IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 442 of 2004(C)
1. ABDUL KARIM, S/O. MYTHEEN KANNU,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY A PUBLIC
... Respondent
For Petitioner :ADV.SUNNY XAVIER(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :16/01/2007
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN,JJ.
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Crl.Appeal No.442 OF 2004
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Dated 16th January, 2007
JUDGMENT
Koshy,J
.
Appellant was convicted and sentenced to under go
imprisonment for life and to pay a fine of Rs.25,000/= for an
offence punishable under section 302 of the Indian Penal Code
for causing death of one Shareefa Beevi. Shareefa Beevi was
the wife of PW15. About 20 years before the incident, her
marriage was broken down and she started residing separately.
The accused was brought and brought up by one Jalal, uncle of
deceased Shareefa Beevi and he resided in the family house of
the deceased. It is the allegation of the prosecution that he
had some sexual relationship with the deceased. Later, the
accused married the daughter of the aforesaid Jalal and
resided near the house of the deceased Shareefa Beevi. The
accused was doing business of fish vending and the deceased
was doing the business of sale of vegetables. While so,
deceased Shareefa Beevi extracted money from the accused
stating about her prior sexual relationship with him and the
accused therefore resided at a place called Kurakode in a
rented house. Even then, at the market, she used to demand
money. In view of that motive, the accused on 28.02.1997 at
about 5.45 a.m. waited in the pathway on the way of deceased
Shareefa Beevi to Chalai Market and when she reached the
pathway leading to Nedumangadu market from International
Crl.A.442/2004 2
market, the accused with the intention of causing death
caught hold the tuft of her hair and caused her to lean and
then cut her with MO1 dangerous knife 3-4 times on her
neck, thereby fatal and severe injuries were sustained on
the left side of her neck, left shoulder, back of neck and
left cheek and deceased Shareefa Beevi fell down. Then the
accused stood on her right thigh and asked her whether she
did not die and when found that she did not die, chopped
her wound on her neck resulting her instantaneous death at
the spot itself and thereby committed an offence punishable
under section 302 IPC. Without any delay, her son (PW1)
gave information to the police station and Ext.P1 F.I.
Statement was given before PW17, the then Sub Inspector of
police. While PW17 was recording the F.I.Statement of PW1,
the accused approached PW14, who was doing centry duty in
the Police Station, with MO1 knife in his hand and PW14
informed the matter to PW17, thereby the knife was received
and it was handed over to PW17 Sub Inspector. PW14 deposed
that on 28.2.1997 he was on centry duty in the Nedumangadu
Police Station and while so, at about 6.30 a.m. the accused
approached him with a knife in his hand stating that he
murdered a lady and he informed the matter to PW13 who was
in G.D. charge. Evidence of PW17 shows that on 28.2.1997
at 6.15 a.m. he was recording Ext.P1 F.I. Statement of PW1
Crl.A.442/2004 3
and while so, at about 6.30 a.m., the accused reached
before PW14 with a knife in his hand after wrapping the
same in a paper, thereby the matter was informed to PW13
and they brought the accused before him. He questioned the
accused and recorded his statement. Then the matter was
informed to the Circle Inspector and thereafter arrested
him. The evidence of PW17 would also show that blood was
found on the shirt and dhothi worn by the accused and on
questioning him, he stated that blood was sustained in his
shirt and dhothi while committing the offence and,
therefore, he seized the same under Ext.P7 seizure mahazar.
Evidence of Pws13, 14 and 17 clearly prove that accused
wearing blood stained dress appeared in Nedumangadu Police
Station with MO1 knife immediately after the incident.
PW13 was holding G.D. Charge in the police station. It is
true that the confession statement before the police
officer is not admissible in evidence in view of Sections
25 & 26 of the Evidence Act. The accused came to the
police station with the blood stained knife wearing blood
stained dress. The above conduct and what is seen by the
police officers are admissible in evidence in view of
Section 8 of the Evidence Act. MO1 knife, MO1(a) paper
using which MO1 is wrapped and MOs 3 and 5 shirt and dhothi
worn by the accused at the time of occurrence were
Crl.A.442/2004 4
forwarded to the Forensic Science Laboratory,
Thiruvananthapuram for examination and Ext.P9 is the report
obtained from the Director, FSL, Thiruvananthapuram.
Ext.P9 shows that MO1 contained human blood even though it
is insufficient to determine the group. It also shows that
MO1(a), MO4 and MO5 contained human blood belonging to `B’
group. PWs 8 and 9 are attestors of seizure mahazar of
MO1, MO4 and MO5. They supported the prosecution case.
