{"id":13508,"date":"2009-09-25T00:00:00","date_gmt":"2009-09-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thankachan-vs-state-of-kerala-on-25-september-2009"},"modified":"2017-03-12T14:04:09","modified_gmt":"2017-03-12T08:34:09","slug":"thankachan-vs-state-of-kerala-on-25-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thankachan-vs-state-of-kerala-on-25-september-2009","title":{"rendered":"Thankachan vs State Of Kerala on 25 September, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thankachan vs State Of Kerala on 25 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1378 of 2005()\n\n\n1. THANKACHAN, S\/O.PAULOSE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.RAMAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.S.GOPINATHAN\n\n Dated :25\/09\/2009\n\n O R D E R\n         K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.\n\n                    == = = = = = = = = = = = = = = = = =\n                       Crl.Appeal.No.1378 of 2005.\n                    = = = == = = = = = = = = = = = = = =\n\n                Dated this the 25th day of September, 2009.\n\n                            J U D G M E N T\n<\/pre>\n
Gopinathan, J.\n<\/p>\n
       The Circle Inspector of Police, Kanjar accused the appellant and two<\/p>\n
others for offences under Section 201, 302, 376 and 392 r\/w 34 IPC. They<\/p>\n
were prosecuted before the Additional Sessions Court (Adhoc-I),<\/p>\n
Thodupuzha. The learned Addl.Sessions Judge, after due trial found that<\/p>\n
the prosecution had succeeded only to establish offences under Sec.302 IPC<\/p>\n
against the appellant (1st accused).     Consequently, the appellant was<\/p>\n
convicted for offence under Sec.302 IPC and sentenced to imprisonment<\/p>\n
for life and a fine of Rs.10,000\/- with default clause to undergo rigorous<\/p>\n
imprisonment for one year more. For the other offences the appellant was<\/p>\n
acquitted. The other two accused were acquitted for all offences.<\/p>\n
       2.    The above conviction and sentence are now assailed by the 1st<\/p>\n
accused.\n<\/p>\n
       3.    The prosecution case is that the appellant and the acquitted<\/p>\n
accused were friends and that the appellant who was married, fell in love<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 2 :-<\/span><\/p>\n
with one Syamala, who is the sister of Pw2. Syamala was working as Home<\/p>\n
Nurse. On 28.11.2000 Syamala had been to the appellant and they went for<\/p>\n
first show film at New Theatre, Thodupuzha. After the film, by about 9 pm.<\/p>\n
they took their food from Hotel Sofia International near the vegetable<\/p>\n
market at Thodupuzha.        After taking food the appellant and deceased<\/p>\n
Syamala proceeded to Muttom in an autorickshaw driven by the 2nd accused.<\/p>\n
The appellant and Syamala alighted down at the banks of the<\/p>\n
Moovattupuzha irrigation canal near the Malankara Rubber Estate. The 2nd<\/p>\n
accused was sent by the appellant to fetch the 3rd accused. Before the 2nd<\/p>\n
accused returning with 3rd accused, appellant had sexual intercourse with<\/p>\n
Syamala.      When the accused 2 and 3 returned, the appellant offered<\/p>\n
Syamala to them. Since Syamala declined, the 2nd and 3rd accused committed<\/p>\n
rape. Thereafter, by about 11.30 pm, the appellant had second round of sex<\/p>\n
with Syamala. Then with intent to rob, the appellant committed murder by<\/p>\n
strangulating her and robbed her ornaments and Rs.400\/- which Syamala<\/p>\n
had in her bag. Thereafter, the dead body of Syamala was dragged and<\/p>\n
thrown to the Muvattupuzha Valley Irrigation Project (MVIP) canal. To<\/p>\n
destroy evidence, the shawl and the churidar bottom were flown in the<\/p>\n
canal. The vanity bag and other dresses were burnt to ashes.<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 3 :-<\/span><\/p>\n
       4.      On the next day at 7.30 a.m. Pw1, a tapper in the estate, found<\/p>\n
the dead body floating in the canal and reported to the police. Pw28, the<\/p>\n
Sub Inspector of Police, Kanjar recorded Ext.P1 First Information Statement<\/p>\n
given by Pw1 and registered Ext.P42 First Information Report as Crime<\/p>\n
No.350\/2000 for unnatural death.\n<\/p>\n
       5.      Pw29, the Circle Inspector of police took over the<\/p>\n
investigation. The body was initially not identified. Pw29, after preparing<\/p>\n
Ext.P36 inquest report, sent the body for autopsy and after autopsy it was<\/p>\n
kept in the mortuary. Later, the appellant and the other accused were<\/p>\n
