IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1163 of 2004()
1. GOUSJAN @ HOUJAN, S/O. MEHABOOBKAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :27/03/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
-------------------------------------------
Crl.A.No.1163 of 2004
-------------------------------------------
Dated this the 27th day of March, 2008
JUDGMENT
KOSHY, J.
The appellant, who is the accused in crime No.71/98 of
Punalur Police Station, stands convicted for the offence
punishable under Sections 302 and 449 IPC. He was sentenced
to undergo imprisonment for life and pay fine of Rs.1,00,000/-
under Section 302 IPC and he was also sentenced to undergo
rigorous imprisonment for 5 years under Section 449 IPC. There
was also a direction for undergoing the sentence concurrently.
2. According to the prosecution, the deceased, 19 year
old girl was living with her sister. The accused is a close relative
of the deceased and he was also the driver of the car owned by
CW18, the father of the deceased. It has come out in evidence
that the mother of the deceased was employed in America. It
has also come out in evidence that earlier, father was also
employed in America and the house was looked after by PW4,
CRL.A.1163/2004 2
sister’s husband of the deceased with the assistance of the
accused. PW4 also deposed that during that period his wife had
gone to Thiruvananthapuram for studying beautician course. At
the relevant day on 10.2.1998, father and sister of the deceased,
CW18 and CW12 respectively, had gone to Kottayam for
purchasing textile in connection with the textile business
conducted by them in Punalur and at 10.30 a.m., the accused
committed trespass into their house and tried to commit rape on
the deceased and when she resisted with a knife, the accused
inflicted severe injuries on head, face, arm, neck, chest etc. and
at about 1 p.m., Sherin alias Sheema succumbed to the injuries.
At that time other than she, only 2= year old child of her sister
was present in the house. On hearing the cry, PWs 2 and 3,
brothers of PW4, and their mother reached the place. PW9 also
accompanied them. He came to that place for purchasing gunny
bags from PW3. The doors were closed from inside. PWs 2 and 3
saw the accused inflicting injuries on the deceased through
kitchen window. PW2 kicked open the door and the accused ran
out from the house. PWs 5 and 6, father and mother of the
CRL.A.1163/2004 3
accused, also came to the spot and found Sheema with injuries.
The accused was lying on the door of the kitchen with blood
stain. The washing machine was on the dyning hall and the knife
was on the top of the washing machine. MOs 1 to 4 were the
clothes of the accused and the deceased. It is the case of PWs 2,
3 and 9 that they saw the accused inflicting injuries on the
deceased through the window of the kitchen door. Sheema was
taken to the Government Hospital, Punalur by the mother of the
accused (PW6) and a neighbour of the deceased (PW7). PW6 and
PW7 stated to a specific question that they do not know how the
incident occurred and they also stated that they do not inquire
how the incident occurred. PWs 2, 3 and 9 saw the incident but
they did not take the injured to the hospital. But later in an
autorickshaw the deceased was taken to the hospital by PW6
etc. PW4 who was in the shop was informed the matter by PW2
and he also went to the hospital. PW4 intimated the matter to
PW1. PW1 furnished First Information Statement before the
police at 4.15 P.M. on the same day. It reached the court only
on 12th morning. It is contended that even though the incident
CRL.A.1163/2004 4
occurred at 10.30 A.M., PWs 2, 3 and 9 did not take the injured
to the hospital. The incident also occurred near the police station
at Punalur town. But they did not go to the hospital even though
they asserted that they saw the incident and they are relatives.
They did not inform the police. It is quite unnatural. It is further
argued that the first information was given to Police by PW1 who
got the information from PW4, who is also not an eye witness.
Why PW4 himself did not inform the matter to the police was not
explained. It cannot be accepted the undue delay in registering
the FIR and forwarding the same to the court is a ground for
disbelieving the prosecution case. It is the duty of the police to
record the FI statement and register the FIR and sent it to court
promptly. The delay in registering the FIR and despatching the
same is not explained. In such circumstances, the court must be
careful in analysing the evidence.
3. The defence of the accused was that the vehicle of the
father of the deceased was in the work shop of PW10 and he was
in the workshop at the relevant time and he is innocent. He
further stated that she was in love with the deceased and the
CRL.A.1163/2004 5
witnesses who deposed against him was enmical because of the
above affair. PWs 2, 3 and 9 are eye witnesses who saw the part
of the incident through window slated that she resisted his
attempt when he stabbed her by using a knife. The accused was
also injured. Immediately on arrest he was taken to the hospital
and Ext.P8 shows that he had sutured wound on the left wrist
joint. The evidence of PW14, a lady doctor shows that the
accused was treated by her husband and Ext.P10 certificate is
with respect to a treatment on 10.2.1998, issued by her
husband. It is stated that he got the injury when he was in the
workshop while removing the engine. But the evidence of PW10,
workshop owner, shows that he never went to the work shop on
10th. The car of the father of the deceased was repaired only at
5 O’ clock on 9th and thereafter, the accused never came to the
workshop. The suggestion put forward by the accused was that
he got injury at the workshop cannot be accepted. Further, the
driver also stated that there was no occasion to remove the
engine of the car on 10th. From the evidence of PW10, it is clear
that the accused was not in the work shop on the date of
CRL.A.1163/2004 6
occurrence. If the alibi pleaded is not proved it is well settled
law that it will boomerang on the accused himself. The Apex
Court in Rajesh Kumar vs. Dharamvir and others (1997 SCC
(Crl.) 591) held that defence of alibi shall be proved with
absolute certainty excluding the presence of the accused at the
time of the incident. The Apex Court in Binay Kumar Singh vs.
