരാളലി എമനരാടന്ന് വഴക്കടലിക്കുകയര്യം
തലിരലിതക വതീടലിൽ എത്തെലിയമശഷര്യം സമഹരാദരതന കണന്ന് 2,000/- രൂപെ വരാങലി, എൻ്ന്ന്തറ കകയന്ന് പെരലിക്കു
പെറ്റേലിയതലിനരാലര്യം മമേൽപറഞ്ഞ പ്രശ്നങൾ നലിലനലിൽക്കുനതലിനരാലര്യം ഞരാൻ തലിരലിതക സസ്വനര്യം നരാടലിമലക്കന്ന്
മപെരായലിട്ടുള്ളതരാണന്ന് "
As the court did not find the case to be one fit for acquittal in
terms of Section 232 of the Code, the accused was called upon
to enter on his defence, and at that stage, the accused
examined five witnesses on his side as DWs 1 to 5 and marked
through them five additional documents, viz, Exts.D15 to D19.
Decision of the trial court
9. The trial court, thereupon, on an appraisal of
the evidence on record, found that the accused is not guilty of
the offences punishable under Section 201 IPC and Sections
3(1)(a), 3(1)(w)(i) & (ii) and 3(2)(v) of the Scheduled Castes
&
and Scheduled Tribes (Prevention of Atrocities), Act, 1989 and
acquitted him of the charges framed for the said offences. He
was, however, found guilty of the offences punishable under
Sections 449, 342, 376, 376A and 302 IPC and sentenced him,
among others, to death. The accused is deeply aggrieved by
his conviction and sentence.
Proceedings before this Court
10. Heard the learned Senior Counsel for the
accused as also the learned Special Public Prosecutor.
11. The learned Senior Counsel for the accused
made elaborate submissions on facts as also on principles of
law involved in the case. We are not referring to the arguments
advanced by the learned Senior Counsel here, as we propose to
deal with the same elaborately in the course of our discussion
on the legal and factual aspects involved in the case. Suffice it
to say that the essence of the submissions made by the
learned Senior Counsel was that the prosecution has not
proved the guilt of the accused beyond reasonable doubt,
going by the standards prescribed for cases on circumstantial
evidence. The learned Special Public Prosecutor refuted every
argument advanced by the learned Senior Counsel and
&
supported the impugned judgment, pointing out that the
evidence let in by the prosecution would establish beyond
reasonable doubt, the charges against the accused on which he
has been found guilty. The learned Special Public Prosecutor
has also asserted that in the peculiar facts of this case, the
sentence of death was warranted and rightly awarded by the
trial court.
12. In the light of the submissions made by the
learned counsel for the parties on either side, the point that
falls for consideration is whether the conviction of the accused
for the offences punishable under Sections 449, 342, 376, 376A
and 302 IPC, and the sentences imposed on him including the
sentence of death, are sustainable in law.
13. In order to examine the sustainability of the
conviction of the accused, it is necessary to scrutinise the
relevant evidence.
Oral evidence
14. PW1 is the member of the Panchayat on whose
statement, the case was registered by the Kuruppampady
police. PW1 is a person who knew the victim as also her
mother. PW1 deposed that when he proceeded to the house of
&
the victim on receiving information about the murder, the
police party had reached the house of the victim and they had
shown to him the dead body of the victim in the middle room of
the house. PW1 also deposed that the Sub Inspector of Police
then required him to come to the police station and
accordingly, he went to the police station and gave Ext.P1 first
information statement at about 9.30 p.m. on the same day.
PW2 is the mother of the victim. PW2 deposed that she left
home at about 10 a.m. on the date of occurrence, leaving the
victim alone at home, to meet some of her acquaintances and
that when PW2 returned at about 8.30 p.m., there was no light
in the house and when she knocked at the door and called out
the victim, there was no response. PW2 deposed that she then
called PW28, one of her neighbours, and there was no response
from the victim even when PW28 and other neighbours who
had gathered called out her name. PW28 then called the police
and the police reached the house in no time. PW2 deposed that
the police after going to the rear side of the house, took PW2 to
Perumbavoor Government Hospital, and on the next day, she
saw the dead body of the victim at the crematorium. PW2
identified MO9 as the churidar bottom and MO10 as the top of
&
the churidar worn by the victim on the date of occurrence. PW2
also identified MO11 as the shawl of the victim. The evidence
tendered by PW2 was corroborated by PW28. In addition, PW28
deposed that the police went to the rear side of the house and
then told him that the victim was lying dead in the house.
15. PW93 was the Sub Inspector of Police,
Kuruppampady police station during the relevant period. PW93
deposed that on 28.04.2016, at about 8.45 p.m., while he was
on patrol duty, PW59, the Police Officer who was in charge of
the General Diary in the Police Station called him over
telephone and informed that the door of a house at Vattolipady
is not being opened, and when he proceeded to that house,
there was no light there and when he proceeded to the rear
side of the house with a torch, it was noticed that the back door
of the house was kept ajar. When he entered the house, he
found the body of a girl lying still in a pool of blood in a half
naked position in the middle room of the house with injuries
throughout her body and that a shawl was tied around her
neck. It was also deposed by PW93 that when he examined the
body with the aid of the torch carried by him, it was found that
the person was no more. The relevant portion of the evidence
&
tendered by PW93 in this regard reads thus:
"മടരാർച്ചുതകരാണന്ന് വരാതലിൽ തള്ളലി തുറന്നു മടരാർച്ചടലിച്ചു മനരാക്കലി . നടുമുറലിയലിൽ ഒരു തപെൺകുടലി മചെരാരയലിൽ
കുളലിച്ചു അർദ്ധനഗ്നയരായലി അനക്കമേലിലരാതത കലിടക്കുനതു കണ ഞരാൻ മേരാതര്യം അകത്തു കയറലി
ശരതീരത്തെലിൽ മടരാർച്ചന്ന് അടലിച്ചു ബരാക്കലി ശരതീരത്തെലിൻ്ന്ന്തറ പെല ഭരാഗങളലിലരായലി മുറലിവുകമളരാതട രകര്യം
വരാർന്നു മേരലിച്ചു കലിടക്കുനതരായലി കണ. കഴുത്തെലിൽ ഒരു ഷരാൾ ചുറ്റേലി മുറുക്കലിയലിരലിക്കുനതരായലി കണ.
ചുരലിദരാറലിൻ്ന്ന്തറ top വയറു കരാണത്തെക്കവലിധര്യം മുകളലിമലക്കന്ന് തതറുത്തു വച്ചലിരലിക്കുനതരായലി കണ.
ചുരലിദരാറലിൻ്ന്ന്തറ bottom വുര്യം ഷടലിയര്യം വലതു കരാലലിൽ നലിന്നുര്യം പൂർണമേരായലി ഊരലി ഇടതുകരാൽ മുട്ടുവതര
ഇറക്കലി വച്ചലിരലിക്കുനതരായലി കണ."
It was also deposed by PW93 that when he came out through
the rear door of the house, he found PW1 there and PW93 had
shown to him also, the dead body of the victim. PW93 further
deposed that he immediately contacted the police station and
directed to send persons to guard the scene, and as PW2 had
no other place to go, he made arrangements to shift PW2 to the
hospital. PW93 deposed that he left the scene after instructing
PW18 and one Siraj who came in the meanwhile, to guard the
scene. PW93 also deposed that thereupon, he registered the
crime after recording the statement from PW1. PW93 identified
MO9 churidar bottom, MO10 churidar top and MO11 shawl as
the clothes found on the body of the deceased when he saw
the body for the first time.
16. PW59 was the police officer who was in charge
of the General Diary of the Kuruppampady Police Station on
28.04.2016 and he corroborated the evidence tendered by
&
PW93 as regards the information passed on to PW93 by him.
PW18 was the police officer who was on guard duty at the
house of the victim on the night of 28.04.2016. PW18 deposed
that when he reached the house of the victim as required by
the Police Officer in charge of the General Diary, the Sub
Inspector of Police had already reached the house of the victim
and PW18 guarded the scene till 8 a.m. on the following day.
PW19 was the police officer who took over the guard duty of
the scene of occurrence from PW18 and guarded the scene
thereafter, and he deposed the said fact in his evidence.
17. PW6 is a neighbour of the victim and she
deposed that she saw the victim between 9 a.m. and 10 a.m.
on 28.04.2016, when the victim came to draw water from a
public tap near her residence and that the victim was wearing
a churidar at the said time. PW7 is another neighbour of the
victim who deposed that he saw the victim carrying water from
the public tap by about 5 p.m. on 28.04.2016. PW7 also
confirmed that the victim was wearing a churidar then.
18. PWs 3, 4 and 5 were persons residing in the
neighbourhood of the house of the victim during the period of
the occurrence. All of them had close acquaintance with the
&
victim and her mother. The house of PW3 is on the south and
the house of PW5 is on the east of the house of the victim. The
house of PW4 is one located on the west of the house of PW3
and there is a road separating the houses of PW3 and PW4.
PW3 deposed that she saw the victim carrying water to her
house on the date of occurrence at about 9.30 a.m., and at
about 5.30 p.m., she received a call from her sister and after
the conversation, while standing in front of her house, she
heard a screaming sound of a lady from the northern side of
her house. It was also deposed by PW3 that while she was
trying to locate the place from where the screaming sound was
heard, PW5 approached her house and enquired with her as to
the place from where the said sound arose and she replied to
PW5 that it was from the direction of the house of the victim.
PW3 deposed that while so, both of them heard the sound of
the door of the house of the victim being closed. PW3 deposed
that by that time, PW8 came along that way in a bicycle and
enquired with them as to the reason for being outside their
houses. PW3 deposed that at that time, PW4 was standing on
the road separating their houses and PW5 replied to PW8 that a
screaming sound was heard from the house of the victim. It
&
was deposed by PW3 that PW8 left the scene right then,
remarking that there is nothing unusual to hear such sounds
from the house of the victim. PW3 deposed that by that time,
PW4 also came to the courtyard of her house and enquired with
them as to the place from where the screaming sound arose
and PW3 replied that it was from the house of the victim. PW3
deposed that when PW4 left, PW3 moved towards PW5 to
continue the conversation and PW5 then told her that she saw
someone bending down and standing up in the backyard of the
house of the victim. PW3 deposed that after PW5 had left, she
moved further towards the house of the victim and she then
saw a person proceeding from the rear side of the house of the
victim. PW3 deposed that after moving a little further, the said
person got into the canal by holding the 'Vattamaram' tree
that stood upright there. PW3 deposed that he was a
short person and was wearing a yellow shirt then. PW3
identified the accused as the said person who proceeded
from the house of the victim on the relevant day. PW3 also
deposed that she identified the accused in the jail in front of
the Magistrate on 20.06.2016.
19. During cross-examination, PW3 clarified that
&
one can reach the house of the victim from the house of PW3 in
ten seconds and the persons who come and go from the house
of the victim can be seen from her house as well. It was also
deposed by PW3 in cross-examination that the police recorded
her statement on four occasions and that she did not disclose
every fact to the police on 29.04.2016. PW3 denied the
suggestion made by the counsel for the accused that it was
since the facts disclosed by her in her subsequent statements
were false that she did not disclose the same in her first
statement, and she clarified that she did not disclose
everything in her first statement owing to fear. Similarly, PW3
denied the suggestion made by the counsel for the accused
that she could not have seen the accused for want of light.
Likewise, PW3 also denied the suggestion made by the counsel
for the accused that she saw the picture of the accused in
newspapers as also on television before she had identified the
accused in the jail. PW3 also denied the suggestion made by
the counsel for the accused that she was shown the
photographs of the accused before she identified the accused
in jail. PW4, PW5 and PW8 corroborated fully, the evidence
tendered by PW3 as regards the conversations PW3 had with
&
them in the presence of others on the relevant day. Among
them, PW4 clarified that she was conversing with PW3 from the
road separating her house with the house of PW3. The evidence
tendered by PW3 as regards the telephone communication she
had with her sister at about 5.30 p.m. was corroborated by
PW77, the Nodal Officer of Idea Cellular, a mobile service
provider who proved the incoming call for a duration of fifty-five
seconds at 17:41:23 hours in the mobile number of PW3
namely, 9207185407 on 28.04.2016. Ext.P131 is the call data
records pertaining to the said mobile number and Ext.P131(a)
is the said incoming call received by PW3 on the fateful day.
The evidence tendered by PW3 as regards the identification of
the accused in the test identification parade was corroborated
by PW78, the concerned Judicial Magistrate. Ext.P146 is the
memorandum and Ext.P147 is the report prepared by PW78 in
connection with the test identification parade conducted by him
at the District Jail, Kakkanad on 20.06.2016.
20. PW36 is a person who was running a plywood
factory near Perumbavoor. PW36 deposed that the accused had
worked in his factory for sometime and he was employed to
cut the veneer roll used for manufacturing plywood and that
&
only a healthy person could do the said work. PW10 is the
owner of the building in which the accused was residing till the
date of the occurrence. The said fact has been admitted by the
accused while being questioned under Section 313 of the Code.
PW10 identified the accused and deposed that the accused was
residing in his building with PW12 and a few others including
PW33, the stepson of the accused. PW10 also deposed that on
28.04.2016, he saw the accused at about 10.30 a.m. and he
was informed by the accused then that he did not go to work
on that day. PW10 also deposed that at the relevant time, he
saw the victim standing in front of her house. PW12
corroborated the evidence tendered by PW10 that the former
was residing with the accused in the building of PW10. In
addition, PW12 also deposed that there were about ten migrant
workers in the second floor of the building of PW10 including
the accused and that the accused resided there along with him
and others till 28.04.2016. PW12 also deposed that when he
returned to the room on that day, the accused was not there
and the accused came a little later. PW12 deposed that on
being asked by the accused to give his telephone number to
the accused, while he was writing down his telephone number
&
on a slip to be given to the accused, he noticed an injury on the
right index finger of the accused. PW12 further deposed that
the accused left the place after sometime and he called PW12
at about 8.30 p.m. to ascertain whether anybody came to the
room in search of him. PW12 also deposed that the accused
made a similar call to him on the morning of the following day
at about 7.30 a.m. to ascertain whether the police came in
search of him. PW12 identified MO21 and MO21(a) as the
chappals worn by the accused and MO23 as the knife usually
kept by the accused in his bag. PW13 is another migrant
labourer who was residing with the accused and PW12 in the
building of PW10. PW13 also deposed that the accused did not
go to work on 26th and 27th of April, 2016. PW13 also identified
MO21 and MO21(a) as the chappals of the accused. PW33 also
corroborated the evidence tendered by PW10 that he was
residing in the same building in which the accused was
residing. In addition, PW33 also deposed that the accused
married his mother. PW33 also identified MO21 and MO21(a) as
the chappals worn by the accused. PW79 is none other than the
brother of the accused. PW79 deposed that on the date of
occurrence, he arranged a sum of Rs.2,000/- for the accused
&
from PW14, another migrant worker, to enable the accused to
go to Assam. PW14 corroborated the said part of the evidence
tendered by PW79.
21. PW30 is a manpower supplier who deposed
that it was he who secured an employment for the accused in
Dong Song company at Kanchipuram and that the accused was
working in the said company from 08.06.2016 till 14.06.2016.