arrested on suspicion.      According to the prosecution, on the basis of<\/p>\n
information given by the appellant and other accused, certain recoveries<\/p>\n
were made. The identity of the deceased was also disclosed. After having<\/p>\n
detected the identity of the deceased, Pw2, the brother of the deceased was<\/p>\n
informed. He identified the dead body at the mortuary. On completion of<\/p>\n
the investigation, having found that the appellant and other two accused<\/p>\n
committed the earlier mentioned offences, the charge sheet was laid before<\/p>\n
the Judicial Magistrate of the First Class-II, Thodupuzha.<\/p>\n
       6.      On finding that the offences alleged are triable by court of<\/p>\n
Sessions, the learned Magistrate, after complying the required procedures,<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 4 :-<\/span><\/p>\n
committed the case to the Court of Sessions, Thodupuzha from where it was<\/p>\n
made over to the Court of the Addl.Sessions Court (Adhoc-I), Thodupuzha.<\/p>\n
The Addl. Sessions Judge having found that there are materials to send the<\/p>\n
appellant and other accused for trial, a charge was framed, to which the<\/p>\n
appellant and the other accused pleaded not guilty. Therefore, they were<\/p>\n
sent for trial. On the side of prosecution Pws.1 to 29 were examined.<\/p>\n
Exts.P1 to P52 and MOs.1 to 16 were marked. During the course of cross-<\/p>\n
examination of Pws.1, 3 and 9, on the side of the defence, Exts.D1 to D4<\/p>\n
were marked. There is no other defence evidence adduced. Plea of the<\/p>\n
accused is total denial.     On conclusion of the trial the appellant was<\/p>\n
convicted and sentenced as above. Now this appeal.\n<\/p>\n
       7.      Evidence adduced.\n<\/p>\n
               Pw1 had deposed that at 7.30 a.m. on 29.11.2000 he found the<\/p>\n
nude dead body of a woman in the MVIP canal and he reported the matter<\/p>\n
to the police and that Ext.P1 is the first information statement so given by<\/p>\n
him. Though he had admitted his signature in Ext.P1 he had deposed that<\/p>\n
he didn’t understand the contents and Ext.P1 has signed without knowing as<\/p>\n
to what was written there.\n<\/p>\n
       8.      Pw2 had deposed that the deceased was his sister and that in<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 5 :-<\/span><\/p>\n
the mortuary of the Medical College, the dead body was identified and that<\/p>\n
the deceased had studied upto degree course and was working as a Home<\/p>\n
Nurse at Matha Nursing Home, Thrippunithura and on 16.11.2000 the<\/p>\n
deceased left the house on employment and when he telephoned after a<\/p>\n
week to the Matha Nursing Home, Thrippunithura it was informed that she<\/p>\n
had not reported there. Pw2 believed that the deceased might have gone to<\/p>\n
some of her relatives and that on 1.12.2000 he was informed about the death<\/p>\n
by the police and the dead body was identified. He had further deposed that<\/p>\n
the deceased was wearing a gold chain, weighing about one sovereign, four<\/p>\n
gold bangles, gold anklets, a gold ring and she had a gold necklace and that<\/p>\n
when she left home on 6.11.2000, she had been wearing the ornaments and<\/p>\n
that the MO1 series are the bangles worn by the deceased. MO2 was<\/p>\n
identified as the chain. MO3 was identified as the ring and MO4 series<\/p>\n
were identified as ear studs. According to him, MOs.1 to 4 are of gold. A<\/p>\n
shawl and churidar said to have been worn by the deceased was identified<\/p>\n
and marked as MO5 series. It was further deposed that the deceased used to<\/p>\n
have phone calls to Tel.No.04862 55707 from the house and that Exts.P2<\/p>\n
and P3 are the list of phone calls gone out from his telephone.<\/p>\n
       9.      Pw3 is the father of one Rachel who is a class mate of the<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 6 :-<\/span><\/p>\n
deceased.      He had deposed that two\/three days before the death, the<\/p>\n
deceased had been to her house at about 8.00 p.m. and stayed there a day.<\/p>\n
According to the prosecution, the deceased was accompanied to the house<\/p>\n
by the 2nd accused. But Pw3 didn’t support the prosecution on that aspect.<\/p>\n
       10.     Pw4 is the paternal uncle of the deceased. He was examined to<\/p>\n
prove that he had seen the deceased walking along with the appellant at<\/p>\n
Eerattupetta and that he had warned the deceased and advised her to<\/p>\n
abandon relationship with the appellant, if she had any.<\/p>\n
