Kerala High Court
Nino Mathew vs State Of Kerala on 24 May, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
1
Crl. Appeal No. 639 of 2016 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 639 OF 2016
CRIME NO.491/2014 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM
JUDGMENT DATED 18.04.2016 IN SC NO.1480 OF 2014 OF SESSIONS COURT,
THIRUVANANTHAPURAM
CP NO.84 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ATTINGAL
APPELLANT/ACCUSED NO.2:
ANU SHANTHI
D/O SHANTHA KUMARI, PRASANTH VEEDU, T.R.A. LANE NO I, MAMAM
DESOM, KIZHUVILLAM VILLAGE, FROM THUSHARAM VEEDU, AWICS,
MEVARKAL DESOM, ALAMCODE VILLAGE.
BY ADVS.
V.K.BIJU
SHYLAJA VARGHESE
SAMPATH V. TOMS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV.
SMT.AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2024,
ALONG WITH CRL. APPEAL NO. 683 OF 2016 AND DSR. NO. 2/2016, THE COURT ON
24.05.2024 DELIVERED THE FOLLOWING:
2
Crl. Appeal No. 639 of 2016 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
CRL.A NO. 683 OF 2016
CRIME NO.491/2014 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM
JUDGMENT DATED 18.04.2016 IN SC NO.1480 OF 2014 OF SESSIONS COURT,
THIRUVANANTHAPURAM
CP NO.84 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ATTINGAL
APPELLANT/1ST ACCUSED:
NINO MATHEW
S/O T.J. MATHEW, MAGGIE GARDENS, THENGUMMOOTTIL,
BACK OF MGM SCHOOL, KARIMANAL, ATTIPRA VILLAGE,
THIRUVANANTHAPURAM (UNDER CUSTODY).
BY ADVS.
SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.HARIS ALI
SRI.K.R.RAJAISH
SRI.K.S.STEJO
SRI.V.S.THOSHIN
SRUTHY K K
P.VIJAYA BHANU (SR.)(K/421/1984)
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, THROUGH THE INSPECTOR OF POLICE,
ATTINGAL POLICE STATION, THIRUVANANTHAPURAM.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SMT.S.AMBIKA DEVI, SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2024,
ALONG WITH CRL. APPEAL NO. 639 OF 2016 AND CONNECTED CASES, THE COURT
ON 24.05.2024 DELIVERED THE FOLLOWING:
3
Crl. Appeal No. 639 of 2016 & batch
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
DSR NO. 2 OF 2016
CRIME NO.491/2014 OF Attingal Police Station, Thiruvananthapuram
JUDGMENT DATED 18.04.2016 IN SC NO.1480 OF 2014 OF SESSIONS COURT,
THIRUVANANTHAPURAM
CP NO.84 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ATTINGAL
PETITIONER:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SMT. AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR
RESPONDENT:
NINO MATHEW,
BY ADVS.
SRUTHY K K
SRI.GEORGE MATHEW
P.VIJAYA BHANU (SR.)(K/421/1984)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2024, ALONG
WITH CRL.A.639/2016 AND CONNECTED CASES, THE COURT ON 24.05.2024
DELIVERED THE FOLLOWING:
4
Crl. Appeal No. 639 of 2016 & batch
'CR'
P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
---------------------------------------------------------
Crl. Appeal Nos. 639 & 683 of 2016
& DSR No. 2 of 2016
--------------------------------------------------------
Dated this the 24th day of May, 2024.
JUDGMENT
Johnson John, J.
"There is no disease so destructive as lust."
--Chanakya
Adulterous and lustful relationship between two technocrats
betraying their respective spouses, children and parents resulted in the
murder of Omana, the mother of PW1, and Swasthika, aged 3 ½
years, the daughter of PW1, and attempted murder of PW1 on
16.04.2014 in their residential house bearing No. 3/173 of Attingal
Municipality.
2. PW1, an engineer by profession, working at Moozhiyar, is the
husband of the second accused, a technocrat working in Technopark,
Kazhakuttom and on the night of 15.04.2014, he reached his house at
Crl. Appeal No. 639 of 2016 & batch
Attingal, where his wife, the second accused, daughter Swasthika and
parents, Omana and Thankappan Chettiyar, are residing and on the
next day morning, PW14, the father of PW1, left the house at about
7.45 a.m. to the place where PW1 is constructing a new house and
subsequently, the second accused left the house as usual to her place
of work at Kazhakuttom and since PW1 was on leave, he left the house
at about 11 a.m. to the post office at Alamcode and while he was
standing at Alamcode junction, he received a phone call from his
mother Omana and he was told that a friend of him is waiting in the
house to meet him and on his request, the mother handed over the
phone to the said person and the said person told PW1 that he is Nino
Mathew (first accused), who is a colleague of the second accused and
that he wants to see PW1 to talk to him and accordingly, PW1 returned
to his house and at that time, the front door of the house was seen
closed from inside and even though he called his daughter, there was
no response and since the back door of the house was also seen
closed, he came back to the front side and pushed open the front door
and immediately when he entered the house, the first accused who
was standing behind the front door, attacked him with a chopper
aiming his neck and when he evaded the attack, he sustained a cut
Crl. Appeal No. 639 of 2016 & batch
injury on the left side of his head and the left ear and on sustaining
the injury, he ran out of the house and then the first accused chased
him for a short distance and at that time, the first accused was holding
a chopper and was also in possession of a bag.
3. On hearing the cries of PW1, the neighbours came running
and the first accused escaped through the back side of the house and
thereafter, when PW1 entered the house along with neighbours, his
mother and daughter were seen lying inside the house soaked in blood
and even though the mother and daughter of PW1 were shifted to the
hospital, they were declared as dead. The first accused also committed
theft of the gold chain worn by the deceased Omana and the gold
ornaments worn by Swasthika with an intention to mislead that the
murder was committed by burglars in the course of theft.
4. It is the prosecution case that the first accused--Nino
Mathew, a technocrat and colleague of the second accused, committed
the act in furtherance of a criminal conspiracy between accused Nos. 1
and 2, who were in a lustful adulterous relationship to do away with
PW1, his daughter, Swasthika, and the mother-in-law, Omana, to
continue their sexual relationship and to live together as man and wife
Crl. Appeal No. 639 of 2016 & batch
in exclusion of their spouses and children and in furtherance of this
common intention and with the active connivance and persuasion of
the second accused who used to inform the first accused as to what
transpired between herself and PW1 in their house and transmitted
photographs and video of the residential building and the pathway
from the house, so as to enable the first accused to use the same for
navigation, the first accused committed the act.
5. PW1, who sustained grievous injuries, was rushed to the
hospital immediately and on the basis of Exhibit P1, statement of PW1
recorded by PW45, Exhibit P1(a) FIR was registered by PW46 and after
completing the investigation, final report was filed by PW49, Inspector
of Police, Attingal before the Judicial First Class Magistrate Court,
Attingal.
6. After committal and production of the accused persons before
the Sessions Court, charge was framed under Section 67 of the
Information Technology Act and Sections 120B, 109, 115, 449, 302,
307, 380, 511/201 and 34 IPC and when the charge was read over
and explained to them, they pleaded not guilty and thereupon, the
prosecution examined PWs 1 to 49 and marked Exhibits P1 to P85 and
Crl. Appeal No. 639 of 2016 & batch
MOs 1 to 41. From the side of the defence, DW1 was examined and
Exhibits D1 to D7 were marked.
7. These appeals and DSR arise from the impugned judgment
dated 18.04.2016 of the Sessions Judge, Thiruvananthapuram in S.C.
No. 1480 of 2014, whereby both the accused were found guilty and
the first accused is sentenced to be hanged by neck till he dies for the
offence under Section 302 r/w 120B and 34 IPC and also sentenced to
pay a fine of Rs.50,00,000/- and in default to pay the fine, to undergo
rigorous imprisonment for five years.
8. The first accused is also sentenced undergo rigorous
imprisonment for 5 years and to pay a fine of Rs.1,00,000/- for the
offence under Section 449 r/w 120B along with Section 34 of IPC and
in default of payment of fine, to undergo rigorous imprisonment for
one year; rigorous imprisonment for 3 years and to pay a fine of
Rs.1,00,000/- for the offence under Section 380 r/w 120B along with
Section 34 of IPC and in default of payment of fine, to undergo
rigorous imprisonment for one year; rigorous imprisonment for one
year and to pay a fine of Rs.50,000/- for the offence under Section
511/201 r/w 120B along with Section 34 of IPC and in default of
Crl. Appeal No. 639 of 2016 & batch
payment of fine, to undergo rigorous imprisonment for 6 months;
rigorous imprisonment for life and to pay a fine of Rs.5,00,000/- for
the offence under Section 120B of IPC and in default of payment of
fine, to undergo rigorous imprisonment for 2 years; rigorous
imprisonment for 10 years and to pay a fine of Rs.5,00,000/- under
Section 307 r/w 120B along with Section 34 of IPC and in default of
payment of fine, to undergo rigorous imprisonment for 2 years; and
rigorous imprisonment for 4 years and to pay a fine of Rs. 1,00,000/-
for the offence under Section 67A of the Information Technology Act,
2000 and in default of payment of fine, to undergo rigorous
imprisonment for one year.
9. As per the impugned judgment, the second accused is
sentenced to undergo rigorous imprisonment for 5 years and to pay a
fine of Rs.1,00,000/- for the offence under Section 120B r/w 449 along
with 34 of IPC and in default of payment of fine, to undergo rigorous
imprisonment for one year; rigorous imprisonment for 3 years and to
pay a fine of Rs.1,00,000/- for the offence under Section 120B r/w 380
of IPC and in default of payment of fine, to undergo rigorous
imprisonment for one year; rigorous imprisonment for one year and to
Crl. Appeal No. 639 of 2016 & batch
pay a fine of Rs.50,000/- for the offence under Section 511/201 r/w
120B along with 34 IPC and in default of payment of fine, to undergo
rigorous imprisonment for six months; rigorous imprisonment for life
and to pay a fine of Rs.5,00,000/- for the offence under Section 120B
IPC and in default of payment of fine, to undergo rigorous
imprisonment for two years; rigorous imprisonment for 10 years and
to pay a fine of Rs.5,00,000/- for the offence under Section 120B r/w
307 and 34 of IPC and in default of payment of fine, to undergo
rigorous imprisonment for two years; rigorous imprisonment for 4
years and to pay a fine of Rs.1,00,000/- for the offence under Section
67-A of the Information Technology Act and in default of payment of
fine, to undergo rigorous imprisonment for one year; and life
imprisonment for the offence under Section 120B r/w 302 along with
34 of IPC and to pay a fine of Rs.50,00,000/- and in default of
payment of fine, to undergo rigorous imprisonment for 5 years. It was
also ordered that if the fine amount is paid/realised from the first
accused, an amount of Rs.50,00,000/- will be paid to Lijish, PW1 as
compensation, and if fine amount is paid/realised from the second
accused, an amount of Rs.30,00,000/- will be paid to Thankappan
Chettiyar, PW14 as compensation.
