Kerala High Court
Abdul Hakkim vs State Of Kerala on 11 April, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:31619
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
CRL.A NO. 239 OF 2025
CRIME NO.2177/2015 OF Perumbavoor Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 20.03.2024 IN
SC NO.823 OF 2015 OF ADDITIONAL DISTRICT & SESSIONS
COURT,MUVATTUPUZHA
APPELLANT/ACCUSED:
ABDUL HAKKIM, AGED 39 YEARS, S/O. HASRATH ALI,
LAMDING POLICE STATION LIMIT, MOUSADARGAR GRAMAM,
NOUGAVU, ASSAM, NOW LODGED IN CENTRAL PRISON,
KANNUR, PIN - 670004
BY ADVS.
T.U.SUJITH KUMAR
WINSTON K.V.
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031
2 THE INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION,
PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683542
BY SMT. AMBIKA DEVI S., SPECIAL PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.04.2025, THE COURT ON 11.04.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The sole accused in S.C. No.823/2015, on the file of the Additional
District & Sessions Court, Muvattupuzha, has preferred this appeal
challenging the judgment of conviction and the order of sentence
passed against him for the offence punishable under Section 302 of the
Indian Penal Code.
2. The facts of the case in brief are as follows:
The accused and Mahmooda, the deceased in this case, hailing from
Assam were residing together as husband and wife in a rented house
belonging to CW1. They had a minor child born on 25.02.2015. During
their cohabitation, the accused developed relationships with several
women through phone calls. Upon knowing about the same,
Mahmooda reprimanded the accused. Enraged by the same and to
avoid Mahmooda and his child from his life as well as to continue the
relationships with other women without any hindrance, the accused
with an intention to kill Mahmooda and his child, took them from the
above-said rented house to an uninhabited rubber estate after
deceiving Mahmooda that he was taking them to their native place at
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Assam. Thereafter, the accused committed the murder of Mahmooda
and his child by slitting their throats with a knife at 1.00 a.m. on
22.05.2015 inside the said rubber estate belonged to one Ibrahim and
disposed of the dead bodies in the adjacent paddy field. Thus, the
accused is alleged to have committed the offence punishable under
Section 302 IPC.
3. On completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate Court-I,
Perumbavur. Being satisfied that the case was one triable exclusively
by the Court of Session, the learned Magistrate after complying with all
the necessary formalities committed the case to the Sessions Court,
Ernakulam under Section 209 of the Criminal Procedure Code. After
taking cognizance, the learned Sessions Judge made over the case for
trial and disposal to Additional Sessions Court-I, Muvattupuzha.
4. On production of the accused before the court, the learned
Sessions Judge, after hearing both sides under Section 227 of the
Cr.P.C., and perusal of records, framed a written charge against the
accused for the offence punishable under Section 302 of the Indian
Penal Code. When the charge was read over and explained to the
accused, he pleaded not guilty and claimed to be tried.
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5. The prosecution in its bid to prove the charge levelled against
the accused has altogether examined 25 witnesses as PW1 to PW25.
P1 to P48 are the documents exhibited and marked. After completion
of prosecution evidence, when the accused was questioned under
Section 313 of the Cr.P.C., he denied all the incriminating materials
brought out against him in evidence. Since it was not a fit case to
acquit the accused under Section 232 of the Cr.P.C., the accused was
directed to enter on his defence and adduce any evidence, he may
have in support thereof. But no evidence, whatsoever, was adduced
from the side of the accused.
6. After trial, the accused was found guilty of the offence
punishable under Section 302 of the IPC and convicted and he was
sentenced to undergo rigorous imprisonment for life and to pay a fine
of Rs.1,00,000/- (Rupees one lakh only) with a default clause to
undergo rigorous imprisonment for one year for committing murder of
Mahmooda. Moreover, the accused was sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs.1,00,000/- with a default
clause to undergo rigorous imprisonment for one year for committing
the murder of his minor child. The substantive sentences were ordered
to be run concurrently. The said judgment of conviction and order of
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sentence is under challenge in this appeal.
7. The law was set in motion in this case on the strength of the
FIS given by one Assinar, who claimed to have seen the dead bodies of
Mahmooda and her minor child first. When the first informant was
examined as PW1, he deposed that he was a rubber tapper. According
to PW1, on 22.05.2015, in the morning, while he was tapping rubber
trees in the rubber estate belonging to Ibrahim, a boy who was grazing
buffalos in the said rubber estate approached him and handed over a
mobile phone, stating that he got the same from the rubber estate.
