Allowed

Ejiriyose v. State of Kerala

Kerala HC11 Oct 2013CRL.A/804/2013

Case brief

AI extract

What is this about?

The High Court overturned the appellant's life imprisonment for rape and murder. The court held the prosecution's circumstantial evidence was incomplete and insufficient, citing flaws in witness testimony, the lack of DNA analysis for seized semen, and the unproveable discovery of the stolen gold chain.

What did the court decide?

The conviction and sentence passed by the court below are set aside; the appellant is acquitted and set at liberty forthwith.

Ejiriyose Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935

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CRL.A.No. 804 of 2013 ()

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AGAINST THE JUDGMENT IN SC.878/2009 of ADDITIONAL SESSIONS COURT (ADHOC-III), KOLLAM DATED 16-05-2013

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APPELLANT/ACCUSED:

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EJIRIYOSE S/O. MICHAEL, THODIYIL KIZHAKKATHIL VEEDU (PONNANIKKAL THEKKATHIL), PADAPAKKARA, PERAYAM CHERRY MULAVANA VILLAGE. BY ADVS.SRI.V.V.RAJA SRI.M.T.SURESHKUMAR

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY ADV. SMT.PRAICY JOSEPH, SPL. GOVERNMENT PLEADER

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-10-2013, THE COURT ON 11-10-2013 DELIVERED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR

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B.KEMAL PASHA, JJ.

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-------------------------------------------------------- Crl. Appeal No.804 of 2013

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-------------------------------------------------------- Dated this the 11^th day of October, 2013

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J U D G M E N T

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Kemal Pasha, J.

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The accused in S.C.No.878 of 2009 of the Kollam Sessions Division, who stands convicted under Sections 302, 376, 397 and 201 IPC by the Additional Sessions Court (Adhoc-III), Kollam, and sentenced to undergo imprisonment for life and to pay a fine of ₹1 lakh, in default, to undergo rigorous imprisonment for one year under Section 302 IPC, rigorous imprisonment for seven years under Section 376 IPC, rigorous imprisonment for one year under Section 379 IPC and rigorous imprisonment for two years under Section 201 IPC, has come up in appeal.

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Deceased Usha, who was a 48 year old woman, was a resident of the Jayanthi Colony, which is situated at

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an elevated place near the Kanjirode lake at Vellimon, near Kundara, in Kollam District. Even though she was given in marriage around thirty years back to her death, her husband abandoned her, allegedly on the refusal of his demand to give the younger sister of the deceased named Kasthuri also in marriage to him. Thereafter, she was living along with her elder sister PW2, younger sister Kasthuri, their mother, and PW1 to whom Kasthuri was later given in marriage. Subsequently, Kasthuri died and even then PW1 continued to reside with the other members of the said family.

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Due to scarcity of water in Jayanthi Colony, the inhabitants of the colony used to take bath and to wash their cloths from a pond like well situated in the property of PW17 situated by the side of the Kanjirode lake. The said property is lying at a lower level, approximately 75 feet from the Jayanthi Colony.

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PW6, who is a resident of Chittayam at Panayam

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Village, which is far away from Jayanthi Colony, has a house at Jayanthi Colony. PW6 has a wife and grown up children, who are residing at his house at Chittayam. There developed an illicit relationship between the deceased and PW6 around 20 years back to the death of the deceased. On all Sundays by the evening, PW6 used to come and stay at his house in Jayanthi Colony. On all such occasions, the deceased, without fail, used to go to the house of PW6 on his arrival and stay with him at that house. After having sex during night, they used to depart from the house in the next morning. The said relationship continued till the morning of 14.11.2005. On 13.11.2005, as usual, PW6 reached his house at the Jayanthi Colony and promptly the deceased joined him at the house and they stayed together. In the next morning, i.e., 14.11.2005, they departed from the house and the deceased reached her house.

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At about 9.30 a.m., deceased Usha went to the well situated at the property of PW17 for taking bath and

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also for washing cloths. Till 11 a.m., the sounds of beating of cloths, while washing it, were being heard. As the deceased did not return even by 12 noon, PW2 loudly called the deceased, which also did not evoke any response. Then, PW2 came down to the property of PW17, where also she could not see the deceased. Some washed cloths were seen placed on cloth-lines in the property. An aluminium vessel and an aluminium bucket contained partly washed cloths in water were seen near the well. The deceased was not seen anywhere near the well or in the property. Smelling something untoward, PW2 frantically made a search for the deceased. Then, she could see the almost naked body of the deceased lying in the Kanjirode lake at the eastern side of the property, at about 17 metres away from the well. The grass and bushes in the property from near the well up to the shore near the dead body, were seen recently crushed and disarrayed. The blouse, which was partly lifted up, was the only cloth found on the dead body.