State of Bihar (1997 SCC (Crl.) 333) held that strict proof is
required to prove alibi. Here, alibi is not proved by the accused.
However, merely because the accused did not prove his defence,
he cannot be convicted. The burden is on the prosecution to
prove the charges with certainty. Now, we will consider the
evidence adduced on behalf of the prosecution to find out
whether it has adduced evidence to prove the guilt of the accused
beyond reasonable doubt.
4. PW11 doctor conducted the postmortem and issued
Ext.P6. She noted the following injuries.
1). Incised penetrating wound 1.7×0.5 cm vertical on the right
side of front of neck, its lower blunt end 2.5 cm. above the
middle of collar bone. Its upper end was cleanly cut. The
CRL.A.1163/2004 7
sternomastoid muscle, and the internal jugular vein were cleanly
cut, the chest cavity penetrated through the apex and the apex of
right long cleanly cut (1.5×0.5×0.5 cm). The wound was directed
downwards for a total minimum depth of 4 cm.
2). Incised penetrating wound 1.5×0.5 cm obliquely placed on
the right side of back of chest its lower inner sharply cut end 65
cm below the root of neck in the middle. It upper cutter end was
blunt. The chest cavity was seen penetrated through fifth
intercostal space, (3.5×1.5 cm) and the right lung at the
interlobar fissure cleanly cut. (1.5×0.5×0.4cm). The wound was
directed downwards and forwards for total minimum depth of 5.5
cm. Right chest cavity contained 1.5 litres of fluid blood and
right lung was collapsed.
3) Incised wound 1×0.5×1 cm. on the right side of face 4 cm.
in front of the middle of ear.
4) Incised wound 3x1x2 cm vertical on the right side of face 3
cm. in front of the lobule of ear.
CRL.A.1163/2004 8
5). Incised wound 2×0.5×1.5 cm obliquely placed on the right
side of back of neck, its upper outer blunt end 1cm. below and 5
cm. behind lobule of ear.
6) Incised wound 2.5×0.5×0.3 cm horizontal on the under chin
in the middle 2.5 cm. behind the tip of chin.
7). Incised wound 3×0.2x.2 cm horizontal on left cheek.
8) Incised wound 2x.5 x1cm horizontal on the left side of face
overlying jaw bone and 4 cm. outer to midline.
9) Incised wound 1.5×0.5×1 cm vertical on the left side of neck
2 cm. below lobule of ear.
10) Incised wound 3×0.5×0.5 cm horizontal on left side of front
of neck 4.5 cm. below lobule of ear with a tailing 5 cm. long
directed forwards and upwards.
11) Incised wound 3.5×0.5x.3cm horizontal on the back of left
ear lobe 2 cm. below its top.
12). Incised wound 1.5×0.5×0.5 on the left side of back of head
0.5 cm. behind root of ear in line with injury No.11.
CRL.A.1163/2004 9
13) Incised punctured wound 1×0.5×2.5 cm on the left side of
back of head 4.5 cm. below and 3 cm. behind lower end of ear
lobe. Its upper end was blunt and lower end sharply cut.
14) Incised wound 1×0.2×0.2 cm. on the back of right wrist.
15) Incised wound 1.7×0.5×0.5 cm. on the back of right hand
2.5 cm. above the root of forefinger.
16) Incised wound 1.5×0.5×0.5 cm. on right palm 2 cm. above
root of thumb.
17) The horizontal incised wounds 1×1.5 cm.x1 cm., 1×0.5×0.5
cm. and 1.5x1x0.5 cm. on the front of forefinger, middle finger
and ring finger of right hand respectively 0.5 cm. below the
corresponding root.
18) Incised wound 0.5×0.2×0.2 cm. on the front of chest in the
middle 4 cm. below the lower end of breast bone.
19) Incised wound 1×0.5×0.5 cm. on the inner aspect of left
wrist.
20) Two incised wounds 3.5×1.5×0.5 cm. and 2x1x0.5 cm.
oblique, parallel to each other 1.5 cm. kapart on the inner aspect
CRL.A.1163/2004 10
of left forearm the lower inner end of the former being 2 cm.
above wrist.
21) Incised wound 1.5×0.2×0.2 cm. on the back of left wrist.
22) Two incised wounds 2×0.5×0.5 cm. and 2.5×0.5×0.5 cm.
oblique parellel to each other 1 cm. apart on the inner aspect of
left forearm the latter being 12 cm. below elbow.
23) Incised wound 1×0.5×0.5 cm. on the back of left forearm 14
cm. below elbow.