Crl. Appeal No. 639 of 2016 & batch
10. Crl. Appeal No. 683 of 2016 is filed by the first accused and
Crl. Appeal No. 639 of 2016 is filed by the second accused.
11. Heard Sri. P. Vijayabhanu, the learned Senior counsel
appearing for the appellant/first accused, Sri. V. K. Biju, Smt. Shylaja
Varghese, Sri. Ananthakrishnan Kartha, Smt. Raji S., Sri. Prasoon
Sunny, Smt. Girija N., Smt. Surabhi V.S., the learned counsel for the
appellant/second accused and Smt. Ambika Devi, the learned Special
Public Prosecutor.
12. The main points that arise for consideration in this Death
Sentence Reference and the Criminal Appeals are the following:
1. Whether the prosecution has succeeded in establishing beyond
doubt that the first accused committed the murder of Omana and
Swasthika and attempted to commit the murder of PW1 on
16.04.2014?
2. Whether the first accused committed theft of the ornaments of
the deceased with the intention of causing disappearance of
evidence and to mislead the investigation?
3. Whether the prosecution has succeeded in establishing a criminal
conspiracy and sharing of common intention between the first and
second accused for committing the act?
Crl. Appeal No. 639 of 2016 & batch
4. Whether the accused persons have committed the offence under
Section 67A of the Information Technology Act, 2000?
5. Whether the present case falls under the category of 'rarest of
rare cases' where a sentence of death can be imposed and is liable
to be confirmed?
Points 1 and 2:
13. The learned counsel for the appellant/first accused argued
that there is no direct evidence to connect the first accused with the
murder of Omana and Swasthika and the prosecution has not
succeeded in firmly establishing the circumstances consistent with the
sole hypothesis that the first accused alone is the perpetrator of these
murders and all the material witnesses examined from the side of the
prosecution are chance witnesses and further the alleged motive is
very flimsy and against logic. It is also argued that the alleged
recovery of the material objects were fabricated and concocted by the
police and that the accused is entitled for the benefit of reasonable
doubt.
14. The husband of the second accused is examined as PW1 and
his evidence shows that their marriage was on 06.12.2007 and the
Crl. Appeal No. 639 of 2016 & batch
deceased Swasthika is their daughter. According to PW1, at about 11
a.m., on 16.04.2014, while he was standing at Alamcode junction, he
received a phone call from his mother Omana and he was informed
that a friend of him is waiting to meet him in their house and on the
request of PW1, his mother handed over the phone to the said person
and then the said person informed PW1 that he is Nino Mathew, a
colleague of the second accused and that he wants to meet him and
talk to him.
15. The evidence of PW1 shows that when he reached the
house, the front door was seen closed and even though he called his
daughter, there was no response and when the back door was also
seen closed, he came back to the front side and pushed open the front
door and immediately when he entered the house, the first accused,
who was hiding behind the door, attacked him with a chopper aiming
his neck and when he evaded the attack, he sustained cut injury on
the left side of his head and left ear and when he ran out of the house,
the first accused chased him for a short distance and thereafter, when
the neighbours came running on hearing his cries, the first accused
ran away through the back side of the house.
Crl. Appeal No. 639 of 2016 & batch
16. PW1 deposed that when he entered the house along with
the neighbours, he saw his mother and daughter lying in a pool of
blood and immediately they were taken to the hospital. The evidence
of PW1 shows that his mother and child died in the occurrence and
that he had undergone treatment in KIMS Hospital till 19.04.2014 and
he identified his signature in Exhibit P1, First Information Statement.
17. PW1 deposed that he saw an SMS in the mobile phone of his
wife (second accused) disclosing her illicit relationship with the first
accused and regarding the same, he questioned his wife and also
warned her not to continue the said relationship and also asked her to
warn the first accused to stop his illicit relationship with her. According
to PW1, in spite of his warnings, the first and second accused
continued their illicit relationship and they hatched a conspiracy to
commit the murder of his mother and daughter and also to finish him
to continue their relationship and to live together. PW1 identified the
first accused before the court and MO1, chopper used by the first
accused for attacking him. He also identified MO2 as the bag seen in
the possession of the first accused at the time of occurrence.
Crl. Appeal No. 639 of 2016 & batch
18. PW1 identified the blouse and lungi worn by his mother at
the time of occurrence as MOs 3 and 4. PW1 identified the gold chain
of his mother as MO5 and the dress worn by his daughter at the time
of occurrence as MOs 6 and 7. He also identified MO8 as the footwear
of his daughter. The chain and bracelet of his daughter are identified
as MOs 9 and 10. According to PW1, the 1 st accused was wearing
black pants and shirt with blue lines and he identified the same as MOs
11 and 12.
19. In cross examination, PW1 stated that he has not
mentioned the name of the accused to the doctor, as the doctor has
not asked him about the same. But, he would say that he told the
doctor that he was attacked by a known person. According to PW1, the
first accused, Nino Mathew, was previously known to him and he told
the police that it was Nino Mathew who attacked him. PW1 would say
that the voice and voice of Nino Mathew is known to him as he had
occasion to talk to him previously and that he is 100% sure that it was
the first accused, Nino Mathew, who talked to him through the mobile
phone of his mother before the occurrence.
Crl. Appeal No. 639 of 2016 & batch
20. Exhibit P3 is the inquest report of the deceased Swasthika
prepared by PW46 and Exhibit P5 is the inquest report of the deceased
Omana prepared by PW49. PW12 was the Professor of Forensic at
Government Medical College Hospital, Thiruvananthapuram, who
conducted the postmortem examination of the minor child Swasthika
on 17.04.2014 and issued Exhibit P14 postmortem certificate noting
13 ante-mortem injuries. The evidence of PW12 and Exhibit P14 shows
that the death was due to the injury sustained to head and neck.
21. PW15 was the Assistant Professor of Forensic Medicine at
Medical College Hospital, Thiruvananthapuram, who conducted the
postmortem examination on the body of the deceased, Omana, on
17.04.2014 and issued Exhibit P15 postmortem certificate noting 9
ante-mortem injuries. The evidence of PW15 and Exhibit P15 shows
that the death was due to injury sustained to the head and neck.
22. The evidence of PWs 12 and 15 and Exhibits P14 and P15
clearly shows that the death of Swasthika and Omana are homicidal
and since we concur with the reasoning and finding of the trial court in
this regard, it is not necessary to elaborate too much or reiterate the
ante-mortem injuries on the body of the deceased Swasthika and
Crl. Appeal No. 639 of 2016 & batch
Omana and we find no reason to interfere with the finding of the trial
court that the death of Omana and Swasthika are homicidal.
23. PW16 was the doctor who examined PW1 at Taluk Hospital,
Chirayinkeezhu on 16.04.2014 and issued Exhibit P16 wound
certificate. The evidence of PW16 and Exhibit P16 shows that PW1
sustained a lacerated injury on his left ear region and the left ear was
partially cut and that the patient was referred to Medical College
Hospital, Thiruvananthapuram. PW22 was the Consultant Plastic
Surgeon in KIMS Hospital, who treated PW1 and issued Exhibit P20
treatment certificate. The evidence of PW22 and Exhibit P20 shows
that PW1 has undergone surgical repair of the ear and that he was
admitted on 16.04.2014 and discharged on 19.04.2014.
24. PW2 is a neighbour of PW1 who reached the place of
occurrence on hearing the hue and cry of PW1 on 16.04.2014.
According to PW2, he saw PW1 with bleeding injuries and on enquiry,
PW1 told him that Nino Mathew, who is working along with his wife at
Technopark, inflicted the injuries on him and at that time, the father of
PW1 and other neighbours reached there and when they went inside
the house, they saw the mother and daughter of PW1 lying on the
Crl. Appeal No. 639 of 2016 & batch
floor with bleeding injuries and hence, they were immediately taken to
the hospital. The evidence of PW2, in cross examination, shows that he
can recognise the voice of PW1 and that he reached the place of
occurrence on hearing the cries of PW1. According to PW2, his house is
on the opposite side of the house of PW1 and therefore, it is only
natural for PW2 to reach the place of occurrence on hearing the cries
of PW1 and we find no reason to disagree with the finding of the trial
court that the evidence of PW2 that PW1 told him that it was Nino
Mathew, who is working along with his wife who inflicted the injuries
on him, is admissible under Section 6 of the Indian Evidence Act, 1872
as the said statement of PW1 to PW2 was made contemporaneous so
as to form part of the same transaction.
25. PW3 is another neighbour of PW1 and he deposed that on
16.04.2014, at about 12 noon, while he was proceeding to Alamcode
junction, he saw a young man who is not familiar to him coming from
the opposite side. According to PW3, while he was returning from
Alamcode junction, at about 1 p.m., he saw people gathered near the
house of PW1, Lijish, and there he also saw PW1 crying with bleeding
injuries. When PW3 enquired the matter, PW1 told him that Nino
Crl. Appeal No. 639 of 2016 & batch
Mathew working in Technopark along with his wife hacked him and
that Nino Mathew had hacked his mother and child and they are lying
in the kitchen. According to PW3, he also saw the mother and child of
PW1 lying soaked in blood in the kitchen and he also assisted to shift
them to the hospital. PW3 identified the first accused as the person
whom he saw on 16.04.2014 with a bag on his shoulder while he was
proceeding to Alamcode junction. According to PW3, at that time, the
accused was wearing black pants and shirt with blue lines and he
identified the said shirt and pants as MOs 11 and 12 and the bag as
MO2.
26. In cross examination, PW3 stated that his house is near to
the house of PW1 and that he has to pass the house of PW1 for
reaching the National Highway and that he saw the first accused about
100 meters before entering the National Highway and in the evening,
on that day, he told others about the stranger whom he saw and
someone informed the same to the police and subsequently, he was
questioned by the police about the said person. Even though, PW3
was seriously cross examined, nothing material was brought out to
discredit his evidence in chief examination that he saw the first
Crl. Appeal No. 639 of 2016 & batch
accused proceeding in the direction of the house of PW1 at about 12 O'
clock on the date of occurrence. It is in evidence that the place of
occurrence is a village area and therefore, there is nothing unusual for
villagers to notice the presence of strangers in the area and therefore,
we find that the evidence of PW3 that he saw the first accused on the
date of occurrence at about 12 O' clock near to the place of occurrence
is reliable and trustworthy.
27. PW4 deposed that on the date of occurrence, while he was
in the paddy field near to the house of PW1 for grazing his cow, he
heard cries from the house of PW1 at about 1 O'clock and at that time,
he also saw a person coming running through the steps on the side of
the paddy field leading to the road. According to PW4, the said person
was wearing black pants and blue lined shirt and he was also in
possession of a bag.
28. PW4 also identified the first accused as the person whom he
saw on the date of occurrence and he also identified MO11, shirt,
MO12, pants, and MO2, bag of the accused before the court. In cross
examination, PW4 admitted that he has not chased the accused or
immediately proceeded to the place of occurrence and that when he
Crl. Appeal No. 639 of 2016 & batch
came to know about the murder at about 1.30 p.m., he reached the
house of PW1 and at that time, he also informed the people gathered
there that he had seen a person running through the paddy field and
later when he was summoned to the Police Station, he also identified
the first accused as the person whom he saw running through the
paddy field on the date of occurrence.