Then, he made an attempt to trace the owner of the mobile phone, by
contacting one of the phone numbers found in the contact list. But, as
he could not understand the language of the person who had attended
the above call, he continued rubber tapping. After around five minutes
while he was tapping rubber trees, another person approached him and
asked whether he had got a mobile phone. Then he handed over the
mobile phone to him. When he reached the southwestern side of the
property by tapping the rubber, he saw a feeding bottle lying there.
Moreover, blood stains were also found on the premises. On looking
around, he found the dead body of a woman lying in the paddy field
abutting the rubber estate. It was around 7.45 a.m., when he saw the
Crl. A. No.239 of 2025 6 2025:KER:31619
dead body, immediately, he rushed to the person to whom he had
given the mobile phone and thereafter, when both of them came to the
place where the dead body of the woman was found, another dead
body of a minor child was also found lying there. The dead body of the
woman was found lying face down. The minor child's dead body was
found covered with a turkey(towel). Then PW1 contacted his employer
and informed the matter. Thereafter, he gave a statement to the
Police. According to PW1, Ext. P1 is the statement that he had given to
the Police. PW1 identified the mobile phone handed over to him by the
boy who was grazing buffaloes in the rubber estate and the same was
marked as MO1. The feeding bottle found in the rubber estate was
also identified by him and marked as MO2.
8. The landlord of the house, where the accused was residing
on rent was examined as PW2. PW2 testified that the accused was
residing in the rented house along with his wife Mahmooda and child.
According to PW2, he owned two houses built on a property having an
extent of 10 cents and he was residing in one of the said houses along
with his mother, wife, and children, and the other house was occupied
by the accused on rent. While so, on 21.05.2015, the accused vacated
the house and stated that he is going to his native place in Assam
Crl. A. No.239 of 2025 7 2025:KER:31619
along with his wife and minor child. According to PW2, the accused left
the house at around 10.00 p.m. on 21.05.2015 after bidding farewell to
him. When the accused left the house along with his wife Mahmooda
and their child, PW2 as well as his wife came out of their house and
saw them leaving. The accused was then carrying a sack containing
household articles. Thereafter, on the next day, while PW2 was going
to a hospital along with his wife, one of his neighbors contacted him
over phone and informed him that one woman and a child were found
lying dead. Thereafter, the Police also contacted him over the phone.
Then, he quickly returned from the hospital, and on the way, he found
the dead bodies of a woman and a child, kept in an ambulance. He
identified the woman as Mahmooda and the deceased child as her
daughter. He identified Mahmooda by the churidar that she was
wearing. Similarly, he identified the minor child from the healed wound
marks on the buttocks of the said child. PW2 further deposed that the
accused and his wife used to quarrel with each other frequently.
According to PW2, as he was not familiar with the language of the
accused, he used to communicate with the accused and his wife
through gestures and signs. According to PW2, at the time when the
accused left his house, the accused was wearing a T-shirt and a dhoti
Crl. A. No.239 of 2025 8 2025:KER:31619
having a marking 'No.10' on the front side of the said T-shirt. PW2
identified the said T-shirt and dhoti before the court and were marked
as MO5 and MO6 respectively. PW2 identified the churidar top found
on the dead body of Mahmooda and the turkey used to cover the dead
body of the minor child. The said churidar top and the turkey were
marked as MO3 and MO4 respectively. He also identified MO1 as the
mobile phone used by the accused.
9. The wife of PW2 was examined as PW3. On examination
before the court, PW3 deposed that the accused resided in their rented
house along with Mahmooda and their child for 28 days. According to
PW3, she saw the accused, Mahmooda and their child last on
21.05.2015, and on that day she causally talked with them. According
to PW3, it was between 6.00 p.m. and 7.00 p.m. she met them.
Thereafter, she did not see them. Thereafter, she came to know that
Mahmooda and her child were murdered. According to PW3, when the
accused left their rented house, she was not at her home at that
particular time. According to PW3, the accused used to frequently
quarrel with Mahmooda and she occasionally heard loud outcry from
their house. On 21.05.2015, while she causally talked with the accused
Crl. A. No.239 of 2025 9 2025:KER:31619
and the deceased Mahmooda, they told her that they were going to the
native place.
