Allowed

P.M.Saidalavi Koya v. State of Kerala

Kerala HC4 Apr 2018CRL.A/357/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal appeal against a conviction for murder (Section 302) and causing disappearance of a dead body (Section 201). The court held that circumstantial evidence was incomplete due to other inmates in the house, missing ligature, and insufficient forensic proof, granting the accused the benefit of doubt.

What did the court decide?

The accused is acquitted of charges under Sections 302 and 201 IPC and shall be released forthwith.

P.M.Saidalavi Koya Vs State of Kerala — 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 & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 4TH DAY OF APRIL 2018/14TH CHAITHRA, 1940

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CRL.A.No.357 of 2013

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AGAINST THE JUDGMENT IN SC.NO.179/2011 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-1, KALPETTA, WAYANAD, DATED 27-02-2013.

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APPELLANT/ACCUSED:

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P.M.SAIDALAVI KOYA, AGED 32 YEARS, S/O.P.M.MUTHUKOYA THANGAL, THOTTUMUKKAM VEEDU, KINAKADAVU, CHERUKATTOR VILLAGE.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN

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SRI.VIPIN NARAYAN

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RESPONDENT/COMPLAINANT :

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STATE OF KERALA STATION HOUSE OFFICER, VELLAMUNDA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SMT.AMBIKA DEVI S. - SPECIAL PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN AND CHILDREN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.1.2018, THE COURT ON 4.4.2018 DELIVERED THE FOLLOWING:

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A.M.Shaffique & P. Somarajan, JJ.

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---------------------------------------------------Crl. Appeal No.357 of 2013

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---------------------------------------------------Dated this the 4^th day of April, 2018

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JUDGMENT

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P. Somarajan, J.

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Against the judgment of conviction and order of sentence under Section 302 and 201 IPC in S.C.No.179/2011 dated 27.2.2013 of the Additional Sessions Court (Adhoc) - I,

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Kalpetta, Wayanad, the accused came up with this appeal.

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The short facts of the case are as follows: The

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accused pretends to be a sorcerer was conducting an Arabic treatment centre under that guise and the victim was a frequent visitor of the said centre in connection with the strained relationship with her husband who had abandoned her by maintaining an indecent relationship with another lady. On the ill fated day, the victim came to the house of accused in connection with her Arabic treatment and there arose some dispute which has resulted in the commission of offence

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leading to her death, by 3.45 p.m. It is further alleged that the accused took her to the kitchen and hit on her head with a wooden stick and strangulated her with her saree. Her deadbody was wrapped in a plastic sack and removed to a nearby river. On the next day, the dead body was cited by PW1.

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The prosecution has relied on the circumstantial evidence as there was no eye witness to the incident. PW1 is the first informant who laid Ext.P1 FIS at Vellamunda Police Station on 18.4.2010 at 8.45 a.m., on seeing the deadbody in and around 6- 6.30 a.m in Panamaram Stream. PW2 is the autorickshaw driver who took the victim near to the house of accused. On getting information regarding the death of the victim, on the next day he revealed before the investigating officer that he took the victim near to the house of the accused in his autorickshaw on Saturday between 3.30 and 4 p.m. PW3 is the ASI of Kambalakkadu Police Station who had investigated the complaint filed by the victim against her

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husband in Crime No.43/10 under Sections 498A and 506(ii) of IPC. PW4 is another autorickshaw driver who was examined to prove that the victim took the autorickshaw of PW2 on the ill fated day. PW5 was also examined for that purpose. PW6 is the attestor to Ext.P2 inquest report. PW7 is the brother of the deceased who identified the body of the victim. PW8 is the photographer through whom MO1 series of photographs (22 numbers) and MO2 CD were taken. PW9 is the Advocate engaged by the victim to prefer a complaint under the Domestic Violence Act against her husband. PW10 is the attestor to Ext.P3 seizure mahazar. PW11 is the ASI of Thalapuzha Police Station. He was on special duty at Mananthawady police station. Ext.P4 seizure mahazar was prepared for the recovery of MO3 mobile phone, in which PW11 is an attestor. PW12 is the Special Village Officer of Panamaram Village Office and attestor to Ext.P5 seizure mahazar prepared in connection with the recovery of MO4 gold chain, MO5 currency notes, MO6 wooden stick, MO7 cardboard box and MO8 purse, which were seized from the

