Dismissed

State of Kerala v. Balan and 2 Others

Kerala HC24 Jun 2019CRL.A/389/2011

Case brief

AI extract

What is this about?

This criminal appeal challenges the acquittal of three accused persons charged with murder and attempt to abort a foetus. The High Court examined prosecution evidence including DNA results, witness testimonies, and recovery evidence, finding it insufficient to prove culpability beyond reasonable doubt, and dismissed the appeal upholding the acquittal.

What did the court decide?

The appeal was dismissed, and the acquittal of the accused was upheld.

State of Kerala Vs Balan and 2 Others — Murder and Culpable Homicide | Kerala HC (2019)

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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 N.ANIL KUMAR

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MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941

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CRL.A.No.389 of 2011

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AGAINST THE JUDGMENT IN SC 333/2009 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, MANJERI DATED 28-05-2010

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APPELLANT/COMPLAINANT:

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STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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BY ADV.SMT.S.AMBIKADEVI-SPL P.P- FOR ATTROCITIES AGAINST WOMEN & CHILDREN

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RESPONDENT/ACCUSED 1 TO 3:

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1 BALAN, S/O KUNHATHAN, VELLUTHARAPADIKKAL (H), VENKALAM, OORAKAM-676519.

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2 MUHAMMED @KAKKA SO.PAREETH KETTINKAYI (H), THAMARASSERY, NOW RESIDING AT PALORI QUARTERS, AREAKKULAM P.O, VENGARA-676304.

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3 SURESH BABU @BABU S/O.RAGHAVAN VATTAPARAMBIL (H), VATTAPARAMBIL COLONY, AREACODE P.O, KAVANNOOR-673639.

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BY ADVS.

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SRI.P.VENUGOPAL (1086/92) SRI.P.VIJAYABHANU-( SR.) - RESPONDENT.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.06.2019, THE COURT ON 24.06.2019 DELIVERED THE FOLLOWING:

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J U D G M E N T

Shaffique, J.

This appeal is preferred by the State of Kerala challenging the verdict of the Additional District and Sessions Judge (Adhoc – II), Manjeri in S.C. No.333 of 2009 dated 28/05/2010 arising out of Crime No. 49 of 2009 of Vengara Police Station by which the accused who were three in number were acquitted of all charges. Accused were charged with offences under Sections 120B, 302, 201, 316 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC').

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2. Prosecution case is as follows:

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The 1^st accused (for short 'A1') had illicit sexual relationship with deceased Asya who was residing alone in building no.1/45 of Oorakam Panchayath. Asya became pregnant in that relationship. A1 with the assistance of 2^nd and 3^rd accused (for short 'A2' and 'A3' respectively) who were his workers, made an attempt to abort the foetus by resorting to Medical Termination of Pregnancy (MTP) by approaching a Doctor, but the said attempt became futile as the Doctor refused for the same. The foetus was 8

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months of age at that time. Hence, A1 to A3 conspired together to kill Asya, and, on 15/02/2009, in furtherance of their agreement, with the common intention to murder her, subjected Asya to ligature strangulation and thereafter the dead body was burned. The foetus came out of the womb and it was annihilated.

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Prosecution examined PW1 to PW30 as witnesses, marked documents Exts.P1 to P39 and identified MO1 to MO8 objects. The accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') and they denied all incriminating circumstances appearing against them. No defence evidence was adduced.

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Learned Special Public Prosecutor Smt.S.Ambika Devi argued that Court below erred in arriving at the present conclusion. In spite of the availability of cogent evidence, the accused were acquitted. The judgment is perverse and unreasonable. There is evidence to show that A1 and the deceased were in illicit relationship and the DNA test of the foetus proved that A1 is the biological father of it. There is evidence to prove that the deceased and the accused were seen together on the fateful day. Recovery evidence coupled with

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medical and forensic evidence proves beyond reasonable doubt that A1 to A3 had committed the offence in furtherance of their agreement and also with the common intention to commit murder. The woman was strangulated to death. Foetus was also destroyed. The acts of the accused resulted in the death of a quick unborn child. She pleaded to reverse the finding of the learned Sessions Judge and punish the accused.