       11.     Pw5 is a neighbour of the deceased. He was examined to prove<\/p>\n
that the deceased was in love with the appellant. But he didn’t support the<\/p>\n
prosecution on that aspect. Pw6 is a door-checker, employed in New<\/p>\n
Theatre, Thodupuzha . He was examined to prove that on the previous<\/p>\n
night the appellant and the deceased had been to the theatre for watching<\/p>\n
film. But he didn’t support the prosecution. Pw7 is a provision shop owner.<\/p>\n
He was examined to depose that on the previous night the 2nd accused had<\/p>\n
been to his house and telephoned to the 3rd accused. But he didn’t support<\/p>\n
the prosecution on that aspect. Pw8 is a cook, who had been running a fast<\/p>\n
food shop. He was examined to prove that he knew the 2nd and 3rd accused<\/p>\n
and that he had seen the 2nd accused driving the autorickshaw with the<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 7 :-<\/span><\/p>\n
deceased on board on the previous day and that the 2nd and 3rd accused had<\/p>\n
tea from his fast food shop at 10.00 p.m. on the previous day. But he didn’t<\/p>\n
support the prosecution.\n<\/p>\n
       12.     Pw9 is a telephone booth operator, he was examined to depose<\/p>\n
that the telephone number of the booth was 04862 55707 and that he knew<\/p>\n
the appellant and other two accused and that the deceased used to contact<\/p>\n
the appellant over phone through his booth. But Pw9 didn’t support the<\/p>\n
prosecution case.\n<\/p>\n
       13.     Pw10 is an attester to Ext.P20 recovery mahazar whereby the<\/p>\n
chain and the bangles said to have been belonging to the deceased were<\/p>\n
seized from a property adjacent to the house of the appellant. He is also an<\/p>\n
attester to Ext.P21 mahazar prepared for the seizure of lungi and shirt worn<\/p>\n
by the appellant. Ext.P22 is yet another mahazar for the recovery of charred<\/p>\n
vanity bag and other articles. In Ext.P22 also Pw10 is an attester. Pw19<\/p>\n
had also attested Exts.P20, 21 and 22. Pw19 had deposed that he heard that<\/p>\n
the appellant was present at the time when Exts.P20, 21 and 22 were signed.<\/p>\n
Pw10 didn’t admit that the appellant was present when Exts.P20, 21 and 22<\/p>\n
were prepared and the articles were seized.\n<\/p>\n
       14.     Pw11 is a Scientific Assistant attached to District Police Office,<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 8 :-<\/span><\/p>\n
Idukki. He had deposed that he had assisted the Investigating Officer and<\/p>\n
collected two used condoms and a black hair from the pubic area of the<\/p>\n
deceased by combing.\n<\/p>\n
       15.     Pw12 is the Asst.Director, Xerology Division, Forensic Science<\/p>\n
Laboratory, Thiruvananthapuram. She had deposed that she had examined<\/p>\n
items 2, 7 & 8 (nail clippings, lungi and shirt) contained in a sealed packet<\/p>\n
and items 4, 4(a), 5 & 5(a) (inside and outside of two condoms) contained in<\/p>\n
an unsealed packet which were forwarded to the Forensic Science<\/p>\n
Laboratory. She had further deposed that Ext.P24 is the report given by her<\/p>\n
and that items 7 & 8 were stained with A group blood and that items 4, 4(a),<\/p>\n
5 & 5(a) were subjected to the test for semen grouping and that item 4<\/p>\n
contained A group fluids and items 4(a), 5 & 5(a) contained B group fluids.<\/p>\n
       16.     Pw13 is an employee of the Sophia International Hotel,<\/p>\n
Thodupuzha. He was examined to prove that on 29.11.2000 at night the<\/p>\n
appellant along with the deceased had been to the hotel for food and they<\/p>\n
left after food from the hotel in an autorickshaw. But he didn’t support the<\/p>\n
prosecution. Though he was subjected to searching cross-examination no<\/p>\n
material was disclosed to support the prosecution case.<\/p>\n
       17.     Pw14 is an attester to Ext.P27, a mahazar prepared for the<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 9 :-<\/span><\/p>\n
seizure of a churidar and shawl which were marked as MO5 series. Pw15 is<\/p>\n
an attester to Ext.P28, a mahazar prepared for the seizure of a packet of<\/p>\n
condoms seized from Embrayil Stores, Muttom.           Pw16 is the Village<\/p>\n
Officer, Muttom. He had deposed that he inspected the occurrence site and<\/p>\n
prepared Ext.P29 site plan.\n<\/p>\n
       18.     Pw17 was examined to depose that on 29.11.2000 at night the<\/p>\n
3rd accused who was known to him got purchased a packet of condom<\/p>\n
through Pw17.         But Pw17 didn’t support the prosecution.   Pw18 was<\/p>\n