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PW2 attempted to lift the body to the shore; but she could lift the body up to the waist portion only. PW2 took a saree piece from the cloth-line and put it on the naked portion of the body. As the saree slipped down to the water, she took a lungi from the cloth-line and covered the body. On realising that the deceased died, PW2 cried aloud, which invited the presence of the public.

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PW1, who had gone to the Panchayat Office at Perinadu in the morning, heard about the incident on his way back, thereby he rushed to the spot and saw the body. He reached the Kundara Police Station at 2.30 p.m. and furnished Ext.P1 First Information Statement before PW26 Additional Sub Inspector of Police, on the basis of which PW26 registered Crime No. 716/05 of the Kundara Police Station under Section 174 Cr.P.C, through Ext.P15 FIR.

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PW28 Sub Inspector of Police, Kundara, rushed

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to the scene of occurrence. He obtained the presence of PW12 scientific expert, the finger print expert, and the dog

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squad. The matter was reported to the higher ups in the police. He conducted the inquest in the presence of PW12

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and others, and prepared Ext.P2 inquest report. On examining the body, PW12 collected a short hair from the left breast of the deceased and a long hair from the thigh of the deceased and the same were sealed and handed over to PW28. The body was sent for postmortem examination.

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The material objects seized by PW28 were produced before Court through Ext.P16 property list. He filed Ext.P17 report before court for deleting Section 174 Cr.P.C. and for incorporating Section 302 IPC in the crime. PW29 Circle Inspector of Police, Kundara, conducted the investigation. On 18.11.2005 at 6.20 p.m., he placed the appellant under arrest through Ext.P19 arrest memo. He filed Ext.P20 report before court for incorporating Sections 376, 302, 397 and 201 IPC in the crime. He completed the investigation and prepared the draft final report. PW30, who was the successor in office to PW29, filed the final report.

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The prosecution case is that the appellant, with

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the intention of committing rape and theft, at 11.15 a.m. on 14.11.2005, came by rowing a canoe through the Kanjirode lake and landed in the property of PW17 situated on the eastern side of Prakash Tile Factory, Vellimon, where the deceased was taking bath. He forcefully covered her mouth with his hand, swiftly removed the underskirt worn by the deceased, forced her down on her back by catching on her neck, and committed rape on her. The deceased became unconscious due to the pressure exerted by the appellant on her neck. The appellant committed theft of MO1 gold chain worn by the deceased. Thereafter, the appellant dragged the deceased towards the north-east of the property for a distance of about 17 metres and pushed her down into the Kanjirode lake and immersed her in water thereby, she died due to the combined effects of drowning and blunt injury sustained to her neck.

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On the side of the prosecution, PWs 1 to 30 were

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examined and Exts.P1 to P27 were marked. Contradictions in the statements of some of the prosecution witnesses under Section 161 Cr.P.C. were marked on the side of the appellant as Exts.D1 to D9. The appellant was examined under Section 313 Cr.P.C. The appellant denied the incriminating circumstances appeared in the evidence against him and filed a statement in writing contending as follows:-

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“I am innocent in this case. On 15.11.2005 at about 11 am, a police officer from the Kundara Police Station came to my house and directed me to go to the Police Station. Complying with the direction, I along with my wife, reached Kundara Police Station by about noon. The Sub Inspector of Police took me to the Circle Inspector of Police. The Circle Inspector directed me to stay there. When it became night, I was kept inside the lock up of the Kundara Police Station and was severely beaten. On the 5^th day I was taken before the Doctor, from where I was produced at the residence of the Magistrate during night, from where I was sent to jail.

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I was neither taken to the place alleged as the scene of occurrence in this case; nor I was shown to any of the witnesses for getting identified. I was not taken to my house, and the gold chain was not taken from my house. Police had not seized my lungi or bathing towel. My canoe kept at my house for repairs, was taken away by the Police in my absence. I have never resided in House No.XII/358. This case has been falsely foisted against me and I am arraigned as accused in this case, on account of the enmity of PW29 towards my family.”

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On the side of the appellant, DWs.1 to 4 were

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examined and Exts.D1 to D11 were marked. The learned Additional Sessions Judge, after hearing both sides, found the appellant guilty of the offences punishable under Sections 302, 376, 397 and 201 IPC, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant Sri.Raja Vijayaraghavan has argued that the

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prosecution has miserably failed to establish sufficient circumstances, which can form a complete chain that can point towards the guilt of the appellant. It was also argued that the conviction entered by the court below is based on mere surmises and conjectures, and that there is no evidence at all to connect the appellant with the crime. It was further argued that the circumstances relied on by the court below by styling it as 'links' could not have been considered as inculpatory circumstances pointing towards the guilt of the appellant. In reply, the learned Public Prosecutor has argued that there is sufficient evidence to sustain the conviction and sentence.