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On the other hand, learned Senior counsel appearing for and on behalf of the accused Sri.P.Vijaya Bhanu argued that there is absolutely no evidence to connect the accused with the crime and Court below is fully justified in acquitting the accused. The accused are staying near to the deceased. If at all they were seen in the pathway leading to the house of the deceased, it is illogical to infer any criminal mental state to them. Admittedly, A1 and the deceased were in a relationship. Motive is not proved by the prosecution. Alleged recovery of the ear stud of the victim from the house of A3 is of no consequence in the facts and circumstances of this case. There is absolutely no evidence to show that A1 to A3 tried to abort the foetus. No evidence is available on record to show that the accused were last seen

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together with the deceased. He contended that the trial Court arrived at a well-thought judgment and this appeal by the State is only to be dismissed.

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This is a case in which the trial Court was inclined to acquit the accused. The case rests on circumstantial evidence. There is no eyewitness to the incident. It is well settled that in an appeal against judgment of acquittal, unless perversity or unreasonableness is evident, the Appellate Court should restrain itself from disturbing the finding of the trial Court. Merely because another view is possible, the higher forum should not reverse the verdict. In the appeal at hand, essentially two questions are to be addressed by this Court. Firstly, whether the death of Asya was a homicide as alleged by the prosecution. Secondly, whether the finding of the learned Sessions Judge that there is no evidence to connect the accused with the crime is justified in the light of available evidence.

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First of all, let us see whether prosecution could prove

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that the death of Asya was a homicide as alleged. Ext.P4 is the inquest report prepared on 17/02/2009 by PW26. PW27 is the then Assistant Professor and Deputy Police Surgeon in the

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Department of Forensic Medicine, Medical College Hospital, Calicut. He conducted autopsy on the corpse of the victim and issued Ext.P13 post-mortem certificate. A ligature is found around the neck of the deceased. The injuries around the neck are as

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under:-

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Neck Ligature	An ashened cloth was found around neck of the deceased which was tied with a half knot. As the ligature material was ashened could not be separated intact.
Ligature Mark (ante- mortem)	The ligature mark was 26 cm long and 2 cm broad. On right side the ligature mark was 2 cm below ear lobe and 2 cm broad. On left side the ligature mark was 2 cm below ear lobe and 2 cm broad. At the front of neck the ligature mark as 6.5 cm below the chin and was 2 cm broad. At the back the ligature mark was 4.5 cm below occiput.
Neck dissected	The skin was firm due to action of heat. Tissues were in cooked appearance. The superior horn of thyroid cartilage was fractured and with infiltration of blood.

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According to PW27, the death of the victim is caused by ligature strangulation. He deposed that death might have occurred within 24 hours immediately prior to post-mortem which was conducted on 17/02/2009. The burns are post-mortem burns and not antemortem. From the above evidence, it is clear that the death of

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Asya was a homicide.

To determine the next question, it is necessary to look into the evidence on record in detail. Prosecution attempted to rely on the following 11 circumstances to prove the case they allege against the accused:-

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(i) The accused had sexual relationship with the deceased and by that relation she became pregnant. The DNA test conducted in the Forensic laboratory using the tissues obtained from the foetus and the deceased and the blood sample of the first accused conclusively proved that the first accused is the biological father of the male foetus.

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(ii) PW3 has found the first accused chatting with deceased on 2 or 3 occasions six months prior to the incident and

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when she asked the deceased, she was told that she is in love with A1.

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(iii) PW5 the doctor disclosed that a Muslim woman accompanied by three men had come for abortion and they were sent back by him since she had been 8 months pregnant at that time.

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(iv) PW7 the laboratory technician of Ernad hospital of

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PW5 deposed that one patient named Asya had come to the laboratory for blood test and she had been accompanied by A2 and A3 in this case and the examination fee was paid either by A2 or by A3.

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(v) The sweeper of the hospital identified A3 who enquired about the doctor.

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(vi) PW9 the tea shop owner at Moonampadi bus stop found the deceased and A2 and A3 alighting from the bus at the bus stop and going together on 15.2.09 at 4 pm.

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(vii) PW10 found A1 at 6.30 pm on 15.2.09 near the pathway leading to the house of the deceased.

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(viii) PW11 who was running a tea shop at Thangalpadi bus stop deposed that on the day prior to the incident at about 7.30 pm the accused were found on the pathway leading to Venkulam and that pathway also leads to the house of the deceased.

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(ix) PW12 also found all the three accused at 7.45 pm on the same day on the pathway leading to Venkulam.

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(x) PW16 disclosed that accused had purchased dasamoolarishtam from his shop on 15.2.09 and that bottle which was marked as MO3 was seized by Ext.P6 mahazar on the basis

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of the confession statement given by A1 from the place of occurrence.

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(xi) MO2 the ear ring of Asya was recovered from the house of 3^rd accused by Ext.P8 mahazar.