10. The Circle Inspector of Police who conducted the
investigation and laid the final report after the culmination of the entire
investigation in this case was examined as PW24. According to PW24,
after taking over the investigation, he forwarded a request to RDO,
Muvattupuzha to conduct the inquest of Mahmooda and in turn, the
RDO instructed the Tahsildar, Muvattpuzha Taluk (PW13) to conduct the
inquest. Thereafter, on 22.05.2015 at 10.30 p.m., he along with the
police party reached the place of occurrence and by that time, the
Tahasildar (PW13) also reached there to conduct the inquest.
Thereafter, PW13 conducted the inquest of the deceased Mahmooda
and PW24 conducted the inquest of the minor child in the presence of
independent witnesses. The inquest report prepared by PW24 was
marked as Ext. P3. According to PW24, he recovered a turkey towel
clotted with blood and mud, one frock, and an old piece of small cloth
found on the body of the minor child. PW1 identified the said items as
MO4, MO17, and MO19 respectively. The Scientific Assistant collected
blood-stained soil found near the dead bodies, one hair found on the
body of the child as well as a hair found on the body of Mahmooda and
Crl. A. No.239 of 2025 10 2025:KER:31619
handed over the said items to him in sealed packets. According to
PW24, the Tahsildar who conducted inquest of Mahmooda recovered a
blood-stained churidar top (MO3), churidar bottom (MO7), an
undergarment (MO20), brasier (MO22), mobile phone (MO1), feeding
bottle (MO2), baby powder container (MO9), chappals (MO10) from the
body of the Mahmooda and from the premises where the dead bodies
were found. According to PW24, he had produced all the items
recovered in this case before the court along with a property list.
Thereafter, he forwarded the dead bodies for post-mortem
examination. PW24 further deposed that on 22.05.2015 he also
prepared a scene mahazar and Ext.P26 is the said mahazar. A bag,
mirror, kajal tin, nighty, and an undergarment which were found at the
scene of occurrence were also recovered by him after describing in
Ext.P26 scene mahazar. PW24 identified the said items which were
marked as MO13 to MO16 and MO25 respectively. Moreover, he also
recovered a blood-stained dothi (MO6) and a full-sleeve shirt (MO26)
from the crime scene. According to PW24, the items recovered as per
Ext.P26 scene mahazar were duly produced before the court along with
a property list. The nail clippings, hair sample, tissue for DNA analysis,
bone marrow samples, and blood-soaked gauze, etc. of both
Crl. A. No.239 of 2025 11 2025:KER:31619
Mahmooda and the child collected by PW21, the Doctor who conducted
post-mortem examination, were forwarded to PW24 through a Civil
Police Officer and the said items were seized by him after describing in
Ext.P25 seizure mahazar. Thereafter, he filed a report before the
jurisdictional magistrate incorporating Section 302 IPC and deleting
Section 174 Cr.P.C. and Ext.P48 is the said report.