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The prosecution case is based on circumstantial evidence alone. The impugned judgment reveals that the court below has relied on 11 circumstances, which the court below has reckoned as 'links', to find the guilt of the appellant. With difficulty, we could pick up the said 11 circumstances lying scattered in the impugned judgment,

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which are seen dealt with by the court below as 'links first to last'. In the words of the court below, the same are the following:-

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(1) On the date of incident, the deceased had gone to the property of PW17 for bathing and washing cloths and that she was very much alive till about 11 a.m.

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(2) The testimony of PW3 and PW4 would show that it

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was only the accused who was present on the relevant day near the scene of occurrence before and after the incident and hence the presence of other person or persons near the scene of occurrence can safely be ruled out.

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(3) PW2 could find the deceased lying dead, and MO1

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gold chain worn by the deceased was missing from the body.

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(4) One hair found on the left breast and another long

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hair found on the thigh of the dead body, which were seized, and a piece of saree put by PW2 on the dead body to cover the nakedness, which was seized and produced as item

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No.2 in Ext.P16 property list, were sent for forensic examination.

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(5) The death of the deceased was not natural and that it was caused due to the combined effect of drowning and the blunt injuries sustained on the neck and that the deceased was subjected to forcible sexual intercourse.

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(6) Not only has the accused failed to show the preponderance of probabilities in the defence set up by him regarding his arrest, but also the said defence set up has turned out to be false. On the other hand, the evidence let in by the prosecution proves the arrest of the accused.

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(7) The seizure of the canoe and oar of the accused has been established by the evidence on record.

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(8) The evidence adduced by the prosecution establishes the seizure of the lungi and MO9 bathing towel of the accused.

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(9) The evidence proves the seizure of MO1 gold chain of the deceased from the possession of the accused.

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(10) The short hair found on the left breast of the dead body, on expert examination, was found similar to the scalp hair of the accused, and it can certainly help the court to reckon the same as a circumstance consistent with the guilt of the accused.

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(11) The presence of semen and spermatozoa in the lungi of the accused for which no explanation is forthcoming from the accused.

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The learned counsel for the appellant has pointed out that there is no dispute or challenge regarding the first circumstance noted above. It has come out in evidence that by about 9.30 a.m. on the date of incident, the deceased had gone to the well situated in the property of PW17 for bathing and washing cloths. From the evidence of PW2, it has come out that the sounds of the beating of cloths were being heard from that direction till about 11 a.m., which clearly means that the deceased was engaged in washing cloths till about 11 a.m. The washed cloths seen on the

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cloth-lines and the partly washed cloths seen in the water contained in the aluminium vessel and the aluminium bucket also would go to prove the said fact.

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All the other circumstances dealt with as 'links' by the court below are either fully or partly challenged by the learned counsel for the appellant. First of all, we will deal with the cause of death of the deceased considered by the court below while dealing with the aforesaid 5^th link. It was PW18 Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram, who conducted the autopsy and issued Ext.P9 postmortem certificate. Her findings in Ext.P9 reveal the following:-

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“Hyman was absent. Mucosa of external genitalia had a soddened appearance. Infiltration of blood seen over an area of 0.3x0.3x0.2 cm on the left side of external genitalia, 1.5 cm inner to the outlet, with mucosal erosion (no infiltration) around.”

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She has noted the following antemortem injuries on the body of the deceased:-

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“(1) Superficial contusion 0.5x0.3 cm on the inner aspect of left side of lower lip, 1 cm outer to midline and 1 cm inner to the outer margin. (against the upper left lateral incisor tooth).

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(2) Contusion 4x2x0.3 cm, on the right side of top of head, 8.5 cm above and 2 cm behind the top of ear.

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(3) Contusion 4x3x0.3, on the left side of top of head, 5 cm above the top of ear.

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(4) Contusion 2.5x2x0.3 cm on the left side of back of head, 2 cm inner to the injury No.3.

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(5) Abrasion 0.8x0.2 cm, oblique, on the right side of front of neck, its upper inner end, 6 cm above collar bone and 5 cm outer to midline.

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(6) Faint abrasion 1.5x0.3 cm, on the right side of front of neck, oblique its upper outer and 6 cm above collar bone and 4 cm outer to midline.