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house of the accused. PW13 is the attestor to Ext.P6 scene

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mahazar. PW14 is the husband of the victim who had identified MO4 gold chain and 'thali', MO9 wrist watch, MO10 phone, MO11 guarantee card of wrist watch and MO12 warranty card of the mobile phone as that of the deceased. PW15 is the owner of the rental house wherein the deceased was staying and an attestor to Ext.P7 search list for the room occupied by the deceased and identified MO11 guarantee card. PW16 was examined to prove that the deceased was last seen on 14.4.2010 while she was working as an attendant in the Veterinary Hospital, Pallikkunnu. PW17 issued Ext.P8 blood examination report of the deceased. The blood group of the deceased was found to be 'O' negative. PW17 is the Medical Officer-in-charge (Laboratory Services), District Hospital, Mananthawady. PW18 was examined to prove the sale of MO9 wrist watch. He had identified MO9 wrist watch and MO13 guarantee card. PW19 is a neighbour of the accused who witnessed the arrest of the accused. PW20 is another neighbour of the accused. PW21 is the Senior

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Manager of Idea Cellular Limited through whom Ext.P9 call details of the accused and Ext.P10 call details of the deceased were proved. PW22 is the Doctor who conducted postmortem examination on the body of the deceased. The cause of death is stated to be ligature strangulation. Ext.P11 is the Postmortem Certificate. PW23 is the Scientific Assistant, Crime Records Bureau, Mobile Forensic Laboratory, Malappuram who had collected samples after examining the house of the deceased. PW24 is the Secretary of Panamaram Grama Panchayat who issued Ext.P12 ownership certificate of the house of the accused. PW25 is the Village Officer, Cherukattoor, who prepared Ext.P13 scene plan. PW26 was examined to prove the purchase of MO10 mobile phone by the victim under MO11 warranty card. PW27 is the Head Constable who registered Ext.P1(a) FIR on the basis of Ext.P1 FIS given by PW1 on 18.4.2010 at 8.45 pm. at Vellamunda Police Station. PW28 is the Sub Inspector of Vellamunda Police Station, who conducted inquest on the body of the deceased and prepared Ext.P2 inquest report by which MO14

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to MO45 were recovered. Ext.P14 report was submitted for including the offence under S.302 IPC. PW29 is the Investigating Officer- Circle Inspector of Police, Mananthawady -who recorded the confession statement of the accused, Ext.P16, while he was under police custody. Ext.P22 is the FSL report of the material objects.

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There is no eye witness to the alleged incident and hence the prosecution relied on the circumstantial evidence brought out through PW2, PW4 and PW5, three autorickshaw drivers, the recovery of MO4 to MO12 material objects proved through PW12, PW14 and PW18, call details of the accused and the deceased, exhibited as P9 and P10, proved through PW21 and the medical evidence adduced through Ext.P11 postmortem certificate and the oral testimony of PW22, the Doctor who conducted autopsy on the body of the deceased.

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In Ext.P11, the following ante-mortem injuries were noted:

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“B. INJURIES (ANTE-MORTEM)

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Lacerated wound 1.5x1 cm left side of face obliquely on the outer end of eye, bone deep.

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Contusion 10x3 cm right forehead from root of nose with internal scalp contusion underneath. Internal scalp contusion also seen on the left forehead area 3 cm outer to midline (15x8 cm) less dense.

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Abrasion 1x0.2 cm midline horizontal 1 cm above jaw border at the chin area.

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Abrasion 1x1 cm lower lip border left side, I cm outer to midline.