examined to depose that he heard about the death of a lady. He was also<\/p>\n
relied upon by the prosecution to bring on record that the appellant used to<\/p>\n
purchase articles from his shop, but he denied the same.<\/p>\n
       19.     Pw20 is a gold smith. He had deposed that on 1.12.2000 he<\/p>\n
was asked to appraise the purity of four bangles and a chain similar to those<\/p>\n
shown to him. On examination it was found that those items were not made<\/p>\n
of gold.\n<\/p>\n
       20.     Pw21 is a stationery merchant.    He was examined by the<\/p>\n
prosecution to bring out in evidence that he heard that on 29.11.2000 a<\/p>\n
body of a lady was found in the canal and that the 3rd accused had purchased<\/p>\n
condoms from his shop through Pw17. But he denied the same. He had<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                  -: 10 :-<\/span><\/p>\n
further deposed that the police had seized two packets of condoms and the<\/p>\n
same was identified as MO7. Pw22 is an attester to Ext.P35, a mahazar for<\/p>\n
an autorickshaw said to have been driven by the 2nd accused to carry the<\/p>\n
deceased and appellant to the spot of occurrence. Pw23 is an attester to<\/p>\n
Ext.P36 inquest report prepared by Pw29. Pw24 was examined as an<\/p>\n
attester to P28 mahazar.\n<\/p>\n
       21.     Pw25 is an Asst.Surgeon then attached to the Taluk Head<\/p>\n
Quarters Hospital, Thodupuzha.      He was examined to prove that as<\/p>\n
requested by the Investigating Officer he examined the appellant and other<\/p>\n
two accused and found nothing to suggest that they were incapable of<\/p>\n
doing sexual act and Exts.P37 to 39 are the certificates issued by him to that<\/p>\n
effect. It was further deposed that he examined their blood groups and<\/p>\n
found to be of B+ve, A+ve and B-ve respectively.\n<\/p>\n
       22.     Pw26 is the Asst.Director, Biological Division, Forensic<\/p>\n
Science Laboratory, Thiruvananthapuram. He would depose that Ext.P40 is<\/p>\n
the report given by him after examining items 4, 4(a), 5, 5(a), 7 and 8.<\/p>\n
Items 4 and 5 are the extracts from the inside of two condoms seized from<\/p>\n
the site of occurrence. Item 4(a) and 5(a) are the extracts from the outside<\/p>\n
of the above condoms. Items 7 and 8 are the shirt and lungi (MOs.14 and<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 11 :-<\/span><\/p>\n
15) which were the dress worn by the appellant at the time of occurrence.<\/p>\n
Over items 4, 4(a), 5 and 5(a) human spermatozoa were detected and over<\/p>\n
items 4(a) and 5(a) large number of vaginal epithelial cells were detected.<\/p>\n
He had further deposed that the extracts from items 4, 4(a), 5 and 5(a) and<\/p>\n
items 2, 7 and 8 were forwarded to the Xerological Division               for<\/p>\n
examination and that item 2 nail clippings contained nothing other than<\/p>\n
mud.\n<\/p>\n
       23.     A perusal of Ext.P40 would show that on microscopic<\/p>\n
examination of items 4, and 5 were found to have contained human<\/p>\n
spermatozoa and that the extracts from 4(a) and 5(a) contained large number<\/p>\n
of vaginal epithelial cells. The blood stains contained in items 7 and 8<\/p>\n
which were lungi and shirt contained A group blood. The semen in item 4<\/p>\n
was of a person belonging group A. The semen in item 5 belong to B group<\/p>\n
person and the vaginal epithelial in items 4(a) and 5(a) belong to a person of<\/p>\n
B group.\n<\/p>\n
       24.     Pw27 would depose that he was Asst. Professor of Forensic<\/p>\n
Medicine, Medical College, Kottayam and that on 1.12.2000 he conducted<\/p>\n
autopsy on the body of an unidentified female, who was later identified as<\/p>\n
Mary @ Syamala, aged about 30 years and had issued Ext.P41 certificate.<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 12 :-<\/span><\/p>\n
Pw27 had further deposed that there were 29 ante-mortem injuries. Injuries<\/p>\n
1, 2, 3, 4 and 5; which are extracted below alone are significant.<\/p>\n
   1. Pressure abrasion 22 cms. long, nearly horizontal on the front and
\n      sides of the upper part of the neck. It was situated 8 cm. below the
\n      left ear (0.6 cm. broad)8.5 cm. behind the chin (1.5 cm. broad) and
\n      7 cm. below the left ear (1 cm. broad).\n<\/p>\n
   2. Pressure abrasion 810.5 cms. to 1 cm. horizontally placed and
\n      parallel to the injury No.1 involving the front and left side of the
\n      neck. Its front extent was just outer to the midline and 1.5 cm.