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Flap dissection of net was done under bloodless field. Underneath injury No.5 and 6,

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right sternomastoid muscle showed a contusion 2x0.3x0.3 cm. Contusions were seen on the subcutaneous tissue (i) on the right side of front of neck. 4X0.5x0.5 cm, its lower inner end 3.5 cm on outer to midline and 4.5 cm below jawbone, (ii) on the right side of front of neck. 1.5 cm inner to and 0.5 cm above contusions No.(i), (0.5x0.5x0.3 cm) and (iii) near the right angle of jaw (1x0.5x0.5 cm). Other muscles, vessels, cartilages and bones of neck were normal and intact.”

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She collected the viscera, sample of blood, vaginal swab and smear, which were preserved and sent for chemical analysis. Water sample and a sample of bone marrow were sent for diatom test. Nail clippings from hands, samples of scalp hair, body hair and pubic hair were collected and handed over to PW27 police constable. The opinion of PW18 as to the cause of death of the deceased is that “ postmortem findings are consistent with death due to combined effects of drowning and blunt injuries sustained to neck ”.

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In fact, the cause of death of the deceased is not under challenge. According to PW18, injury No.1 could be

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caused by applying force with the hand to prevent a person from making any noise. Injury Nos.2 to 4 could be caused if that portion of the body comes into contact with a hard object with sufficient intensity. Injury Nos.5 and 6 could be caused by applying pressure with hands. According to PW18, injuries corresponding to injury Nos.5 and 6 also could be caused by applying force with hands. PW18 has further noted the following:-

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“Brain was oedematous. Body cavity had an unusual smell. Air passages contained fine whitish froth. Lungs were pale, crepitant and oedematous with oozing of blood stained fine frothy fluid on cut sectioning. Left chest cavity contained 15 ml of blood stained fluid. Scalp showed shower of petechial haemorrhages. Heart was flabby. Reddish discoloration of intima of aorta seen. Liver was pale and had fatty change. Stomach contained a handful of soft rice in cream coloured fluid medium having no

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unusual smell, mucosa normal. Urinary bladder contained 50 ml of clear urine. Uterus measured 7x4x2 cm, cavity empty, endometrium thickened, appendages normal. A subserous fibroid 2x2x2 cm, was seen on the left side of body of uterus. All other internal organs were normal.”

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According to PW18, the infiltration of blood at the side of the external genitalia could be caused by using force before sexual intercourse. PW19, while working as Assistant Chemical Examiner, Chemical Examiner's Laboratory, Thiruvananthapuram, received the sealed bottle containing the vaginal swab and vaginal smears collected from the body of the deceased for analysis on 15.11.2005. According to her, human semen and spermatozoa were present in the vaginal swab and vaginal smears. She has issued Ext.P10 certificate to that effect. The said findings entered by PW18 regarding the infiltration of blood seen over an area of 0.3x0.3x0.2 cm. on the left side of external genitalia, 1.5 cm inner to the outlet, and the findings entered by PW19 in

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Ext.P10 certificate that the vaginal swab and vaginal smear collected from the body of the deceased contained human semen and spermatozoa clearly reveal that the deceased was subjected to sexual intercourse prior to her death. At the same time, the said sexual intercourse was not the cause of death of the deceased.

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The nature of injuries found on the neck of the deceased clearly rules out any accidental or suicidal death. There cannot be any better opinion than the one expressed by PW18 as to the cause of death of the deceased. From all the above, we conclude that the death of the deceased was due to the combined effects of drowning and blunt injuries sustained to her neck, and that the death is homicidal.

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It is the admitted case of the prosecution that the deceased was having illicit relationship with PW6. On all Sundays in the evening, PW6 used to come to his house at the Jayanthi Colony and on all such occasions, the deceased used to go and stay with him during the night of

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such Sundays. The family members of PW6 were against the said relationship. Similarly, according to PWs 1 and 2, they also did not like the said relationship of the deceased with PW6, who has a wife and grown up children. According to PW6, he had such a relationship with the deceased for the last 20 years prior to the death of the deceased. He used to go to his house at the Jayanthi Colony on all Sundays in the evening and on all such occasions, the deceased used to come and stay with him. In the morning of Mondays, they used to depart. According to PW6, on the previous night to the date of death of the deceased also, they had stayed together. He had reached his house on the previous day at 6 pm. By about 7 - 7.30 pm, the deceased joined him and cooked food. By about 9 pm, they slept. By about 7 am on the next morning, the deceased went to her house and he went to his house at Panayam. A leading question was asked to PW6 as to whether they had sexual contacts during that night. PW6 denied the same.

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In cross examination also, PW6 has stated that

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there were no sexual contacts between him and the deceased during the said night. On the side of the appellant, Ext.D9 was marked as contradiction in the statement furnished by PW6 before the police, under Section 161 Cr.P.C., which is precisely as follows:-

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“We went to bed at about 9 p.m. There was sexual contact. It was for her comfort. Thereafter, I lay separately. Presently, there is no ejaculation for me. I think that on that date also, I did not ejaculate.”