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Abrasion 4x3 cm front and inner aspect of right knee and lower part of thigh oblique.

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Abrasion 6x1 cm (inner) 3 cm (outer) from front to inner aspect of right knee inner end at midline 2.3 cm below inner border of injury No.5 and the outer border 0.3 cm below the outer border of injury No.5.

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Abrasion 6x4 inner aspect of left knee and thigh.

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Abrasion 2.5x2 cm, 0.5 cm outer and 0.5 cm below injury No.7. Injury Nos.5 to 8 were perimortem in nature.

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Multiple spotted and linear abrasion over an area 13x1 cm (upper) to 3 cm (lower) on the outer aspect of left thigh, upper part.

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Graze abrasion 18x5cm left side of abdomen upper inner margin 12 cm above hip bone, 21 cm outer to midline directed upwards and inwards.

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Contusion 4x2 cm inner aspect of left upper arm, 14 cm above inner bony prominence of elbow joint.

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Abrasion 2x1.5 cm inner bony prominence of left elbow.

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Abrasion 1x0.5 cm inner border of left forearm 7 cm above wrist joint.

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Abrasion 2 x 1 cm right side of back of abdomen 3 cm outer to midline, 5 cm above natal cleft.

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Dissection of the neck was done in a bloodless fiend in layers. The subcutaneous tissue front of neck and right sternothyroid muscle and strap muscles were infiltered with blood. Left thyroid gland contused. Upper horn of thyroid cartilage right side fractured. Epiglottis oedematous and congested.”

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The cause of death is due to ligature strangulation. The Doctor who conducted postmortem examination on the body of the deceased is of the opinion that injury Nos.5 to 8 could be caused by coming into contact with any hard and rough surface; injury No.15 is a fatal injury; injury Nos.1 and 2 could be caused by MO6 wooden stick; injury Nos.3 to 6, 7 to 10 and 12 to 14 are different types of abrasions and the same could be caused due to multiple fall; and that injury No.15 is the fatal injury to the neck.

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The oral testimony of PW2 would go to show that he had taken the deceased in his autorickshaw to the house of one Thangal at Keenhakadavu at 4 pm on the fateful day. It has also come out in evidence that they did not go upto the house of the accused but she alighted somewhere in the road near to the house of accused. By 3.40 p.m. on the previous day (16.4.2010), a telephone call was originated from the mobile phone of the accused to the mobile phone of the deceased which is well evident from Ext.P9 and Ext.P10. The

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alleged incident was happened on 17.4.2010. Another telephone call was also originated from the mobile phone of the deceased to the mobile phone of the accused at 1.56 pm on 17.4.2010 and its duration was 39 seconds. PW4 is another autorickshaw driver who was examined by the prosecution to prove that the victim hired the autorickshaw of PW2 and gone towards Mananthawady and that he got information regarding the death of the victim on the next day. According to him, the victim was known to him and that on the ill fated day she came to the autorickshaw stand and approached him for a journey but he could not go with her as he had got some other engagements. It is thereafter she took the autorickshaw of PW2 and went towards Mananthawady. PW5, another autorickshaw driver, was examined by the prosecution to give corroboration to the oral evidence tendered by PW2 that he had taken the victim near to the house of Thangal at Keenhakadavu. According to PW5, at 2.45 pm on the previous day the victim came to the autorickshaw stand and requested him to take her to the house of Thangal at Keenhakadavu.

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The lower court had given much emphasis to the oral deposition of PW2, PW4 and PW5 and the telephone calls originated both from the mobile phone of deceased and accused so as to conclude that the victim on the ill fated day, i.e. on 17.4.2010, went to the house of Thangal at Keenhakadavu. It has also come out in evidence that there are so many other Thangals at Keenhakadavu. But the place wherein she had alighted from the autorickshaw is very near to the house of the accused situated at Keenhakadavu.