29. There is nothing to disbelieve the evidence of PW4 that
while he was standing in the paddy field near to the house of PW1 on
the date of occurrence to graze his cow, he heard the cries from the
house of PW1 and also saw the first accused running through the steps
on the side of the paddy field leading to the road and we find that
there is a ring of truth in the evidence of PW4 and there is no material
contradiction or discrepancy in his evidence.
30. PW5 is another neighbour of PW1 who reached the house of
PW1 on hearing the cries of PW1 on 16.04.2014. According to PW5,
he saw PW1 standing there with bleeding injuries and he also saw the
mother and daughter of PW1 lying soaked in blood. The evidence of
PW5 shows that he also helped to shift the injured persons to the
hospital. The evidence of PW5 shows that he also witnessed the
Crl. Appeal No. 639 of 2016 & batch
recovery of MO15, chappals, by PW49 at the instance of the first
accused on 24.04.2014 and he also identified his signature in Exhibit
P2 mahazar.
31. The conductor of a private bus by name RKV conducting
service through Madathira-Chirayinkezhu route is examined as PW18.
His evidence shows that on 16.04.2014, at about 1.10 p.m., when the
bus was about to proceed from Alamcode junction, a person came
running and had shown signal to stop the vehicle and when the bus
stopped, the said person entered through the front door of the bus and
he was wearing a black pant and there was a bag on his shoulder and
he was not wearing any footwear. According to PW18, the said person
alighted from the bus at Attingal. PW18 identified the first accused as
the person who entered the bus from Alamcode junction on
16.04.2014. According to PW18, he noticed the first accused as he was
wearing pants and shirt and not wearing any footwear. Considering the
circumstances in which the first accused came running and entered the
bus barefoot while wearing pants and shirt, are sufficient to attract the
attention of the conductor, there is nothing to disbelieve the evidence
of PW18 in this regard.
Crl. Appeal No. 639 of 2016 & batch
32. The conductor of KSRTC bus bearing No. RAA-255
conducting service through Attingal-Varkala route is examined as
PW17 and the copy of the waybill to show that he was on duty on
16.4.2014 is marked as Exhibit P17. According to PW17, the 7 th trip of
the bus on that day was from Attingal to Varkala and the bus started
from Attingal at 11.50 a.m. and reached Alamcode around 12 noon
and a person who boarded the bus from Attingal got down at
Puliyilamoottil and he was the only person who alighted from the bus
at Puliyilamoottil and the said person was having a black bag on his
shoulder and he identified the said person as the first accused in this
case and also identified MO2 bag before the court.
33. In cross examination, PW17 would say that the first accused
was standing near to his seat and when the bus reached
Kacherimukku, the accused told the witness that he wants to alight at
Puliyilamoottil and when the bus reached the next stop, the accused
again reminded the witness that he wants to alight at Puliyilamoottil
and according to PW17, since the accused repeatedly reminded him
about alighting at Puliyilamoottil, he noticed the accused and further
Crl. Appeal No. 639 of 2016 & batch
before reaching the said stop, the accused reached the footboard of
the bus. The evidence of PW17 also shows that he was the conductor
in that route for the past 6 or 7 years and therefore, most of the
passengers are familiar to him. It is pertinent to note that there is
nothing in the evidence of PWs 17 and 18 to indicate any hatred or
animosity so as to falsely depose against the first accused and they
have also deposed about the strange conduct of the accused which
attracted their attention and therefore, we find that the evidence of
PWs 17 and 18 clearly proves that the first accused travelled in the
KSRTC bus towards the direction of the house of PW1 immediately
prior to the occurrence and that immediately after the occurrence, he
boarded RKV Private bus from Alamcode junction and there is nothing
to disbelieve the evidence of PWs 17 and 18 in this regard.
34. The learned counsel for the appellants argued that in the
absence of a test identification parade, the evidence of PWs 3, 4, 17
and 18 to whom the first accused was not previously known cannot be
relied upon to record a finding against the first accused. In
Rameshwar Singh v. State of Jammu and Kashmir [(1971) 2 SCC
715], it was observed by the Honourable Supreme Court that the
Crl. Appeal No. 639 of 2016 & batch
identification during a police investigation is not substantive evidence
in law and it can only be used for corroborating or contradicting the
evidence of the witnesses before the court regarding the identity of the
accused persons.
35. It is well settled that failure to hold a test identification
parade does not make the identification in court inadmissible and the
evidence of identification in court is substantive evidence. In this case,
PWs 3, 4, 17 and 18 were subjected to serious cross examination. But,
nothing material was brought out to discredit their evidence in chief
examination regarding the identity of the first accused and further,
the above witnesses were examined before the court without much
delay. The alleged occurrence was on 16.04.2014 and PWs 3 and 4
were examined on 13.10.2015 and PWs 18 and 19 were examined on
21.10.2015 and hence, it can be seen that the said witnesses were
examined while the occurrence was fresh in their memory and they
have also narrated the sequence of events in a convincing manner and
it is also pertinent to note that the trial court, having the advantage of
observing the demeanor of the witnesses before it, recorded a definite
finding that the evidence of the above witnesses regarding the identity
Crl. Appeal No. 639 of 2016 & batch
of the first accused is reliable and trustworthy and we find no valid
reasons to differ from the views of the trial court in this regard.
36. PW45 was the ASI of Attingal Police Station who recorded
Exhibit P1 statement of PW1 on 16.04.2014 and PW46 was the Sub
Inspector of Attingal Police Station who registered Exhibit P1(a) FIR in
this case on the basis of Exhibit P1 statement of PW1 on 16.04.2014.
37. PW49 was the Inspector of Police, Attingal, who took charge
of the investigation on 16.04.2014. According to PW49, he reached the
place of occurrence on getting information regarding the occurrence
and made arrangements for guarding the scene of occurrence. The
evidence of PW49 shows that with the assistance of PW24, Scientific
Assistant, evidence was collected from the place of occurrence and
with the assistance of PW36, official photographer, photographs of the
place of occurrence were taken and he also prepared Exhibit P4, scene
mahazar. PW49 identified the material objects recovered from the
place of occurrence before the court.
38. The evidence of PW49 shows that on the basis of the
information received at the initial stage, the Sub Inspector of
Chirayinkeezhu Police Station has brought the first accused to
Crl. Appeal No. 639 of 2016 & batch
Chirayinkerzhu Police Station and detained him there and
subsequently, the first accused was produced in his office and on
questioning, his involvement in the crime is revealed and hence, his
arrest was recorded at 9 p.m., on 16.04.2014. The arrest memo and
custody memo are marked as Exhibits P59 and P60.
39. The Samsung mobile phone recovered from the possession
of the first accused is identified as MO41 and according to PW49, on
examination of MO41, sexually explicit photographs of the private
parts of the first and second accused are seen exchanged between the
first and second accused and it is also revealed that the second
accused has taken the photographs of the house and the way leading
to the house and the way for escaping from the house and sent the
same to the first accused to aid the first accused to carry out the
object of their common intention and conspiracy to live together after
murdering PW1, his mother and daughter and therefore, after
obtaining permission from the court for arresting the second accused,
the second accused was arrested from her house at Mammoth at 11
p.m., on 16.04.2014 in the presence of her parents and Woman Police
Constables. The arrest memo and custody memo of the second
Crl. Appeal No. 639 of 2016 & batch
accused are marked as Exhibits P62 and P63 respectively.
40. According to PW49, he recovered a black Sony Xperia
mobile phone from the possession of the second accused at the time of
arrest and the same is marked as MO13. Exhibit P66 is a report filed
by PW49 to add Section 120B, 115, and 379 IPC, when it is revealed
that the accused committed theft of the ornaments of the deceased
with the intention of causing disappearance of evidence and also to
mislead the investigation that the assailant committed the act for
committing robbery.
41. According to PW49, on questioning the first accused, it is
revealed that the weapons used by him and the ornaments taken by
him from the body of the deceased are kept in his room and
accordingly, PW49 reached the house of the first accused and the first
accused took out the key of his room from the bottom of a flower pot
there and opened the room.
42. The evidence of PW49 shows that the first accused has
made a disclosure statement that the chopper, stick and hacksaw
blade used to cut the stick along with the ornaments and blood stained
towel and shirt are kept in a bag in his house and that he will point out
Crl. Appeal No. 639 of 2016 & batch
the same if he is taken to that place and when the witness reached the
house of the accused along with the accused, the accused took out the
bag containing the said items from his room and the same was seized
as per Exhibit P6 mahazar and the relevant portion of the disclosure
statement of the accused is marked as Exhibit P6(a).
43. The chopper recovered is identified as MO1 and the bag as
MO2. The chain of the child recovered from the bag is marked as MO9
and the bracelet as MO10. The shirt of the first accused is marked as
MO11 and the stick as MO21. MO22 is the portion of the stick seen cut
and removed by using a hacksaw blade and the hacksaw blade is
marked as MO23. The bloodstained towel recovered from the bag is
marked as MO24 and the chain of the deceased Omana recovered
from the bag is marked as MO5.
44. The evidence of PW49 shows that when they searched the
room of the first accused, one laptop and 3 external hard disks were
seen inside a bag and on satisfaction that the same belongs to the first
accused and has connection to this crime, the same was also
recovered by preparing Exhibit P7 mahazar. The laptop and the
external hard disks recovered as per Exhibit P7 mahazar are marked
Crl. Appeal No. 639 of 2016 & batch
as MOs 25, 26, 27 and 28 respectively.
45. PW49 deposed that on questioning the first accused, it is
revealed that he parked the car used by him in the car porch of his
house and accordingly, the witness recovered the Innova car bearing
registration No. KL-22-B-505 from the car porch of the house by
preparing Exhibit P8 mahazar. The relevant portion of the disclosure
statement of the first accused is marked as Exhibit P8(a).
46. MO29 is the shoe recovered from the said car and the
evidence of PW49 shows that he also seized the dress worn by the first
accused and according to PW49, from the right side pocket of the
pants of the first accused, he recovered a pair of gloves and from the
left side pant pocket, he recovered a letter written in a paper by
preparing Exhibit P10 mahazar. The pants of the first accused is
marked as MO12 and gloves recovered is marked as MO30. Exhibit P9
is the letter recovered from the pant pocket.
47. According to PW49, he obtained custody of the first accused
from the court and on questioning the first accused, it is revealed that
the first and second accused hatched a criminal conspiracy while
sitting in the pantry of Dimension Company in Technopark and along
Crl. Appeal No. 639 of 2016 & batch
with the first accused, he reached the said place and prepared Exhibit
P11 mahazar. PW49 would say that the first accused has made a
disclosure statement that he will point out the place where he and Anu
Santhi discussed and arrived at an agreement, if he is taken to that
place and accordingly, as led by the first accused, he reached the
pantry of the Dimension Company and prepared the mahazar. The
relevant portion of the disclosure statement of the first accused is
marked as Exhibit P11(a).