11. According to PW24, the MO1 mobile phone recovered from
the crime scene contained two sim cards, having phone numbers
9605191186 and 8811904468. On verification of the call records and
subscriber details of the said mobile numbers it was revealed that
mobile phone No.9605191186 was taken in the name of one Mugal
Hussain and one Shahida Beegum was the subscriber of mobile phone
No.8811904468. On investigation, it was revealed that the said mobile
phone as well as the sim cards contained in it which were seized from
the crime scene were originally used by the accused though the
subscribers of the said sim cards are different persons. On verification
of call detail records (CDR) of the above mobile phone numbers it was
revealed that several calls were made to different mobile numbers
subscribed in the names of various ladies and one of the frequent calls
was made to mobile phone No.8133947597. When the CDR of the said
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phone number was verified it was revealed that from 23.05.2015, i.e.,
on the next day of the incident in this case onwards, frequent calls had
come to the said number from mobile No.8128893602. On further
verification it was seen that the location of the mobile phone
No.8128893602 was at Dimapur in Nagaland. Hence he deputed the
Sub Inspector of Police, Perumbavur Police Station (PW15), and a Civil
Police Officer(PW14) attached to the said Police Station (PW14) to go
to Nagaland to trace out the person using mobile phone
No.8128893602. Accordingly, PW14 and PW15 went to Nagaland and
with the assistance of the Nagaland Police, they traced out the accused
as the person using the said mobile phone number. Thereafter, PW15
interrogated the accused and arrested him on 29.07.2015 from
Dimapur in Nagaland. At the time of the arrest, a mobile phone
(MO12), bag (MO11), identity card (Ext.P19), and a train ticket
(Ext.P21) found in the possession of the accused were taken into
custody. According to PW24, Ext.P21 train ticket revealed that the
accused had travelled on 22.05.2015 from Thrissur to Lumding junction
railway station, Assam. Thereafter, PW15 obtained a transit warrant
from the judicial magistrate at Assam and produced the accused before
PW24. According to PW24, on 05.08.2015, he produced the accused
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before the Judicial First Class Magistrate, Perumbavur. After obtaining
police custody it was revealed that the accused does not know
Malayalam but he knows Hindi. Hence, PW24 interrogated the accused
with the help of PW25, a Civil Police Officer who is proficient both in
Hindi and Malayalam. On interrogation, the accused gave a confession
statement and disclosed that "കത്തിയും ടീഷർട്ടും ഒരു പ്ലാസ്റ്റിക് കവറിലാക്കി
പെരുമ്പാവൂരിലേക്ക് വരുന്നവഴി വഴിയരികിൽ ഒരു കുറ്റിക്കാട്ടിൽ ഒളിപ്പിച്ചുവച്ചിട്ടുണ്ട്. എന്നെ
കൊണ്ടുപോയാൽ ഞാൻ അത് എടുത്തു തരാം". According to PW24, on the strength
of the said disclosure statement made by the accused and as led by the
accused he reached the property of one Ibrahim and from inside a
bushy area in the said property, the accused took a polytene cover and
handed over the same to PW24. On verification of the said cover after
opening it, a T-shirt and a knife were kept inside it and the knife was
found covered using the T-shirt. According to PW24, he recovered the
said items after describing in Ext.P27 recovery mahazar. The relevant
portion of the confession statement given by the accused and recorded
in Ext.P27 recovery mahazar is marked as Ext.P27(a). PW24 identified
the plastic cover, T-shirt, and knife recovered as per Ext.P27 mahazar
and those items which were marked as MO18, MO5 and MO8
respectively.
Crl. A. No.239 of 2025 14 2025:KER:31619
12. PW24 further deposed that when he asked about the knife,
the accused stated that he had purchased it from a shop in
Perumbavur and if he was taken he would point out the shop from
which the knife was purchased. According to PW24, on the basis of the
said information and as led by the accused, he reached a shop at
Perumbavur, and the salesman in the said shop (PW9) and the accused
herein identified each other. According to PW24, PW9, the salesman in
the shop said that the accused purchased the knife on 14.05.2015, and
at the time of the purchase, though PW9 had prepared a bill in the
computer, the accused left the shop without receiving the bill.
According to PW24, thereafter, PW9 produced the above bill in his
office on 09.08.2015 and he seized the said bill after describing in
Ext.P5 mahazar. According to PW24, he thereafter sent the accused to
the Taluk Hospital, Perumbavur for medical examination and to collect
samples of his blood for sending for DNA profiling and other expert
examination. According to PW24, it was PW31, a Senior Civil Police
Officer, who took the accused for medical examination. After the
medical examination, the Doctor (PW11) collected two blood samples
and entrusted the same in sealed packets to PW31 who produced the
same before PW24. The said blood samples were taken into custody
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by him after describing in Ext.P22 mahazar. Thereafter, he recorded
the statement of the Doctor (PW21) who conducted the postmortem
examination. PW24 further deposed that, the Doctor who conducted
the postmortem examination had collected vaginal swabs and smears
from the dead body of the deceased Mahmooda and directly sent the
same to the chemical examination lab. The chemical analysis report
received after the examination of the vaginal swab and smear is
marked as Ext.P33. According to PW24, on the said examination, it
was found that the vaginal swabs and smears contained human semen
and spermatozoa and that he made a request to the chemical
examination division of the FSL Laboratory to hand over the remaining
vaginal swabs and smears for comparing the same with the blood
sample of the accused. Accordingly, the remaining vaginal swabs and
smears were sent to him from the chemical examination lab in a sealed
packet through a Civil Police Officer. PW24 took the same into custody
on 19.08.2015 after describing in Ext.P34 seizure mahazar and
produced before the court after describing in Ext.P32 property list.