PW31 is a resident of Kanchipuram engaged in selling mobile
SIM cards and providing recharge facilities for the same. PW31
identified the accused as a person who purchased a SIM card
from him. PW31 deposed that he sold an activated Airtel SIM
card to the accused and its number was 7397097067 and that
he recharged the same also on a few occasions at the instance
of the accused.
Medical Evidence
22. PW90 is the police surgeon who conducted the
post-mortem examination of the body of the victim on
29.4.2016. Ext.P175 is the post-mortem report. The ante-
mortem injuries noted by PW90 at the time of post-mortem
examination, as deposed by her, are the following:
1. Incised wound 1.5x0.4 cm, bone deep, vertical on the
right temple, 2 cm outer to outer angle of eye.
&
2. Three linear superficial lacerations 2x0.2cm each, 0.2cm
apart, horizontally placed, parallel to each other, on the
right ala of nose.
3. Abrasion 0.2x0.2cm on the tip of nose.
4. Abrasion 2.6x0.6cm, vertically oblique on the right side
of face, its lower outer end is 0.5cm out of the ala of
nose.
5. Curved abrasion 1.3x0.8cm with its convexity facing
upwards on the right side of face 3cms outer and 1cm
below the ala of nose.
6. Curved abrasion 1x0.5cm with its convexity facing left,
on the left side of face, 1cm outer to ala of nose.
7. Superficial laceration 2.5x0.3x0.3cm, vertically oblique,
on the left side of upper lip. Its inner upper end just
blow the left nostril.
8. Contusion 3.5x1.5x5cm, horizontal on the left side of
upper lip margin, just outer to midline.
9. Lacerated wound 1.5x1x0.5cm on the inner aspect of
upper lip in the midline, tearing the frenulum.
10. Lacerated wound 0.5x0.2x0.1cm on the left side
of gum margin in between the central and lateral
incisors.
11. Abrasion 1x1.5cm on the left side of chin, 2cm
outer to midline.
12. Linear abrasion 2cm long, horizontal, on the under
surface of chin across midline and just behind jaw
border.
13. Incised wound 2x0.6cm, bone deep, vertical, on the
right side of chin, 3cm outer to midline, with a tailing
1cm downwards and inwards from its lower end.
14. Incised wound 4x0.7cm, bone deep, vertical, on the
right side of face extending to the chin, with a tailing of
2cm downwards and inwards from its lower end.
15. Two superficial linear incised wounds 1.6cm each,
vertical, and 0.5cm apart, just inner to the lower
one third of previous injury.
16. Incised wound 4x0.5cm, bone deep, vertical, over the
right angle of jaw.
17. Incised wound 2.5x0.4x0.3cm, horizontal, on the
left jaw margin, 6cm outer to midline with a tailing of
0.5cm on both ends.
18. Incised punctured wound 1.5x0.5cm, vertical, on the
right side of neck, 1.5cm outer to midline, 5cm above
the upper end of breast bone. Both ends of the wound
&
were sharply cut. The wound track, 3.5cm deep,
directed backwards, inwards and terminated in the body
of VIth cervical vertebra, with a clean cut 1.5x0.5x0.5cm
on its front aspect. The wound showed a side cut of
0.2x0.1x0.1cm at its upper right border 0.4cm
below its upper end.
19. Incised punctured wound 3.8x1.5cm, on the left side of
front of neck, vertically oblique, its lower inner end
1.5cm outer to midline, 5cm above the upper end of
breast bone. Both ends of the wound were sharply cut.
The wound track was directed backwards, inwards and
downwards for a depth of 4.3cm, with a side cut
0.2x0.1x0.1cm at its inner border 0.4cm below its upper
end.
20. Incised wound 2.8x1x2.1cm, oblique on the left side of
front of neck. Its lower inner end 2cm outer to midline
and 5cm above inner end of collar bone. Internal
jugular vein was seen cleanly cut.
21. Abrasion 2x1cm, vertical, front of neck in the midline,
2cm above the upper end of breast bone.
22. Abrasion 0.3x0.3cm, on the right side of front of neck,
2cm outer to midline, 2cm above the upper end of
breast bone.
23. Pressure abrasion with intervening normal areas,
12.5cm long and 3.5 to 3.8cm broad, horizontally
placed, on the front and sides of neck. It was
placed 5cm behind the chin.
Flap dissection of neck was done under bloodless field.
Skin and subcutaneous tissue underneath the pressure
abrasion on the left side of the neck showed
infiltration of blood. Left sternomastoid muscle
showed a contusion 3x3cm, involving its whole
thickness at the upper one third. Left
sternohyoid muscle showed a contusion 2x2x0.4cm.
There was infiltration of blood, 0.5x0.5x0.5cm
underneath the injury No.22.
24. Incised punctured wound 1x0.2cm, 2.8cm deep, oblique,
on the left side of back of neck. Its lower inner end
2.5cm outer to midline, 7 cm below occiput. Both ends
of the wound were sharply cut. The track was directed
forwards and inwards.
25. Contusion 8x5x1cm on the right temporal region of
scalp (seen after dissection).
26. Incised wound 9.5x3cm, bone deep, vertical, on the
right side of front of chest. Its upper end was 2cm outer
to midline, 1cm above the inner end of collar bone.
There was a tailing of 1cm extending from the lower
&
end.
27. Incised wound 3.5x0.5cm, bone deep, vertical on the
front of chest, parallel to and 0.5cm inner to above
injury. Its upper end was 4 cm below inner end and
collar bone, with a tailing 1.5cm from the lower end.
28. Incised wound 2.5x0.2x0.2cm on the left side of front of
chest, 1cm outer to midline, 4cm below inner end and
collar bone with a tailing 1.1cm from the lower end.
(Injury Nos.26, 27 and 28 were parallel to each other)
29. Two abrasions 0.2x0.1cm, 1cm apart on the back of tip
of shoulder.
30. Incised penetrating wound 4x1.5cm, vertically oblique
on the left side of front of chest. Its lower inner sharp
end 2cm outer to midline and 18cm below inner end of
collarbone, with a side cut 0.3x0.3x0.1cm, 0.4cm below
its upper end. The other end of the wound was blunt.
The wound was seen entering into the abdominal cavity
and terminated on the front aspect of body of T11
vertebra (making a cut 3x0.5x0.2cm) after transfixing
the liver through the left margin of aorta. The wound
was directed backwards, inwards and upwards for a
depth of 13cm. The retroperitoneal tissue was infiltrated
with blood.
31. Lacerated penetrating wound 7x6cm, over the
perineum involving the vagina on the front
aspect to the anal canal posteriorly. It was
extending from the fourchette on the front aspect along
the sides of vaginal wall extending backwards to the
anal orifice completely tearing the perineal body
and muscles of pelvic floor. Anterior vaginal wall was
intact. The wound was seen extending to the pelvic
cavity through the recto-uterine pouch for a depth
of 15cm, lacerating the mesentery at multiple
sites. The lower part of the small intestine was
seen torn near the ileocaecal junction. The
descending colon was seen severed at 30cm from the
rectal junction. Loops of small intestine were
seen protruding externally through this wound
along with the bloodstained fluid; which showed
varying shades of decomposition. There was
infiltration of blood on the paracolic gutter and
retro peritoneal region. Hymen was not in an
identifiable state due to injury.
32. Abrasion 4x0.3cm, oblique on the right side of back of
trunk with its upper inner end 10cm outer to midline,
38cm below top of shoulder. (The abrasion was
modified with super added ant erosions).
33. ' ' shaped interrupted abraded contusions over an
&
area 5.5x0.3x0.3 cm, 5.2x0.3x0.3cm each, placed
1cm apart, concavity facing each other, on back of left
shoulder, 12cm outer to midline 6cm below top of
shoulder.
34. ' ' shaped interrupted abraded contusions over an
area 5.1x0.3x0.3cm, 5.1x0.3x0.3cm each, placed
1cm apart, concavity facing each other, on back
of left shoulder, 3cm outer to midline 12cm root of
the neck.
(Injury Nos.33 and 34 suggestive of bite mark)
35. Multiple small abrasions over an area 10x5cm on the
back of trunk across midline and to the right just above
the top of hipbone. (The abrasion was modified with
super added ant erosions).
36. Abrasion 0.5x0.5cm over the knuckle of the left index
finger.
37. Multiple small abrasion over an area 8x4cm along
the left groin.
38. Abrasion 10x0.5cm vertically oblique on the inner
aspect of right thigh. Its lower inner end 15cm above
knee.
PW90 deposed that there was a typing error in the post-
mortem certificate and the same was rectified as per
Ext.P175(a) correction report. It is seen that as per Ext.P175(a)
correction report, it was directed that injury No.29 shall be read
as "Two abrasions 0.2x0.1cm, 1cm apart on the back of tip of
right shoulder".
23. It was opined by PW90 in her deposition that
the death was due to the combined effect of injuries 2 to 11
suggestive of smothering, injuries 21 to 23 suggestive of
strangulation, injuries 18 to 20 sustained to neck, injury 30
sustained to abdomen and injury 31 sustained to external
&
genitalia. PW90 also deposed that she noticed evidence of
sexual assault. PW90 clarified that injuries 2 to 12 are different
forms of blunt injuries produced on the face of the victim in and
around nostrils and mouth due to application of blunt force and
that they are nail mark injuries produced by the fingertips and
palm during the process of smothering the victim who was
consciously and actively resisting when such force was applied
on her. Injuries 7, 8, 9 and 10, according to PW90, are the
typical injuries produced during the attempt of smothering and
during the process of forcefully preventing her from making
any cry or sound. PW90 further opined that injuries 13 to 17
were incised wounds of varying dimensions, which were seen
on lower part of the face and neck region of the victim. PW90
further opined that they are sharp force injuries produced as a
result of direct infliction during the course of confrontation or
assault. According to her, these injuries are superficial, which
had not gone too deep. However, according to PW90, such
injuries could be caused while resisting actively against
inflictions of this nature. With reference to injuries 21, 22 and
23, PW90 opined that these injuries were the consequence of a
fatal pressure produced on the vital area around the neck by a
&
ligature material, preferably one which is of a soft and broad
nature, occurring in ligature strangulation along with the
injuries produced in palmer strangulation. PW90 confirmed that
the said injuries resulted on account of fatal pressure on the
neck of the victim. Referring to injuries 18 to 20, PW90 opined
that these injuries were incised stab injuries that had gone
deep into the fatal area in the neck region leading to the death
of the victim. PW90 confirmed that these injuries were
independently fatal injuries because these stab wounds had
gone deep and injured her jugular vein, which is the major
blood vessel in the head and neck region, which could lead to
severe internal haemorrhage leading to death. PW90 further
opined that injury 30 was a deep penetrating stab wound
produced by a sharp single edged cutting weapon, which had
been inflicted on the lower part of the chest, which entered into
the abdominal cavity penetrating the liver, and which went
deep injuring the aorta and terminating in the vertebral column
on the back portion, resulting in severe bleeding into the cavity.
PW90 confirmed that this injury was independently a fatal
injury sufficient to cause death.
24. According to PW90, injury 31 was a lacerated
&
penetrating wound produced over the perineum region that
included external genitalia area wherein an incised wound can
look like a lacerated wound. On a query from the Public
Prosecutor, PW90 clarified that MO23 knife with a blade length
of 22 cm with hilt and handle, which measures about 14cm,
while being introduced into the region multiple times along with
rocking and reintroduction or twisting into the region would
result in severe mutilation and crushed injuries to the
surrounding tissues and organs. PW90 further deposed that
MO23 single edged weapon with hilt might have been
introduced deep into the perineum, which could cause a
lacerated looking incised wound. PW90 further deposed that
Injury 31 was an independent fatal injury sufficient to cause
death. It was deposed by PW90 that a piece of mesentery and
intestine 13x3cm was brought along with the body in a
separate transparent synthetic bag and with reference to the
same, it was deposed by PW90 that the portion of the
mesentery along with intestinal portion were seen lying
separately outside the body and such a course is possible only
if the weapon is severed, twisted or pulled out. It was also
deposed by PW90 that injuries 33 and 34 are possible if biting
&
is done through an intervening dress material. PW90 affirmed
that injury No.23 could be caused by MO11 shawl. It was also
deposed by PW90 that injuries 37 and 38 could be caused while
forcibly removing the dress or forcibly widening the thighs.
25. PW55 was the Resident Medical Officer
attached to the District Hospital, Aluva. PW55 deposed that he
had examined the accused on 17.06.2016 on a requisition
made by the police and he found a few injuries on the body of
the accused then. Ext.P55 is the certificate issued by PW55 in
this regard on 17.06.2016. PW55 also deposed that injury No.1
among the injuries noted by him namely, "A healed injury of
0.25 x 0.25cm on the root of right index finger medially placed"
is a healed injury and that the same could be caused by a bite
by another human being in the course of tough resistance.
PW55 also deposed that on examination of the accused, he was
found potent. PW55 further deposed that he had collected
samples of blood, buccal swab, pubic hair and scalp hair of the
accused and entrusted the same to the investigating officer for
forensic examination.
26. PW56 was the Assistant Surgeon attached to
the District Hospital, Aluva during 2016. He deposed that on
&
24.06.2016, he collected the blood sample of the accused for
DNA examination and handed over the same to the
investigating officer at the Police Club, Aluva.
27. PW61 was the police surgeon attached to the
District Hospital, Ernakulam during April, 2016. PW61 deposed
that on 30.06.2016, he examined the accused at the Police
Club, Aluva and that when he asked the accused about the
injury found on his right index finger, the accused informed him
that he sustained the said injury on account of the bite by a girl
when he attempted to close her mouth. Ext.P64 is the wound
certificate issued by PW61 in this regard. The wound referred to
by PW61 in his evidence is recorded in Ext.P64 as "Circular,
crater shaped (depressed) scar (healthy) of 0.5cm diameter at
the left aspect of the middle crease of right index finger". It
was deposed by PW61 that the injury is consistent with the
alleged incident and is highly suggestive of an avulsion of thick
skin with loss of underlying soft tissues by a human bite as
alleged.
DNA Evidence
28. It is unnecessary to go into entirety, all the
forensic evidence let in by the prosecution, as we find that only
&
some among them are relevant in the context of the point
formulated for decision. In order to make the discussion precise
and brief, we are referring to the relevant evidence object wise,
and not witness wise.
I. MO10 churidar top;
(a) MO10 churidar top was seized by PW99 while
holding the inquest on 29.04.2016. PW99 produced MO10
before the Jurisdictional Magistrate along with other articles as
per Ext.P211 property list on 02.05.2016. MO10 was sent for
examination to the Forensic Science Laboratory,
Thiruvananthapuram (the Laboratory) on 06.05.2016 as per
Ext.P201 forwarding note of the investigating officer and the
same was received at the Laboratory on 07.05.2016 evidenced
by Ext.P157 receipt. The object was initially examined by
PW85, the Assistant Director of the Serology Division of the
Laboratory and on her examination, it was found that the
bloodstains in MO10 belong to Groups 'A' and 'O'.
(b) After the serological examination, MO10 was
forwarded to the Biology Division of the Laboratory in terms of
an internal communication. The object was examined at the
Biology Division of the Laboratory by PW89, the Assistant
&
Director of Biology Division, and on his examination, saliva was
found on the left shoulder portion of MO10. Ext.P174 is the
report submitted by PW89 in this regard.
