Allowed

Sajan @ Sreejith, C.NO.2331 Central Prison, Kannur v. State of Kerala

Kerala HC14 Mar 2018CRL.A/1038/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal by the second accused challenging a murder conviction. The court held that there was insufficient circumstantial evidence to establish his participation or motive, setting aside the conviction and sentence of life imprisonment.

What did the court decide?

Conviction and sentence of the appellant set aside; released from prison if presence not required in other cases.

Sajan @ Sreejith, C.NO.2331 Central Prison… — Murder and Culpable Homicide | Kerala HC (2018)

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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 A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939

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CRL.A.No. 1038 of 2014

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AGAINST THE ORDER/JUDGMENT IN SC 64/2011 of ADDL. DISTRICT & SESSIONS COURT - I,KASARAGOD DATED 09-12-2013

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CP 165/2010 of J.F.C.M.-I,HOSDURG DATED 15-12-2010

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CRIME NO. 40/2009 OF CHANDERA POLICE STATION, KASARGOD

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APPELLANT(S)

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SAJAN @ SREEJITH, C.NO.2331 CENTRAL PRISON, KANNUR S/O MOHANAN, AGED 25 YEARS, KSHATHRIYANVILLA, MANAKKADU, NEAR AMBALATHARA MILMA, THIRUVANANTHAPURAM.

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BY ADV.ADV.SAINU B[STATE BRIEF]

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RESPONDENT(S):

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1. STATE OF KERALA, REP: BY DIRECTOR GENERAL OF PROSECUTION, ERNAKULAM.

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2. STATION HOUSE OFFICER, CHANDERA POLICE STATION, KASARGOD DISTRICT, KERALA

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R1 BY ADV. SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN SMT.AMBIKA DEVI

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018,THE COURT ON 14-03-2018 DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & P.SOMARAJAN, JJ

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- - - - Crl.A. No. 1038 of 2014

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- - - - Dated this the 14^th day of March, 2018

JUDGMENT

SHAFFIQUE, J.

The second accused in S.C.No.64 of 2011 has preferred this appeal challenging the judgment dated 9.12.2013 by which he along with the 1^st accused were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of which to undergo imprisonment for one year, alleging offences punishable under Section 302 read with Section 34 of the IPC. It is submitted that the first accused has preferred an appeal, but he is no more.

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The prosecution case is that the accused persons with a common intention of committing murder of one Bhanumathi suffocated her leading to her death. Thereafter they suspended her body in the rafter in the cow shed. According to the prosecution, the victim was residing in her house with her unmarried daughter (PW9). The first accused was introduced to them by PW25 who was the husband of another daughter of the victim. The first accused came along with PW25 in the residence of victim styling himself as a CBI Officer to

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investigate the murder of victim's son who died by drowning. He used to have constant visits to her house. Later he expressed his desire to marry PW9. The victim did not approve the said relationship. On 25.1.2009 at about 10.30 pm, the 1^st accused accompanied by second accused have come to the house of the victim and committed the murder. To prove the prosecution case they examined PW1 to PW28 and marked Exts.P1 to P24. MOs1 to 11 were produced and proved. The court below found that there is sufficient evidence to prove the involvement of the accused persons with the crime and accordingly convicted them.

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Advocate Smt. Sainu B., appearing on behalf of the appellant/2^nd accused contended that there is no direct evidence in the case to implicate the appellant to the crime. There is no eye witness to the incident and the only evidence is that of PW9, who deposed that he had come along with the first accused to their house on the fateful date and thereafter when PW9 came in search of the victim he ran away from the place. It is submitted that other than the aforesaid statement of PW9 there is absolutely no other evidence to connect the second accused with the crime.

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On the other hand learned Public Prosecutor referred to certain circumstances to prove the involvement of the second

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accused also. It is pointed out that the evidence revealed that the victim had permitted the accused to have dinner in her terrace. The fact that accused 1 and 2 were sitting in the terrace of the victim's house is proved by PW9, her daughter. While the accused persons were having their dinner, PW9 went and slept. When she woke up, she enquired about her mother but could not find her. When she went in search of her mother to the courtyard, she saw the second accused and she was told that that the victim was taken by the police and immediately he left the place. After some time she saw her mother hanging in the cow shed and was found dead. It is therefore contended that the presence of the accused in the scene of crime itself is evident enough to prove his complicity. Further he had denied even his presence in the house on the fateful day while being questioned under Section 313 of the Cr.P.C. The entire circumstances proved his complicity to the crime and therefore, according to the prosecutor, no modification is required in the judgment.

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As already stated, in this appeal we are only considering the involvement of the second accused with the crime. Both sides agree that the only evidence to connect the accused with the crime is the oral deposition of PW9 and therefore a close reading

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of the evidence of PW9 is required in the matter.