Moreover, he prepared Ext.P43 forwarding note and produced the same
before the court for sending the DNA sample of the deceased minor
child, the blood sample of the accused, vaginal swabs and smears for
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examination in the Forensic Science Laboratory. According to PW24, it
was he who completed the investigation in this case and laid the final
report before the court.
13. The Doctor who conducted the autopsy of Mahmooda and
her minor child was examined as PW21. According to PW21, on
23.06.2015 he conducted the postmortem examination on the body of
a lady aged 26 years as well as the body of a minor infant aged about
six months and issued a postmortem certificate. The postmortem
certificate pertaining to the examination of the body of the deceased
Mahmooda is marked as Ext.P28. Referring to Ext.P28, PW21 deposed
that 12 ante-mortem injuries were noted by him in the postmortem
examination. PW21 opined that the death was due to the injuries
sustained to the neck (injury No.1). Moreover, referring to the
post-mortem certificate pertaining to the examination of the body of
the minor child, PW21 deposed that he had noted 3 ante-mortem
injuries in the autopsy of the infant child. PW21 further opined that the
death of the child was due to the injury sustained on the neck (injury
No.1). The Doctor further deposed he collected bone marrow samples,
nail clippings, and tissue for DNA analysis and handed over the said
items to a Civil Police Officer in a sealed container. When confronted
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with the MO8 knife PW21 deposed that, the injuries noted in both the
dead bodies could be caused by using a weapon like MO8. Ofcourse, a
conjoint reading of the evidence of PW21, the Doctor, and the
postmortem certificate issued by him clearly shows that the death of
Mahmooda and her child were homicides.
14. This is admittedly, a case in which there is no direct
evidence to prove the occurrence. Instead, the prosecution relies on
circumstantial evidence to establish the accused's guilt. Before delving
into the details of the circumstantial evidence presented in this case by
the prosecution, it is essential to examine the principles and guidelines
governing the evaluation of such evidence.
15. In Sarad Birdhichand Sarda v. State of Maharashtra
[AIR 1984 SC 1622] the Hon'ble Apex Court discussed the nature,
character, and essential proof required in a criminal case which rests on
circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of guilt is to
be drawn should be fully established;
(ii) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty;
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(iii) The circumstances should be of a conclusive nature and
tendency;
(iv) They should exclude every possible hypothesis except the
one to be proved; and
(v) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability,
the act must have been done by the accused.
16. A similar view has been reiterated by the Apex Court in
Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002
SC 3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000] and
Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
17. In cases built upon circumstantial evidence a complete and
unbroken chain of evidence is a requisite. This chain must inevitably
lead to the conclusion that the accused, and none other than the
accused, could have committed the offence. In other words, to sustain
a conviction, circumstantial evidence must be comprehensive and
incapable of explanation of any hypothesis other than the guilt of the
accused. Thus, such evidence must not only be consistent with the
accused's guilt but also inconsistent with his innocence.
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18. Keeping in mind the above principles, the crucial question in
the case on hand is whether the prosecution has fully and exhaustively
established the circumstances relied upon to prove the charge levelled
against the accused. Furthermore, it must be ascertained whether
these circumstances lead inexorably to the conclusion of the accused's
guilt, to the exclusion of any other plausible explanation including
innocence.
19. Before delving into the circumstances pressed into service
from the side of the prosecution it is to be noted that the prosecution
has not produced any documentary evidence to show that the
deceased Mahmooda was the legally wedded wife of the accused.
However, when the brother of the deceased was examined as PW4, he
deposed that in the year 2014 his sister was found missing and hence
his father lodged a complaint before the Police. In the
cross-examination, PW4 deposed that, three months prior to the death
of his sister, she contacted him over the phone and demanded some
money. According to PW4, his sister said that she was then residing
with one Hakkeem, the accused in this case and she is pregnant.