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It is a fact that there was longstanding illicit relationship between PW6 and the deceased. PW6 used to come once in all weeks solely for staying with the deceased for one night. It cannot be believed that they had no sexual intercourse on that night even when they stayed together. Even though PW6 has denied having furnished Ext.D9 statement, the conduct of the parties clearly reveals that they had engaged in sexual intercourse on the said night.

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From Ext.D9, it is evident that PW6 was not sure whether he had ejaculated during such sexual intercourse with the deceased on the previous night. According to PW19, she cannot say the person to whom the semen and spermatozoa belong. It seems that DNA test was not conducted by taking the blood or semen of the appellant or that of PW6 to find out as to whom the said semen and spermatozoa belong. Even though it has come out that the deceased was subjected to sexual intercourse prior to her death, there is no evidence to show the time at which she was subjected to such sexual intercourse. According to the court below, the infiltration of blood found at the private parts of the deceased revealed forcible sexual intercourse. It is doubtful as to whether it was due to any forcible sexual intercourse by PW6 during the previous night, or by the appellant or any other person or persons, after her reaching the property of PW17.

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It seems that the court below has forgotten to

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consider a vital aspect in this case. The court below has merely brushed aside the fact that the blood sample of the deceased contained 75 mg. of Ethyl alcohol per hundred ml. of blood, by simply holding that the deceased would not have been under the influence of liquor. According to PW18, the chemical examination of the blood of the deceased revealed the presence of 75 mg. of Ethyl alcohol per hundred ml. of blood. According to her, 100 to 150 mg. of Ethyl alcohol per hundred ml. of blood is required to treat a person as being under the influence of alcohol.

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According to PW6, on some occasions the deceased used to request him to provide her liquor and that he had used to heed to her such request. Further, according to PW6, he had provided 60 ml. of liquor to the deceased on that night. It is the specific case of PW6 that on that night he along with the deceased went to sleep at 9 p.m. Therefore, the deceased might have consumed the said 60 ml. of liquor prior to 9 p.m., on the previous night to

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her death. It has come out in evidence that the deceased died after 11 a.m. on the next day. It cannot be imagined that such a quantity of 75 mg. of ethyl alcohol per per hundred ml of blood could be present in the blood of the deceased who had allegedly consumed just 60 ml. of liquor only, around 14 hours back to her death. Therefore, it is evident that the deceased had consumed liquor while she was present in the property of PW17 on the fateful day.

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It is the admitted case of PW1 that there were sales of illicit arrack near the Colony. According to him, a lot of people used to come to the property of PW17 during day as well as night, for fishing from the lake situated at the eastern and northern sides of the said property. Several persons used to come to the property for collecting shells also from the lake. Matters being so, the presence of such a quantity of Ethyl alcohol in the blood of the deceased clearly creates suspicious circumstances. It seems that no proper investigation was conducted to trace out the person

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who supplied liquor to the deceased on the date of her death at the property of PW17. The prosecution has no case that the appellant had at any point of time consumed liquor or provided liquor to the deceased. Therefore, the possibility of the presence of some other person in the property of PW17 prior to the death of the deceased on the date of incident, cannot be ruled out. On the contrary, such presence of other person or persons, is more probable.

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In this connection, we are dealing with the last link relied on by the court below regarding the presence of semen and spermatozoa in the lungi of the appellant. According to the court below, no explanation for the presence of semen and spermatozoa in his lungi is forthcoming from the appellant. The appellant is a married man, who is residing with his wife. He could have frequent sexual contacts with his wife and, therefore, there is every possibility for the presence of semen and spermatozoa in his lungi. At the same time, as we have found earlier, no

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DNA test was conducted in order to compare the semen and spermatozoa contained in the lungi of the appellant with human semen and spermatozoa found in the vaginal swab and vaginal smear collected from the body of the deceased. Especially when the deceased had admittedly slept with PW6 on the previous night, the investigating officer ought to have requested for DNA test in order to ascertain the source of human semen and spermatozoa present in the vaginal swab and vaginal smear collected from the body of the deceased. In these circumstances, the mere presence of semen and spermatozoa in the lungi of the appellant cannot be treated as an inculpatory circumstance against him. It is strange to note that the investigating officer has not even cared to get it ascertained through chemical examination as to whether the semen and spermatozoa found in the lungi seized from the appellant were even those of the appellant. Therefore, the 8^th link relied on by the court below is also of no consequence at all.