\n      below the injury No.1.\n<\/p>\n
   3. Multiple contused abrasions over an area 9×4 cm. varying in sizes
\n      from 1×0.5 cm. to 3×2 cm. involving the front and right side of the
\n      neck. Its front extent was just below the injury No.2. Flap
\n      dissection of the neck was done under a bloodless field. The
\n      subcutaneous tissues under neath the above injuries showed
\n      infiltration of blood. The sternomastoid muscle on the right side
\n      contusion at different levels and the thyroid cartilage showed
\n      fracture fragmentation at the right side with infiltration of blood
\n      around.      Under the injury No.1 and 2 the muscles showed
\n      contusion. The posterior laryngeal wall showed contusion.<\/p>\n
   4. Laceration 1×0.3 cm. involving the hymen at 7 ‘O clock position
\n      in its full thickness.\n<\/p>\n
   5. Multiple superficial lacerations 3×1 cm. on the inner aspect of the
\n      lower part of the vagina. The vaginal wall was contused.<\/p>\n
The others are minor injuries. Pw27 had further deposed that the death was<\/p>\n
due to blunt injuries sustained to the neck and injuries 1, 2 and 3 on the<\/p>\n
neck are sufficient to cause death independently in the ordinary course of<\/p>\n
nature. Injuries 1 and 2 could be caused by ligature and could be caused by<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 13 :-<\/span><\/p>\n
a shawl like MO5. Injury No.3 could be caused by forcibly pressing with<\/p>\n
hand. Injuries 4 and 5 could be caused with forcefully stimulated penis. It<\/p>\n
was further deposed that injuries 6 to 11 could be caused during scuffle on<\/p>\n
contact with hard and rough surface. Injury No.12 could be caused with a<\/p>\n
nail. Injuries 16, 17, 20, 21, 24, 26, 27 and 28 could be caused by dragging.<\/p>\n
It was further deposed that there was no sign of death by drowning.<\/p>\n
       25.     Pw28, the then Sub Inspector of Police, Kanjar had deposed<\/p>\n
that he recorded the first information statement given by Pw1 and registered<\/p>\n
the case as Crime 350\/2000 under the caption ‘unnatural death’ and Ext.P27<\/p>\n
is the first information report and that on getting information that churidar<\/p>\n
and top worn by the deceased was at MVIP canal near the spot of<\/p>\n
occurrence, he proceeded to the spot and seized the same after preparing<\/p>\n
Ext.P27 mahazar.          Pw29 had given evidence regarding the process of<\/p>\n
investigation.\n<\/p>\n
       26.     Homicide or natural death?\n<\/p>\n
               The evidence of Pw1 would show that he found the dead body<\/p>\n
in MVIP canal at 7.30 am. on 29.11.2000. Ext.P1 supports the factum of<\/p>\n
seeing the dead body. Ext.P36 Inquest Report prepared by Pw29 and<\/p>\n
wherein Pw23 is an attester would show that the nude dead body of<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 14 :-<\/span><\/p>\n
Syamala was found floating in MVIP canal and there were injuries all over<\/p>\n
the body. Pw2, the brother of Syamala identified the dead body. The<\/p>\n
evidence of Pw27 which we discussed in brief in para.24 and other injuries<\/p>\n
which Pw27 mentioned in his evidence and corroborated by Ext.P41 post-<\/p>\n
mortem certificate would show that Syamala died due to strangulation.<\/p>\n
Injuries 4 and 5 also suggested sexual assault. The abrasions and minor<\/p>\n
injuries suggest that after murder by strangulation, the body was dragged<\/p>\n
and put in the canal. Pw27 is specific that there was no sign of drowning.<\/p>\n
In cross-examination, it was opined that the injuries found on the body also<\/p>\n
indicate long resistance. On a careful scrutiny of the evidence of Pw27 and<\/p>\n
Ext.P41, we find no reason to disbelieve the evidence of Pw27 that it is a<\/p>\n
case of homicide or to reject Ext.P41. There is no material to suggest that it<\/p>\n
was an accidental or natural death. Evidence on record, beyond doubt<\/p>\n
establishes nothing but a clear case of homicide after sexual assault.<\/p>\n
       27.     How far oral evidence connects the appellant with the offence?<\/p>\n
               Prosecution examined Pws.4, 5, 6, 7, 8, 9 and 13 in attempt to<\/p>\n
bring evidence that the appellant was in love with the deceased and that the<\/p>\n
deceased and appellant were found moving together in the previous night.<\/p>\n
The prosecution relied upon the testimony of Pw4 to establish that the<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                      -: 15 :-<\/span><\/p>\n
appellant and the deceased were found walking together at Eerattupetta. It<\/p>\n
is not mentioned as to when it was. According to him, he had warned the<\/p>\n