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PW9 in her evidence stated that, on the day when her mother died, accused 1 and 2 had come to their house at about 8.30 pm. They had a mobile phone in a plastic cover and had shown her a golden bangle. They brought fish with them. Since the first accused has mentioned himself as a CBI Officer, they had treated them properly. The first accused asked her mother whether PW9 would be given in marriage to him. Her mother did not agree and told him that her marriage has already fixed. The first accused was in the age of her father. She also did not like him. Her mother quarreled with the first accused. They were given food in the terrace. PW9 had her food inside her house. After sometime since she did not see her mother she went out in search of her. She saw the cows in a disturbed manner and her mother was hanging with her legs touching on the floor of the cow shed. She was hanged in a lungie (mundu). PW9 called her uncle who resides in the nearby house. They pulled the victim and tried to untie the knot which they could not. She went inside and took a knife and cut the lungie and mother was laid in kitchen and even though she sprinkled some water on her face, she remained unconscious. She further deposed that from the scene of

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occurrence she found an Ipod. She entrusted it to her uncle. The first accused gave her a mobile phone and Rs.1000/- with a further amount of Rs.250/- for recharging the mobile. She did not see the accused thereafter. In cross examination she says that she has not seen the accused returning. She further stated that the second accused had come to her house for the first time. According to her, she do not hear any sound and on further cross examination she stated that when she went in search of her mother she saw the second accused, who told her that police had taken her mother. Thereafter the second accused ran away and she saw her mother in the cow shed later.

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To have a clear understanding of the prosecution case it is also necessary to find out how the other evidence had been adduced by the prosecution.

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PW1 is the brother of the deceased. He along with

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PW9 had seen the deceased hanging from the rafter of the cow shed. After cutting down the lungie which was tied on her neck, the deceased was removed to the kitchen and was found dead. PW1 had given Ext.P1 complaint. PW2 is the daughter of deceased. She was given in marriage to PW25. She knew the

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accused. She has only stated that she has received a telephone call informing her mother's death. PW3 and PW4 are attestors to Ext.P2 inquest report. PW5 is an attestor to Ext.P5 seizure mahazar for recovering MO11 Ipod. He is also an attestor to Ext.P4 scene mahazar. PW6 is another attestor to Ext.P3 seizure mahazar. PW7 is conducting a grocery shop. On the date of incident he saw the first accused standing near the mobile phone shop for purchasing recharge coupon. His deposition indicates that the first accused was scolding the second accused when he was attempting to speak to someone. PW8 is an attestor to Ext.P5 scene mahazar by which MO1 lungie, MO3 towel, MO4 chappel and MO5 sand were recovered from scene. PW10 is a person who had copied the contents of Ipod into a CD and had handed over the same to the police under Ext.P6 seizure mahazar. PW11 is the owner of MO11 Ipod. He deposed that when he had come back home on 25.01.2009 at 7.30-7.45 pm certain items including the Ipod was found missing from the house. PW12 deposed that the first accused and another person had come to his house for purchasing recharge coupon. PW13 is

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a room boy of Palace lodge at New Mahe, who deposed that the accused had stayed in room No.111 and had left the next day at 7.30 am. PW14 is a taxi driver who stated that the accused had traveled in his taxi on 26.1.2009 and got down at Attingal. PW15 is the Village Officer who has prepared Ext.P7 eye sketch of the place of the incident. PW16 had collected the details of the SIM card holder and filed Ext.P8 report. As per Ext.P8, the SIM card was in the name of Dr. Abdul Samad. PW17 recorded Ext.P1 FI statement of PW1 on 26.01.2009 and registered Ext.P1(a) FIR. He is also an attestor to Ext.P6 mahazar. PW18 is the police officer who was working in the Cyber Cell and had given Ext.P9 details of the incoming and outgoing calls of mobile phone. PW19 is an attestor to Ext.P10 seizure mahazar by which the SIM card produced by the first accused was seized by the police. PW20 only stated that he was staying in a room at Lalitha lodge and during those days the first accused was staying in a room in the ground floor. PW21 deposed that the first accused is his uncle, who used to call him through phone No. 9744636227. PW22 is the son of elder brother of the first accused. He deposed that he

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had given phone with No.9744636227 to the first accused for his use. PW23 is the Doctor who conducted postmortem. According to him, the death was due to blunt violence applied on neck and face. PW24 is the person who introduced the first accused to PW11. He further deposed that he had come to know about the theft in the house of PW11 and it was the 1^st accused who had stolen the goods. PW25 is the son-in-law of the deceased. He

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also deposed that he had introduced the first accused as a CBI Officer. He deposed that on the fateful date, accused 1 and 2 kept a big shopper bag in his house. When he called the first accused at about 8 pm he told that he was at the house of the deceased. He stated that at about mid night, the first accused had come back to his house and took back the big shopper kept there stating that he was going to his native place. Only at 1.30 pm he came to know about the death of his mother-in-law Bhanumathi and that the accused persons had involved in the crime. PW26 is the Sub Inspector of Police who conducted investigation in the case and PW27 is the Circle Inspector of Police who continued with the investigation. PW27 deposed that

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the 2^nd accused was arrested in connection with another crime. He had given a confession statement stating his involvement in the present crime. Pursuant to this he was taken to the scene of occurrence. As informed by PW25, the first accused was arrested and after completing investigation, he filed final report before court.