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According to PW17, he had occasions to see the presence of empty liquor bottles being left by the persons

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who used to visit his property, lying scattered in his property. When such a quantity of Ethyl alcohol was found in the blood of the deceased, the investigating officer ought to have investigated regarding the same. By merely relying on the version of PW6 that he had provided 60 ml. of liquor to the deceased around 14 hours back to her death, the investigating officer has not cared to probe any further into the matter. The possibility of some person or persons who had provided liquor to the deceased in the property of PW17 on the date of incident, and having sexual intercourse with, or committing rape on the deceased, cannot be ruled out.

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Now, we shall deal with the 2^nd link relied on by the court below. The prosecution has no case that the deceased was last seen together in the company of the appellant. It seems that the court below has heavily relied on the evidence of PW3 and PW4 in order to hold that the

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appellant was present on the “relevant day near the scene of occurrence before and after the incident”. It seems that the court below, after discussing the evidence of PW3 and PW4, has gone to the extent of observing that “it was only the accused who was present on the relevant day near the scene of occurrence before and after the incident and hence the presence of other person or persons near the scene of occurrence can safely be ruled out.” It is not discernible from the impugned judgment as to how the court below has arrived at the conclusion that the presence of other person or persons near the scene of occurrence could safely be ruled out. The evidence of PW1 and PW17 clearly proves that numerous persons used to come to the said property for the purpose of fishing from the lake situated adjacent to the northern and eastern sides of the said property, and also for collecting shells from the lake. The court below has brushed aside the evidence of PW17 on the said aspect by merely relying on the versions of PW3, who has nothing to

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do with the said property. It has to be noted that the said property belongs to PW17. The court below has lost sight of the evidence of PW1 and PW17 on that aspect.

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The learned counsel for the appellant has taken us through the evidence of PW3 and PW4 in detail. According to PW3, he had furnished his statement before police during inquest. At the same time, Ext.P2 inquest report does not show any such statement by PW3. According to PW3, on the date of incident at 10.15 a.m., he along with his wife CW5 had gone to the property of Minister Ganesh Kumar which is situated at the Eastern side of another property situated at the Eastern side of the property of PW17, for cutting grass and also for tethering his cow. He made a basket with a braided palm leaf, and kept the grass in it. By that time, he could see the appellant coming by rowing his canoe, and proceeding towards East by catching his net. He requested the appellant to provide him fish for ₹10/-. The appellant replied that he had no fish with

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him. According to PW3, he had frequently used to purchase fish from the appellant. Thereafter, PW3 and his wife went

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back to their house. While he was having a nap, his wife informed him that the deceased was seen lying dead in the Lake. Further, according to him, when he saw the appellant on the date of incident, the appellant was wearing MO9 bathing towel. Further, a lungi was seen tied around the head of the appellant.

¶164

In cross examination, PW3 has deposed that on the date of incident he could see the appellant alone who was engaged in fishing at the said lake. Further, according to him, there were two other persons also who used to come for fishing at that side of the lake frequently; but those two persons were not seen there on the date of incident. PW3 has no case that he had any occasion to see the appellant or the deceased in the property of PW17 on the date of incident. In fact, the evidence of PW3 does not show that the appellant was present anywhere near the property of

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PW17. According to PW3, even while PW3 was present in the said property of Ganesh Kumar, the appellant went away through the lake by rowing his canoe.

¶168

Coming to the evidence of PW4, according to him, he could see a person rowing away by a country boat towards north from near the property of PW17. According to him, he had not stated before the police that it was the appellant who was rowing away like that. The learned Public Prosecutor was permitted by the court below to put questions that could be put in cross-examination to the said witness, by declaring him as hostile. He has stated in evidence that he could not precisely say whether it was the accused who was rowing away through the lake by the country boat. According to him, that person was seen rowing away just after 11 a.m. on the date of incident. PW4 has stated in evidence that he had used to purchase fish from the appellant. On the date of incident, on seeing a person going away by rowing the country boat, he clapped

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and asked him whether he had fish with him. But, without responding, that person went away. When he was asked whether he had clapped and called that man on realising that it was the appellant, he answered that he called that man on realising that he was a fisherman. He has stated in evidence that the said man had tied a cloth around is head. When he was asked whether it was a lungi that was tied around the head, he answered that he did not know it.

¶172

On a careful scrutiny of the evidence adduced by PW3 and PW4, we are not satisfied that their evidence is insufficient to conclude that the appellant was the only person who had access to the property of PW17 on the date of incident, and that no other persons had visited the said property on the date of incident. The evidence of PW3 does not show that the appellant was present anywhere near the property of PW17. Even though PW4 had prior acquaintance with the appellant, it seems that PW4 could not identify the person who was rowing away through the

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lake by the country boat from the vicinity of the property of PW17, as the appellant. It is based on such vague versions of PW3 and PW4, the court below has found that their evidence has proved the presence of the appellant on the relevant day near the scene of occurrence before and after the incident. We are of the considered view that the said evidence is not at all sufficient to enter on such a finding. Matters being so, the prosecution has failed to make out the 2^nd link relied on by the court below.