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PW14 is the husband of the deceased. He was examined by the prosecution inorder to prove that there existed stained relationship between him and the victim, that there were litigation among them and that she was under mental depression. PW19 and PW20 were examined to prove that the accused was practicing black magic (sorcery) under the guise of Arabic treatment. The oral evidence tendered by PW3 would show that the victim had given an entirely different version through telephone to him by 4 p.m. on the ill fated day

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that she was waiting in a hospital to meet a Doctor, though it has come out in evidence that she was actually gone to the house of the accused by 4 pm on that day to have Arabic treatment. The reasoning given by the learned Sessions Judge for giving such a false information to PW3 that she did not want to disclose her visit to the house of accused can only be accepted as nobody will reveal such treatment done in secrecy to others.

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The recovery of MO4 and MO6 to MO8, alleged to have been made based on the confession statement of the accused, had been taken note of by the learned Sessions Judge as yet another incriminating circumstance as the recovery was proved through independent witnesses. MO4 gold chain was identified by PW14, husband of the victim, as that of the victim. He had also identified two other material objects, MO9 wrist watch and MO10 mobile phone, as that of the victim. Those items were recovered from the house of the accused, based on which, by applying Section 106 of the

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Evidence Act, the learned Sessions Judge came to the conclusion that it is the accused who committed murder of the victim as there is no explanation come forward from the accused, what happened to the victim while she was with him within the secrecy of his house. The learned Sessions Judge also found that the circumstances brought out are complete to arrive at a conclusion that the accused had murdered the victim and dumped her body in a nearby river.

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In fact, there is no application of Section 106 of the Evidence Act in the instant case on the reason that in the house wherein the alleged incident happened there were other inmates rather than the accused. His wife and children and the wife of his elder brother were there in the said house as on the date of the alleged incident. Further, his elder brother, who is also known as Thangal, is also residing in the next door. No case was either advanced or proved to the satisfaction that the accused and the victim were alone in a secluded place and the alleged incident was happened within the secrecy of that

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secluded place. Hence, there cannot be any application of Section 106 of the Evidence Act as there are other inmates in the house of the accused on the date of the alleged incident and if anything untoward was happened within the secrecy of that house, it might have been noticed by the other inmates in the house. What is required is the exclusive knowledge of the accused of a particular incident and in his special knowledge otherwise there cannot be any application of Section 106 of the Evidence Act. Further, there is no satisfactory evidence to show the exact place of the alleged incident though the allegation is that it was happened within the kitchen of the house of the accused. The plastering, soil and cement taken from the floor of the kitchen through PW23 Scientific Expert, on forensic examination, found to be stained by human blood. The blood group was not detected. There may be other possibilities for having human blood in the kitchen area and unless the blood grouping of the victim and the blood stain found are of the same group, it cannot be taken as an incriminating circumstance against the accused. Further, no

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conclusion can be arrived at with respect to the place of the alleged incident based on the presence of blood in the kitchen floor which was found to be not sufficient to detect its grouping. A mere blood stain in the kitchen floor which is too insufficient for detecting its group alone is not sufficient to arrive at a conclusion regarding the place of incident as there are so many other possibilities and probabilities for having thin blood stain of human blood in the kitchen area while handling with the kitchen knives by the inmates. The possibility of having blood stain in the kitchen otherwise than through the victim has not been ruled out.

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Item No.8 in Ext.P22 FSL Report, two pieces of a saree with brown, black, white, yellow, reddish violet and reddish brown printed designs and sequence work having the length of 151 cms and 122 cms with knots on both the pieces with a loop on the longer piece and three pieces of narrow tape like torn pieces of the saree (length 108 cms, 99.5 cms and 62 cms), were also subjected to scientific examination along with

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Crl. Appeal No. 357 of 2013

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item Nos.1 and 2, two folded pieces of cellophane tape having size of 6.8x2.4 cms and 5.0x2.4 cms collected from metallic knife found in the kitchen (item No.1) and some blue, white and reddish violet colored cloth fibers and some plant materials (item No.2), and on examination it was found that the fibers similar to those in item No.8 are not detected in the cellophane tapes in item Nos.1 and 2. No cellophane pressings were taken from the neck of the victim or from the ligature mark, if any, present from the body of the victim and hence it would take away the identification of two pieces of a saree as the ligature used for strangulation. Further, in item Nos.4 and 5, full sleeve shirt and dothi, no human blood was detected on scientific examination. In short, the FSL report will not, in any way, give any assistance to the prosecution case.