(c) Later, MO10 was forwarded by PW89 to the
DNA Division of the Laboratory. As the DNA sequencer at the
Laboratory was out of order then, on the request made by the
investigating officer, the jurisdictional Magistrate issued a
direction to the Laboratory to forward MO10 to the Rajiv Gandhi
Centre for Bio Technology, Thiruvananthapuram (Rajiv Gandhi
Centre) for DNA examination. Ext.P160 is the letter issued by
the Jurisdictional Magistrate in this regard. In terms of Ext.P160,
the jurisdictional Magistrate required the Laboratory to forward
MO10 to the Rajiv Gandhi Centre for examining the saliva found
therein as the DNA Sequencer of the Laboratory was damaged.
Ext.P160(a) is the covering letter, in terms of which MO10 was
forwarded to the Rajiv Gandhi Centre. Ext.P160(b) is the
acknowledgement of the receipt of MO10 dated 12.05.2016
issued by the Rajiv Gandhi Centre. PW82 was the Scientist in
the Rajiv Gandhi Centre who examined MO10. DNA extracted
from a portion of the churidar top cut out from its left shoulder
portion was subjected to DNA profiling and on DNA profiling,
&
alleles of 'X' and 'Y' chromosomes were found in the DNA,
indicating both male and female chromosomes. According to
PW82, Y-chromosomes will be seen only in the case of male
DNA. Ext.P161 is the report issued to that effect by PW82. The
report is that the DNA extracted from MO10 contained the DNA
of a male person also. After examination, MO10 was sent back
to the Laboratory on 19.05.2016 with Ext.P160(c) covering
letter and the same was received at the Laboratory on
19.05.2016 itself as evidenced by Ext.P160(d) letter.
(d) In the meanwhile, the accused was arrested by
PW100 on 16.06.2016 and on his arrest, his blood sample and
buccal swab were collected by PW55. The said two items were
produced before the Jurisdictional Magistrate on 17.06.2016 as
per Ext.P240 property list and the same along with a few other
items were forwarded to the Laboratory on 18.06.2016 and it
was received at the Laboratory on 20.06.2016 as evidenced by
Ext.P157(e) receipt. By the time, the defect of the DNA
sequencer of the Laboratory was rectified. PW81, the then Joint
Director of the Laboratory, in the circumstances, subjected
MO10 for DNA examination of the stains of blood found in the
said object. PW81 found that the stains of blood in MO10 are of
&
two types. The DNA extracted from type I blood stain was found
to be matching with the DNA extracted from the tooth sample
of the victim. The other type of the stain, namely type II stain
was found to be a admixture of blood belonging to two
individuals, including a male person, and the DNAs extracted
from the said type II stain matched with the DNA extracted
from the tooth sample of the victim as also the blood sample of
the accused. Ext.P158 is the report submitted by PW81 in this
regard. In other words, MO10 contained the stains of the blood
of the accused as also that of the victim.
(e) It is seen that after the DNA profiling, the blood
sample of the accused was internally forwarded to the Serology
Division of the Laboratory for grouping of blood. Thereupon, the
serological examination of the blood sample of the accused was
also conducted by PW85. Ext.P169 is the report submitted by
PW85 thereafter. In Ext.P169, PW85 reported only that the
sample of blood belongs to Group 'A'.
(f) As noted, PW56 collected the blood sample of
the accused on 24.06.2016 and the said sample was produced
by the investigating officer before the Jurisdictional Magistrate
and the same was forwarded directly to the Rajiv Gandhi
&
Centre as per Ext.P246 forwarding note and it was received at
the Rajiv Gandhi Centre on 27.06.2016. PW82 conducted the
DNA examination, and the male DNA isolated from the blood
sample of the accused was found to be matching with that of
the male DNA isolated from MO10 churidar top earlier. Ext.P162
is the report submitted by PW82 in this regard.
(g) Item No.2 in Exts.P158, P169 and P174 reports
of the Laboratory is MO10 churidar top and item No.41 in
Exts.P158 and P169 reports is the blood sample of the accused.
The facts described in sub-paragraphs (a) to (f) in respect of
MO10 churidar top have been affirmed by PWs 81, 82, 85, 89
and 99 in their evidence.
II. Nail clippings of the victim;
(a) The nail clippings of both hands of the victim
were collected by PW90 at the time of post-mortem
examination on 29.04.2016 and the said nail clippings along
with the tooth sample of the victim and a few other items were
entrusted to PW23, a Woman Civil Police Officer and the same
were seized by PW99 on 29.04.2016 itself as per Ext.P14
seizure mahazar. The said items were produced before the
Jurisdictional Magistrate by the investigating officer on
&
03.05.2016 as per Ext.P213 property list. The nail clippings and
the tooth sample of the victim were forwarded to the
Laboratory for DNA profiling on 06.05.2016 as per Ext.P201
forwarding note and it was received at the Laboratory on
07.05.2016 as evidenced by Ext.P157 receipt. On receipt of the
same, it was examined by PW89 on 07.05.2016 and later
forwarded the same to the DNA Division of the Laboratory and
which were examined at the DNA Division by PW81. In the said
examination, it was found that the blood stains and tissues in
the nail clippings were a admixture of bloodstains having both
male and female DNA profiles. It was also found that the female
DNA profile isolated from the nail clippings are identical to the
DNA isolated from the tooth sample of the victim collected at
the time of post-mortem examination. Later, on receipt of blood
sample and buccal swab of the accused on 20.06.2016, PW81
subjected the same for DNA profiling and the male DNA profile
isolated from the nail clippings were found to be matching with
the DNA profiles isolated from the blood and buccal sample of
the accused. The said facts are also reported by PW81 in
Ext.P158 report.
(b) Item Nos.7(a) and 7(b) in Ext.P158 report are
&
the nail clippings of the victim and item Nos.41 and 42 in the
said report are the blood sample and buccal sample
respectively of the accused. The facts described in sub-
paragraph (a) in respect of the nail clippings of the victim have
been affirmed by PWs 23, 81 and 99 in their evidence.
III. Brown stain collected from the rear door frame
of the house of the victim;
(a) PW80, the Scientific Assistant attached to the
Ernakulam Rural Forensic Science Laboratory, who examined
the scene of occurrence on 29.04.2016 collected, among
others, a brown stain found on the rear door frame of the house
of the victim on a cotton gauze and handed it over to PW99,
the investigating officer after packing and labelling the same.
The same was seized by PW99 in terms of Ext.P17 mahazar.
Exts.P149 and 150 are the reports submitted by PW80 in this
regard. The said article was produced by PW99 before the
Jurisdictional Magistrate as per Ext.P212 property list on
02.05.2016 and the same was forwarded to the Laboratory
along with other items on 06.05.2016 as per Ext.P201
forwarding note. The article was received at the Forensic
Science Laboratory on 07.05.2016 as evidenced by Ext.P157.
&
PW85 who examined the said article in the serology division of
the Laboratory found that the brown stain is of the Group 'A'.
The said fact also has been reported by PW85 in Ext.P169
report. After the serological examination, the article was
forwarded to the DNA Division of the Laboratory and on
examination, it was found by PW81 at the DNA Division of the
Laboratory that the blood stain was identical to the type II
blood stain found on MO10 churidar top and the female DNA
extracted from the same matched with the DNA extracted from
the tooth sample of the victim and the male DNA extracted
from the same matched with the blood sample of the accused.
The said fact has been reported by PW81 in Ext.P158 report.
(b) Item No.31 in Exts.P158 and P169 reports is
the stain collected by PW80 from the rear door frame of the
house of the victim and item No.41 therein is the blood sample
of the accused. The facts described in sub-paragraph (a) in
respect of the brown stain collected on a cotton gauze from the
rear door frame of the house of the victim have also been
affirmed by PWs 80, 81, 85 and 99 in their evidence.
IV. MO23 knife;
(a) MO23 knife was recovered by PW99 on
&
30.04.2016 from the property situated on the northern side of
the house of the victim as per Ext.P18 seizure mahazar and the
same was produced before the Jurisdictional Magistrate on
04.05.2016 as per Ext.P216 property list. The same was
forwarded to the Laboratory as per Ext.P201 forwarding note
and it was received at the Laboratory on 07.05.2016 evidenced
by Ext.P157 receipt. PW85 though examined the same at the
Laboratory, the group and origin of the stain of blood on MO23
could not be found out. The object was later forwarded to the
DNA Division of the Laboratory and the same was examined
there by PW81. The DNA extracted from the blood stains
contained in MO23 was found to be matching with the DNA
extracted from the tooth sample of the victim. The said fact has
also been reported by PW81 in Ext.P158 report.
(b) Item No.36 in Ext.P158 report is MO23 knife
and item No.6 in the said report is the tooth sample of the
victim collected at the time of post-mortem examination. The
facts described in sub-paragraph (a) in respect of MO23 knife
have been affirmed by PWs 81 and 99 in their evidence.
V. Mos 21 and 21(a) chappals;
(a) MO21 and MO21 (a) chappals were recovered
&
by PW99 on 02.05.2016 as per Ext.P19 seizure mahazar and
the same were produced before the Jurisdictional Magistrate on
04.05.2016 as per Ext.P218 property list. The said objects were
forwarded to the Laboratory on 27.05.2016 as per Ext.P210
forwarding note and were received at the Laboratory on
28.05.2016 evidenced by Ext.P157(b) receipt. Even though the
group and origin of the blood stains found on the chappals
could not be determined by PW85 on serological examination,
when the same were forwarded to the DNA Division, the same
were examined there by PW81. The DNA extracted from the
blood stains contained in MO21 series chappals were found to
be matching with the DNA extracted from the tooth sample of
the victim. The said fact has also been reported by PW81 in
Ext.P158 report.
(b) Item No.38 in Ext.P158 report is MO21 and
21(a) chappals and item No.6 in the said report is the tooth
sample of the victim collected at the time of post-mortem
examination. The facts described in sub-paragraph (a) in
respect of MO21 series of chappals have been affirmed by PWs
81 and 99 in their evidence.
Investigation
&
29. PW94 was the Deputy Superintendent of
Police, Crime Branch, Thrissur at the time of occurrence and he
was a member of the team constituted for investigation of the
subject case. PW94 deposed that it was he who took the
accused into custody from Kanchipuram on 14.06.2016. PW99
was the police officer who conducted the initial investigation in
the case. In addition to what has already been referred to as
spoken to by PW99 in his evidence in relation to the forensic
evidence let in by the prosecution, it was also deposed by
PW99 that it was he who held the inquest of the body of the
deceased at about 9.30 p.m. on 29.04.2016. Ext.P8 is the
inquest report. The manner in which the dead body of the
deceased was found at the time of holding the inquest, as
deposed by PW99, reads thus:
"തല കലിഴമക്കരാട്ടുര്യം കരാലകൾ പെടലിഞ്ഞരാമറരാട്ടുമേരായലി മേലർന്നു കലിടക്കുകയരായലിരുന്നു. ചുരലിദരാർ മടരാപന്ന്
വയറലിനു മുകളലിമലക്കു തതറുത്തു കയറ്റേലി വച്ചലിരുന്നു. കഴുത്തെലിൽ ഷരാൾ ചുറ്റേലി മുറുക്കലിയ നലിലയലിലരായലിരുന്നു.
ചുരലിദരാർ മബരാടര്യം panties എനലിവ വലതു കരാലലിൽ നലിന്നുര്യം പൂർണമേരായര്യം ഊരലിയര്യം ഇടതു കരാൽ മുട്ടുവതര
ഇറക്കലി വച്ച നലിലയലിലര്യം ആയലിരുന്നു. മൃതമദഹത്തെലിലര്യം വസ്ത്രങളലിലര്യം തറയലിലര്യം രകര്യം ഉണങലി കട
പെലിടലിച്ചലിരുന്നു. ആനരലിക അവയവങൾ മയരാനലി ഭരാഗത്തു കൂടലി പുറമത്തെക്കു ചെരാടലിയ നലിലയലിലരായലിരുന്നു.
ആനരലികരാവയവത്തെലിൻ്ന്ന്തറ ഒരു ഭരാഗര്യം മവർതപെട്ടു തറയലിൽ കലിടപ്പുണരായലിരുന്നു. ശരതീരത്തെലിൽ കണ
മുറലിവുകൾ inquest -ൽ വലിവരലിച്ചലിട്ടുണന്ന് ."
PW99 identified MO9 churidar bottom, MO10 churidar top,
MO11 shawl and MO18 undergarment found on the body of the
deceased at the time of holding the inquest. It was explained
&
by PW99 in his evidence that it was recited by him in Ext.P8
inquest report that the body of the deceased was first found by
PW2 as PW99 was under the impression that it was PW2 who
first saw the body and the said impression was drawn from the
conduct of PW2 which he observed on the previous day when
he went to the house of the deceased at 9.15 p.m. It was later
clarified by him that the body of the deceased was first found
by PW93.
30. PW100 was the Deputy Superintendent of
Police, Ernakulam Rural from 28.05.2016. He took over the
investigation in the case on 28.05.2016. PW100 deposed that
the accused was arrested on 16.06.2016 at Aluva Police Club.
Ext.P227 is the custody memo prepared at the time of arrest. It
was also deposed by PW100 that the articles seized from the
accused at the time of his arrest includes MO32 SIM card of the
mobile number 8893608594. It was further deposed by PW100
that it was only after the test identification parade to which the
accused was subjected to, his custody was sought and
obtained for investigation. It was further deposed by PW100
that on investigation, it was found that the wife of the accused,
Kanchan had two mobile connections bearing numbers
&
8609146986 and 8906026232 and PW33, the stepson of the
accused was using 9946645863. It was further deposed by
PW100 that during investigation, it was disclosed to him by the
accused that he has two friends namely Anarul Islam and
Hardath Baruwa and that he has kept a knife in their house;
that on the basis of the said statement, the accused was taken
to the house of the said friends as shown by the accused and a
mahazar was prepared; that on further investigation, it was
revealed that the persons named Anarul Islam and Hardath
Baruwa never resided in the house shown by the accused. The
relevant portion of the evidence tendered by PW100 reads
thus:
"എനരാൽ എൻ്ന്ന്തറ തുടർന്നുള്ള അമനസ്വഷണത്തെലിൽ പ്രതലി പെറഞ്ഞ മമേൽ വലിവരങൾ
അമനസ്വഷണത്തെലിനന്ന് വഴലി തതറ്റേലിക്കുനതലിനുമവണലി മബരാധപൂർവര്യം കളവരായലി പെറഞ്ഞലിട്ടുള്ളതരാണന്ന് എന്നുര്യം
മമേൽ പെറഞ്ഞ സുഹൃത്തുക്കൾ പ്രതലിക്കന്ന് ഉണരായലിരുനലില എന്നുര്യം MO23 കത്തെലി യഥരാർത്ഥത്തെലിൽ
പ്രതലിയതട കകവശര്യം ഉണരായലിരുനതരാണന്ന് എന്നുര്യം മബരാധരമേരായലിട്ടുള്ളതരാണന്ന് . മേരാതമേല പ്രതലിമയരാടു
മചെരാദലിച്ചതലിൽ പ്രതലിക്കന്ന് അനറുൾ ഇസരാമേലിൻ്ന്ന്തറമയരാ ഹർദർ ബറുവയമടമയരാ മമേൽവലിലരാസവുര്യം മഫരാൺ
നമ്പർ തുടങലിയ കരാരരങതളരാന്നുര്യം തതന പെറഞ്ഞു തരുവരാൻ കഴലിഞ്ഞലിടലിലരാത്തെതരാണന്ന് . എൻ്ന്ന്തറ
അമനസ്വഷണത്തെലിൽ പ്രതലി ചൂണലികരാണലിച്ചുതന വതീടലിൽ മമേൽ പെറഞ്ഞ മപെരുകളുള്ള രണ മപെർ
തരാമേസലിച്ചലിടലില എന്നു വരകമേരായലി മബരാധരതപട്ടു."