¶176

The 3^rd link and the 9^th link relied on by the court below can be considered together. According to the prosecution, MO1 gold chain worn by the deceased at the time of her death was seized from the possession of the appellant on the basis of Ext.P6(a) information furnished by the appellant, and as led by the appellant. The prosecution case is that MO1 gold chain originally belonged to Kasthuri, the deceased wife of PW1, and he gave that thali chain to the deceased. It has to be noted that PW1, who had

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furnished Ext.P1 First Information Statement, had no case that the said MO1 gold chain, which belonged to his deceased wife was given to the deceased, and that the said gold chain was seen missing from the dead body. If, as a matter of fact, the said gold chain was given to the deceased and that was found missing from the dead body, definitely in the normal course, PW1 would have stated that fact in Ext.P1 First Information Statement. The absence of any mention of MO1 in Ext.P1, clearly militates against the prosecution case.

¶180

According to the learned counsel for the appellant, the so called discovery of MO1 cannot be believed and the evidence relating to the discovery of MO1 was cooked up by the police in order to falsely implicate the appellant in the case. According to PW29, on the basis of Ext.P6(a) information furnished by the appellant, and as led by the appellant, he reached the house of the appellant at Padappakkara, and that the appellant took out MO1, which

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was hidden by the appellant in his house. According to PW29, he seized the same through Ext.P6 mahazar, on 19.11.2005, at 12 noon.

¶184

The questions to be decided are as to whether the said discovery is believable and whether Ext.P6(a) is admissible in evidence under Section 27 of the Indian Evidence Act. The learned counsel for the appellant has argued that the evidence adduced by the prosecution relating to the discovery of MO1 is wholly suspicious. According to PW29, the discovery was effected in the presence of PW11 and PW15. The learned counsel for the appellant has guided us through the evidence of the said witnesses. Both of them are autorickshaw drivers operating their service from the autorickshaw stand situated in front of the Kundara police station.

¶185

According to PW11, on getting information that the appellant was apprehended by the police, he along with PW15 went to Chinnoos Jewellery, to which place the

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appellant was taken. By the time when they reached the said jewellery, the appellant was taken to the house of the appellant. They went behind and reached there by about 10.30 - 11 a.m., and witnessed the discovery of MO1 from the house of the appellant. His version is that he along with the other witnesses had entered inside the room in the house of the appellant from where the discovery was effected, to witness the discovery, and he affixed his signature in Ext.P6 mahazar. In cross-examination, he has stated in evidence that the house of the appellant is situated 12 kilometres away from the Kundara police station. Further, he has deposed that the house of the appellant is situated adjacent to the northern side of a concrete road, and the police reached the house of the appellant by jeep, and the jeep was stopped some distance away from the house of the appellant. It has come out that the said witness has been residing further away from the Kundara police station. 36. PW15 is the other signatory to Ext.P6 mahazar.

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According to him, the jeep was stopped near the house of the appellant. In cross examination, he has stated in evidence that his house is situated 2 kms. away towards East from the Kundara police station. He has deposed that they had travelled 7 kms. behind the police jeep for reaching the house of the appellant, from the jewellery. The jewellery is situated far away from the police station. According to him, he saw the discovery by standing outside the house and by peeping through the window of the room. He also has stated in evidence that the house of the appellant is situated at the side of a concrete road. According to PW29, jeep cannot reach near the house of the appellant and that they had stopped the jeep 200 metres away from the house of the appellant. After walking for a distance of 200 metres, they had to go further down through a property to reach the house of the appellant, which is situated by the side of the lake.

¶192

On going through the evidence of PW11, PW15

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and PW29, it is evident that there was no occasion for PW11 or PW15 to witness the discovery or seizure. As rightly pointed out by the learned counsel for the appellant, there is every possibility that the said witnesses, being autorickshaw drivers operating their service from the autorickshaw stand situated in front of the police station, might have affixed their signatures in Ext.P6 mahazar, and have supported the prosecution in order to oblige the police. When PW11 and PW15 have stated that the house of the appellant is situated just adjacent to a concrete road and the jeep was stopped near the house of the appellant, PW29 has stated in evidence that the jeep could reach only 200 metres away from the house of the appellant and after covering the said distance by walking, they had to go further down to the side of the lake in order to reach the house of the appellant. It cannot easily be believed that the said two autorickshaw drivers had followed the police jeep for about 12 kms. to witness the discovery, even when they were not

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invited by the police. When PW11 has stated that he along with PW15 had entered inside the room to witness the discovery, PW15 has no such case. According to PW15, he saw the discovery by standing outside the house and by peeping through the window of the room.