48. PW49 deposed that on questioning the first accused, it is
revealed that at the time of occurrence, he was wearing the footwear
purchased from Bata showroom and that he abandoned the same on
the side of the way while running away from the place of occurrence
and that he will point out the place where he abandoned the footwear,
if he is taken to that place and on the basis of the said information
and as led by the accused, they reached the said place and the first
accused took out a black footwear with the inscription 'spars' and the
same was seized as per Exhibit P2 mahazar. The relevant portion of
the disclosure statement of the first accused in this regard is marked
as Exhibit P2(a) and the footwear recovered as per Exhibit P2 mahazar
Crl. Appeal No. 639 of 2016 & batch
is marked as MO15.
49. PW8 is the witness examined from the side of the
prosecution in support of the evidence of PW49 regarding the recovery
of MOs 1, 2, 5, 9 to 11 and 21 to 24 on the basis of the disclosure
statement of the first accused and his evidence shows that on
17.04.2014, at about 2 p.m., while he was returning from his house
after lunch to his office, he saw the first accused and police party
effecting the recovery. PW8 identified his signature in Exhibit P6
mahazar and the material object recovered as per the said mahazar.
PW8 also identified his signature in Exhibit P7 mahazar and the
material objects recovered as per the said mahazar before the court.
He also identified his signature in Exhibit P5 mahazar and MO29 shoes
recovered as per the said mahazar and also the first accused before
the court.
50. It is in evidence that PW8 is residing in the neighbourhood
and that he witnessed the recovery while returning from his house
after lunch as usual while proceeding to his office and even though
PW8 was seriously cross examined, the defence has not succeeded in
establishing any contradiction or discrepancy in his evidence that he
Crl. Appeal No. 639 of 2016 & batch
witnessed the recovery as per Exhibits P6 to P8 mahazars by PW49 at
the instance of the first accused. The recovery of MOs 1, 2, 5 , 9 to 11
and 21 to 24 on the basis of the disclosure statement of the first
accused reveals his knowledge where he concealed the said items after
the occurrence and therefore, the same is clearly admissible under
Section 27 of the Indian Evidence Act.
51. The evidence of PWs 12 and 15, who conducted the
postmortem on the body of the deceased Omana and Swasthika,
clearly shows that the weapon of offence identified as MO1, chopper,
and MO21, stick, would cause the injuries noted in the postmortem
certificate issued by them. The evidence of PW24, who is the Scientific
Assistant who inspected the scene of crime and collected blood stains
from the kitchen and entrance of the house and hairs and chilli powder
from the entrance of the house and chilli powder from the Innova car
and the key of the vehicle shows that he also examined MO1, chopper,
and MO21, stick, and issued Exhibit P22 report. The evidence of PW24
shows that blood was found on the cutting edge of the iron chopper
and presence of blood was detected by chemical test on the edge of
the baseball stick and that the materials collected were forwarded to
Crl. Appeal No. 639 of 2016 & batch
the Forensic Science Laboratory for detailed examination.
52. PW25 was the Assistant Director of Serology, Forensic
Science Laboratory, Thiruvananthapuram, who issued Exhibit P23
report after examining the material objects and the evidence of PW25
and Exhibit P23 shows that human blood of group 'AB' was detected in
MO1' chopper' and MO21' stick. Exhibit P23 report further shows that
blood was also found in MO11 shirt of the first accused. But, the same
was insufficient for determining the origin. The Assistant Director of
Chemistry in the Forensic Science Laboratory, Thiruvananthapuram, is
examined as PW26 and her evidence shows that MO36 and MO18 are
chilly powder and that traces of chilli powder was detected in the key
of the vehicle bearing No. KL-22B-505 identified and marked as MO37.
The report of PW26 in this regard is marked as Exhibit P24. The
presence of the same chilly powder in the key of the car used by the
first accused and the place of occurrence has a definite tendency
pointing towards the guilt of the first accused.
53. The learned counsel for the appellants highlighted the
absence of blood stains in MO5 chain and MOs 9 and 10 ornaments
worn by the deceased Swasthika as a circumstance raising reasonable
Crl. Appeal No. 639 of 2016 & batch
doubt, but the possibility of the accused removing the gold ornaments
while the victims were silent or unconscious before inflicting the cut
injuries on their body is a reasonable possibility and in that
circumstance, we find no merit in the contentions of the appellants in
this regard.
54. PW11 is the owner of the Bata showroom at Kazhakuttom
and his evidence shows that the Circle Inspector questioned him in
connection with this case in order to obtain the details of the
customers, who visited his shop on 16.04.2014. According to PW11,
the first accused came to his showroom on 16.04.2014 and purchased
MO15, chappals, and his evidence further shows that there is CC TV
connection in his showroom and the Investigating Officer had checked
the CC TV visuals and also prepared a mahazar and the witness also
downloaded a copy of the CC TV visuals to a CD and handed over the
same to the Circle Inspector. The CD is marked as Exhibit P12 and the
certificate issued by PW11 in this regard is marked as Exhibit P13.
55. PW11 also identified the first accused before the court as
the person who purchased MO15, chappals, from his shop on
16.04.2004. It is pertinent to note that the first accused is not
Crl. Appeal No. 639 of 2016 & batch
disputing the purchase of a chappal from the showroom of PW11. But,
the case put forward by the accused is that the chappal purchased by
him from the showroom of PW11 is not MO15 and that the same is
another one which is in his possession. But, the said contention of the
first accused cannot be accepted in view of the clear evidence
tendered by PW11 that the chappal purchased by the first accused on
16.04.2014 is MO15 and there is no reason to disbelieve the evidence
of PW11 in this regard. The evidence of PW5 clearly shows that on
24.04.2014, he witnessed the recovery of MO15 chappals by the
Investigating Officer at the instance of the first accused as per Exhibit
P2 mahazar.
56. The evidence of PW5 in cross examination shows that he
reached there on seeing the police and he saw the first accused taking
out MO15 from the shrubs on the side of the property of one Shaji and
that the said place is near to the house of PW1. The evidence of PW5
lends credence to the evidence of PW49 that MO15 was recovered on
the basis of Exhibit P2(a) disclosure statement of the first accused
and therefore, the knowledge of the first accused as to the place
where he abandoned MO15, chappals, after the occurrence is
Crl. Appeal No. 639 of 2016 & batch
admissible under Section 27 of the Indian Evidence Act.
57. The specific case of PW1 is that he reached his house at the
time of occurrence after receiving the call from the mobile phone of his
mother bearing No. 9400732870, and the evidence of PW1 shows that
his mobile number is 9995106184.
58. PW14 is the father of PW1 and the husband of the deceased
Omana. The evidence of PW14 shows that his wife Omana was using a
SIM card subscribed in his name. The evidence of PW28, Deputy
General Manager of BSNL, shows that PW14, Thankappan Chettiyar, is
the subscriber of mobile No. 9400732870 used by the deceased
Omana and the call details of the said mobile number is marked as
Exhibit P26. As per Exhibit P26, the last outgoing call from the said
mobile phone is on 16.04.2014 at 12.16.33 for 89 seconds. The
evidence of PW1 shows that he has previous acquaintance with the
first accused who is a colleague of his wife at Technopark and that the
first accused has attended the marriage of his younger brother and at
that time, he also helped the first accused in parking his Innova car
there.
59. PW1 has categorically deposed in cross examination that he
Crl. Appeal No. 639 of 2016 & batch
had occasion to talk to the first accused earlier and therefore, he is
familiar with his voice and way of talk and according to PW1, he is
100% sure that it was the first accused who talked to him through the
mobile phone of his mother at about 11 a.m., on 16.4.2014 while he
was standing at Alamcode junction. The evidence of PW1 shows that
when he pushed open the front door, the first accused who was hiding
behind the door hacked him with MO1, chopper, aiming his neck and
when he evaded the attack, he sustained cut injury on the left side of
his head and left ear.
60. It is true that there is no direct evidence to show that it was
the first accused who committed the murder of Omana and Swasthika.
However, it is in evidence that when PW1 left the house in the
morning, only his mother and child were there in the house and that
his mother contacted him at about 11 a.m. to inform him that the first
accused is waiting for him in the house and then, PW1 also talked to
the first accused and subsequently when PW1 reached the house, the
first accused hacked him by using MO1 chopper and thereafter,
escaped through the road on the eastern side of the house.
61. From the above proved facts, it is clear that the murder of
Crl. Appeal No. 639 of 2016 & batch
Omana and Swasthika occurred after the first accused talked through
the mobile phone of the deceased and before the arrival of PW1 and
since it is in evidence that the only person who was present in the said
house along with the deceased persons is the first accused, we find
that this is a case where it could be impossible or at any rate,
disproportionately difficult for the prosecution to establish as to what
transpired in the said house while the first accused was the only other
person inside the house as the other two persons being dead, the
burden will be on the first accused, in view of Section 106 of the
Indian Evidence Act, which provides that when any fact is especially
within the knowledge of any person, the burden of proving that fact is
upon him.
62. It is well settled that in exceptional cases, where it is
impossible or at any rate disproportionately difficult for the prosecution
to establish the case which is especially within the knowledge of the
accused, the burden will be on the accused since he only can prove as
to what transpired in such a scenario without difficulty or
inconvenience. In this case, the prosecution has adduced clear
evidence to prove the presence of the first accused in the house at the
Crl. Appeal No. 639 of 2016 & batch
time of occurrence and there is also clear evidence to show the
presence of the accused in a bus proceeding in the direction of the
place of occurrence and thereafter, the accused walking through the
way towards the house of PW1.
63. The prosecution has also adduced clear evidence to show
that the accused escaped from the place of occurrence through the
pathway on the eastern side of the house by running through the steps
on the side of the paddy field towards the road and thereafter,
boarding a bus from the junction and therefore, we find that the
prosecution has adduced clear evidence in this case to arrive at a
conclusion that the first accused committed the murder of the
deceased Omana and child Swasthika and attempted to commit the
murder of PW1 and that he also committed theft of the ornaments of
the deceased with an intention to mislead the investigation and to
cause disappearance of evidence.
64. It is not in dispute that the first and second accused were
working in a company at Technopark in Kazhakuttom and the Director
of the said company is examined as PW40. According to PW40, the
working time of their office is from 9 a.m. to 6 p.m. with a lunch break
Crl. Appeal No. 639 of 2016 & batch
of one hour. The evidence of PW40 shows that there is fingerprint
reader for entry and exit for the staff and the attendance report
pertaining to 16.4.2014 is marked as Exhibit P39, and Exhibit P40 is a
certificate under Section 65B of the Indian Evidence Act. The evidence
of PW40 and Exhibit P39 shows that on 16.4.2014, the first accused
reported for duty at 8.32 a.m. and he left the office at 10.49 a.m.
According to PW40 and Exhibit P39, the second accused reached the
office at 9.03 a.m. and left at 3.11 p.m. on 16.04.2014.
65. A colleague of the first and second accused is examined as
PW19 and her evidence shows that the first accused was working as
Project Manager and that the second accused was also working there.