Even though PW100 was subjected to thorough cross-
examination, the evidence tendered by him as regards the
mobile numbers used by the wife and stepson of the accused
have not been challenged.
Call records
31. PW68 is the Nodal Officer of Reliance
&
Communication Ltd. PW68 has made available the call records
of the mobile number 8893608594 used by the accused.
Ext.P85 is the call records for the period from 01.11.2015.
PW68 deposed that for the period from 01.11.2015 to the date
of occurrence namely, 28.04.2016, there were extensive
contacts from the said number to the mobile numbers of the
wife of the accused namely 8609146986 and 8906026232, the
stepson of the accused namely 9946645863, the brother of the
accused namely 9633892260 and to the mobile number of
PW12 namely 8086015819. PW68 also gave evidence as to the
tower locations through which the said mobile number passed
through from 28.04.2016, during the journey of the accused
from Aluva to Siliguri in West Bengal. It was deposed by PW68
that on 02.05.2016, the location of the number was at Siliguri
in West Bengal and thereafter, the said mobile number was not
in use.
32. PW69 is the Nodal Officer of the mobile service
provider namely Bharati Airtel Ltd. PW69 made available the
call records of the mobile number 7397097067 used by the
accused while he was in Kanchipuram. Ext.P88 is the call
records of the said mobile number. PW69 deposed that there
&
were calls from this number to the mobile numbers of the wife
of the accused namely 8609146986 and 8906026232 and the
stepson of the accused namely 9946645863.
Appreciation of oral evidence :
33. It is long settled that in a case on
circumstantial evidence, the circumstances from which the
conclusion of guilt is drawn shall be conclusively established.
Keeping in mind the said principle, let us now appreciate the
oral evidence let in by the prosecution. It was argued
strenuously by the learned Senior Counsel for the accused that
the evidence tendered by PW3 that she saw the accused
proceeding from the rear side of the house of the victim at
about the time at which the occurrence allegedly took place is
highly unbelievable. According to the learned Senior Counsel,
PW3 is not a person who had any previous acquaintance with
the accused and as such, it is impossible for PW3 to identify the
accused so as to state before the court that it was the accused
who proceeded from the rear side of the house of the victim,
especially when she had no case that she noticed any of his
special features. The learned Senior Counsel did not dispute the
fact that PW3 identified the accused later on 20.06.2016 in the
&
test identification parade conducted for the said purpose. But
according to him, no sanctity could be attributed to the said
identification, as by that time, photographs of the accused had
already been published in print and visual media.
34. We have meticulously perused the evidence
tendered by PW3. As noticed, the evidence tendered by PW3
except as regards the part that she saw the accused, was
corroborated by PW4, PW5, PW8 and PW77. It is after she left
the company of PW4, PW5 and PW8, that she claimed to have
seen the accused on the rear side of the house of the victim.
Ext.P71 is the sketch of the house of the victim and its
surroundings prepared by PW63. It is shown in Ext.P71 that the
house of the victim is one facing towards the east, close to the
canal bund and there are two ancillary structures of the house
on its rear side namely its western side close to the canal bund.
There was a tree close to the canal bund, a little away from the
ancillary structures attached to the house as referred to above
which is described in the sketch as 'Vattamaram'. The sketch
shows that the canal runs east-west and there is a road also on
the east-west direction on the south of the canal and that one
can reach the southern road by crossing the canal. The sketch
&
shows that the house of PW3 is situated adjoining the road
referred to above just opposite to the house of the victim, and
as spoken to by PW3, one can reach the house of the victim
from the house of PW3 in a few seconds, and if the lie of the
building is as stated in Ext.P71 sketch, which is not disputed,
the persons who come and go from the house of the victim
could be very well seen from the house of PW3. The visibility of
the house of the victim from the house of PW3 is more, if one
moves towards the northern boundary of the property of PW3.
This aspect has been clarified by PW3 during her cross-
examination. The relevant portion of the evidence tendered by
PW3 reads thus:
"എൻ്ന്ന്തറ വതീടലിനു ചുറ്റുര്യം മേതലിൽ ഉണ. ഒരു മേതീറ്റേർ ഉയരത്തെലിലള്ള മേതലിൽ ആണന്ന്. മറരാഡലിൻ്ന്ന്തറ ഭരാഗര്യം
മേതലിൽ ഉള്ള ഭരാഗത്തു വന്നു നലിനരാൽ മറരാഡലിലൂതട മപെരാകുനവതര കരാണരാൻ സരാധലിക്കലില
എന്നുപെറയന്നു. (Q) തശരലിയല (A) കവകുമനരര്യം നലിങൾ കണ വരകലി സനരമേയങ്ങുന
മനരമേരായതലിനരാൽ മേലിനരായര്യം മപെരാതലയരാണന്ന് കണതവനന്ന് പെറയന്നു. (Q) തശരലിയല.
സനരമേയങലിയലിടലില . ഞരാൻ തശരലിക്കു കണതരാണന്ന് . (A) കണ വരകലിയതട തപെരാക്കര്യം, നലിറര്യം,
ധരലിച്ചലിരുന വസ്ത്രര്യം, രൂപെര്യം, (description) എനലിവതയരാതക്ക മപെരാലതീസലിൽ പെറമഞ്ഞരാ (Q) ഡ്രസന്ന് ഞരാൻ
പെറഞ്ഞലിരുന്നു. ഉയരര്യം കുറഞ്ഞ തചെറുപക്കരാരനരായലിരു ന്നു. കണരാൽ അറലിയര്യം എന്നു പെറയരാര്യം (A)"
35. No doubt, PW3 being a person who had no
previous acquaintance with the accused, a doubt would
naturally arise as to how she could correctly identify a person
who was proceeding from the rear side of the house of the
victim. It appears that the investigating officer in the case also
&
had the same doubt and it is seen that it is on account of the
said reason that a test identification parade was arranged to
enable PW3 to identify the accused. It has come out on record
that the accused was taken into custody from Kanchipuram on
14.06.2016 and his formal arrest was recorded on 16.06.2016.
The accused was produced before the Jurisdictional Magistrate
on 17.06.2016 and remanded to judicial custody. Test
identification parade was conducted by PW78, the authorised
Judicial Magistrate at the District Jail, Kakkanad on 20.06.2016.
Ext.P146 is the memorandum and Ext.P147 is the report
prepared by PW78 in this regard. No argument was advanced
in connection with the manner in which the test identification
parade was conducted by PW78. A perusal of the evidence
tendered by PW78 indicates that the test identification parade
was conducted by PW78 flawlessly and PW3 had correctly
identified the accused in all the three rounds of the test. As
noted, the point pressed into service by the learned Senior
Counsel for the accused to impugn the identification of the
accused made by PW3 is that his photographs were published
in print and visual media before he was produced before the
Magistrate and that the evidence tendered by PW3 that she did
&
not see the photographs of the accused in print and visual
media before the test identification parade cannot be believed,
for it would have been the natural instinct of anyone in the
locality to know as to who committed this gruesome murder.
The learned Special Public Prosecutor met the said argument
pointing out that police custody of the accused was obtained
only after the test identification parade; that he was not shown
to the public before the test identification parade and that
there was no occasion, therefore, for anybody to see the
accused before the test identification parade. It was also
asserted by the learned Special Public Prosecutor that even
thereafter, when the accused was taken out for investigation,
his face was masked. We find substance in the assertions made
by the learned Special Public Prosecutor. In the evidence
tendered by PW100, he made identical assertions as made by
the learned Special Public Prosecutor. The suggestion made to
PW3 during cross-examination that the photograph of the
accused was published in Mathrubhumi Daily on 18.06.2016
was emphatically denied by PW3. The relevant suggestions and
its answers read thus:
"എൻ്ന്ന്തറ വതീടലിൽ വരുത്തുന പെതര്യം മേരാതൃഭൂമേലി ആണന്ന് . 18.06.2016 ൽ മേരാതൃഭൂമേലി പെതത്തെലിൽ ഒരു
വരകലിയതട മുഖര്യം മേറച്ചുള്ള പെടര്യം വനലിരുനലിമല. (Q) എനലിക്കറലിയലില . ഞരാൻ കണലിടലില (A) ആ
&
പെതത്തെലിൽ പ്രതലിയതട പൂർണകരായ രൂപെര്യം വന്നു എനന്ന് പെറയന്നു. (Q) അതു ഞരാൻ കണലിടലില (A)"
As evident from the suggestion made to PW3, even the counsel
for the accused has no case that any photograph of the
accused without a mask on his face was published before the
test identification parade. Be that as it may, the accused has
no case that his face was not covered when he was produced
before the Magistrate on 17.06.2016. Even the suggestion
made in this regard to PW100 was only that the accused was
made to wear a helmet on the said day. PW100 has not only
denied the said suggestion but also clarified that his face was
covered at that time. The relevant portion of the deposition
reads thus :
"17.6.2016-ൽ പ്രതലിതയ മകരാടതലിയലിൽ helmet ധരലിപലിച്ചുതവന്നു പെറഞ്ഞരാൽ ശരലിയല. മുഖര്യം മേറച്ചരാണന്ന്
ഹരാജരരാക്കലിയതന്ന്."
The learned Senior Counsel for the accused contended that if
as a matter of fact, the accused was produced before the court
after covering his face, there was no need at all for the
investigating officer to seek the permission of the court to
cover his face when he was taken out of the jail. The learned
Senior Counsel relied on the prayer in Ext.P239 remand
application dated 17.06.2016 to bring home the said point. The
relevant portion of the remand application read thus:
&
"പ്രതലിയതട Test Identification Parade നടമത്തെണതലിനരാലര്യം പ്രതലിതയ ജയലിലലിൽ നലിനന്ന് പുറത്തെന്ന്
അയക്കരാതലിരലിക്കുനതലിനുര്യം, അയമക്കണലിവരുന പെകര്യം പ്രതലിതയ മുഖര്യംമൂടലി ധരലിപലിച്ചു പുറത്തെലിറക്കുനതലിനുര്യം
അമതരാതടരാപര്യം പ്രതലിതയ പ്രമതരക തസലലിൽ തരാമേസലിപലിക്കുനതലിമുള്ള നലിർമദ്ദേശര്യം ജയലിൽ ആധലികൃതർക്കന്ന്
നൽകുനതലിനുര്യം അമപെഷലിച്ചുതകരാള്ളുന്നു."
We do not find any merit in this submission also. Merely for the
reason that such a prayer was made in the remand application,
it cannot be inferred that the accused was produced before the
court without covering his face.
36. In this context, it is relevant to point out that
the evidence on record would indicate that PW3 belongs to a
well-to-do family, and her husband is running a supermarket.
Having regard to the said background of PW3, we do not think
that PW3 would say in a court that she has seen the accused
proceeding from the rear side of the house of the victim, if as a
matter of fact, she has not seen the accused, especially when
she has no reason to falsely implicate the accused in the case.
When this aspect was put to the learned Senior Counsel for the
accused in the course of the arguments, the learned Senior
Counsel conceded that under normal circumstances, there is no
reason for such a person to make a statement of this nature, if
she has not seen the accused. But, it was then added by the
learned Senior Counsel that since the occurrence was a
horrendous act, which created a shock in the minds of the
&
people around the residence of the victim, the possibility of
PW3 giving evidence in the aforesaid fashion on an earnest
belief that the accused is the assailant, as he was found to be
the assailant by the police, cannot be ruled out. We are unable
to accept the said argument.
37. Another ground on which the evidence
tendered by PW3 was attacked by the learned Senior Counsel
for the accused is that, PW3 has not disclosed in her first
statement to the police that she saw the accused after the
conversations she had with PWs 4 and 5 and that therefore, no
sanctity could be attributed to that part of the evidence
tendered by PW3. The learned Senior Counsel did not, however,
dispute the fact that PW3 has disclosed the said fact in her
subsequent statements to the police. But, according to him, the
same will not improve the credibility of the evidence tendered
by the witness. The learned Special Public Prosecutor did not
dispute the fact that PW3 did not disclose in the first statement
given to the police that she saw the accused. But, it was
pointed out by the learned Special Public Prosecutor that she
explained satisfactorily the reason for not doing so, viz, that
she did not disclose the fact aforesaid in her first statement to
&
the police on account of fear. According to the learned Senior
Counsel, the explanation offered by the witness cannot be
accepted, for if the non-disclosure was on account of fear, then
there is absolutely no reason to disclose the same at a later
point of time also. No doubt, the non-disclosure of the fact
aforesaid by PW3 in her first statement would certainly create a
doubt in the mind of the court as to the veracity of that part of
the evidence tendered by PW3. But, on a close scrutiny of the
evidence, having regard to the ground reality that witnesses
would face inconveniences, at times, even harassment, in a
case of this nature, according to us, the explanation offered by
PW3 that she did not disclose in the first statement that she
saw the accused, on account of fear is a plausible explanation,
and merely on account of that reason, the disputed part of her
evidence cannot be rejected. We take this view also for the
reason that PW3 could identify the accused in all the three
rounds of the test identification parade conducted, flawlessly,
from among persons having similar features including persons
who hail from other States. In the light of the discussion
aforesaid, according to us, there is absolutely no reason to
doubt the veracity of the evidence tendered by PW3 that she
&
saw the accused on the date of occurrence at the rear side of
the house of the victim at about the time at which the
occurrence allegedly took place.
38. Although the evidence tendered by PW10 has
not been challenged by the learned Senior Counsel for the
accused, the evidence tendered by PW12 was seriously
challenged on the ground that he is a migrant labourer, who
will have no option, but to oblige the police, if he is required by
the police to give evidence in a particular fashion. According to
the learned Senior Counsel, in the circumstances, no credence
could be attributed to his evidence. No doubt, inasmuch as the
said witness being a migrant labourer, he will certainly have a
tendency to oblige the police. As such, we are of the view that
the evidence tendered by such a witness has to be carefully
scrutinised. As far as the evidence tendered by PW12 is
concerned, the fact that the accused had been to the room
where he was residing, in the evening hours of the date of
occurrence and left the room after sometime with his
belongings, is not disputed. The challenge is against the
evidence tendered by PW12 that the accused called him at
about 8.30 p.m. on 28.04.2016 and at about 7.30 a.m. on
&
29.04.2016 and enquired with him as to whether the police
came in search of him. No doubt, it has been established by the
prosecution that the accused contacted PW12 over telephone
twice at about 8.30 p.m. on 28.04.2016 and also twice, at
about 7.30 a.m., on 29.04.2016. Ext.P85(g6), Ext.P85(g7),
Ext.P85(g8) and Ext.P85(g9) were the calls made by the
accused to PW12. But, merely for the reason that the accused
made calls to his room-mate twice after leaving the room on
the date of the occurrence and on the subsequent morning, it
cannot be inferred that the accused had enquired with PW12
the facts spoken to by PW12 in his evidence. That part of the
evidence tendered by PW12 does not inspire confidence and
according to us, it is not safe to place reliance on the said part
of the evidence. If that part of the evidence is kept apart, what
remains is the evidence tendered by PW12 that MO23 is a knife
which the accused usually carries in his bag and MO21 series
were the chappals of the accused. Of course, PW12 also
deposed that he noticed an injury on the right index finger of
the accused on 28.04.2016.