Similarly, the evidence of PW2 and PW3 clearly shows that the
Crl. A. No.239 of 2025 20 2025:KER:31619
deceased and the accused were residing as husband and wife in their
rented house with their minor child during the period of occurrence in
this case. The evidence of PW2 and PW3 in this regard remains
unchallenged in the cross-examination. Moreover, in the birth certificate
of the deceased minor child, marked as Ext.P6, it is specifically stated
that the mother of the minor child is Mahmooda and the father of the
child is Abdul Hakeem. Therefore, notwithstanding the absence of any
documentary evidence to prove a legal marriage between the deceased
and the accused, it is demonstrably clear that the accused and the
deceased were residing together as husband and wife along with their
child in the rented house.
20. One of the circumstances relied upon by the prosecution to
prove the charge levelled against the accused is that he was having a
strong motive to kill his wife. The motive alleged is that the accused
wanted to eliminate his wife and child to continue his relationships with
other ladies. According to the prosecution, the deceased Mahmooda
reprimanded the accused on knowing about his relationships with other
ladies, and enraged by the same, the accused decided to do away with
his wife and child to remove all hindrance to continue his illicit
relationships. However, close scrutiny of the evidence adduced in this
Crl. A. No.239 of 2025 21 2025:KER:31619
case clearly shows that the prosecution failed to produce convincing
materials to show that the accused maintained illicit relationships with
other ladies and it was in order to continue the said relationships
without any obstacles, he murdered his wife and child. Nevertheless,
the evidence adduced in this case clearly establishes the fact that the
relationship of the accused with the deceased was not a cordial one.
The evidence of PW2 and PW3 clearly reveals that the accused used to
pick up frequent quarrels with his wife. PW2 had gone to the extent of
testifying that on several occasions she heard outcries of the deceased
from the rented house following the quarrel between the accused and
the deceased. The evidence of PW2 and PW3 in the above regard
need not be doubted especially when there is nothing to show that
they harbor any animosity towards the accused that would motivate
them to falsely implicate the accused in this case. Therefore, we are of
the view that it is established from the evidence that the accused and
the deceased were not on good terms during their joint lives in the
rented house though the motive alleged by the prosecution is not as
such proved.
21. One of the important circumstances relied on by the
prosecution to connect the accused with the offence alleged in this
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case is that it was in the company of the accused, the deceased and his
minor child were last seen alive and the accused failed to offer any
plausible examination as to what happened to his wife and child or
when he left their company. The prosecution is having a definite case
that on the previous day of the incident at about 10 p.m., the accused
took his wife and child from the rented house under the pretext that he
along with his wife and child were going to Assam, their native place.
It was on the next day morning, the dead bodies of his wife and child
were found lying in a paddy field adjacent to a rubber estate. The time
gap between the deceased found alive in the company of the accused
and later they were found dead, is remarkably short. In order to prove
the said circumstance, the prosecution is relying on the evidence of
PW2 and PW3. As already discussed PW2 is the landlord of the house
where the accused was residing on rent and PW3 is PW2's wife. The
evidence of PW2 shows that he owned two houses built on a property
having an extent of 10 cents and he was residing in one of the said
houses with his mother, wife, and children, and the other house was
occupied by the accused on rent. While so, on 21.05.2015, the
accused vacated the house and stated that he is going to his native
place in Assam along with his wife and minor child. According to PW2,
Crl. A. No.239 of 2025 23 2025:KER:31619
it was on 21.05.2015 at around 10.00 p.m., the accused left the house.
When the accused left the house along with his wife Mahmooda and his
child, PW2 as well as his wife came out of their house and saw them
leaving. The accused also took household articles with him in a sack.
Ofcourse, the said evidence of PW2 unequivocally establishes the fact
that it was in the company of the accused the deceased Mahmooda
and her child were last seen alive.
22. However, the learned counsel for the appellant vehemently
contended that the evidence of PW2 in the above regard is inconsistent
with the evidence of PW3 and hence, it is unsafe to rely on the
evidence of PW2. According to the counsel, what PW3 deposed is that
she last saw Mahmooda and her minor child alive between 6 p.m. and
7 p.m. on 21.05.2015. Relying on the said evidence of PW3, the
learned counsel contended that if the evidence of PW3 in the above
regard is believed, the evidence of PW2, that he saw the accused going
with his wife and child at 10 p.m. and at that time, PW2's wife (PW3)
was also with PW2 cannot be believed at all. However, we cannot agree
with the contention of the learned counsel for the appellant in this
regard. It is true that on examination before the court, PW3 deposed
that on 21.05.2015 between 6 p.m. and 7 p.m., she met the deceased
Crl. A. No.239 of 2025 24 2025:KER:31619
Mahmooda, the accused, and their child and she exchanged a few
words with them. Moreover, PW3 admitted that, at the time when the
accused left his rented house along with Mahmooda and their child, she
was not at home. The evidence of PW2 is that on 21.05.2015 at about
10 p.m., the accused left his rented house with his wife and the minor
child stating that they were going to their native place in Assam.