PW19 would say that the first accused reached the office at 9 a.m. on
16.4.2014. But, she could not say the time at which he left the office.
According to PW19, the second accused reached the office in the
morning as usual on 16.04.2014. But, she cannot say the time at
which the second accused left the office.
66. The fact that the first accused left the office at 10.49 a.m.
on 16.4.2014 is not disputed by the defence. But, the defence has a
case that the first accused had gone to KSFE in connection with some
Crl. Appeal No. 639 of 2016 & batch
chitty transaction. In this connection, it is pertinent to note that PW49
had seized the records of the KSFE as per Exhibit P77 mahazar and
thereafter, returned the original as per Exhibit P78, kaichit, and a
perusal of Exhibit P77 would show that the first accused has not
participated in the chitty on 16.04.2014. The explanation offered by
the first accused at the time of 313 questioning is that after
purchasing a pair of footwear, he had gone to his house to take the
passbook and by that time, he was late for auction and hence, he
could not participate in the auction. Even though the first accused has
taken the defence of alibi, he has not adduced any evidence to prove
his presence in the KSFE office on the date of occurrence.
67. As noticed earlier, the prosecution has adduced clear
evidence to establish the presence of the accused at the scene of
occurrence and further, it is also proved that the ornaments of the
deceased are recovered by the Investigating Officer on the basis of the
disclosure statement of the first accused and from his possession and
he has not offered any acceptable explanation for his possession of the
ornaments of the deceased or for his presence in the house of PW1 at
the time of occurrence or about the sequence of events that had
Crl. Appeal No. 639 of 2016 & batch
transpired inside the house after he talked to PW1 in the mobile phone
of the deceased Omana till the arrival of PW1 and in that
circumstance, the only irresistible conclusion is that the first accused
has committed the double murder, theft of the gold ornaments of the
deceased and also attempted to commit the murder of PW1 on
16.04.2014. and therefore, we confirm the findings of the trial court
in this regard.
Points 3 and 4:
68. The adulterous relationship between the first and second
accused during the subsistence of their legal marriage and the fact
that they used to send videos and photographs of their sexual
activities taken in their mobile phones to each other is not seriously
disputed. The learned counsel for the appellant/second accused argued
that the sexual relationship between accused Nos. 1 and 2 was
sensationalized by the media and the findings of the trial court
regarding the criminal conspiracy between the first and second
accused are solely on the basis of the inference drawn from the
photographs and videos transmitted between them and there is no
satisfactory evidence in this case to prove that the first and second
Crl. Appeal No. 639 of 2016 & batch
accused entered into any criminal conspiracy for the commission of
any offence.
69. The learned counsel for the appellant/second accused also
argued that PW1 has not made any allegation against the second
accused in Exhibit P1, First Information Statement. The evidence of
PW1 in cross examination shows that prior to the occurrence, he
reached his house from his place of work on 03.04.2014 and he
returned to his place of work on 06.04.2014. According to PW1, on the
night of 04.04.2014, he saw a message of the first accused in the
mobile phone of the second accused disclosing their illicit relationship
and then he warned the second accused and also directed her to
inform the 1st accused not to send such messages.
70. PW1 categorically deposed in cross examination that in spite
of his warning, the accused persons continued their illicit relationship
and when he asked the second accused as to whether she told the first
accused not to send such messages, she raised her voice against PW1
in such a manner to indicate that she does not like PW1 questioning
her about the same and according to PW1, since he came to know
about the relationship between the accused persons, they decided to
Crl. Appeal No. 639 of 2016 & batch
eliminate PW1 and his family to live together. But, at the time of
giving Exhibit P1, considering the possible harm to the reputation of
his family and since he was not 100% sure about the involvement of
the second accused, he has not mentioned the same to the police.
PW1 would say that he suspected the involvement of the second
accused in the incident at the time of occurrence itself as she was
behaving in an indifferent manner towards him for the last 2-3 months
and that she behaved in a cruel manner towards his daughter and
parents.
71. PW1 would say that the second accused always used to give
negative replies to his parents and she used to return late after work
and she used to delete the messages in her mobile phone and she was
also not willing to share the bedroom with him. According to PW1,
after the occurrence, while he was undergoing treatment in the
hospital, the second accused never came to see him and the second
accused had also not attended the funeral of his daughter Swasthika
and mother Omana. PW1 would say that he reached his house only
during the previous night and the fact that he was there in the house
was known only to the second accused and his parents and therefore,
Crl. Appeal No. 639 of 2016 & batch
in his second statement to the police, he disclosed all these facts.
According to PW1, the only possibility for the first accused to know his
presence in the house is through the second accused and that the first
accused committed the act with the knowledge and consent of the
second accused.
72. The father of PW1, when examined as PW14, deposed that
he saw the first accused for the first time while he was waiting near
Avix junction for the second accused to return after work and to take
her home and at that time, the second accused came there in a car
driven by the first accused and after alighting from the front seat of
the car, in a very happy mood, she was seen gesturing bye to the first
accused, Nino Mathew. According to PW14, with a view to live
together, the first and second accused had decided to commit the
murder of his son and for the said purpose, they brought down PW1 to
the house in a deceitful manner and attempted to hack him to death
and also caused the death of his wife and granddaughter. In cross
examination, PW14 categorically stated that PW1 came very late to
the house on 15.04.2014 and apart from him, only his wife and the
second accused were aware that PW1 will reach the house on the night
Crl. Appeal No. 639 of 2016 & batch
of 15.04.2014 and the first accused who was residing at Kazhakuttom
will be able to reach the house at 12 noon on 16.04.2014 for
committing the act, only if he gets information regarding the presence
of PW1 in the house from the second accused. PW14 also deposed that
the second accused had not cared to visit PW1 in the hospital or to see
the dead body of her daughter and mother-in-law and the said
circumstances will clearly indicate that the first accused committed the
crime with the knowledge and connivance of the second accused.
73. PW13, a native of Alamcode, also deposed that PW1 and his
wife, the second accused, are known to him and on several occasions,
he saw the second accused alighting from the Innova car of the first
accused on the way towards the house of PW1.
74. The evidence of PW49, Investigating Officer, shows that
MO41, Samsung mobile phone with SIM card and memory card are
recovered from the possession of the first accused and that MO13,
Sony Xperia mobile phone with SIM card and memory card are
recovered from the possession of the second accused. It is in evidence
that MO25, Lenovo Laptop, and MO26, hard disc, are also recovered
from the possession of the first accused. The evidence of PW42,
Crl. Appeal No. 639 of 2016 & batch
Assistant Director of Cyber, Forensic Division, Forensic Science
Laboratory, Thiruvananthapuram and Exhibit P43 report and Exhibit
P43(a) hard disk, which contains Annexure 9, soft copies of multimedia
files recovered, shows the communications between the first accused
and the second accused through SMS and WhatsApp chats. Exhibit P43
contains Annexure Nos. 1 to 8 and Annexure 4 in Exhibit P43(a)
reveals the sexually explicit activities between the first and second
accused.
75. The evidence of PW42 and Exhibit P43 report shows that the
second accused used to intimate the first accused all that transpired
between the second accused and PW1 and his parents inside their
house and that the second accused took the photographs of the
interior of the house of PW1 focusing the passage from the front door
to the kitchen and photographs showing a remote pathway from the
house of PW1 and also a video recorded specifically showing the said
pathway from the house of PW1 to the road and its surroundings and
the report shows that from the beginning to the end of the footage, all
the deviations and surroundings were found to be captured carefully
by spending ample time and capturing all the landmarks on the way
Crl. Appeal No. 639 of 2016 & batch
and even the pavement which connects the path to the tar road was
deliberately targeted and recorded.
76. From Exhibit P43 report, it can be seen that a close view of
the tar road was also recorded and the visuals end at the compound
wall of the green-painted house and that the said video footage can
easily guide anyone through the path to the house depicted in the
footage. A thumbnail view of the video is also shown in Exhibit P43
report. The report further shows that the path, house and the
surroundings have been specifically aimed and targeted and there
were no distinguished objects (living beings) in the foreground other
than the path and surroundings and therefore, the same was captured
solely to illustrate the set of circumstances which characterize the way
to the house depicted in the video and the visuals of the footage can
aid as navigation to reach the house. Exhibit P43 report shows that the
video clip was recorded on 19.01.2014 by using MO13, Sony Xperia
mobile phone of the second accused.
77. Some of the relevant text messages between the first and
second accused saved in MO41, Laptop, and retrieved in Annexure 4
of Exhibit P43 are extracted below:
Crl. Appeal No. 639 of 2016 & batch
Annexures Sl. Time Date Text message
No.
P43(f) 509 18.09.20 13.11.2013 Outgoing SMS to Anu
hrs Santhi from MO 41
Samsung Mobile of A1
"Kutta innalathe pole
kochu varthanathinu
pokalle ... always
remember I love u...
prathikarikkuka"
P43 (j) 1508 22:56:43 24.02.2014
Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
Njan ithokke ingane
parayunnathu namukku
vendi aanu ... pls
understand
P43(k) 1518 22:40:21 25.02.2014 Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
"Ninne njan arkkum vittu
kodukkilla ... nee ente
aanu ente mathram"
P43(o) 1658 20:29:07 25.03.2014 Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
I love u so much kutta ...
these are minor problems
... ... nammale ithu kondu
onnum akattan pattilla...
manassal nammal
epozhum orumichanu
Crl. Appeal No. 639 of 2016 & batch
P43(q) 1676 8 :24:12 26.03.2014 Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
9 days remaining ... count
down
P43(r) 1679 8:27:41 26.03.2014 Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
OK Kutta... waiting 4 the
count down to finish
P43 (s) 1700 19.09.11 1.4.2014 Outgoing SMS from MO41
Samsung Mobile to Anu
Santhi
"I love u Kutta, I need u, I
want you in my life."
78. Some of the relevant messages between accused Nos. 1
and 2 in Exhibit P57, Supplementary Cyber Forensic Analysis Report,
are extracted below:
P57(a) Time Date By Text Message
whom
14: 51 11 Jan. A1 Nee poyi ella placeum foto eduthondu vaa ...
ipo aarum illallo.
15:06 11 Jan. A1 Fotokal eduthu ayachum thaa.. aa thalla
varum munpu
15: 06 11 Jan. A2 Ok
16:46 11 Jan. A1 Evide fotokal .... onnum eduthille
16:46 11 Jan. A1 Aa veedu muzhuvan edukku ..
Crl. Appeal No. 639 of 2016 & batch
16: 47 11 Jan. A1 Pinne avide nikkuvayirunnu ennu paranjal
enikku athu kanan pattanam
16:47 11 Jan. A1 Adukkalayum edukku
16:48 11 Jan. A1 Pathakathil iruthi molku koduthu ennu
paranjille....
16: 48 11 Jan. A1 Ithokke enikku visualise cheyyan pattanam
16:51 11 Jan. A1 Innu prarthikkumbo.. njan (nino)
vicharikkunna pole karyangal nadakkane
ennu prarthikku
79. Exhibits P58 and P58(a) contain the messages retrieved,
and some of the messages between accused Nos. 1 and 2 in Exhibits
P58 and P58(a) are extracted below:
P58 Time Date By Text message
whom
17:33 31.12.2013 A1 I will not let anything come
in between us
17: 34 31.12.2013 A1 Will never let u down. I will
always love u as I do today...
this is my promise on the
last day of 2013.