deceased to drop         the relationship with the appellant, if she had any.<\/p>\n
Though Pw4 was examined to depose that the deceased was in love with the<\/p>\n
appellant, he didn’t support that part of the prosecution story. Since Pw4<\/p>\n
could not give the date when he saw the appellant and the deceased together<\/p>\n
at Eerattupetta, his evidence would in no way help the prosecution to<\/p>\n
connect the appellant with the guilt.\n<\/p>\n
       28.     Pw5, a neighbour of the deceased, was also relied upon by the<\/p>\n
prosecution to bring out that he had seen the deceased along with the<\/p>\n
appellant. Though Pw5 stated to the investigating officer that the deceased<\/p>\n
was in love with the appellant, the love affair between the appellant and the<\/p>\n
deceased was denied by Pw5.            So, his evidence is also worthless to<\/p>\n
implicate the appellant.\n<\/p>\n
       29.     Pw6, the door-checker at New Theatre, Thodupuzha, was relied<\/p>\n
upon by the prosecution to bring on record that the appellant and the<\/p>\n
deceased had been to the first show film on the previous night. But, as we<\/p>\n
mentioned earlier, this witness also didn’t support the prosecution. The<\/p>\n
evidence of Pw7 was relied upon by the prosecution to connect the accused<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 16 :-<\/span><\/p>\n
2 and 3 with the offence. The evidence of Pw8 was also for the same<\/p>\n
purpose. Their evidence no way connect the appellant.<\/p>\n
       30.     Evidence of Pw9, which we mentioned in para.12 also didn’t<\/p>\n
support the prosecution.\n<\/p>\n
       31.     The evidence of Pw13 was relied upon by the prosecution to<\/p>\n
establish that on the previous night the appellant and the deceased had been<\/p>\n
to Hotel Sophia International, where Pw13 was an employee, and that the<\/p>\n
appellant and the deceased left the hotel after food. But Pw13 didn’t<\/p>\n
support the prosecution. So, his evidence is also not reliable to connect the<\/p>\n
appellant with the offence alleged. The evidence of Pws.4 to 9 and 13 being<\/p>\n
the above, the attempt of the prosecution to establish the last seen together<\/p>\n
theory failed. There is nothing to conclude that the appellant had any sort<\/p>\n
of contact with the deceased. No circumstance leading to the the complicity<\/p>\n
of the appellant is revealed by the oral testimony of the above witnesses.<\/p>\n
       32.     Scientific evidence.\n<\/p>\n
               The scientific evidence available is the testimony of Pws.11,<\/p>\n
12, and 26 coupled with Ext.P24 and P40 reports. The learned Public<\/p>\n
Prosecutor Sri.Noble Mathew, very vehemently argued that the appellant<\/p>\n
had voluntary and unprotected sexual intercourse with the deceased and<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 17 :-<\/span><\/p>\n
thereafter the accused 2 and 3 committed rape on the deceased and while<\/p>\n
committing rape the accused 2 and 3 had used condoms and that those<\/p>\n
condoms were seized by Pw29 at the time when the inquest report was<\/p>\n
prepared and MOs.10 and 11 are the condoms so seized. MOs.10 and 11<\/p>\n
were forwarded for laboratory examination. The evidence on record would<\/p>\n
show that MOs.10 and 11 condoms were sent as item Nos.4 and 5. It is<\/p>\n
reported that there were secretions inside and outside the condoms. The<\/p>\n
contents inside the condoms were marked as item Nos.4 and 5 and the<\/p>\n
secretions outside the condoms were marked as 4(a) and 5(a).             On a<\/p>\n
grouping it was found that secretions in items 4 belonged to A group and<\/p>\n
item 4(a), 5 and 5(a) belong to B group. Ext.P24 is the certificate issued by<\/p>\n
Pw12. Naturally there is possibility for having vaginal epithelial cells in the<\/p>\n
fluid. The evidence of Pw12 would show that the victim belong to A group.<\/p>\n
But in the secretions as items 4(a) and 5(a) there was no A group secretion<\/p>\n
detected.\n<\/p>\n
       33.     According to Pw26, there were large number of epithelial cells<\/p>\n
in items 4(a) and 5(a). It is not discernible from the testimony of Pw26 as to<\/p>\n
whether the detection of A group substance is that of vaginal materials or<\/p>\n
that of spermatozoa. However, from the evidence of Pw26 it has to be<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 18 :-<\/span><\/p>\n
presumed that the detection of A group substance in items 4(a) & 5(a) is<\/p>\n
that of vaginal epithelial cells. According to the learned Public Prosecutor,<\/p>\n
detection of B group substance over items 4(a) & 5(a) is that of the<\/p>\n
appellant. The case of the prosecution is that the appellant had unprotected<\/p>\n