39. A close scrutiny of the evidence tendered by
PW12 would indicate that the accused does not dispute the fact
&
that MO23 was a weapon that was kept in their room, even
though the accused does not admit the evidence tendered by
PW12 that he used to carry the same in his bag. The said fact
can be inferred from the suggestions made by the counsel for
the accused to PW12. The relevant portion of the deposition
reads thus:
"ഇങതന വഴക്കു കൂടുമമ്പരാൾ ഇമപരാൾ കരാണലിച്ച MO23 തകരാണന്ന് നലിങൾ അമേതീറലിതന കുത്തെരാൻ
ശ്രമേലിച്ചലിമല (Q) തശരലിയല. അങതന ഒന്നുര്യം ഉണരായലിടലില . (A) ഇങതന കുത്തെരാൻ ശ്രമേലിച്ചമപരാൾ
അമേതീറലിൻ്ന്ന്തറ കകമുറലിയരാൻ ഇടയരായലി എനന്ന് പെറയന്നു (Q) തശരലിയല (A) അമേതീറലിതന കുത്തുവരാൻ
ശ്രമേലിച്ച കത്തെലി 30-)0 തതീയതലി നലിങളുതട മുറലിയലിൽ നലിന്നുര്യം മപെരാലതീസന്ന് ബനവസലിൽ എടുത്തുതവന്നു
പെറയന്നു. (Q) തശരലിയല. (A) "
We do not find any reason to doubt the veracity of the evidence
tendered by PW12 that he saw an injury on the right index
finger of the accused on 28.04.2016 also, as the accused
himself had admitted in his examination under Section 313 of
the Code in respect of the evidence tendered by PW12 that
PW12 had obtained an ointment for him to apply on the injury
noted by him. The question and answer read thus:
"അമേതീറലിൻ്ന്ന്തറ കയലിൽ രകര്യം കണമപരാൾ എന്തുപെറ്റേലിതയന്നു മചെരാദലിച്ചുതവന്നുര്യം അതു പെലിതന പെറയരാര്യം
എന്നു അമേതീർ പെറഞ്ഞുതവന്നുര്യം PW12 തുർടർന്നു തമേരാഴലി നൽകലിയലിരലിക്കുന്നു. എതനങലിലര്യം പെറയരാനുമണരാ
(Q) തശരലിയല.സുജൽ എനലിക്കന്ന് ointment വരാങലിതക്കരാണന്ന് തരുകയരാണന്ന് തചെയ്തതന്ന് . (A)"
As far as the identification of MO21 series chappals of the
accused, it is seen that the evidence tendered by PW12 in this
regard is corroborated by the evidence of PW14 and PW33, and
&
among them, PW33 is none other than the stepson of the
accused, who was residing in the building of PW10 where the
accused was residing. PW14, as noted, is a migrant worker who
is a friend of the brother of the accused, from whom the brother
of the accused arranged money to be given to the accused to
go to his native place on the date of occurrence. PW14 was, in
fact, examined by the prosecution to prove the said fact and
also the fact that PW14 entrusted with the accused a mobile
phone to be handed over to the mother of PW14, which the
accused was using throughout his journey. During cross-
examination of the said witness, the suggestion made by the
counsel for the accused was that the accused was wearing
MO21 series chappals when he met PW14 on the date of
occurrence. It appears that the said question was put to PW14
only to show that MO21 series of chappals recovered from the
place near the scene of occurrence do not belong to him, for if
it were abandoned by the accused, he could not have been
wearing the same when he met PW14. PW14 denied the said
suggestion and asserted that the accused was wearing a Hawai
chappal at that point of time. The relevant portion of the
evidence read thus:
&
"MO21 & 21(a) തചെരുപ്പു ധരലിച്ചുതകരാണമല അമേതീർ നലിങളുതട അടുത്തെന്ന് വനതന്ന് (Q) ഹവരായന്ന് ചെപൽ
ഇട്ടു തകരാണന്ന് ആണന്ന് വനതന്ന് (A)."
That part of the evidence tendered by PW33 that MO21 series
are the chappals of the accused has not been challenged in
cross-examination. In the circumstances, there is no reason to
doubt the veracity of the evidence tendered by PW12 that
MO21 series are the chappals of the accused. In the
circumstances, we are of the view that the evidence tendered
by PW12 can certainly be accepted, except as regards the
evidence as to the contents of the conversations the accused
had with PW12 on 28.04.2016 and 29.04.2016, for which there
was no corroboration.
40. The evidence tendered by PW61, the doctor
who examined the accused on 30.06.2016 was another piece of
evidence which was seriously challenged by the learned Senior
Counsel for the accused. As noted, it was deposed by PW61
that the accused disclosed to him at the time of examination
that injury No.1 noted in Ext.P64 certificate was sustained on
account of the bite by a girl when he attempted to close her
mouth. According to the learned Senior Counsel, inasmuch as
the accused was in the custody of the police, it is an ingenious
act committed by the police, for it amounts to an admission of
&
guilt on the part of the accused. We find force in the said
argument. But, that does not mean that the evidence tendered
by PW61 is liable to be rejected, as the learned Senior Counsel
has not attributed any malice against PW61. The argument of
the learned Senior Counsel is only that in all probability, the
accused must have been coerced by the police to say so before
PW61. It is all the more so since, the accused himself admits
that he suffered an injury on 28.04.2016 on his right index
finger, even though he had different versions at different times
as to the cause of the said injury. In other words, the evidence
tendered by PW61 that the injury he noticed on the right index
finger of the accused on 30.06.2016 is suggestive of a human
bite, can certainly be accepted.
41. True, the evidence tendered by PW100 as
regards the persons Anarul Islam and Hardath Baruwa named
by the accused have been challenged by the accused in cross-
examination by putting to him a few questions which would
suggest that those persons lived in the locality of the house of
the victim. The said attempt of the accused, according to us,
cannot be accepted as sufficient to discredit the categoric
evidence tendered by PW100 that the persons named by the
&
accused did not live in the locality at all and the names
aforesaid have been referred to by the accused to mislead the
investigation.
Arguments of the accused:
42. As already noticed, elaborate arguments have
been advanced by the learned Senior Counsel for the accused,
of which, we have dealt with hitherto only a few relating to the
acceptability of the evidence tendered by some of the
witnesses. Let us, therefore, consider the remaining arguments.
(a) The learned Senior Counsel contended that the
subsequent conduct of the accused is not consistent with the
commission of a crime of this nature. The learned Senior
Counsel elaborated the said submission by pointing out that
the evidence tendered by PW12, the room-mate of the
accused, PW79, the brother of the accused and PW14, the
friend of the brother of the accused would show that the
conduct of the accused after the alleged occurrence was not
consistent with the prosecution case. No doubt, after the
occurrence, the accused went to his room, had a chat with
PW12 and then proceeded to meet PW79 for money.
Thereafter he along with PW79 met PW14 and secured the
&
amount as required by the accused and it was from there, he
proceeded to Aluva railway station, after changing his clothes
for his journey to Assam. Even though the said subsequent
conduct would appear to be that of a normal person, merely for
the reason that the accused behaved in such a manner, it
cannot be said that he was not involved in the crime.
(b) It was argued persuasively by the learned
Senior Counsel that the prosecution case that the accused
proceeded to rape a girl with a bottle of liquor and a knife is
highly improbable. True, it was alleged by the prosecution that
the accused poured liquor into the mouth of the victim after
inflicting injuries on her. It appears, such an allegation was
made since it was stated in the chemical analysis report of the
viscera of the victim namely, Ext.P176 that the sample of blood
contained 93 mg. of ethyl alcohol in 100 ml. of blood, and the
said quantity of ethyl alcohol is slightly above the normal range
of ethyl alcohol produced in the blood in a putrefying body, if
there is no external injection. PW90 explained that the normal
range of ethyl alcohol present in a putrefying body would be
20mg. to 60 mg. per 100 ml. The case aforesaid of the
prosecution that the accused poured liquor into the mouth of
&
the victim after inflicting injuries on her, can only be construed
as an inference made by the investigating officer from the
evidence collected by him, for there is no eye-witness to the
occurrence. Further, inasmuch as we cannot rule out the
possibility of consumption of liquor by the victim herself, it
cannot be presumed that the accused carried liquor with him.
In the circumstances, we are unable to endorse the argument
that the prosecution story is totally improbable, merely for the
reason that the accused carried with him a knife, when he
proceeded to the house of the victim with the evil intention of
committing rape on her.
(c) It was also argued by the learned Senior
Counsel that MO7 knife was recovered from the scene of
occurrence only on 07.05.2016, and the same creates a doubt
as to whether the scene of occurrence was altered. MO7 was a
kitchen knife that was used in the house of the victim. Merely
for the reason that the said knife was not seized at the time of
preparation of the scene mahazar along with other articles, it
cannot be said that the scene of occurrence was altered.
(d) Another argument advanced by the learned
Senior Counsel was that there is no evidence to establish the
&
blood group of the victim. The learned Public Prosecutor met
this argument pointing out that, merely for the reason that the
group of the blood of the victim was not reported in Ext.P169, it
cannot be said that the blood of the victim was not present in
the material object, for the group of the blood of the accused,
viz, 'A' group being the dominant group, when the sample is an
admixture of blood belonging to two groups, only the
particulars of the dominant group would be revealed in the
serological examination. The learned Public Prosecutor
reinforced the said argument, placing reliance on the evidence
tendered by PW85 to that effect. It is unnecessary to examine
the sustainability of the argument advanced by the learned
Public Prosecutor in this regard. Inasmuch as the DNA of the
persons concerned was extracted from their blood samples,
according to us, the fact that the blood group of the victim was
not established is of no consequence, for DNA evidence is more
authentic than the evidence based on the blood group of the
individual.
(e) In the context of the DNA evidence tendered by
the prosecution with reference to MO10 churidar top, it was
vehemently argued by the learned Senior Counsel that
&
inasmuch as MO10 was not packed and sealed at the scene of
occurrence itself when it was seized, it cannot be contended
that the saliva found therein originated from the crime scene.
The learned Senior Counsel relied on the evidence tendered by
PW23, the Woman Police Constable who removed MO10
churidar top from the dead body at the time of holding inquest,
that the said object was not sealed. It was pointed out by the
learned Special Public Prosecutor that MO10 was soaked in
blood at the time of holding the inquest and it could not have,
therefore, been packed and sealed. It was, however, pointed
out by the learned Public Prosecutor, placing reliance on the
evidence tendered by PW99, the police officer who held the
inquest that MO10 was in his safe custody until the said
material object was produced before the Jurisdictional
Magistrate, and inasmuch as the said evidence tendered by
PW99 has not been discredited in his cross-examination, the
accused cannot be heard to contend that the saliva contained
in the said material object were likely to be contaminated. We
find force in the argument advanced by the learned Special
Public Prosecutor and accordingly, we are rejecting the
argument raised by the learned Senior Counsel based on the
&
evidence tendered by PW23. True, it can still be argued that
merely for the reason that the purity of the sample of saliva
contained in MO10 churidar top was maintained, it cannot be
said that the saliva found in the said material object originated
from the crime scene. Injuries 33 and 34 noted by PW90 at the
time of post-mortem examination as recorded by her in the
post-mortem certificate, are bite mark injuries of the assailant
on the back left shoulder of the victim. PW85 is the scientist
who first subjected MO10 to serological examination. Later it
was forwarded to PW89 for biological examination. It was PW89
who detected saliva in MO10. It is categorically stated by PW89
in Ext.P174 that saliva was detected from the left shoulder
blade portion of MO10 churidar top corresponding to the places
where PW90 noticed injuries 33 and 34 on the body of the
victim. PW82, the Scientist at the Rajiv Gandhi Centre deposed
that he found saliva from a portion of MO10 cut out from the
area from where saliva was detected by PW89. In other words,
it can certainly be inferred that the saliva found on MO10
churidar top originated from the crime scene. Needless to say,
the argument advanced by the learned Senior Counsel in this
regard is only to be rejected and we do so.
&
(f) In the context of the DNA evidence let in by the
prosecution with reference to MO10 churidar top, the learned
Senior Counsel also argued that inasmuch as an admixture of
the blood of the accused and the victim were not detected on
MO10 churidar top at the Rajiv Gandhi Centre, the evidence
tendered by PW81 to that effect is liable to be rejected as it is
obvious that the bloodstains found therein is contaminated. We
do not find any substance in this argument, for Rajiv Gandhi
Centre was neither requested by the Jurisdictional Magistrate
nor by the Laboratory, to examine the bloodstains contained
therein.
(g) In the context of the DNA evidence let in by the
prosecution with reference to the nail clippings of the victim,
the learned Senior Counsel argued that PW89 is the first person
to examine the nail clippings and he did not find anything in
the nail clippings. According to the learned Senior Counsel,
inasmuch as the nail clippings were examined by PW89, the
normal procedure is to scrape down the nail to get the samples
and if the nails were scraped down by PW89, there would be
nothing left for PW81 to examine in the nail clippings and
therefore, if PW81 finds any sample in the nail clippings, it can
&
only be an addition. We do not find any merit in this argument
also. Ext.P174 report submitted by PW89 recites categorically
that the nail clippings were examined only to detect fibres and
other foreign materials therein and the same were, thereafter,
preserved for DNA examination. The evidence tendered by
PW89 in this regard has not been discredited by the accused in
his cross-examination.
(h) It was argued by the learned Senior Counsel in
the context of the DNA evidence let in by the prosecution with
reference to the brown stain collected in cotton gauze from the
rear door frame of the house of the victim that what was
examined by PW81, was an unsealed packet and as such, the
possibility of contamination cannot be ruled out. We do not find
any substance in this argument also. As already mentioned, the
said item was forwarded to the Laboratory along with a few
other items as well, in terms of Ext.P201 forwarding note and
the same was first examined by PW85. In Ext.P169 report, it is
categorically stated by PW85 that the items received as per
Ext.P201 forwarding note were packed and sealed. PW85
confirmed that she conducted serological examination of some
of the items contained in the packet including the subject item
&
in her evidence. It is recited in Ext.P169 report that after the
serological examination, the said item was forwarded in an
unsealed packet to the DNA division for DNA examination. The
said fact has also been confirmed by PW85. In the absence of
the possibilities of contamination of the sample in the
Laboratory brought out in the examination of PW85, we do not
think that there is any merit in the argument advanced by the
the learned Senior Counsel.
(i) It was argued by the the learned Senior
Counsel in the context of the DNA evidence let in by the
prosecution with reference to MO23 knife that inasmuch as it
was reported by PW85 that the quantity of the bloodstain was
insufficient for determining the origin or group, there should
have been an explanation from the prosecution as to how then
PW81 could find an admixture of blood in the said sample so as
to enable him to extract DNA from it.