24) Two incised wounds, each being 1×0.2×0.2 cm. side by side
1 cm. apart on the top of left shoulder.
25) Incised wound 1×0.5×0.5 cm. on the left side of front of
chest 4 cm. below the middle or collar bone.
26) Abrasion 1.5×1 cm. on the outer aspect of left ankle.
5. According to PW11, the death was due to the
penetrating injuries sustained to the chest injury Nos.1 and 2 in
Ext.P6 and doctor also stated that the injuries were
independently fatal. Injury Nos.14, 17 and 19 to 25 are defensive
injuries. The blood group of the accused was ‘O+’ as certified by
PW13.
CRL.A.1163/2004 11
6. PW15 is the doctor who issued Ext.P11 wound
certificate of the deceased. She found 13 injuries on her.
According to PW15 there are following injuries on her.
1) Incised penetrating wound 1.7×0.5 cm. vertical on right side
of front of neck.
2) Incised penetrating wound 1.5×0.5 cm. obliquely placed on
the right side of back of chest.
3) Incised wound 1×0.5x1cm. on the right side of face.
4) Incised wound 3x1x2 cm. vertical on the right side of face.
5) Incised wound 2x.5×1.5 cm. obliquely placed on the right
side of back of neck.
6) Incised wound 2.5x.5×3 cm. horizontally placed on the
under chin on the middle.
7) Incised wound 3x.2x.2 cm. horizontal on left cheek.
8) Incised wound 2x.5×1 cm. horizontal on left side over
mandible.
9) Incised wound 1.5x.5x.1 cm. vertical on the left side of
neck.
CRL.A.1163/2004 12
10) Incised wound 3x.5x.5 cm. horizontally placed on the front
of neck.
11) Incised wound 3.5x.5×3 cm. horizontally placed on the back
of right ear.
12) Incised wound 1x.2x.5 cm. on the back of right wrist.
13) Incised wound .5x2x.2 cm. on front of chest in middle 4 cm.
below the lower end of blunt bone.
According to her, the patient was in shock and patient was
referred to Medical College Hospital, Thiruvananthapuram”
7. Now we will consider the evidence of PWs 2, 3 and 9.
PWs 2, 3 and 9 were not only relatives but also the immediate
neighbours and PWs 2 and 3 are brothers of PW4. They were in
the nearby shop. They saw their mother (CW2) running towards
the house of the deceased. They followed her. Since all the
doors were locked, they looked through the window and they saw
the accused inflicting injuries with the knife and the deceased
trying to resist him. Since the summary of the evidence is
recorded in the trial court judgment, we are not reiterating the
same. Their evidence would clearly show that the accused was
CRL.A.1163/2004 13
caused the murder of the deceased. PW4 was in the shop. He
came there only on getting the information. He informed PW1
and went to the hospital. In cross examination, no suggestions
were put forward to PWs 2 and 3 regarding the involvement of
PW4 in the incident and their evidence is practically not
challenged. No case is made out in the 313 statement or no
suggestion was even put forward to any of the witnesses
suggesting the involvement of PW4 in the incident. Except he is
husband of the sister of the deceased, absolutely no allegations
are made against PW4 and therefore, evidence given by PWs 2
and 3 cannot be ignored as they are relatives of PW4. PW9 is a
person who came there for purchasing gunny bags from the
house of PW3. His evidence cannot be brushed aside as a chance
witness. He used to collect old gunny bags from PW3. He also
gave evidence similar to PWs 2 and 3. So evidence of PWs 2, 3
and 9 are very cogent and clear against the accused. It is true
that the father, CW18 or sister, CW12 of the deceased ought to
have been examined. But admittedly they were not in the place
and went to Kottayam and there was no suggestion put forward
CRL.A.1163/2004 14
by the defendants that they were near in the locality and there
were no allegations against them. Since there are eye witnesses,
prosecution examined only direct eye witnesses. The mother of
PWs 2 and 3 was also reached the place and she also
accompanied her in the autorickshaw to the hospital along with
PW6 and PW7. But she was not examined due to old age. Mother
of the accused, PW6 who accompanied the deceased to the
hospital and deposed that she did not inquire regarding how the
incident occurred. Ext.P16 analysis report of the FSL regarding
the knife recovered from the place of the incident shows that it
contain ‘O’ group blood and other items 1 to 9 contain human
blood. Even though the blood group of the accused was ‘O’ group
and the blood of the deceased was not examined, that alone
cannot connect the accused with the incident. But all other
evidence coupled with the falsity of defence taken by the accused
proves the guilt of the accused. We are of the opinion that
prosecution was able to prove conclusively that the accused is
guilty. We also agree with the conclusions made by the trial
court judge and we see no ground to interfere with the conviction
CRL.A.1163/2004 15
and sentence. However, we reduce the fine amount of
Rs.1,00,000/- to Rs.10,000/-. If there is any default in payment
of fine, he shall undergo imprisonment for another six months.
The criminal appeal is dismissed subject to the above
modification regarding the amount of fine.
J.B.KOSHY, JUDGE
K.HEMA, JUDGE
csl