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During questioning under Section 313 Cr.P.C., the

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second accused stated that he had no connection with the incident and he does not know the place known as Olavara.

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The evidence of PW23 who conducted postmortem clearly points out to the fact that the death was due to blunt force used on the face and neck. Following were the ante mortem injuries as noted by PW23:

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“1. Linear abrasion, 3 cm long, oblique, on the forehead, in between the eyebrows. 2. Abrasion 0.5x0.5 cm on the left ala of nose, at its upper part.

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Three small linear abrasions varying in size from 0.2 cm to 0.5 cm on the face in between the left nostril and upper lip (towards the left side).

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Three small linear abrasions 0.3 cm, 0.5 cm and

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0.7 cm on the chin.

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Abrasion 1x0.5 cm on the lower lip nearer to left coroner.

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Contusion on the inner aspect of lower lip, 2x1 cm on the left side.

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Contusion 1x0.5 on the inner aspect of the lower lip, on the right side.

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Lacerated wound 2x1 cm involving the frenulum of lower lip.

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Therefore medical evidence clearly indicates that it is

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not a case of suicide. The defence was all along contending that it is a case of suicide as PW9 and PW1 saw the accused hanging in the cow shed. But it is relevant to note that the legs of the deceased were clearly touching the ground and the medical evidence further indicates that pressure was applied on the neck. Under such circumstances, it is clear that it is a case of homicide and not suicide.

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The next question is who had committed the murder. There is no direct evidence to the murder. There is only circumstantial evidence. Apparently, when a case rests upon circumstantial evidence, the chain of evidence must be complete,

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and in all human probability, the act must have been committed by the accused.

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In this case, the presence of accused 1 and 2 have been proved by PW9. There is nothing to controvert her evidence. As far as the second accused is concerned, he had come along with the first accused in that house for the first time. It is stated that the Ipod was stolen from the house of PW11 a

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few hours before the incident. PW11 has identified the Ipod which was recovered from the cow shed. As far as the second accused is concerned, he was in the house of deceased and PW9 has seen him outside the house. Though in chief examination she does not say about the second accused, in cross examination it has been brought out that she saw the second accused outside her house near the courtyard and when enquired about her mother, he said she was taken by the police. The question is whether the second accused can be held liable for the murder. Even assuming that the first accused had some enmity with the deceased for not consenting the marriage with PW9, as far as the second accused is concerned he had no such motive. He had

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only accompanied the first accused. PW9 says that they came with fish and her mother give them dinner in the terrace. According to her, thereafter she went to sleep and when she woke up she did not see her mother. She went out in search of her mother and then she saw the second accused. He told her that her mother was taken by the police. The first accused was nowhere seen in the area. The question would be whether this circumstance alone is sufficient to convict the second accused.

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According to the police, the second accused was taken to the scene based on a confession statement. Such materials cannot be accepted as proof to conclude that the accused has committed murder. As far as the second accused is concerned, there is no piece of evidence worth mentioning to indicate that he also participated in the crime. He had only accompanied the first accused who had committed the offence. What was the involvement of the second accused is not known. Probably he had known about the first accused committing the murder and after the said act he wanted to escape from the scene and when he suddenly saw PW9, he ran away from the place. In the absence

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of any other material to connect the accused with the crime, we do not think that the prosecution had established the case beyond reasonable doubt, as far as the second accused is concerned. None has a case that the second accused had stolen the Ipod which was seen in the cow shed. Even according to the prosecution, it was the first accused who had stolen the said article.

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Under such circumstances, the finding of guilt of the second accused cannot be sustained. The court below had proceeded on the basis that several circumstances have been proved. But as far as the second accused is concerned, there is proof only for the fact that he had dinner with the first accused in the terrace of the house of the deceased. He ran away from the house of the deceased immediately after the crime. In so far as the second accused has no motive to commit murder and there is no indication that he also participated in the crime, court below committed error in taking him par with the 1^st accused. Under such circumstances, we are of the view that the conviction and sentence of the second accused/appellant is liable to be set aside.

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Accordingly, this appeal is allowed as under:

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The conviction and sentence of the second accused/appellant is set aside. He shall be released from the prison forthwith, if his presence is not required in any other case.

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Sd/- A.M.SHAFFIQUE, JUDGE

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Sd/-

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P.SOMARAJAN, JUDGE

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//True Copy//

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PA to Judge

Sajan @ Sreejith, C.NO.2331 Central Prison, Kannur v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sajan @ Sreejith, C.NO.2331 Central Prison, Kannur v. State of Kerala

Case brief

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What did the court decide?

What the court decided

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