19:05 31.12.2013 A1 Onnum marakkathe
cheyyuka
19:05 31.12.2013 A2 OK
Crl. Appeal No. 639 of 2016 & batch
19:06 31.12.2013 A1 I promise love not malika
19:06 31.12.2013 A1 Orumichu namukkum
undakkam oru veedu
19:07 31.12.2013 A2 Seri
12:58 01.01.2014 A1 I love u so much ... next year
namuku pokam orumichu
P58(a) 15:34 19.01.2014 A1 Nee ente aanu ... ente
maathram...
15:34 19.01.2014 A1 Ini nammal aanu jeevikkan
pone
15:35 19.01.2014 A1 Athinu vendi ini prayathnam
08:21 29.03.2014 A1 Nee prathikarichu avante
case close cheyy
05:47 02.04.2014 A1 3 days remaining
05:54 02.04.2024 A1 Chummathe samsarikumbo
urangi poya ok... ithu serious
karyam parayumbo ... de
kidakkunnu.
06:00 02.04.2024 A1 Nammude karyam serious
aayi discuss cheythu ..
oridathu ethikkanam
06:00 02.04.2014 A1 Athinu ninakku ulla pangu
valuthanu
6:00 02.04.2014 A2 Mmm
Crl. Appeal No. 639 of 2016 & batch
6:00 02.04.2014 A2 Ariyam
06:01 02.04.2014 A1 And u know it has to happen
fast now
06:01 02.04.2014 A1 Enikku nee venam ... illathe
pattilla
06:02 02.04.2014 A2 OK samsarikkam
20:11 03.04.2014 A2 Lij ipo varum
21:49 03.04.2014 A1 Avan varatte... nee enthina
pedikkunne ... avan oru
pullum cheyyan ponilla... nee
nannayi prathikarikkuka ...
ninakku njan undu.... I love u
very much ... nee enteyanu..
ente mathram ... ninne njan
aarkkum vittu kodukilla..
love u lots... Ummaa
08:31 05.04.2014 A1 Entha vishesham para
16:12 05.04.2014 A1 Ninne aarkkum kodukilla
njan
08:36 05.04.2014 A2 Lij ellam arinju
08:21 29.03.2014 A1 Nee prathikarichu avante
case close cheyy
Crl. Appeal No. 639 of 2016 & batch
80. The learned counsel for the appellant/second accused
argued that the messages regarding the count down from 26.03.2014
and about the role of the second accused in the matter discussed
between accused Nos. 1 and 2 are not part of any conspiracy to
commit any crime and the said messages are about completing a
project within the deadline and such words are usually used by
technocrats. But, considering the fact that nothing is mentioned in any
of the messages to indicate that the said messages are about
completing any official work or project and it is evident from the
messages itself that the first and second accused are discussing a
plan for their future life together and that the first accused has
reminded the second accused that she has a big role and since it is in
evidence that the second accused continued the illicit relationship
even after PW1 has warned her not to continue her relationship with
the first accused on 04.04.2014, the arguments on behalf of the
appellant/second accused that the messages, photographs and videos
are forwarded to the first accused innocently without any knowledge
about the intention of the first accused cannot be accepted.
Crl. Appeal No. 639 of 2016 & batch
81. It is well settled that criminal conspiracy is incorporated
beneath the category of 'inchoate crime' as commission of an offence
is not required for making the accused liable under criminal
conspiracy. It is also well settled that the most important ingredient of
the offence of conspiracy is the agreement between two or more
persons to do an illegal act. The illegal act may or may not be done in
pursuance of the agreement. But, the very agreement is an offence
and is punishable. Generally, a conspiracy is hatched in secrecy and it
may be difficult to adduce direct evidence of the same. The
prosecution can rely on evidence of acts of various parties to infer that
they were done in reference to their common intention and therefore,
conspiracy can be proved by such evidence, direct or circumstantial.
82. Section 10 of the Evidence Act shows that when there is
prima facie evidence that a person was a party to the conspiracy,
his acts can be used against his co-conspirator. Section 10 of the
Indian Evidence Act, 1872 reads thus:
"10. Things said or done by conspirator in reference to
common design
Where there is reasonable ground to believe that two or more
Crl. Appeal No. 639 of 2016 & batch
persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of such
persons in reference to their common intention, after the time when
such intention was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party to it.
Illustration
Reasonable ground exists for believing that A has joined in a
conspiracy to wage war against the 1[Government of India].
The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected money in Calcutta for a like object, D
persuaded persons to join the conspiracy in Bombay, E published
writings advocating the object in view at Agra, and F transmitted from
Delhi to G at Kabul the money which C had collected at Calcutta, and
the contents of a letter written by H giving an account of the
conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A's complicity in it, although he may have
been ignorant of all of them, and although the persons by whom they
were done were strangers to him, and although they may have taken
place before he joined the conspiracy or after he left it."
83. In Major E.G. Barsay v. State of Bombay [AIR 1961 SC
1762, the Honourable Supreme Court held thus:
Crl. Appeal No. 639 of 2016 & batch
"The gist of the offence is an agreement to break the law. The
parties to such an agreement will be guilty of criminal conspiracy,
though the illegal act agreed to be done has not been done. So too, it
is not an ingredient of the offence that all the parties should agree to
do a single illegal act. It may comprise the commission of a number of
acts. Under S. 43 of the Indian Penal Code, an act would be illegal if it
is an offence or if it is prohibited by law. Under the first charge the
accused are charged with having conspired to do three categories of
illegal acts, and the mere fact that all of them could not be convicted
separately in respect of each of the offences has no relevancy in
considering the question whether the offence of conspiracy has been
committed. They are all guilty of the offence of conspiracy to do illegal
acts, though for individual offences all of them may not be liable."
84. It is true that in a criminal case, the onus lies on the
prosecution to prove affirmatively that the accused was directly and
personally connected with the acts or omissions attributable to the
crime committed by him and that the act or action of one of the
accused cannot be used as evidence against another. But, in the case
of conspiracy, an exception has been carved out under Section 10 of
the Indian Evidence Act. In Kehar Singh v. State (Delhi Admn.)
[(1988) 3 SCC 609], the Honourable Supreme Court held thus:
"Section 120-A provides for the definition of criminal conspiracy and it
Crl. Appeal No. 639 of 2016 & batch
speaks of that when two or more persons agree to do or cause to be
done an act which is an illegal act and Section 120-B provides for the
punishment for a criminal conspiracy and it is interesting to note that
in order to prove a conspiracy it has always been felt that it was not
easy to get direct evidence. It appears that considering this
experience about the proof of conspiracy that Section 10 of the
Indian Evidence Act was enacted."
85. In Suresh Chandra Bahri v. State of Bihar [1995 (SCC
(Crl.) 60], the Honourable Supreme Court held as under:
"Thus, a cursory look to the provisions contained in Section 120-A
reveals that a criminal conspiracy envisages an agreement between
two or more persons to commit an illegal act or an act which by
itself may not be illegal but the same is done or executed by illegal
means. Thus the essential ingredient of the offence of criminal
conspiracy is the agreement to commit an offence. In a case where
the agreement is for accomplishment of an act which by itself
constitutes an offence, then in that event no overt act is necessary
to be proved by the prosecution because in such a fact situation
criminal conspiracy is established by proving such an agreement.
In other words, where the conspiracy alleged is with regard to
commission of a serious crime of the nature as contemplated in
Section 120-B read with the proviso to sub-section (2) of Section
120-A of the IPC, then in that event mere proof of an agreement
between the accused for commission of such a crime alone is
Crl. Appeal No. 639 of 2016 & batch
enough to bring about a conviction under Section 120-B and the
proof of any overt act by the accused or by any one of them would
not be necessary. The provisions in such a situation do not require
that each and every person who is a party to the conspiracy must
do some overt act towards the fulfilment of the object of
conspiracy, the essential ingredient being an agreement between
the conspirators to commit the crime and if these requirements
and ingredients are established the act would fall within the
trapping of the provisions contained in Section 120-B since from its
very nature a conspiracy must be conceived and hatched in
complete secrecy, because otherwise the whole purpose may be
frustrated and it is common experience and goes without saying
that only in very rare cases one may come across direct evidence
of a criminal conspiracy to commit any crime and in most of the
cases it is only the circumstantial evidence which is available from
which an inference giving rise to the conclusion of an agreement
between two or more persons to commit an offence may be
legitimately drawn."
86. In the case of offences that are committed in secrecy, it will
be extremely difficult for the prosecution to lead evidence to establish
the guilt of the accused and therefore, the law does not cast a duty on
the prosecution to lead evidence which is almost impossible to be led,
or at any rate, extremely difficult to be led and the duty of the
Crl. Appeal No. 639 of 2016 & batch
prosecution in such circumstance is only to lead evidence which it is
capable of leading, as held by the Honourable Supreme Court in Wazir
Khan v. State of Uttarakhand [(2023) 8 SCC 597] and Trimukh
Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681].
87. At the outset, it has to be noted that inasmuch as it was
admitted by the accused that they were maintaining an intimate extra-
marital relationship and inasmuch as there is overwhelming evidence
to hold that they decided to live as man and wife, there is absolutely
no reason to think that the first accused would resort to an act which
would jeopardise the extra-marital relationship which he was
maintaining with the second accused, without her knowledge and
consent. As such, since the first accused came to the house of the
second accused duly prepared, attempted to cause the death of PW1
and committed murder of the mother of PW1 and his daughter, it
cannot be said that the said acts were committed by him without the
connivance of the second accused. Be that as it may, the evidence of
PWs 1 and 4 shows that the 1 st accused escaped after committing the
crime through the pathway and steps seen in Exhibit P52 series
photographs and it is in evidence that the said pathway and steps is on
Crl. Appeal No. 639 of 2016 & batch
the eastern side of the house of PW1. The evidence of PW42 further
shows that the video footage in Exhibit P43A, hard disc, also contains
the visuals of the said pathway and that the same was recorded by
using MO13, mobile phone of the second accused and therefore, it is
clear that the second accused transmitted the said photograph and
video footage of the pathway as an act in aid to the first accused to
reach the place of occurrence and to escape from there after
committing the crime.
88. The learned counsel for the appellant/second accused
argued that it is in evidence that the first accused used to visit the
house of PW1 stealthily to indulge in sexual activities with the second
accused and that it is in evidence that the first accused participated in
the marriage of the brother of PW1 and therefore, it can be seen that
the first accused is quite familiar with the way leading to the house of
PW1 and therefore, there was no necessity to forward the photographs
and video footage as navigation aid.