sexual intercourse with the victim and as a result there was every chance for<\/p>\n
spermatozoa of the appellant mixing with vaginal secretions. When the 2nd<\/p>\n
and 3rd accused committed rape on the victim with condoms, the secretions<\/p>\n
of the appellant got fastened over the condoms and it is an indication that<\/p>\n
the secretions detected over in items 4(a) & 5(a) was that of the appellant<\/p>\n
and hence there is every material to connect the appellant with the crime.<\/p>\n
       34.     For two reasons, we are unable to accept the argument<\/p>\n
advanced by the learned Public Prosecutor. First and primary reason is that,<\/p>\n
there is no material on record to show that the appellant had any sexual<\/p>\n
intercourse with the victim on the previous night. Even if it is assumed that<\/p>\n
the appellant had sex with the victim, we have to do guess work that the<\/p>\n
appellant did so without condoms and accused 2 & 3 did with condoms<\/p>\n
(item 4 & 5). Prudence dissuades us from guessing so. Second reason is that,<\/p>\n
when the evidence of Pw26 is given due regard, there are large number of<\/p>\n
vaginal epithelial cells on items 4(a) & 5(a). If the group detected is that of<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 19 :-<\/span><\/p>\n
the vaginal epithelial cells it had to be inferred that the lady with whom<\/p>\n
sexual intercourse\/rape was committed with condom was of B group and the<\/p>\n
victim belonging to A group, there is little chance for having these condoms<\/p>\n
used to have sexual intercourse\/rape with the victim. So, for these two<\/p>\n
reasons, we find that the secretions found on the condoms can no way<\/p>\n
amount to any material to connect the appellant with the crime. Scientific<\/p>\n
evidence, being the above is of no help to the prosecution.<\/p>\n
       35.     Other circumstantial evidence.\n<\/p>\n
               Case of the prosecution is that the appellant after having sex<\/p>\n
with the victim, being greedy with the ornaments of the victim had<\/p>\n
murdered her and robbed away the imitation ornaments kept in the vanity<\/p>\n
bag along with a sum of Rs.400\/-. It was revealed out by the testimony of<\/p>\n
Pw20 that the material objects produced before the court are not gold, but<\/p>\n
imitations. The case of the prosecution is that the appellant mis-took the<\/p>\n
imitated items as that of original gold. So he committed robbery of the<\/p>\n
ornaments without understanding that it was not gold ornaments. A reading<\/p>\n
of the judgment under appeal would show that, in fact, before the trial court<\/p>\n
the prosecution relied upon the recovery of the ornaments in attempt to<\/p>\n
establish the offence under Sec.392 IPC, which the lower court found<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 20 :-<\/span><\/p>\n
against. To establish offence under Sec.302 IPC, the recovery was not<\/p>\n
relied on. However, we are bound to consider the evidence regarding<\/p>\n
recovery because of the allegation of the prosecution that the ornaments<\/p>\n
were robbed after committing murder. If there is evidence to connect the<\/p>\n
appellant with the ornaments which the victim had been wearing\/possessed<\/p>\n
just before the murder, there is some circumstance against the appellant.<\/p>\n
       36. Regarding the gold ornaments, the evidence of the prosecution is<\/p>\n
full of suspicious circumstances. According to Pw2, the brother of the<\/p>\n
deceased, the victim was having chain, necklace, four bangles, anklets and<\/p>\n
ear-studs. Curiously, the anklets and necklace were not recovered. What<\/p>\n
happened to those items. It seems to be a mystery. Adding to that, according<\/p>\n
to Pw2, all the ornaments were of gold. But MOs.1 to 4 identified by Pw2<\/p>\n
as that of the deceased are not at all gold, but imitations. If that is so, there<\/p>\n
is every chance for mistaken identity. It is pertinent to note that the<\/p>\n
investigating officer had not cared to have MOs.1 to 4 identified through<\/p>\n
the mother of the deceased who would have been more acquainted with the<\/p>\n
ornaments of the deceased and could have easily identified the same. So, the<\/p>\n
evidence of Pw2 being that the ornaments that the deceased were wearing<\/p>\n
were of gold and MOs.1 to 4 were being not of gold, what is to be inferred<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                    -: 21 :-<\/span><\/p>\n
from the evidence of Pw2 is that MOs.1 to 4 are not that of the deceased. If<\/p>\n
the deceased was having gold ornaments, what happened to the gold<\/p>\n
ornaments also seems to be a mystery. Since it is the specific case of Pw2<\/p>\n