According to PW2, the accused left so after bidding farewell to him,
and at that time, PW3 was also with him. Notably, the evidence of PW3
shows that she was not present in her house at the time when the
accused left the rented house with his wife and child. Therefore, at
most, it can be concluded that PW2's claim that PW3, his wife, was
with him when the accused left the rented house, is not credible.
However, this does not justify disbelieving PW2's testimony that he saw
the accused leave the house with his wife and child at 10:00 p.m. on
May 21, 2015. PW3's testimony does not invalidate PW2's evidence,
especially since PW3 does not assert that the accused did not leave the
rented house with Mahmooda and his minor child. Moreover, as already
stated even the accused is not having a case that either PW2 or PW3
has any axe to grind against the accused so as to implicate him in a
serious case of this nature. Therefore, the evidence of PW2 and PW3 is
Crl. A. No.239 of 2025 25 2025:KER:31619
deemed credible, leading us to the considered conclusion that the
prosecution has successfully established that the deceased Mahmooda
and her minor child were last seen alive in the company of the accused.
23. Eventually, in view of the provision contained under Section
106 of the Indian Evidence Act, it is for the accused to explain what
actually transpired after his deceased wife and child were last seen
alive in his company. Nevertheless, no explanation, whatsoever has
been offered from the side of the accused as to what happened to his
wife and child thereafter, or when he parted ways with them. At this
juncture, it is noteworthy that the accused is having a case that, on
20.05.2015 itself he went to Assam. But the said case canvassed from
the side of the accused is established to be false by the convincing
evidence of PW2 and PW3. Therefore, the absence of any plausible
explanation from the side of the accused, certainly leads to an adverse
inference against the accused. The said circumstance will certainly form
an important link in the chain of evidence.
24. Another circumstance that throws light on the complicity of
the accused in the commission of the offence is that immediately after
the commission of the offence, the accused absconded to Assam. The
evidence of the investigating officer clearly shows that it was from
Crl. A. No.239 of 2025 26 2025:KER:31619
Dimapur in Nagaland the accused was apprehended on 29.07.2015.
Moreover, the railway tickets recovered from the bag possessed by the
accused at the time of his arrest and marked in evidence as Ext. P20
clearly reveals that on 22.05.2015, the accused travelled to Assam from
Thrissur. The act of the accused in absconding after the commission of
the offence is a conduct relevant under Section 8 of the Indian
Evidence Act and the same will form an additional link in the chain of
evidence presented in this case by the prosecution.
25. Another crucial material relied on by the prosecution is the
recovery of the weapon of offence allegedly effected by the strength of
the disclosure statement given by the accused. When the investigating
officer of this case was examined as PW24, he deposed that after
obtaining police custody of the accused, he interrogated the accused
and on interrogation, the accused gave a disclosure statement and on
the strength of the said statement given by the accused and as led by
the accused he reached at an uninhibited property of Ibrahim and from
inside a bushy area of the said property, the accused took a plastic
cover and handed over the same to PW24. According to PW24, inside
the said plastic cover a knife as well as a T-shirt were found kept. The
said items were taken into custody by PW24, after describing in
Crl. A. No.239 of 2025 27 2025:KER:31619
Ext.P27 recovery mahazar. The relevant portion of the statement which
led to the recovery of the knife and T-shirt recorded in Ext.P27 mahazar
and proved through PW24 was marked as Ext.P27(a). PW24 identified
MO8 as the knife and MO5 as the T-shirt recovered by him as per
Ext.P27 mahazar. More pertinently, when a salesman in a shop, from
where the accused allegedly purchased the said knife was examined as
PW9, he deposed that on 14.05.2015, the accused came to his shop
and purchased a knife. PW9 also identified MO8 as the knife purchased
by the accused. According to PW9, though a bill was generated on the
computer, the accused left the shop without receiving the bill. The
evidence of PW9 in the above regard also will lend some assurance to
the case of the prosecution. Moreover, in Ext.P31, the chemical
examination report reveals that the said knife and T-shirt which were
shown as items Nos.4 and 5 respectively were subjected to
examination, and on examination, blood was detected in item No.4 and
item No.5. However, the origin of the blood contained in item No.4
knife, could not be determined, as the blood contained was insufficient.