89. The fact that the first accused attended the marriage of the
brother of PW1 or that he had previously entered the house of PW1
during night to indulge in sexual activities with accused No. 2, by
Crl. Appeal No. 639 of 2016 & batch
itself, will not indicate that he is familiar with the interior of the said
house or the remote pathway from the eastern side of the house
leading to the road and the messages of the first accused to the
second accused asking her to take all the photographs before her
mother-in-law Omana reaches the house and his direction to capture
the full 3600 photo from the first door and asking the position of the
chairs, the position of the front door and the photogrpah of the other
side of the kitchen and asking the second accused to take the
photograph by using panorama shoot in her mobile, will clearly show
that the photographs and the video with minute details of the remote
pathway and position of the door and furniture from the front door to
the drawing room and to the kitchen are obtained by the first accused
from the second accused secretly for the accomplishment of their
conspiracy and that the first accused was able to commit the crime
and escape from the place of occurrence through the pathway on the
eastern side of the house of PW1 only because the second accused has
sent the said photographs and video to him and there is no reason to
disagree with the finding of the trial court that the only reason for the
second accused in taking the photographs of the interior portion of the
house as well as the pathway from the eastern side of the house
Crl. Appeal No. 639 of 2016 & batch
leading to the road through the steps on the side of the paddy field is
only to help the first accused to have an idea about the interior portion
of the house and the escape route and also to show where her mother-
in-law and the child are usually present and no other reasonable
explanation is possible and hence, all these circumstances taken
together at face value would clearly indicate the meeting of minds
between the first and second accused to commit the crime.
90. The learned counsel for the appellant/second accused
argued that the messages sent by the second accused to the first
accused will clearly disclose her love and affection towards her child
and under no circumstances, she would agree with the first accused
for committing the murder of her child.
91. The learned counsel for the appellants argued that PW42,
Assistant Director of Cyber Forensic Division of the Forensic Science
Laboratory, Thiruvananthapuram, is not an examiner of electronic
evidence as contemplated under Section 79A of the Information
Technology Act, 2000 and therefore, his evidence is not legally
admissible.
92. But, the learned Public Prosecutor pointed out that no
Crl. Appeal No. 639 of 2016 & batch
notification has been issued by the Central Government or the State
Government in the Official Gazette declaring any person as examiner
of electronic evidence during the relevant period and in the absence of
such a notification for appointment of an examiner of electronic
evidence as contemplated under Section 79A of the Information
Technology Act, 2000, the evidence of PW42, Assistant Director of
Forensic Science Laboratory, is admissible under Section 293 Cr.P.C
and Section 45 of the Indian Evidence Act. It is not in dispute that
either the Central Government or the State Government has not
issued any notification for appointing any person as the examiner of
electronic evidence during the relevant period.
93. It is also pertinent to note that even after the introduction
of the Information Technology Act, 2000, there was no amendment to
Section 293 Cr.P.C. It cannot be disputed that PW42, Assistant
Director of the Forensic Science Laboratory, is having expertise in the
field of electronic evidence and therefore, there is no reason to
disagree with the finding of the trial court that the evidence of PW42 is
admissible and relevant under Section 45 of the Indian Evidence Act
and therefore, the contention of the appellants in this regard cannot be
Crl. Appeal No. 639 of 2016 & batch
accepted.
94. The evidence of PW42 and Exhibit P43 report reveals the
contents of Exhibit P43A, hard disc, which was played in the trial court
in in-camera proceedings and the evidence of PW42 shows that Exhibit
P43A contains nude photographs of the second accused transmitted in
electronic form to the mobile phone of the first accused and vice versa
and that they have taken the images of them indulging in sexually
explicit acts in their office at Techno Park, inside the innova car of the
first accused and also at the residence of the second accused and that
they have exchanged the same through their mobile phones. Since it is
proved beyond reasonable doubt that the accused persons transmitted
sexually explicit images in electronic form, the findings of the trial
court that they committed the offence under Section 67A of the
Information Technology Act requires no interference.
95. From the various WhatsApp messages between accused
Nos. 1 and 2 as revealed from Exhibit P58 and text messages revealed
from Exhibit P43, Cyber analysis report, it can be clearly inferred that
the said messages are part of their conspiracy to do away with PW1
and to have a life of their own and that as a result of the criminal
Crl. Appeal No. 639 of 2016 & batch
conspiracy between the accused persons, the first accused reached the
house of PW1 after preparation to commit the murder of PW1, and
even though PW1 sustained grievous injuries, he managed to escape
by raising alarm and inviting the attention of the neighbours.
Inasmuch as it is established beyond reasonable doubt from the
circumstances brought out in evidence that accused Nos.1 and 2 have
conspired to cause the death of PW1 to lead a life of their own, it is
unnecessary to consider the question whether there was a conspiracy
to cause the death of the child and also the mother of PW1, for even if
there was no conspiracy to cause the death of the child and the
mother of PW1, the same will not have any impact on the conviction of
the second accused for the offence punishable under Section 120B
IPC, for mere proof of an agreement between the accused for
commission of a crime alone is enough to bring about a conviction
under Section 120B and the proof of any overt act by the accused or
by anyone of them would not be necessary. We take this view also for
the reason that it is trite that in order to constitute the offence of
conspiracy, it is not necessary that all persons involved should know
all the stages of the action and mere knowledge of the main object of
conspiracy would warrant the attraction of the relevant penal
Crl. Appeal No. 639 of 2016 & batch
provision.
96. In the light of the discussion aforesaid, there is no reason
to interfere with the findings of the trial court that the prosecution has
succeeded in establishing the criminal conspiracy and sharing of
common intention between accused Nos. 1 and 2 in committing the
crime.
Point No.5:
97. The learned counsel for the appellant/first accused argued
that the case against the first accused regarding the murder of Omana
and Swasthika is based entirely on circumstantial evidence and the
Mitigation Investigation Report in compliance to the order dated
11.05.2023 of this Court would show that the first accused is leading
peaceful and law-abiding life in jail and that he is maintaining cordial
relationship with the officials and prisoners and his aged parents and
family members have been visiting him in jail in regular intervals. The
report further shows that the accused has faced many adverse
experiences and traumatic events early in his life and that he is not
having any criminal antecedents and that now he has been working
hard to make the best of his time in prison and has sustained a
Crl. Appeal No. 639 of 2016 & batch
relationship with his daughter and that he has the ability to re-
integrate into the society.
98. The learned Public Prosecutor argued that the appellant/first
accused in a most cruel, diabolic and inhuman manner committed the
murder of the minor child Swasthika and her grand-mother Omana
only to satisfy his lust with the second accused, and therefore, he
deserves capital punishment and that the present case falls under the
category of 'rarest of rare cases' warranting a death sentence.
99. In Bachan Singh v. State of Punjab [(1980) 2 SCC 684],
it was held by the Honourable Supreme Court that the courts should
make a balance sheet of aggravating and mitigating circumstances
before taking a decision on the crucial question and the courts should
also examine whether the alternative option being unquestionably
foreclosed was fulfilled or not. In this case, the aggravating
circumstances highlighted was the prior planning and the murder of
the minor child and her grandmother in a most cruel manner and the
nature and the number of injuries inflicted on the deceased Omana
and Swasthika.
100. The learned Public Prosecutor pointed out that the
Crl. Appeal No. 639 of 2016 & batch
appellant/first accused, who committed the murder of the minor child
Swasthika, aged 3 ½ years, is a potential danger to the society and
therefore, this would be a fit case where imposition of death sentence
would be justified. The learned counsel for the appellant/first accused
argued that the accused was in love with the second accused and he
was in an extremely agitated and excited state of mind and there is no
satisfactory evidence to show any element of pre-meditation to cause
the death of Omana and Swasthika and the available evidence of pre-
meditation, even if any, could only indicate the intention of the
accused to cause the death of PW1 and therefore, considering the facts
and circumstances, the accused cannot be seen as a menace to the
society and his liquidation would be totally unnecessary and uncalled
for.
101. In paragraph 209 of the decision in Bachan Singh
(supra), it was held that a real and abiding concern for the dignity of
human life postulates resistance to take a life through the law's
instrumentality and the same cannot be done except in the rarest of
rare cases when the alternative option is unquestionably foreclosed.
102. In Swamy Shraddananda (2) v. State of Karnataka
Crl. Appeal No. 639 of 2016 & batch
[(2018) 13 SCC 767, the Honourable Supreme Court held thus:
"49. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 :
(2008) 2 SCC (Cri) 264 : (2006) 13 Scale 467] Sinha, J. gave some
very good illustrations from a number of recent decisions in which on
similar facts this Court took contrary views on giving death penalty to
the convict (see SCC pp. 279-87, paras 151-78 : Scale pp. 504-10,
paras 154-82). He finally observed (SCC para 158) that "courts in the
matter of sentencing act differently although the fact situation may
appear to be somewhat similar" and further "it is evident that
different Benches had taken different view in the matter" (SCC para
168)."
103. It is now well settled that the personal element has to be
eliminated totally and completely while considering the two alternative
sentences permissible under Section 302 IPC and that only in the
rarest of rare cases, a sentence of death can be imposed.
104. The judgment of the Honourable Supreme Court in
Swamy Shraddananda (supra) shows that to avoid a sentence of
death, it is possible for the courts to device a graver form of sentence
of imprisonment for life which will virtually ensure that the society is
insulated from the criminal for such a period as the court may specify
in a case where the lesser alternative of an ordinary sentence of life is
Crl. Appeal No. 639 of 2016 & batch
found to be grossly inadequate.
105. On a careful consideration of the mitigating circumstances
highlighted by the learned counsel for the appellant/first accused and
as seen from the Mitigation Investigation Report and also the
aggravating circumstances highlighted by the Public Prosecutor, we
are of the view that this is a fit case to substitute the death sentence
by a sentence of imprisonment for life by fixing a term in excess of 14
years with a direction not to release the convict before the actual term
to be specified in the order, as we are convinced from the Mitigation
Investigation Report and the antecedents of the accused that
imposition of death sentence is not warranted in this case, especially in
view of the fact that the accused did not have any criminal
antecedents. Therefore, considering the facts and circumstances, we
find that the death sentence for the offence under Section 302 IPC
against the appellant/first accused can be converted to imprisonment
for life, with a direction that he shall not be released from the prison
for a period of 25 years, including the period already undergone with
set off under Section 428 Cr.P.C
106. In the result, Crl. Appeal No. 639 of 2016 is dismissed and
Crl. Appeal No. 639 of 2016 & batch
DSR No. 2 of 2016 and Crl. Appeal No. 683 of 2016 are disposed of as
under:
1) The conviction and sentence of the appellant/first accused
under Section 67 of the Information Technology Act and
Sections 120B, 109, 115, 449, 307, 380, 511/201 and 34
IPC are confirmed.
2) The conviction of the appellant/first accused under Section
302 IPC is also confirmed.
3) The death sentence against the appellant/first accused for
the offence under Section 302 of IPC is converted to
imprisonment for life and it is made clear that the
appellant/first accused shall not be entitled for any
remission for a period of 25 years. The fine imposed and
default sentence are confirmed.
4) The period of detention, if any, undergone by the
appellant/first accused in connection with this case, shall
be given set off under Section 428 Cr.P.C. The sentences
shall run concurrently.