2. PWs 2 and 3 are eye witnesses. According to
PW2, deceased Shareefa Beevi was residing adjacent to her
house. She was doing the business of sale of plastic cover
and paper, whereas the deceased Shareefa Beevi was doing
the business of sale of vegetables. On the date of
occurrence, herself, deceased Shareefa Beevi and PW3
together were coming to the Nedumangadu market through the
drain of the International market for the purpose of going
to Chalai market and, at that time, the accused reached
ahead of them and caught hold of the tuft of the hair of
deceased Shareefa Beevi, caused her to lean and cut her 4-5
times on her neck with a knife used for cutting fishes,
thereby Shareefa Beevi fell down by her face downwards.
Then the accused after sitting on her thigh asked her
whether she did not die and then chopped her neck. Then
Crl.A.442/2004 5
PW2 informed the matter to PW1, the son of Shareefa Beevi,
who was found present in the market. According to her, the
accused ran towards Kurakode after the incident. PW3 fully
supported the version of PW2. Version of PWs 13, 14 and 17
was corroborated with version of eye witnesses. Similarly,
the version given by PWs 13, 14 and 17 regarding the
surrender of MO1 knife etc. was also not seriously
disputed. PWs 5 and 6 mahazar witnesses also support the
above version.
3. Ext.P3 postmortem certificate shows that there
were four incised wounds which are as follows:
1. Incised wound 10.5 x 2.5 x 5.5 cm
obliquely placed on the back of head
and neck, its right lower end 6 cm
behind and 4 cm below the ear and the
left upper end 2.5 cm behind the lower
end of ear. The muscles on the back
of head, the tissues connecting the
under surface of head to first
cervical vertebra, and the upper part
of spinal cord (1×0.4×0.3cm) were seen
cleanly cut.
2. Incised wound 20x6x5.5cm obliquely
placed on the left side of neck, with
a side cut 1.5×1.5 cm in the middle of
upper margin. Its back upper end 2cm
behind and 2 cm below the left mastoid
process. The wound terminated at the
level of the inter vertebral disc of
6th and 7th cervical vertebrae after
cutting the muscles, vessels, nerves
and soft tissues on the left side.
Crl.A.442/2004 6
Trachea showed an incised wound 1.5 x
1.3 cm involving its whole thickness
on front wall. Inner aspect of right
sterno mastoid sternohyoid, sterno
thyroid and lower third of thyroid
gland showed a clean cut. It was
directed downwards and to the right.
Brain showed bilateral subarachnoid
haemorrhages. The sulci of brain
narrowed and gyri flattered.
3. Incised wound 7.5 x 1.5 x 1.5 cm
vertical on the left side of neck, its
lower end 3.5 cm outer to and 2 cm
below the left sterno-clavicular
joint. A flap of collar bone
1.5×0.5×1.5 cm was found cleanly cut
and reflected to right 3.5 cm outer to
the sterno clavicular joint.
The side cut of injury No.(2) and
injury No.(3) were in the same
vertical line.
4. Incised wound 5x1x4 cm through and
through horizontal involving the left
upper lip its inner end 1.5 cm outer
to midline. The bone underneath was
cleanly cut with fracture
fragmentation around.”
PW5 doctor who conducted postmortem and issued Ext.P3
certificate deposed that injury Nos.1 to 4 could be caused
by MO1 and injury Nos.1 and 2 are independently sufficient
in the ordinary course of nature to cause death. She
further stated that injury No.2 could be caused by chopping
after cutting and injury No.4 could be caused during
cutting when the tip touches that portion of the body. So,
Crl.A.442/2004 7
the medical evidence also supports the evidence of eye
witnesses.
4. In 313 statement, apart from a complete
denial, there was no separate defence taken up by the
accused. Two contentions were raised by the accused,
mainly that there was no motive for committing the crime.
It is true that early sexual relationship as alleged by the
prosecution was not proved by clear evidence, but, it was
proved by PWs 3 and 7 that amounts were due from the
deceased and deceased used to demand the same. When there
is clear ocular evidence, motive is not so important as in
a case based on circumstantial evidence (See Narayan Nathu
Naik v. The State of Maharashtra (AIR 1971 SC 1656).
Apart from the above, mind set-up of persons will be
different and whether a particular incident is sufficient
motive or not depends upon person to person. The second
contention is that PWs2 and 3 are relatives or friends. It
is settled law that mere relationship or friendship is not
a ground for discarding the evidence and, normally, a
relative or a friend will not implicate a person who is
innocent so as to allow the real accused to escape. PW2
and PW3 are natural witnesses. Apart from the above, there
is no case for the accused that PWs 2 and 3 are inimical
Crl.A.442/2004 8
towards him for giving false evidence against him. There
is nothing to disbelieve the evidence of PW2 and PW3.
Further, other evidence including medical evidence
corroborate the evidence of PWs 2 and 3. Therefore, we are
of the opinion that the offence alleged against the
appellant was clearly proved and the trial court has
considered the entire evidence and came to the right
conclusion. Hence, we see no ground to interfere with the
conviction and sentence passed by the trial court.
The appeal is dismissed.
J.B.KOSHY
JUDGE
K.P.BALACHANDRAN
JUDGE
tks