¶199

The versions of PW11 and PW15 on all the aforesaid aspects are contradictory. It cannot be believed that they had any occasion to witness such a discovery. It seems that artificial evidence has been cooked up in order to show that there was such a discovery. Even the fact that the deceased had worn MO1 gold chain, itself is doubtful. According to PW1, it was he who gave MO1 directly to the deceased. At the same time, according to PW2, MO1 was with her and it was she who gave MO1 to the deceased. On scanning the evidence as aforesaid, we are satisfied that the alleged discovery itself is not believable. Matters being so, the prosecution has failed to prove the fact of discovery of MO1 and consequently Ext.P6(a) allegedly furnished by

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the appellant is not admissible in evidence under Section 27 of the Indian Evidence Act. Therefore, the evidence adduced by the prosecution is not sufficient to prove the alleged seizure of MO1 gold chain from the possession of the appellant.

¶203

Admittedly, any incriminating evidence as against the appellant was not collected either from the canoe or the oar of the appellant. The canoe and the oar were seized only for the purpose of proving that the appellant had access through the lake to the property of PW17. When there is no evidence to prove the presence of the appellant in the property of PW17 on the date of incident, the seizure of the canoe and the oar of the appellant relied on by the court below as the 7^th link is also of no consequence at all.

¶204

Now, we shall deal with the 4^th and 10^th links relied on by the court below as links sufficient to reckon as circumstances consistent with the guilt of the appellant. In Sudheer Babu Vs. State of Kerala [2013 (2) KLT 168], a

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Division Bench of this Court, in which one among us ( T.R.Ramachandran Nair, J. ) was a party, had occasion to consider the question relating to the admissibility of the evidence relating to hair samples collected from the scene of occurrence having resemblance with the hair samples collected from the accused. It was held therein that -

¶208

“Though examination of hair is having some importance in identification, even by careful comparison, one cannot say that a hair came from a particular individual. At the most, it can be said that it could have come from him. Therefore, it may not be proper to find an accused guilty on the sole basis of a report that the hair samples collected from the scene of the crime have resemblance with the hair samples collected from him, though the same may have relevance for consideration along with the other incriminating circumstances against the accused.”

¶209

Even though the short hair found on the left breast of the

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deceased was found similar to the scalp hair of the appellant, in the absence of any other incriminating evidence, the said evidence of hair examination is of no use.

¶213

As the 6^th link, the court below has found that the appellant has failed to show the preponderance of probabilities in the defence set up by him regarding his arrest and not only that, the said defence set up by him has turned out to be false. It is well settled and trite that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. In Sharad Birdhichand Sardar Vs. State of Maharashtra

¶214

[AIR 1984 SC 1622], it was held -

¶215

“It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend

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assurance to the court. In other words, before using the additional link it must be proved that ll the links in the chain are complete and do not suffer from any infirmity. It is is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.”

¶219

In Tanviben Pankajkumar Divetia Vs. State of Gujarat [AIR 1997 SC 2193], it was held -

¶220

“Even if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused.”

¶221

It is true that the evidence adduced by the appellant through the examination of defence witnesses regarding the manner in which he was arrested, have turned out to be

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contradictory. In the absence of any other proper link of circumstances inculpating the appellant, it cannot form an additional link in the chain of circumstances.

¶225

In fact, the circumstances attempted to be made out by the prosecution in this case as against the appellant are not cogently or firmly established and that it do not form a chain at all. This is not a case wherein there is no other hypothesis than the guilt of the appellant. The circumstances pointed out by the prosecution as inculpatory circumstances, are not incompatible with the innocence of the appellant. The circumstances relied on by the court below, even if taken cumulatively, do not point towards the guilt of the appellant. The evidence adduced by the prosecution is not at all sufficient to hold that in all human probability, it was the appellant and none else, who had committed the crime.

¶226

From the discussions made above, we conclude that there is no sufficient evidence in this case to connect

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the appellant with the crime and with the offences alleged against him. The prosecution has failed to prove the guilt of

¶230

the appellant beyond doubt. Matters being so, the conviction and sentence passed by the court below are liable to be set aside, and the appellant is only to be acquitted, and we do so.

¶231

In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is acquitted and he is set at liberty

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forthwith.

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Sd/-

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(T.R.RAMACHANDRAN NAIR, JUDGE)

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Sd/- (B.KEMAL PASHA, JUDGE)

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ul/aks

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// True Copy //