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We heard both sides in detail and perused the evidence available on record. Prosecution alleges perversity in the reasoning of the trial Court. On the other hand, accused argues it as a valid conclusion. Hence, it is only appropriate to see on what basis the Court below disbelieved the version of the prosecution and then to decide whether the verdict is stained by any unreasonableness or perversity.

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Out of the 30 witnesses examined by the prosecution, mainly the evidence of PW5, PW7, PW8, PW9, PW10, PW11 and PW12 were relied on by the prosecution to prove the above circumstances apart from medical and scientific evidence.

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Court below concluded that Ext.P36 report of the Assistant Director (Biology) of Forensic Science Laboratory, Thiruvananthapuram which is the the DNA test result proved that A1 is the biological father of the foetus. PW5 deposed that one day three men and a Muslim woman had visited him and that the

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woman was pregnant for 8 months. They requested for an abortion, but PW5 sent them back since she was 8 months pregnant. But PW5 could not identify the woman and three men who came there on that day. PW7 is the Lab Technician of PW5's hospital. According to her, a lady named Asya had come to the laboratory for blood test and the fee for the test `350/- was paid by one of the two persons who had accompanied her. She identified those persons as A2 and A3. Ext.P3 is the test result and Ext.P3(a) is the register maintained in the laboratory showing the list of patients who came there for test and for test results. The register also reveals that, on 15/02/2009, one Asya had come there for her blood test result and the fees paid was also entered. PW8 is the sweeper of PW5's hospital. She stated that one day A3 had come to the hospital and enquired whether Doctor was available on that day. After considering these evidence, Court below came to the conclusion that utmost, it could only be presumed that A2 and A3 had brought Asya to the hospital for abortion for and on behalf of A1. Even if such assumption is drawn, that would not lead to the inference that on account of the fact that they could not destroy the foetus, they

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murdered Asya. Of course, there is nothing on record to assume that A2 and A3 had brought Asya to hospital for and on behalf of A1. Keeping the said finding apart, the conclusion of trial Court on this aspect is justified and on the basis of evidence on record.

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Court below concluded that the case of PW1, PW2 and PW3, who are the relatives of Asya, that they could not realize the fact that Asya was pregnant is proved to be false in the light of the evidence of PW5 Doctor. PW5 stated that when the pregnant lady came to him, she was 8 months pregnant and her bulging belly was manifested clearly and anybody could have recognized her pregnancy even at first sight. The evidence of PW5 who is an independent witness falsifies the prosecution story that PWs 1 to 3 could not recognize the pregnant state of Asya. We find no reason to doubt the finding of the Court below to that effect.

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PW9, PW10 and PW11 are examined to prove that the accused and the deceased were seen together on 15/02/2009. According to PW9, on 15/02/2009 at 04.00 p.m., he had seen A2, A3 and the deceased Asya alighting from a bus at the bus stop and going together. Court below is of the view that mere

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appearance of A2 and A3 with Asya at the bus stop would only show that A2 and A3 had acquaintance with deceased Asya and nothing more than that. PW10 is a neighbour of A1. It is his version that he found A1 at about 06.30 p.m on 15/02/2009 on the way leading to the house of the deceased. The said evidence is relied by the prosecution to prove that A1 was coming from the house of the deceased. Court below discarded the said argument on the basis that the house of the accused is at Venkulam and for reaching his house also, this way is being used. PW10 has a case that when he asked A1 as to why he was there, A1 replied that he was going to pay coolie to his workers. Court below is of the opinion that there is nothing to suspect the said reply given by A1. The house of A1 and PW10 is ½ k.m. away from the house of the deceased. PW11 is a tea shop owner at Thangalpadi bus stop. He deposed that, on 15/02/2009, at about 07.00-07.30 p.m., A2 and A3 were seen on the pathway leading to Venkulam from the main road. They were coming from the pathway to the main road. Court below took a stand that their presence there at that point of time alone cannot be taken as an incriminating circumstance against them especially when there is no evidence to show their

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involvement. This view also is logical. PW12 deposed that he had seen A1 to A3 at 07.45 on the same day while he was going along the pathway. Court below appreciated the evidence of PW9 to PW12 on two proved basic facts. Firstly, A2 and A3 are workers of A1. Secondly, the alleged pathway is the way leading to the house of A1 also. Hence, there is nothing unusual in finding them there especially when there is no other evidence to connect them with the crime. The said finding of trial Court also cannot be said to be perverse. In the context of this case, it is a reasonable and probable inference.