(j) It was argued by the learned Senior Counsel,
placing reliance on Ext.P149 report of PW80 that the brown
stain found by PW80 on the rear door frame of the house of the
victim was collected only on one cotton gauze, whereas,
Ext.P169 report of PW85 indicates that the brown stain was
&
collected in two pieces of cotton gauze. According to the
learned Senior Counsel, in the absence of any explanation for
the said anomaly, no reliance can be placed on the DNA
evidence in respect of the brown stain. We do not find any
substance in this argument. No doubt, Ext.P149 does not
indicate as to the number of cotton gauzes on which the brown
stain was collected. It is, however, recited in Ext.P149 itself that
the samples were handed over to the investigating officer only
after packing and labelling the same. The packets were opened
only by PW85. As such, it can be inferred that the brown stain
was collected on two cotton gauzes and non-mentioning of the
number of the cotton gauzes in which the brown stain was
collected in Ext.P149 can only be a bonafide omission.
(k) In the context of the obligation of the
prosecution to establish that the material objects seized during
investigation have been produced before the jurisdictional
Magistrate without undue delay, it was argued by the learned
Senior Counsel that even though MO10 churidar top was
seized on 29.04.2016, it was produced before the Jurisdictional
Magistrate only on 02.05.2016. We do not find any merit in this
argument as well. Inasmuch as it has come out in evidence
&
that MO10 was soaked in blood at the time of its seizure, the
delay of two days in producing the said material object in court
is not a significant one.
Circumstances proved :
43. The fact that the death of the victim is a
homicide has been satisfactorily established in the case
through the evidence tendered by PW90. The accused has no
case that the death is not a homicide. The moot question,
however, is whether the facts proved in the case are sufficient
to establish the guilt of the accused. According to us, the
following are the circumstances that could be derived from the
facts proved in the case:
(i) the accused was an able bodied, healthy
migrant labourer residing in the close vicinity of the house of
the victim.
(ii) the accused did not go to work on the date of
occurrence and PW10 saw the accused at about 10.30 a.m. on
the road near the house of the victim.
(iii) PW7 saw the victim carrying water to her
house at about 5.00 p.m. on the fateful day and she was
wearing a churidar then.
&
(iv) PWs 3, 4 and 5 heard a screaming sound from
the house of the victim at about 5.30 p.m. followed by a loud
door closing sound.
(v) PW3 saw the accused proceeding from the rear
side of the house of the victim shortly after she heard the
screaming and door closing sounds.
(vi) PW93 was the first person who saw the dead
body of the victim after the occurrence and when he saw the
dead body, the body was in such a position that the victim was
subjected to sexual assault.
(vii) the accused made preparations to leave the
locality of the house of the victim immediately after the
occurrence at about 6.30 p.m., and left the locality in the early
hours of the following day to his native place in Assam.
(viii) the accused admitted in the statement filed by
him under Section 233(2) of the Code that he left the locality
on account of the murder of the victim.
(ix) even though the accused stated that two of his
friends named in the said statement are responsible for the
murder of the victim, he could not establish that the said
persons actually exist in reality and therefore, the explanation
&
offered by the accused that he left the locality on account of
the involvement of his friends in the crime was false.
(x) the accused did not come back to the locality
of the house of the victim after the occurrence.
(xi) there is no explanation from the accused as to
why he chose not to come back to the locality after the
occurrence, especially when his close relatives and friends,
including his brother and stepson continued to live and work in
the locality.
(xii) the accused, who was using mobile number
8893608594 extensively to contact his friends and relatives till
the date of occurrence, had used the said mobile connection
after the occurrence only during his journey from Aluva to
Siliguri.
(xiii) no explanation is offered by the accused for
not using the mobile number 8893608594 after the occurrence,
even though he was very much holding with him, the SIM card
of the said connection.
(xiv) the accused secured another mobile
connection with number 7397097067 on reaching Kanchipuram
later, and he was using the said number thereafter to contact
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his friends and relatives.
(xv) the accused has not offered any explanation for
having secured a new mobile connection from Kanchipuram
when he already held a prior mobile connection and also since
there was no impediment in using the said mobile connection
any more.
(xvi) PW90 opined that the victim was murdered
after subjecting her to sexual assault and that there was also
resistance from the victim on the attempts made by the
assailant to rape her.
(xvii) PW90 opined that all the incised wounds
suffered by the victim, including injury No.31 could be caused
by MO23.
(xviii) the stains of blood found on MO23 is that of
the victim.
(xix) MO23 was a knife that was used by the
accused in the room where he was residing with PW12 and
others.
(xx) PW90 opined that injury Nos.33 and 34 are
suggestive of bite marks on the back of the left shoulder of the
victim, and saliva of the accused was found on MO10 churidar
&
top covering that part of the body.
(xxi) PW61 opined that the injury found by him on
the right index finger of the accused is suggestive of human
bite and the said injury was one suffered by the accused on the
date of occurrence.
(xxii) the accused has inconsistent versions as
regards the cause of the injury suffered by him on his right
index finger. The suggestion made by him to PW12 as regards
the same is that it was an injury caused by PW12, whereas his
explanation during the examination under Section 313 of the
Code is that the same was caused by one Rajan Mesthiri.
(xxiii) the saliva found in MO10 churidar top from
the portion corresponding to injury Nos.33 and 34 is that of the
accused and there is no explanation from the accused as to
how his saliva happened to be found in MO10 churidar top as
found on the body of the victim when the dead body was seen
by PW93.
(xxiv) the blood of the accused was found in MO10
churidar top as found on the body of the victim.
(xxv) the bloodstains in the nail clippings of the
victim was found to be the admixture of bloodstains of the
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victim and the accused.
(xxvi) the brown stain found on the rear door frame
of the house of the victim is that of the admixture of the blood
of the victim as also the accused.
(xxvii) the blood found in MO21 and 21(a) series
chappals belonging to the accused and recovered from a place
near the house of the victim, is that of the victim.
Conclusion as to the guilt :
44. The question that remains to be considered is
whether the circumstances established in the case would prove
the commission of the various offences for which the accused
has been charged and found guilty. This being a case on
circumstantial evidence, it is necessary to keep in mind the
principles to be followed in arriving at a finding as to the guilt
of the accused. The principles are:
(1) that the circumstances from which the
conclusion of guilt is drawn are fully established,
(2) that the facts so established are consistent
only with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) that the circumstances are of a conclusive
nature and tendency,
(4) that they should exclude every possible
&
hypothesis except that the accused is guilty, and
(5) that there must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused
and must show that in all human probability, the act must
have been done by the accused.
It is also necessary to state in this context that in the light of
the provision contained in Section 3 of the Indian Evidence Act,
a fact is said to be proved not only when, after considering the
matters, the court either believes it to exist, but also when the
court considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that it exists. No doubt, the standard of
proof required to be applied in a case of this nature is "proof
beyond reasonable doubt", but that does not mean that the
degree of proof must be beyond a shadow of doubt [See Iqbal
Moosa Patel v. State of Gujarat, (2011) 2 SCC 198]. In other
words, the degree of proof need not reach certainty, but it must
carry a high degree of probability. The law would fail to protect
the community if it admitted fanciful possibilities to deflect the
course of justice. If the evidence is so strong against a man as
to leave only a remote possibility in his favour which can be
dismissed with sentence 'of course it is possible, but not in the
&
least probable,' the case is proved beyond reasonable doubt
[See Miller v. Minister of Pensions (1947) 2 ALL ER 372]. Doubts
would be called reasonable if they are free from a zest for
abstract speculation. To constitute reasonable doubt, it must be
free from an over-emotional response. Doubts must be actual
and substantial doubts as to the guilt of the accused person
arising from the evidence, or from the lack of it, as opposed to
mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt
based upon reason and common sense. It must grow out of the
evidence in the case [See State of U.P. v. Krishna Gopal, (1988)
4 SCC 302]. Needless to say, smelling doubts for the sake of
giving benefit of doubt is not the law [See Lal Singh v. State of
Gujarat, (2001) 3 SCC 221].
45. The offences on which the accused is found
guilty are the offences punishable under Section 449 IPC,
house-trespass in order to commit offence punishable with
death, Section 342 IPC, wrongful confinement, 376 IPC, rape,
376A IPC, causing death of the victim of rape and 302 IPC,
murder. The charges framed against the accused for the said
offences read thus :
&
"Firstly, that you, on or about the 28 th day of April,
2016 in between 5.30 p.m and 6 p.m at the residence of
Jishamol at Periyarvalley Canal Bund Puramboke committed
trespass in the building, where the deceased resided, into the
commission of an offence punishable with death and thereby
committed an offence punishable under Section 449 of the
I.P.C and within my cognizance.
Secondly, that you, on or about the 28 th day of April,
2016 in between 5.30 p.m and 6 p.m at the residence of
Jishamol at Periyarvalley Canal Bund Puramboke wrongfully
confined the said Jishamol and thereby committed an offence
punishable under Section 342 of the I.P.C and within my
cognizance.
Thirdly, that you, on or about the 28 th day of April,
2016 in between 5.30 pm and 6 p.m at the residence of
Jishamol at Periyarvalley Canal Bund Puramboke committed
rape without the consent of Jishamol and thereby committed
an offence punishable under Section 376 of the I.P.C and
within my cognizance.
Fourthly, that you, on or about the 28 th day of April,
2016 in between 5.30 p.m and 6 p.m at the residence of
Jishamol at Periyarvalley Canal Bund Puramboke committed
rape without the consent of Jishamol and in the course of
such commission, inflicted injuries with dangerous weapons
which cause the death of Jishamol and thereby committed an
offence punishable under Section 376(A) of the I.P.C and
within my cognizance.
Fifthly, that you, on or about the 28 th day of April, 2016
in between 5.30 p.m and 6 p.m at the residence of Jishamol
at Periyarvalley Canal Bund Puramboke committed murder by
intentionally causing the death of Jishamol and thereby
committed an offence punishable under Section 302 of the
I.P.C and within my cognizance.
Sixthly, that you, on or about the 28 th day of April,
&
2016 in between 5.30 p.m and 6 p.m at the residence of
Jishamol at Periyarvalley Canal Bund Puramboke after
committing rape and murder of Jishamol caused the evidence
of the commission of that offences to disappear and thereby
committed an offence punishable under Section 201 of the
I.P.C and within my cognizance."
The circumstances found to have been proved by the
prosecution as referred in the preceding paragraphs consist of
the oral evidence given by PW3, previous and subsequent
conduct of the accused as spoken to by persons known to him
and his relatives, medical evidence and DNA evidence.
46. Inasmuch as the circumstances include DNA
evidence, it is necessary to mention that the DNA evidence is in
the nature of opinion evidence as envisaged under Section 45
of the Indian Evidence Act, and like any other opinion evidence,
its probative value varies from case to case depending on the
facts and circumstances and the weight accorded to other
evidence on record [See Pattu Rajan v. State of T.N., (2019) 4
SCC 771]. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1,
after referring to the various judgments rendered earlier, the
Apex Court held that DNA report deserves to be accepted
unless it is absolutely dented and for non-acceptance of the
same, it is to be established that there had been no quality
&
control or quality assurance. If the sampling is proper, and if
there is no evidence as to the tampering of the samples, the
DNA test report deserves to be accepted. Paragraph 228 of the
said judgment reads thus:
"228. From the aforesaid authorities, it is quite clear that DNA
report deserves to be accepted unless it is absolutely dented
and for non-acceptance of the same, it is to be established
that there had been no quality control or quality assurance. If
the sampling is proper and if there is no evidence as to
tampering of samples, the DNA test report is to be accepted."
In Mukesh, the Apex Court has quoted with approval, a passage
from the judgment in Pantangi Balarama Venkata Ganesh v.
State of A.P., (2009) 14 SCC 607, wherein a two-Judge Bench of
the Apex Court referred to the evidence tendered by an expert
on the subject that the probability of two persons except
identical twins having the same DNA fingerprint is around 1 in
30 billion world population. Reverting to the facts of this case,
in the absence of any case for the accused that he has an
identical twin, and in the absence of any material to indicate
that the chain of custody as also the purity of the samples were
not maintained during investigation, we are of the view that the
DNA evidence let in by the prosecution can certainly be
accepted.
&
47. In the light of the evidence that the dress on
the dead body of the victim, namely MO10 churidar top,
contained the saliva and blood of the accused, the evidence
that the nail clippings of the victim contained the admixture of
blood of the victim as also the accused, the evidence that the
brown stain found on the rear door frame of the house of the
victim is that of the admixture of the blood of the accused and
the victim, the evidence that the blood found on MO21 series
chappals belonging to the accused is that of the victim, the
evidence that the injuries were inflicted on the victim using
MO23 knife that was used in the room of the accused, the
evidence that the saliva of the accused was found on MO10
churidar top at its portion corresponding to the area covering
injuries Nos.33 and 34 bite marks, the evidence that the
accused suffered a bite injury on his right index finger on the
date of occurrence, the evidence that the accused is an able
bodied healthy person who was residing in the locality of the
house of the victim, the evidence that he did not go to work on
the date of occurrence, the evidence that the accused was seen
moving from the house of the victim immediately after the
screaming sound was heard from the house of the victim, the
&
evidence that the accused absconded from the locality after
the occurrence, the evidence that the accused offered false
explanation for leaving the locality, the evidence that the
victim was very much alive before the screaming sound was
heard from the house of the victim and the evidence that her
dead body was found in the house of the victim a few hours
after the screaming sound, it can certainly be inferred that it
was the accused who caused the death of the victim. Inasmuch
as the death is proved to be a homicide, in the light of the
evidence tendered by PW90 as to the cause of death, it can be
conclusively held that it was a murder, and the same was
committed by the accused.
48. If the accused is the person who caused the
death of the victim, in the light of the evidence of PW90 that
the victim was murdered after subjecting her to sexual assault,
the evidence of PW90 that there was continuous resistance on
the side of the victim on the attempts of the accused to rape
her, the evidence of PW90 that injury No.31 is a lacerated
penetrating wound which has been produced over the
perineum region which includes external genitalia, the
evidence of PW90 that injury No.31 is possible by introducing
&
MO23 multiple times in the region, the evidence of PW90 that
the ante-mortem injuries found on the body of the victim
includes bite marks, the evidence of PW61 that the injuries
suffered by the accused on his right index finger is suggestive
of human bite and the evidence of PW93 that when he saw the
dead body at about 8.45 p.m. on the date of occurrence, the
body was in such a position that the victim was subjected to
sexual abuse, according to us, it can certainly be inferred that
the accused had the required mens rea to commit rape on the
victim and that he subjected the victim to rape, though not by
penetrating his penis into her vagina, but by inserting an object
into the vagina as defined under Section 375(b) IPC, and
inasmuch as the death of the victim was also caused while
committing the rape, the offence punishable under Section
376A IPC is also made out. Further, inasmuch as it is found that
it was the accused who committed rape and murder at the
house of the victim, it can be inferred that the accused is guilty
of the offences punishable under Sections 342 and 449 IPC
also.