that deceased was having gold ornaments, and the ornaments seized being<\/p>\n
imitations, the investigating officer should have investigated and a<\/p>\n
satisfactory explanation should have been given. The articles lost and<\/p>\n
articles recovered being different, prosecution has left a wide gap staring<\/p>\n
against the prosecution. In this view of the matter, seizure of MOs.1 to 4<\/p>\n
even if it is on the basis of the admission of the appellant, would in no way<\/p>\n
help the prosecution to connect the appellant with the murder or robbery.<\/p>\n
       37.     As regards the recovery, Pw10 and Pw19 are the attestors to<\/p>\n
Ext.P20 mahazar whereby MOs.1 to 4 were seized. According to Pw10, he<\/p>\n
didn’t see the appellant anywhere near the place of seizure. According to<\/p>\n
Pw19, he heard that the appellant was present but he didn’t see the appellant<\/p>\n
or the actual seizure. However, going through Ext.P20 and the evidence of<\/p>\n
Pw29, who prepared Ext.P20, we find that the evidence regarding recovery<\/p>\n
is not at all convincing. According to Pw29, appellant stated that a small<\/p>\n
national flag was erected at the place of occurrence as an indication.<\/p>\n
Curiously, that flag was not seized. Adding to that there is no mention in<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 22 :-<\/span><\/p>\n
Ext.P20 regarding the lie of soil where the ornaments were buried. If it was<\/p>\n
recent burial, definitely the soil covering the ornaments should have been<\/p>\n
loose. But there is no mention that the soil covering ornaments was loose.<\/p>\n
In the absence of positive evidence, it is not appropriate to have guess work<\/p>\n
against the accused. But it is to be presumed against the prosecution. Such<\/p>\n
being the materials on record, we find that the seizure of MOs.1 to 4 can in<\/p>\n
no way be a connecting piece of evidence between the appellant and the<\/p>\n
crime.\n<\/p>\n
       38.     The last connecting link relied upon by the prosecution is the<\/p>\n
blood stains over the cloth said to have been worn by the appellant at the<\/p>\n
time of crime. Ext.P21 is the mahazar prepared for the seizure of the lungi<\/p>\n
and shirt which were marked as MOs.14 and 15. It is reported that MOs 15<\/p>\n
and 14 were stained with A group blood. According to the learned Public<\/p>\n
Prosecutor, it is an indication that the appellant was the assailant. But it is<\/p>\n
crucial to note that the case of the prosecution is one of strangulation.<\/p>\n
There is a little chance for having blood coming out in the process of<\/p>\n
strangulation and staining the cloth. What was the volume of blood stain is<\/p>\n
not brought out in evidence.          Ext.P36 inquest report and Ext.P14<\/p>\n
postmortem certificate didn’t show that there was bleeding injuries so as to<\/p>\n
Crl.Appeal.No.1378 of 2005.\n<\/p>\n
                                   -: 23 :-<\/span><\/p>\n
cause blood stain on the cloths of the assailant. So, for the mere presence of<\/p>\n
blood stain, even if any, over the cloth of the appellant, in our opinion is,<\/p>\n
not sufficient enough to connect the appellant with the crime.           Thus<\/p>\n
circumstantial evidence also didn’t support the prosecution.<\/p>\n
       In the above circumstance, we find that the prosecution had not<\/p>\n
succeeded to establish the guilt alleged against the appellant beyond the<\/p>\n
shadow of reasonable doubt. The conviction and sentence under challenge<\/p>\n
in SC.No.46\/2003 on the file of the Sessions Division, Idukki are not<\/p>\n
sustainable. Hence we set aside the same. The appeal stands allowed. The<\/p>\n
appellant shall be set at liberty forthwith, if his continued detention is not<\/p>\n
warranted in any other case.\n<\/p>\n<\/p>\n
                                      K.BALAKRISHNAN NAIR, JUDGE.\n<\/p>\n<\/p>\n
                                              P.S.GOPINATHAN, JUDGE.\n<\/p>\n
\nKvs\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thankachan vs State Of Kerala on 25 September, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1378 of 2005() 1. THANKACHAN, S\/O.PAULOSE, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :SRI.B.RAMAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice K.BALAKRISHNAN NAIR The Hon’ble MR. Justice P.S.GOPINATHAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-13508","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThankachan vs State Of Kerala on 25 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thankachan-vs-state-of-kerala-on-25-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thankachan vs State Of Kerala on 25 September, 2009 - 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