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Coming to the recovery evidence, Court below rejected the alleged recoveries completely citing so many reasons. Recovery evidence against A1 consists of seizure of MO3 bottle from near the bathroom of the house of the deceased which is the place of occurrence and Ext.P3 report from the house of A1 based on the disclosure statement of A1. PW30 in his evidence admitted that the accused was arrested on 15/03/2009 at 05.00 a.m and on the very same day, he was questioned and disclosure statement was elicited as seen in Ext.P6. But the recovery is effected only on 24/03/2009. There is no satisfactory explanation

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for the delay from the side of the prosecution. There is no need for authorship of concealment in disclosure statement. But the alleged recovery would not come under Section 27 of the Indian Evidence Act, 1872 (for short 'Evidence Act' ). There is nothing to indicate that the accused hid the bottle in such a way that it was within his special knowledge and not in the notice of anybody else. Admittedly, it is recovered from the place of occurrence. There is nothing in evidence to indicate that A1 was present in the house of the deceased at the time of offence or thereafter. As rightly held by the learned Sessions Judge, it is premature to hold that the recovery of MO3 is admissible under Section 27. PW16 is examined to show that MO3 was purchased by A1 from his shop on 15/02/2009. He deposed so in Court. But in cross examination, when he was asked whether MO3 shown to him and the bottle shown to him by police are one and the same, he could not give any answer. No bill of purchase is seized or produced by the police to show that the bottle is purchased by A1. There is no mark or seal to indicate that the bottle seized by the police and the one produced in Court are one and the same. Another piece of recovery evidence tendered by the prosecution against A1 is

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the recovery of Ext.P3 blood test report of Asya as per Ext.P14 mahazar from the bathroom of the house of A1. The test was proved to be done on 15/02/2009. PW28 is the witness to Ext.P14. Ext.P3 is prepared by PW7 who is the then Lab Technician in Ernad Hospital, in her own handwriting. According to her, she was absent on the day when police came to the lab for investigation. On the next day, police again came there and at the instruction of police, she prepared Ext.P3 and handed over to them. This evidence by PW7, as rightly held by the trial Court, reveals attempt from the part of prosecution to fabricate incriminating evidence. MO1 is the ear ring found on the right ear of the deceased and MO2 is the left ear ring. MO2 was allegedly recovered from the house of A3 as per Ext.P8 mahazar on the basis of his disclosure statement. PW26 the Tahsildar who conducted the inquest stated in his report Ext.P4 that he had found an ear ring on the right ear of the deceased. PW18 is cited as an attesting witness for the same. In Ext.P4, nothing is stated about ear ring on the left ear. Prosecution version is that PW24, the woman police constable took the corpse of victim for autopsy and PW27 the Doctor had removed the ear ring from right ear

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and handed over to her. PW27 entrusted a sealed packet also to PW24. Both items were handed over to PW29 by PW24 for which Ext.P16 is the seizure mahazar prepared. But it can be seen that Ext.P16 is silent about MO1 ear ring. PW27 the Doctor does not have a case in his evidence that he had removed right ear ring from dead body of Asya though he admits that he had handed over a sealed packet to PW24. It is his evidence that in case any valuable article had been removed from the corpse, that would have been entered in a special register kept for the purpose. PW24 has a case that she had given PW27, a receipt for her receiving of MO1. But no such receipt is produced. Court below is of the view that recovery of MO1 and MO2 is highly suspicious. MO2 is the only incriminating material as far as A3 is concerned. When Court below takes such a view in the matter based on materials on record, it is difficult for us to take a different view as far as recovery evidence is concerned.

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In the light of the above discussion, we are of the view that prosecution could not prove its case against the accused beyond the shadow of reasonable doubt. Of course, it is proved that A1 is the biological father of the unborn child. A1 might be

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having a motive to commit the offence as alleged. Accused were found by witnesses near the locality. But that alone cannot lead us to impute culpability on the accused. In the absence of other evidence, merely because the accused were seen in the locality cannot be said to be an incriminating circumstance. There is nothing on record to indicate that the deceased was last seen in the company of A1 to A3. Alleged recovery is doubtful and is not proved to the satisfaction of the Court. Court below is justified in acquitting the accused by extending benefit of doubt. We do not find any reason to interfere in the matter.

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In the result, the appeal is dismissed.

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Sd/-

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A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR Rp //True Copy// JUDGE

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PS to Judge

State of Kerala v. Balan and 2 Others

Case brief

What is this about?

What did the court decide?

State of Kerala v. Balan and 2 Others

Case brief

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