49. Even though the ingredients of the various
offences for which the accused has been charged can be
&
inferred from the circumstances established in the case, a
doubt would naturally arise that if the intention of the accused
was only to commit rape on the victim, why had he then
caused her death and also mutilate, in a barbaric and
gruesome manner, her private parts. Inasmuch as the
ingredients of the various offences have already been
established in the case, it is suffice to say that the acts of
brutality committed by the accused on the body of the victim
to cause her death can only be regarded as acts committed out
of frustration, aggression and vengeance as also to evade the
law and get rid of the criminal liability. It is well known that
even though there is no specific formula to predict what drives
a particular person to commit a crime, individuals who engage
in such acts of brutality are typically influenced by a
combination of various psychological and social factors. The
conduct of the accused in causing the death of the victim after
committing rape, in the case on hand, can be construed as an
act of precaution, consciously intended to conceal his identity
and his connection to the crime. As regards the abhorrent
manner in which the crime was committed by the accused,
factors namely, sexual perversion or sexual gratification,
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sensation and thrill-seeking contribute to the drive of the
assailant to commit the crime. It is also well known that
persons who commit such gruesome acts normally have issues
controlling their impulses and is in a fit of rage.
50. One of the arguments advanced by the learned
Senior Counsel for the accused which has not been dealt with
hitherto by us, is the argument that the prosecution has not
established satisfactorily the motive of the accused. The
materials on record as discussed in the preceding paragraphs
would indicate beyond doubt that the motive of the accused
was to commit rape on the victim. Be that as it may, in a case
on circumstantial evidence, motive assumes significance. It is
by now settled that if there are other circumstances which
conclusively establish that it was the accused and no one else
who committed the crime, then motive becomes immaterial
[See Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12
SCC 512]. Inasmuch as it is found that the circumstances
proved in the case conclusively establish the guilt of the
accused, even assuming that the prosecution has not
established the motive of the accused, the same is immaterial,
in the context of considering the correctness of the impugned
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judgment.
51. In the light of the discussion aforesaid,
according to us, the finding rendered by the trial court that the
accused is guilty of the offences punishable under Sections
449, 342, 376, 376A and 302 IPC, is in order.
Sustainability of the death sentence :
52. Inasmuch as it is found that the conviction of
the accused is liable to be affirmed, it is necessary now to
consider the sustainability of the death sentence imposed on
the accused. Imposing death sentence being a process where
the right to life guaranteed to the accused under the
Constitution is deprived, it shall be in accordance with the
procedure established by law. The imposition of death sentence
is a serious function to be discharged uninfluenced by
individual perceptions of Judges. It is not easy to derive the
principles to be kept in mind while undertaking an adjudication
of an issue of this nature from the plethora of decisions
rendered by the Apex Court over the years, for there has been
serious changes in the judicial approach on the question of
imposing death sentence, on account of various factors
including the demands from a section of the public for abolition
&
of death sentence, changes brought out in the legislative policy
and change in the perception of individuals, including Judges,
towards awarding of death sentence. At the same time, in the
absence of elaborate procedural provisions in statutes
governing the field, the principles to be followed while resolving
the question can be derived only from judicial precedents. Let
us understand the principles.
53. The Criminal Procedure Code, 1861 marks the
beginning of the legislative governance relating to death
sentence in India. Proviso to Section 380 of the said statute
necessitated courts to state reasons for not awarding death
sentence. In other words, the scheme of the said statute was
that 'death sentence is the rule, and imprisonment for life is the
exception'. Even when the said statute was replaced by the
Code of Criminal Procedure, 1898, an identical provision was
included in Section 367(5) of the new statute. In terms of the
Code of Criminal Procedure (Amendment) Act, 1955, Section
367(5) of the 1898 Code was deleted. As a result, it ceased
being a necessity for the courts to record reasons for not
awarding death sentence. By this amendment, sentencing was
left to judicial discretion of the court and this was the beginning
&
of the changes that took place in the sentencing structure. The
position continued till the introduction of the Code of Criminal
Procedure, 1973. Section 235 of the Code now makes it
mandatory for the Judge to hear the convicted accused on the
question of sentence and Section 354(3) makes it mandatory
for the Judge to state special reasons for awarding death
sentence. In short, the change brought about in the legislative
approach is that 'imprisonment for life is the rule and death
sentence is the exception', as against the original position that
'death sentence is the rule, and imprisonment for life is the
exception.' Sub-section (3) of Section 354 of the Code
mandates that when the conviction of an accused is for an
offence punishable with death or, in the alternative,
imprisonment for life or imprisonment for a term, the judgment
shall state the reasons for the sentence awarded, and in the
case of sentence of death, the special reasons for such
sentence.
54. Law relating to award of death sentence in India
has evolved through policy reforms as also judicial
pronouncements including the judgments of the Apex Court in
the celebrated decisions, viz, Jagmohan Singh v. State of U.P.,
&
(1973) 1 SCC 20 and Rajendra Prasad v. State of U.P., (1979) 3
SCC 646. The expression "rarest of rare cases" was one coined
by the Apex Court in Bachan Singh v. State of Punjab, (1980) 2
SCC 684, in the context of awarding death sentence. Bachan
Singh was a case where the questions considered were whether
the death penalty is unconstitutional and if not, whether the
sentencing procedure provided in Section 354(3) of the Code is
unconstitutional, for it invests the court with unguided and
untrammelled discretion and allows death sentence to be
arbitrarily or freakishly imposed on a person found guilty of an
offence punishable with death or, in the alternative,
imprisonment for life. Both questions aforesaid were answered
in the negative in Bachan Singh. The principles laid down in
Bachan Singh were summarized by a Three Judge Bench of the
Apex Court later in Machhi Singh v. State of Punjab, (1983) 3
SCC 470, thus:
"38. In this background the guidelines indicated in Bachan
Singh case 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 emerge
from Bachan Singh 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 having 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 have 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."
In Machhi Singh, the Apex Court has gone into the reasons why
the society as a whole does not endorse the humanistic
approach reflected in "death sentence-in-no-case" doctrine,
and held that the society would crave for death penalty only in
rarest of rare cases when its collective conscience is so shocked
that it will expect the holders of the judicial power centre to
inflict death sentence, irrespective of their personal opinion as
regards the desirability or otherwise of retaining death
sentence. The Apex Court has also broadly classified such
cases under categories; (i) manner of commission of murder (ii)
motive for commission of murder (iii) anti-social or socially
abhorrent nature of the crime (iv) magnitude of the crime and
(v) personality of victim of murder. Paragraphs 32 to 37 of the
judgment of the Apex Court in Machhi Singh dealing with this
&
aspect read thus:
"32. The reasons why the community as a whole does
not endorse the humanistic approach reflected in "death
sentence-in-no-case" doctrine are not far to seek. In the first
place, the very humanistic edifice is constructed on the
foundation of "reverence for life" principle. When a member
of the community violates this very principle by killing
another member, the society may not feel itself bound by the
shackles of this doctrine. Secondly, it has to be realized that
every member of the community is able to live with safety
without his or her own life being endangered because of the
protective arm of the community and on account of the rule
of law enforced by it. The very existence of the rule of law
and the fear of being brought to book operates as a deterrent
for those who have no scruples in killing others if it suits their
ends. Every member of the community owes a debt to the
community for this protection. When ingratitude is shown
instead of gratitude by "killing" a member of the community
which protects the murderer himself from being killed, or
when the community feels that for the sake of self-
preservation the killer has to be killed, the community may
well withdraw the protection by sanctioning the death
penalty. But the community will not do so in every case. It
may do so "in rarest of rare cases" when its collective
conscience is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of
retaining death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of the
motive for, or the manner of commission of the crime, or the
anti-social or abhorrent nature of the crime, such as for
instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the
community. For instance,
(i) when the house of the victim is set aflame with the
end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II. Motive for commission of murder
&
34. When the murder is committed for a motive which
evinces total depravity and meanness. For instance when (a)
a hired assassin commits murder for the sake of money or
reward (b) a cold-blooded murder is committed with a
deliberate design in order to inherit property or to gain
control over property of a ward or a person under the control
of the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, or (c) a murder is
committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled
Caste or minority community etc., is committed not for
personal reasons but in circumstances which arouse social
wrath. For instance when such a crime is committed in order
to terrorize such persons and frighten them into fleeing from
a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view to
reverse past injustices and in order to restore the social
balance.
36.When the crime is enormous in proportion. For
instance when multiple murders say of all or almost all the
members of a family or a large number of persons of a
particular caste, community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child
who could not have or has not provided even an excuse,
much less a provocation, for murder (b) a helpless woman or
a person rendered helpless by old age or infirmity (c) when
the victim is a person vis-a-vis whom the murderer is in a
position of domination or trust (d) when the victim is a public
figure generally loved and respected by the community for
the services rendered by him and the murder is committed
for political or similar reasons other than personal reasons."
55. The principles laid down in Bachan Singh and
Machhi Singh governed the field for quite a long period. It was,
however, felt that the list of categories of rarest of rare cases
crafted in Machhi Singh cannot be exhaustive and ought to be
given an even more expansive adherence owing to the
&
changed social and legal scenario. The observation made by
the Apex Court in this regard in Swamy Shraddananda (2) v.
State of Karnataka, (2008) 13 SCC 767, is worth referring to.
Paragraph 43 of the judgment reads thus:
"43. In Machhi Singh the Court crafted the categories of
murder in which "the community" should demand death
sentence for the offender with great care and thoughtfulness.
But the judgment in Machhi Singh was rendered on 20-7-
1983, nearly twenty-five years ago, that is to say a full
generation earlier. A careful reading of the Machhi Singh
categories will make it clear that the classification was made
looking at murder mainly as an act of maladjusted individual
criminal(s). In 1983 the country was relatively free from
organised and professional crime. Abduction for ransom and
gang rape and murders committed in the course of those
offences were yet to become a menace for the society
compelling the legislature to create special slots for those
offences in the Penal Code. At the time of Machhi Singh, Delhi
had not witnessed the infamous Sikh carnage. There was no
attack on the country's Parliament. There were no bombs
planted by terrorists killing completely innocent people, men,
women and children in dozens with sickening frequency.
There were no private armies. There were no mafia cornering
huge government contracts purely by muscle power. There
were no reports of killings of social activists and "whistle-
blowers". There were no reports of custodial deaths and rape
and fake encounters by police or even by armed forces. These
developments would unquestionably find a more pronounced
reflection in any classification if one were to be made today.
Relying upon the observations in Bachan Singh, therefore, we
respectfully wish to say that even though the categories
framed in Machhi Singh provide very useful guidelines,
nonetheless those cannot be taken as inflexible, absolute or
immutable. Further, even in those categories, there would be
scope for flexibility as observed in Bachan Singh itself."
As could be seen from the extracted passage, the change in the
approach as regards the awarding of death sentence that was
brought about is that even though the categories formulated in
Machhi Singh provide very useful guidelines, the said
&
guidelines cannot be taken as inflexible, absolute and
immutable and that there would be scope for flexibility as
observed in Bachan Singh itself. That apart, in Swamy
Shraddananda, the Apex Court laid down a jurisprudential basis
for the concept of 'life imprisonment till the remainder of the
natural life' to take care of situations where the court finds that
life imprisonment which, in the light of the power of remission
conferred on the executive, is only imprisonment for a period of
14 years, is grossly inadequate and at the same time, having
regard to the facts and circumstances of each case, death
sentence cannot be imposed in the light of the principles laid
down in Bachan Singh and Machhi Singh. Paragraph 92 of the
judgment in Swamy Shraddananda dealing with the said
aspect reads thus:
"92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A sentence
may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to
this Court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find,
as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant
in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may
strongly feel that a sentence of life imprisonment subject to
remission normally works out to a term of 14 years would be
grossly disproportionate and inadequate. What then should
the Court do? If the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all intents
and purposes, of not more than 14 years and the other death,
the Court may feel tempted and find itself nudged into
&
endorsing the death penalty. Such a course would indeed be
disastrous. A far more just, reasonable and proper course
would be to expand the options and to take over what, as a
matter of fact, lawfully belongs to the Court i.e. the vast
hiatus between 14 years' imprisonment and death. It needs
to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case,
the sentence of 14 years' imprisonment would amount to no
punishment at all."
The approach made in Swamy Shraddananda has been
affirmed by the Constitution Bench of the Apex Court in Union
of India v. V. Sriharan, (2016) 7 SCC 1. In the said case, it was
also held that if the court finds in a given case that the
imposition of death sentence may not be warranted and at the
same time, imprisonment for a period of 14 years is grossly
inadequate, it is free to decide the number of years of
imprisonment to be awarded to the accused beyond the period
of 14 years, in the place of imprisonment for life or death
penalty provided for, for the offence, by taking into account,
apart from the crime itself, from the angle of the commission of
such crime or crimes, the interest of the society at large or all
other relevant factors which cannot be put in any straitjacket
formulae. Paragraph 98 of the said judgment reads thus:
"98. While that be so, it cannot also be lost sight of that it will
be next to impossible for even the lawmakers to think of or
prescribe in exactitude all kinds of such criminal conduct to fit
into any appropriate pigeonhole for structured punishments
to run in between the minimum and maximum period of
imprisonment. Therefore, the lawmakers thought it fit to
prescribe the minimum and the maximum sentence to be
&
imposed for such diabolic nature of crimes and leave it for the
adjudication authorities, namely, the Institution of Judiciary
which is fully and appropriately equipped with the necessary
knowledge of law, experience, talent and infrastructure to
study the detailed parts of each such case based on the
legally acceptable material evidence, apply the legal
principles and the law on the subject, apart from the
guidance it gets from the jurists and judicial pronouncements
revealed earlier, to determine from the nature of such grave
offences found proved and depending upon the facts noted,
what kind of punishment within the prescribed limits under
the relevant provision would appropriately fit in. In other
words, while the maximum extent of punishment of either
death or life imprisonment is provided for under the relevant
provisions noted above, it will be for the courts to decide if in
its conclusion, the imposition of death may not be warranted,
what should be the number of years of imprisonment that
would be judiciously and judicially more appropriate to keep
the person under incarceration, by taking into account, apart
from the crime itself, from the angle of the commission of
such crime or crimes, the interest of the society at large or all
other relevant factors which cannot be put in any straitjacket
formulae."
56. After referring to a catena of judicial
pronouncements, post Bachan Singh and Machhi Singh, the
Apex Court has laid down in Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257 a nearly exhaustive list of
aggravating and mitigating circumstances. Paragraph 76 of the
said judgment reads thus:
"76. The law enunciated by this Court in its recent judgments,
as already noticed, adds and elaborates the principles that
were stated in Bachan Singh and thereafter, in Machhi Singh .
The aforesaid judgments, primarily dissect these principles
into two different compartments--one being the "aggravating
circumstances" while the other being the "mitigating
circumstances". The court would consider the cumulative
effect of both these aspects and normally, it may not be very
appropriate for the court to decide the most significant aspect
of sentencing policy with reference to one of the classes
under any of the following heads while completely ignoring
other classes under other heads. To balance the two is the
primary duty of the court. It will be appropriate for the court
&
to come to a final conclusion upon balancing the exercise that
would help to administer the criminal justice system better
and provide an effective and meaningful reasoning by the
court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping, etc. by the
accused with a prior record of conviction for capital felony or
offences committed by the person having a substantial
history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in a
public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody in a
place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful
discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a child,
helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a trusted
person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
&
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not
a determinative factor by itself.
(3) The chances of the accused of not indulging in
commission of the crime again and the probability of the
accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to appreciate
the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect of
giving rise to mental imbalance in that given situation like
persistent harassment or, in fact, leading to such a peak of
human behaviour that, in the facts and circumstances of the
case, the accused believed that he was morally justified in
committing the offence.