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The oral evidence tendered by PW2, PW4 and PW5 and the calls originated from the mobile phone are not conclusive of anything happened to the victim in the hands of the accused. The oral evidence tendered by PW2 that the

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Crl. Appeal No. 357 of 2013

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victim had alighted, on the ill fated day, near to the house of the accused and the calls originated from the mobile phone belonged to the accused and the deceased would at the most show that in and around 4 p.m. on that day she went to the house of the accused. The recovery of gold chain and other belongings of the victim from the house of the accused would be relevant and may probabilise something happened to the victim at the house of the accused. But since there were other inmates in the house and none of them was cited as witness to the prosecution, the question who had done the mischief/crime against the victim still remains in darkness. Mere conjunctures and surmises shall not be substituted in the place of proof. It is true that the accused must have explained how he came to know about the place wherein the gold chain of the victim was kept concealed within his house and non-explanation during his examination under Section 313 CrPC would be fatal but that alone is not sufficient to bring home the guilt of the accused as the same is capable of having so many other hypothesis rather than the guilt of the accused.

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Crl. Appeal No. 357 of 2013

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At this juncture, it has to be borne in mind that the victim died due to ligature strangulation, but there is utter failure to prove the actual ligature used for strangulation. At this juncture, it has to be borne in mind that the victim and the accused belong to different communities having no relationship except the fact that she used to visit the house of the accused in connection with Arabic treatment. If that be so, even if it is assumed that there were some disputes between the accused and the deceased, the question to be considered is whether it is sufficient for the commission of offence of murder of the victim. It is true that the exact intention behind the commission of offence may not be discernible to the prosecution invariably in all cases but at the same time the Court cannot shut its eyes when the hypothesis advanced by the prosecution leading to the commission of offence is so weak and unacceptable.

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The body was detected 20 metres away from the house of the accused. It has also come out in evidence that his elder brother is also residing in a house near to the

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Crl. Appeal No. 357 of 2013

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residence of the accused and he is also doing the very same business of black magic in Arabic treatment. The fact that the deadbody of the victim wrapped in a sack was found 20 metres away from the residence of the accused on the next day, i.e. on 18.4.2010 at 8.45 a.m. and that there is no satisfactory evidence to show the exact time of death as nothing was brought out in that behalf during the examination of the Doctor who conducted autopsy, would be relevant at least to find out the existence of any other hypothesis rather than one pointing towards the guilt of the accused. The circumstances should be complete and consistent with the guilt of the accused. The possibility of having any other hypothesis, especially when there are other inmates in the house wherein the alleged incident happened and that none of them were cited as witness to the prosecution, and the non-production/recovery of the ligature used for strangulation causes considerable doubt as to the main substratum of the prosecution case. Hence the circumstances brought out are incomplete and certainly the benefit of doubt would go to the accused. Hence, the accused

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is entitled to the benefit of doubt as the prosecution fails to prove all the circumstances leading to the commission of offence unerringly pointing towards the guilt of the accused. Hence, the accused deserves only for an acquittal for the charges levelled against him and we do so.

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In the result, the accused is found not guilty of any offence and is acquitted for the charges under Sections 302 and 201 IPC. The accused shall be released forthwith if his detention is not required in connection with any other case. The Criminal Appeal is allowed as above.

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sd/A.M. Shaffique Judge

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sd/P. Somarajan Judge

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ahz/

P.M.Saidalavi Koya v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.M.Saidalavi Koya v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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