Crl. Appeal No. 639 of 2016 & batch
P.B.Suresh Kumar, J. (Concurring)
107. I am in complete agreement with the findings
rendered by my learned Brother on the various points formulated for
decision. However, I wish to supplement the finding on the
sustainability of the sentence imposed on the first accused. In DSR
No.2 of 2018, another Division Bench of this Court, of which one of us
was a party, while considering the case, summarized the principles to
be borne in mind as regards the imposition of death sentence thus:
"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
Crl. Appeal No. 639 of 2016 & batch
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:
Crl. Appeal No. 639 of 2016 & batch
"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.
Crl. Appeal No. 639 of 2016 & batch
(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
Crl. Appeal No. 639 of 2016 & batch
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."
Crl. Appeal No. 639 of 2016 & batch
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."
Crl. Appeal No. 639 of 2016 & batch
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."
Crl. Appeal No. 639 of 2016 & batch
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.
Crl. Appeal No. 639 of 2016 & batch
(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
Crl. Appeal No. 639 of 2016 & batch
(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
Crl. Appeal No. 639 of 2016 & batch
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
Crl. Appeal No. 639 of 2016 & batch
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. "
108. In the light of the decision of this Court in DSR No.2 of
2018, let us first consider whether there are any aggravating
circumstances in the case on hand, favouring the death penalty. True,
going by the exhaustive list of aggravating circumstances enumerated
in Ramnaresh v. State of Chhattisgarh [(2012) 4 SCC 257]
referred to in DSR No.2 of 2018, inasmuch as the victims, namely the
child and mother of PW1 in the case on hand were innocent and
helpless, the case would fall in the category of cases where the court
Crl. Appeal No. 639 of 2016 & batch
could consider grant of death penalty to the accused. Be that as it
may, let us now deal with the mitigating circumstances. The Mitigating
Investigator appointed by this Court as per order dated 11.05.2023,
after conducting an exhaustive investigation, came to the following
conclusion:
"57. 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 probability of reformation - two principles which need to
be satisfied before a court can sentence the accused to death. The court below has
erred by not considering the probability of reform and rehabilitation that Nino has
displayed consistently. In Nino's case, clear evidence of his reformation is evident
by looking at his life circumstances before and after the arrest. Despite the adverse
experiences that Nino was put through during his life like physical abuse, neglect
and trauma, he has continued to consistently emerge from setbacks by focussing
on positive aspects in his life.
58. Currently Nino is in his 9th year of incarceration and has strived to do the best
he can in all these years. The findings of the mitigation investigation exercise
revealed that there is more to Nino and his life than what one can glean from the
outside. Contrary to what has been published by a number of newspapers, he is
not a hardened criminal as evidenced by the lack of any criminal antecedents.
Nino has in fact faced many adverse experiences and traumatic events early in his
life. These events have impacted Nino deeply on a psychological level and he
continues to struggle with it. Despite being put through such difficult
circumstances, Nino has constantly strives to identify positive factors around him.
These last 9 years have been much more onerous for Nino because of the amount
of misleading information and sensationalization by the media but he continues to
Crl. Appeal No. 639 of 2016 & batch
work hard in prison and make the best out of his circumstances. This indicates
that he is not 'extremely culpable' and does not deserve to be sentenced to death.
59. From his early years, Nino displayed prosocial personality traits and has a
record of working hard towards making a positive contribution to society and
community. Even though Nino has always been psychologically vulnerable, he
has the ability to hold on to positive factors in his life and utilise them so that he
can protect himself. Now, in his early 50s now, Nino wants to be able to support
his family at the time that they need him the most. The Hon'ble Supreme Court
has consistently held in a number of cases that it is the duty of the State to provide
evidence on why there is no probability of reformation. However, in the present
case, no such evidence on the probability of reform has been provided by the
prosecution. It is well recognized that the probability of reform is a cardinal part
of the 'rarest of rare' doctrine. The court has held on a number of occasions that
life imprisonment as a punishment can only be set aside when the aim of
reformation is said to be unachievable. In Ninos case, clear evidence of her
reformation is evident by looking at his life circumstances before and after the
arrest. He has been working hard to make the best of his time in prison and has
sustained a relationship with his daughter. Nino demonstrates the ability to
reintegrate into society, where he has his family and community for any support
required. The majesty of the law would be preserved in granting a prisoner like
Nino who is already going through immense pain and suffering a sentence less
than death. Despite all the negativity he is faced with, Nino has continued to use
every opportunity he could have to be a more productive member of the society."
As evident from the conclusion arrived at by the Mitigating
Investigator, the case of the first accused cannot be said to be a case
where the possibility of reformation can be ruled out. Even assuming
that there are no mitigating circumstances favouring the accused to
avoid the capital punishment, in the light of the law laid down by the
Crl. Appeal No. 639 of 2016 & batch
Apex Court in Shankar Kisanrao Khade v. State of Maharashtra
[(2013) 5 SCC 546], it is necessary to apply the "rarest of the rare
cases test", namely whether the society will approve the awarding of
death sentence in the case on hand. If that be so, this case falls short
of the rarest of rare category and I am reluctant in endorsing the
death sentence. As held by the Apex Court in Shankar Kisanrao
Khade, while applying the said test, the court has to look into a
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. Having regard to the
totality of the facts and circumstances of the case, I am unable to hold
that this is a case where the society would approve awarding of death
sentence.
109. Even while holding that this is not a case for death penalty,
I am in complete agreement with the view taken by my learned
Brother that in a case of this nature, imprisonment for a period of 14
years is grossly inadequate and that therefore, the court has to decide
the number of years to be awarded to the accused beyond the period
Crl. Appeal No. 639 of 2016 & batch
of 14 years, in the place of imprisonment for life. The said course is
permissible in the light of the decisions of the Apex Court in Swamy
Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] and Union of India v. V.
Sriharan [(2016) 7 SCC 1]. Reverting to the facts again, inasmuch as the
deceased in this case were an innocent child and a helpless woman, I
am also in complete agreement with the view taken by my learned
Brother that imprisonment for a period of 25 years without remission
would be the appropriate punishment to be imposed on the accused.
sd/-
P.B. SURESH KUMAR,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv/ds
Crl. Appeal No. 639 of 2016 & batch
APPENDIX of CRL. APPEAL NO. 639 OF 2016
APPELLANT'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY
THE ASSISTANT PROFESSOR OF GOVERNMENT REGIONAL
INSTITUTE OF OPHTHALMOLOGY HOSPITAL,
TRIVANDRUM DATED 13.07.2021 WITH ITS TRUE TYPED
COPY.
ANNEXURE A2 TRUE COPY OF THE DISCHARGE SUMMARY OF THE
APPELLANT FROM SREEDHAREEYAM AYURVEDIC EYE
HOSPITAL& RESEARCH CENTRE DT. 27.04.2002.
ANNEXURE A2(a) TRUE COPY OF THE REVIEW SHEET OF THE APPELLANT
DT. 20.06.2022 ISSUED BY DR. VIDYA SUGUNAN,
SREEDHAREEYAM AYURVEDIC EYE HOSPITAL &
RESEARCH CENTRE.
ANNEXURE A3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE
SUPERINTENDENT OF WOMAN'S JAIL DATED 17.09.2021.
ANNEXURE A4 TRUE COPY OF THE ORDER DATED 18.08.2015 IN BAIL
APPLICATION NO. 4740 OF 2015 DELIVERED BY THE
HON'BLE HIGH COURT OF KERALA.
ANNEXURE A5 TRUE COPY OF APPLICATION PREFERRED BY THE FATHER
OF THE APPELLANT UNDER RTI ACT, 2005 DT.
03.11.2021.
ANNEXURE A5(a) TRUE COPY OF THE REPLY UNDER RTI ACT, 2005
ISSUED BY THE STATION HOUSE OFFICER, ATTINGAL
POLICE STATION DT. 07.11.2021.
ANNEXURE A6 TRUE COPY OF THE REPORT OF DISTRICT PROBATION
OFFICER, AS OBTAINED UNDER RTI ACT, DATED
07.02.2017.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 20.11.2017 ISSUED
BY THE DISTRICT POLICE CHIEF, TRIVANDRUM.
ANNEXURE A8 TRUE TYPED COPY OF THE LETTER DATED 15.09.2018
ISSUED BY THE DISTRICT POLICE CHIEF, TRIVANDRUM.
ANNEXURE A9 TRUE COPY OF THE LETTER DATED 02.03.2019 ISSUED
BY THE DISTRICT POLICE CHIEF, TRIVANDRUM.
ANNEXURE A10 TRUE COPY OF THE REJECTION ORDER DATED
10.03.2020 ISSUED BY THE ADDITIONAL CHIEF
SECRETARY, HOME DEPARTMENT.
ANNEXURE A11 TRUE COPY OF THE LETTER DATED 05.05.2020 ISSUED
BY ISSUED BY THE DISTRICT POLICE CHIEF,
TRIVANDRUM.
Crl. Appeal No. 639 of 2016 & batch
ANNEXURE A12 TRUE COPY OF THE LETTER DATED 21.12.2020 ISSUED
BY THE DISTRICT POLICE CHIEF, TRIVANDRUM.
ANNEXURE A13 TRUE COPY OF THE ORDER DT. 05.03.2021 IN CRL. M.A.
NO. 1 OF 2021 IN CRL. APPEAL NO. 639 OF 2016 OF THE
HON'BLE HIGH COURT OF KERALA.
ANNEXURE A14 TRUE COPY OF THE PAROLE APPLICATION OF THE
APPELLANT BEFORE THE GOVERNMENT DATED
18.05.2021.
ANNEXURE A14(a) TRUE COPY OF THE PAROLE REJECTION ORDER DT.
16.08.2021 OF THE ADDITIONAL CHIEF SECRETARY,
HOME DEPARTMENT.
ANNEXURE A15 TRUE COPY OF THE ORDER DT. 06.07.2021 IN CRL. M.A.
NO. 2 OF 2021 IN CRL. APPEAL NO. 639 OF 2016 OF THE
HON'BLE HIGH COURT OF KERALA.
ANNEXURE A16 TRUE COPY OF THE ORDER DATED 15.11.2021 OF THE
HON'BLE SUPREME COURT IN SLP (CRL.) NO. 8566/2021.
ANNEXURE A17 TRUE COPY OF THE ORDER DATED 17.12.2021 OF THE
HON'BLE SUPREME COURT IN SLP(CRL.) NO. 8566 OF
2021.
ANNEXURE A18 TRUE COPY OF THE ORDER DATED 16.02.2022 OF THE
HON'BLE SUPREME COURT IN CRL. APPEAL NO. 1654 OF
2021.
ANNEXURE A19 TRUE COPY OF THE ORDER DATED 18.02.2022 OF THE
HON'BLE SUPREME COURT IN CRL. APPEAL NO.
1654/2021.
ANNEXURE A20 TRUE COPY OF THE ORDER DATED 18.04.2022 OF THE
HON'BLE SUPREME COURT IN CRL. APPEAL NO.
1654/2021.
RESPONDENTS' ANNEXURES: NIL /True Copy/
PS to Judge.
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