(6) Where the court upon proper appreciation of evidence
is of the view that the crime was not committed in a
preordained manner and that the death resulted in the course
of commission of another crime and that there was a
possibility of it being construed as consequences to the
commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of
a sole eyewitness though the prosecution has brought home
the guilt of the accused."
57. In Sangeet v. State of Haryana, (2013) 2 SCC
452, a Two Judge Bench of the Apex Court took the view that
the application of aggravating and mitigating circumstances
&
needs a fresh look, for aggravating circumstances relate to the
crime while mitigating circumstances relate to the criminal and
therefore, a balance sheet cannot be drawn up for comparing
the two, as consideration for both are distinct and unrelated. It
was also held in the said case that in the sentencing process,
both "crime" and "criminal" are equally important. It was also
observed by the Apex Court in the said case that as the courts
have not taken the sentencing process as seriously as it should
be, with the result that in capital offences, it has become Judge-
centric sentencing rather than principled sentencing. After
referring to the decision in Sangeet, in Shankar Kisanrao Khade
v. State of Maharashtra, (2013) 5 SCC 546, the Apex Court has
held that to award death sentence, the "crime test" that is, the
aggravating circumstances favouring capital punishment has to
be fully satisfied, that is, 100% and "criminal test" 0%, that is,
no mitigating circumstance favouring the accused. In other
words, the view was that if there is any mitigating
circumstance, the criminal test may favour the accused to
avoid the capital punishment. It was also held in the said case
that even if both the tests are satisfied, that is, the aggravating
circumstances to the fullest extent and no mitigating
&
circumstances favouring the accused, still we have to apply
finally the "rarest of the rare case test" which depends upon
the perceptions of the society and must not be Judge-centric.
Paragraph 52 of the said judgment read thus:
"52. Aggravating circumstances as pointed out above, of
course, are not exhaustive so also the mitigating
circumstances. In my considered view, the tests that we have
to apply, while awarding death sentence are "crime test",
"criminal test" and the "R-R test" and not the "balancing
test". To award death sentence, the "crime test" has to be
fully satisfied, that is, 100% and "criminal test" 0%, that is,
no mitigating circumstance favouring the accused. If there is
any circumstance favouring the accused, like lack of intention
to commit the crime, possibility of reformation, young age of
the accused, not a menace to the society, no previous track
record, etc. the "criminal test" may favour the accused to
avoid the capital punishment. Even if both the tests are
satisfied, that is, the aggravating circumstances to the fullest
extent and no mitigating circumstances favouring the
accused, still we have to apply finally the rarest of the rare
case test (R-R test). R-R test depends upon the perception of
the society that is "society-centric" and not "Judge-centric",
that is, whether the society will approve the awarding of
death sentence to certain types of crimes or not. While
applying that test, the court has to look into variety of factors
like society's abhorrence, extreme indignation and antipathy
to certain types of crimes like sexual assault and murder of
intellectually challenged minor girls, suffering from physical
disability, old and infirm women with those disabilities, etc.
Examples are only illustrative and not exhaustive. The courts
award death sentence since situation demands so, due to
constitutional compulsion, reflected by the will of the people
and not the will of the Judges."
In Shankar Kisanrao Khade, the Apex Court has also taken the
pain to indicate the factors that weighed with the Apex Court in
commuting death sentence to sentence for imprisonment for
life as also in confirming the death sentence. Young age of the
accused, the possibility of reforming and rehabilitating the
&
accused, the accused having no prior criminal record, the
accused not likely to be a menace or threat or danger to the
society or community, the accused having been acquitted by
one of the courts, the crime was not premeditated, the case
was one of circumstantial evidence etc. are some of the factors
that weighed with the Apex Court in commuting the capital
sentence to imprisonment for life while the cruel, diabolic,
brutal, depraved and gruesome nature of the crime, the crime
resulting in public abhorrence, shocking the judicial conscience
or the conscience of society or the community, the reform or
rehabilitation of the convict, defencelessness of victims, the
crime was either unprovoked or that it was premeditated etc.
are some of the factors that weighed with the Court in affirming
the death sentence.
58. Crime test : As noticed, death sentence can be
imposed only when life imprisonment appears to be an
altogether inadequate punishment, having regard to the
relevant circumstances of each crime. Inasmuch as the case on
hand is one where, when the attempts made by the accused to
commit rape on the victim was resisted continuously by her,
the accused out of frustration and vengeance not only inflicted
&
on the victim several stab injuries causing her death, but also
mutilated brutally and barbarously, her genital organs using
MO23 knife, to the extent of pulling out parts of her internal
organs. It was a cold blooded murder without provocation, for
the only sin committed by the victim was that she resisted the
attempt of the accused to commit rape on her. As indicated,
the crime committed is in the nature of extreme brutality, that
shocks conscience of the society. The facts aforesaid, according
to us, satisfy the crime test. As explained by the Apex Court in
Ramnaresh, similar is the view taken by the Apex Court in
Mukesh v. State (NCT of Delhi). Paragraph 513 of the judgment
in Mukesh reads thus:
"513. If we look at the aggravating circumstances in the
present case, following factors would emerge:
(i) Diabolic nature of the crime and the manner of
committing crime, as reflected in committing gang rape
with the victim; forcing her to perform oral sex, injuries on
the body of the deceased by way of bite marks; insertion of
iron rod in her private parts and causing fatal injuries to her
private parts and other internal injuries; pulling out her
internal organs which caused sepsis and ultimately led to
her death; throwing the victim and the complainant (PW 1)
naked in the cold wintery night and trying to run the bus
over them.
(ii) The brazenness and coldness with which the acts
were committed in the evening hours by picking up the
deceased and the victim from a public space, reflects the
threat to which the society would be posed to, in case the
accused are not appropriately punished. More so, it reflects
that there is no scope of reform.
(iii) The horrific acts reflecting the inhuman extent to
which the accused could go to satisfy their lust, being
&
completely oblivious, not only to the norms of the society,
but also to the norms of humanity.
(iv) The acts committed so shook the conscience of the
society."
59. Criminal test : Coming to the criminal test, it is
seen that in terms of the interim order passed in this matter on
11.05.2023, this Court appointed Ms.Nuriya Ansari associated
with project 39A of the National Law University, New Delhi to
conduct a mitigation investigation in respect of the accused. A
report has been submitted before this Court on 02.08.2023
even before deciding the appeal preferred by the accused. It is
seen that the investigator interviewed the accused, his near
relatives excluding his wife and child and also a few community
members. She also collected longitudinal data retrospectively,
by seeking an individual account of the life of the accused over
different periods of time. She also evaluated the mental status
of the accused. The conclusion arrived at by the mitigating
investigator in the report filed by her reads thus:
"E. Conclusion
a. The mitigating circumstances identified and presented in
this report have no bearing on the guilt and are no
justification for crime. However, they are meant to
understand the circumstances and life history of the accused
to assess their extreme culpability and reformation.
&
Fig 4.
Presenting factors that reduce Ameer's extreme culpability
and will help in his smooth rehabilitation and reintegration.
b. After having understood Ameer's life from his childhood to
present day, it was found to be full of adverse childhood
experiences which consisted of poverty impacting his
education, his living condition, family's health and eventually
resulting in his early entry into workspace. In the interviews it
was found that Ameer has no previous criminal antecedents
nor his family has any legal history. He was only 21 years old
when he was arrested and incarcerated, his young age and
engagement in prison work gives an assurance of his smooth
reintegration into society. His lack of criminal record reflects
having no history of unstable behaviour, which is further
supported by the prison conduct report.
c. According to the case history collected, Ameer, who was
unable to follow the proceedings due to a language barrier in
the first place, received weak legal representation making
him unable to actively participate in the trial. With respect to
his reintegration into society: Ameer has a 7-year-old
daughter, his parents and one younger sister dependent on
him. The continued family ties he has reflect the importance
of his presence in his family and their dire dependence on
him. Since Ameer's family and he himself have no information
about his wife Fauzila, Ameer's daughter is completely
dependent on him for her future. Ameer's long solitary
experience was an added punishment given to him. Through
the interviews it was clear that Ameer too is dependent on his
family for support and strength. Even in prison, it was one of
the primary reasons motivating him to keep himself engaged
in prison. When released, Ameer would not only be supported
by his family, but he himself will be sufficiently motivated to
provide for his family.
&
d. He and his family hold onto hope for justice and to reunite
with each other, which should be considered by the Hon'ble
court in deciding a sentence for Ameer that focuses on
correctionalization over prisonization. The factors stated
above and in Fig. 4, show how Ameer is not extremely
culpable and the sentence given to him by the Ld. Trial court
did not consider his reformative abilities before giving him the
death penalty.
e. Therefore, it is requested that the Hon'ble Court take the
aforementioned mitigating factors into account when deciding
on an appropriate sentence for Ameer ul Islam. If given the
chance, he also has a chance to reintegrate into society.
The present report is being filed by myself, Ms. Nuriya Ansari,
associated with Project 39A at National Law University, Delhi,
in order to bring on record a report authored by me, pursuant
to directions passed by this Hon'ble Court by Order dated
11.05.2023 in the present case. The facts stated in the above
report are true and correct to my knowledge and belief. No
part of it is false and no material has been concealed
therefrom."
Poor and inadequate legal representation, according to the
investigator, is one of the factors which would show that the
accused is not extremely culpable. Having regard to the
manner in which the case was defended by the counsel for the
accused as evident from the records of the case, it cannot be
said that the legal aid extended to the accused was poor and
inadequate. From the materials, what is discernable is that the
accused was well defended in the case. Be that as it may, we
fail to understand as to how poor and inadequate legal
representation could be named as a factor reflecting the
culpability of the accused. The remaining factors cited by the
investigator to show that the accused is not extremely
&
culpable are (i) want of criminal antecedents, (ii) socio-
economic background, (iii) young age and (iv) adverse
childhood experiences of the accused. Likewise, according to
the investigator, (i) continued family support and societal
support, (ii) absence of conduct complaints in prison, (iii) young
age, (iv) absence of psychological concerns requiring additional
care and (v) work undertaken in prison, are factors that would
show the smooth reintegration of the accused. In Mukesh,
factors such as want of criminal antecedents, young age,
current family situation, conduct in prison etc. have not been
accepted as sufficient factors to commute death sentence to
imprisonment for life. Paragraphs 514 to 517 of the said
judgment read thus:
514. As noted earlier, on the aspect of sentencing, seeking
reduction of death sentence to life imprisonment, three of the
convicts/appellants, namely, A-3 Akshay, A-4 Vinay and A-5
Pawan placed on record, through their individual affidavits
dated 23-3-2017, following mitigating circumstances:
(a) Family circumstances such as poverty and rural
background,
(b) Young age,
(c) Current family situation including age of parents, ill-
health of family members and their responsibilities towards
their parents and other family members,
(d) Absence of criminal antecedents,
(e) Conduct in jail, and
(f) Likelihood of reformation.
In his affidavit, accused Mukesh reiterated his innocence and
only pleaded that he is falsely implicated in the case.
515. In Purushottam Dashrath Borate v. State of
&
Maharashtra [Purushottam Dashrath Borate v. State of
Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri) 326] ,
this Court held that age of the accused or family background
of the accused or lack of criminal antecedents cannot be said
to be the mitigating circumstance. It cannot also be
considered as mitigating circumstance, particularly taking
into consideration, the nature of heinous offence and cold
and calculated manner in which it was committed by the
accused persons.
516. Society's reasonable expectation is that deterrent
punishment commensurate with the gravity of the offence be
awarded. When the crime is brutal, shocking the collective
conscience of the community, sympathy in any form would
be misplaced and it would shake the confidence of public in
the administration of criminal-justice system. As held in Om
Prakash v. State of Haryana [Om Prakash v. State of Haryana,
(1999) 3 SCC 19 : 1999 SCC (Cri) 334] , the Court must
respond to the cry of the society and to settle what would be
a deterrent punishment for what was an apparently
abominable crime.
517. Bearing in mind the above principles governing the
sentencing policy, I have considered all the aggravating and
mitigating circumstances in the present case. Imposition of
appropriate punishment is the manner in which the courts
respond to the society's cry for justice against the crime.
Justice demands that the courts should impose punishments
befitting the crime so that it reflects public abhorrence of the
crime. Crimes like the one before us cannot be looked with
magnanimity. Factors like young age of the accused and poor
background cannot be said to be mitigating circumstances.
Likewise, post-crime remorse and post-crime good conduct of
the accused, the statement of the accused as to their
background and family circumstances, age, absence of
criminal antecedents and their good conduct in prison, in my
view, cannot be taken as mitigating circumstances to take
the case out of the category of " the rarest of rare cases ". The
circumstances stated by the accused in their affidavits are
too slender to be treated as mitigating circumstances."
The remaining mitigating circumstances pointed out by the
investigator are factors such as the work undertaken by the
accused in prison and the absence of psychological concerns.
We do not think that the said mitigating circumstances are
&
sufficient to commute a death sentence to imprisonment for
life. In other words, there are no mitigating circumstances that
favour the accused.
60. Rarest of the Rare Test : As already noticed,
rarest of the rare test depends upon the perception of the
society, viz, whether the society would approve the awarding of
death sentence in a case of this nature, and while applying the
said test, the court has to look into factors such as the society
viewing the act with abhorrence, extreme indignation etc. In
this context, it is apposite to refer to a passage from the
decision of the Apex Court in Mukesh dealing with the identical
issue. The passage reads thus:
"The gruesome offences were committed with highest
viciousness. Human lust was allowed to take such a demonic
form. The accused may not be hardened criminals; but the
cruel manner in which the gang rape was committed in the
moving bus; iron rods were inserted in the private parts of the
victim; and the coldness with which both the victims were
thrown naked in cold wintery night of December, shocks the
collective conscience of the society. The present case clearly
comes within the category of " the rarest of rare cases " where
the question of any other punishment is "unquestionably
foreclosed". If at all there is a case warranting award of death
sentence, it is the present case. If the dreadfulness displayed
by the accused in committing the gang rape, unnatural sex,
insertion of iron rod in the private parts of the victim does not
fall in the "rarest of rare category", then one may wonder
what else would fall in that category. On these reasonings
recorded by me, I concur with the majority in affirming the
death sentence awarded to the accused persons."
The facts are similar, and according to us, in a case of this
&
nature, the society would certainly approve the awarding of
death sentence, especially since the victim was a young lady
who was forced to live in a structure on the side of the public
road, on account of her impoverished social background, and
the crime was one committed within the premises of her own
shelter. Needless to say, the death sentence awarded to the
accused is liable to be confirmed and we do so.
Conclusion
In the circumstances, the criminal appeal is
dismissed and the death sentence awarded to the accused is
confirmed.
Before parting with the case, it is necessary to
observe that it is with a heavy heart that we uphold the
ultimate penalty of death sentence to the accused in the case.
We hope and fervently believe that this judgment would serve
as a resolute deterrent to those who would consider
perpetrating such abhorrent acts in future, so that persons
similarly placed like the victim who are innumerable in our
society, would live with a sense of security and without fear. It
is apposite in the circumstances to conclude this judgment with
the celebrated statement made by the Nobel Laureate,
&
Alexander Solzhenitsyn, "Justice is conscience, not a personal
conscience, but the conscience of the whole humanity".
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
S.MANU, JUDGE.
Ds/YKB/Mn