On the other hand, the blood contained in item No.5 T-shirt, was
determined to be human origin.
Crl. A. No.239 of 2025 28 2025:KER:31619
26. Now the prime question that requires to be addressed is
whether the recovery of the aforementioned knife, the weapon of
offence, will come under Section 27 of the Indian Evidence Act. It is
noteworthy that as per Section 27, the only information given by the
accused that can be proved is the information that distinctively leads to
the recovery of a fact. The said information gains guarantee or gets
confirmed by the subsequent recovery of a fact. Therefore, the first
thing is that the exact information which led to the recovery of the fact
must be proved sufficiently before the court. The investigating officer
must record and later depose the exact words said by the accused
before the court. Then only it can be said that the information given
by the accused is proved. In the case at hand, it is established that the
accused is hailing from Assam and he is not proficient in Malayalam.
However, the statement of the accused which allegedly led to the
recovery of the knife as well as the T-shirt are seen recorded in the
recovery mahazar in Malayalam.
27. A Division Bench of this Court in Sanjay Oraon v. State of
Kerala [2021 (5) KLT 30], held that
"recovery effected as per the statement of the accused - not
recorded in the language as spoken by the accused is not
proper. In such circumstances, the exact words of the
accused have to be recorded and translation to be appended."
Crl. A. No.239 of 2025 29 2025:KER:31619
However, in a subsequent decision [Siju Kurian v. State of
Karnataka, 2023 (14) SCC 63] the Apex Court, dealing with a similar
situation, held that
"when the statement is being recorded in the language not
known to the accused, the assistance of an interpreter if taken by
the Police cannot be found fault with. The ultimate test of the
said statement made by the accused having been noted down as
told by the accused or not would be of paramount consideration.
If the answer is in the affirmative then necessarily said statement
will have to be held as passing the test of law as otherwise not".
28. Keeping in mind the above principle while reverting back to
the facts in the present case it can be seen that admittedly the accused
does not know Malayalam but he is proficient in Hindi. However, PW24,
the investigating officer categorically deposed that after obtaining the
accused in police custody it was revealed that the accused does not
know Malayalam but he knows Hindi. According to PW24 in order to
get over the language barrier, he interrogated the accused with the
help of PW25, a Civil Police Officer who is fluent both in Hindi and
Malayalam. Moreover, PW25, who translated the disclosure statement
testified that, the confession statement given by the accused in this
case in Hindi was truly and correctly translated by him in Malayalam to
the investigating officer. According to PW25, it was with his help, the
Crl. A. No.239 of 2025 30 2025:KER:31619
investigating officer interrogated the accused and it was he who
translated the matter said by the Circle Inspector in Malayalam to the
accused in Hindi. PW25 identified the accused before the court as the
person who made the disclosure statement. Therefore, we have no
hesitation to hold that the disclosure statement recorded in Malayalam
which led to the recovery of a fact can very well be proved against the
accused as spelled out under Section 27 of the Indian Evidence Act.
Undoubtedly, the recovery of the murder weapon based on the
accused's disclosure statement significantly strengthens the
prosecution's case. Furthermore, the previously discussed scientific
evidence, confirming the presence of blood on both the MO1 knife and
the accused's T-shirt worn during the commission of the offense,
provides compelling corroboration of the prosecution's narrative.
29. In short, The compelling circumstances meticulously
examined above, inexorably lead to the conclusion that it was the
accused who murdered the deceased Mahmooda and her child. These
circumstances are fully and convincingly established and are collectively
sufficient to rule out the hypothesis of the accused's innocence. The
scientific evidence, together with the recovery evidence presented in
this case, also provides significant support for the prosecution's case.
Crl. A. No.239 of 2025 31 2025:KER:31619
Resultantly, we confirm the finding, conviction, and sentence
passed by the learned Additional District and Session Judge in S.C.
No.823/2015 on the file of Sessions Court, Muvattupuzha, for offence
punishable under Section 302 of the Indian Penal Code and hence the
appeal stands dismissed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd/ANS
