{"id":37298,"date":"2009-10-05T00:00:00","date_gmt":"2009-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajayan-rajan-vs-state-of-kerala-on-5-october-2009"},"modified":"2018-10-10T20:54:11","modified_gmt":"2018-10-10T15:24:11","slug":"ajayan-rajan-vs-state-of-kerala-on-5-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajayan-rajan-vs-state-of-kerala-on-5-october-2009","title":{"rendered":"Ajayan @ Rajan vs State Of Kerala on 5 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ajayan @ Rajan vs State Of Kerala on 5 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1710 of 2005()\n\n\n1. AJAYAN @ RAJAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.GRASHIOUS KURIAKOSE\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :05\/10\/2009\n\n O R D E R\n<\/pre>\n
            K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.\n<\/p>\n
           ——————————————————————\n<\/p>\n
                      Criminal Appeal No.1710 of 2005\n<\/p>\n
           ——————————————————————\n<\/p>\n
                            Dated 5th October 2009<\/p>\n
                                     Judgment<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n
       The appellant is the accused in Sessions Case No.403\/04, on<\/p>\n
the file of the Additional District and Sessions Judge (Ad hoc), Fast<\/p>\n
Track Court-I, Pathanamthitta. He challenges, in this Criminal<\/p>\n
Appeal, the conviction and sentence imposed on him for the offences<\/p>\n
punishable under S.376 and S.302 IPC by the trial court in the said<\/p>\n
case. The case of the prosecution is as follows :\n<\/p>\n
       2. The victim Ms.Soorya, the daughter of PW1, was a student<\/p>\n
of 6th standard of Government High School, Kadampanadu.                            On<\/p>\n
08.10.2002, while she was returning home after the classes, at about<\/p>\n
4 pm., the appellant, who was waiting for her under a bridge, seized<\/p>\n
her by force, overpowered her and committed rape.                           The victim<\/p>\n
resisted.   So, he applied blunt force on her neck. Thereafter, he<\/p>\n
threw her body into the nearby stream. So, she died of strangulation<\/p>\n
and drowning. The prosecution, to prove its case, examined PW1 to<\/p>\n
PW19, marked Exts.P1 to P26 and also produced material objects<\/p>\n
MO1 to MO5 series. The trial court, after hearing both sides and<\/p>\n
CRA 1710\/05                       2<\/span><\/p>\n
taking into account the materials on record, found the appellant guilty<\/p>\n
of the offences punishable under S.376 and S.302 IPC and<\/p>\n
sentenced him to undergo rigorous imprisonment for 7 years and to<\/p>\n
pay a fine of Rs.50,000\/- and in default,           to suffer rigorous<\/p>\n
imprisonment for four years for the offence punishable under S.376<\/p>\n
IPC. He was also sentenced to undergo imprisonment for life and to<\/p>\n
pay a fine of Rs.50,000\/- and in default, to suffer rigorous<\/p>\n
imprisonment for 4 years, for the offence punishable under S.302<\/p>\n
IPC. The fine amount, if realised, was directed to be paid to the<\/p>\n
mother of the victim, by way of compensation. Feeling aggrieved by<\/p>\n
the conviction and sentence, this appeal is preferred.<\/p>\n
       3. The learned counsel for the appellant Shri.Grashious<\/p>\n
Kuriakose took us through the deposition of the witnesses and the<\/p>\n
documents produced by the prosecution and submitted that except<\/p>\n
the recovery of the blouse of the victim, there is nothing on record, to<\/p>\n
connect the accused with the crime. The recovery of the blouse is<\/p>\n
also clouded by the circumstance that the accused revealed hiding of<\/p>\n
the same at the time of the second round of questioning, after the<\/p>\n
first round of questioning and recoveries were over. So, noticing the<\/p>\n
absence of evidence, planting the blouse by the police and causing it<\/p>\n
CRA 1710\/05                        3<\/span><\/p>\n
to be recovered through the appellant, cannot be ruled out. Even<\/p>\n
assuming that the recovery is found to be genuine, that by itself, is<\/p>\n
not sufficient to prove the guilt of the accused beyond reasonable<\/p>\n
doubt. A mere suspicion is not sufficient to sustain the conviction.<\/p>\n
The learned counsel also submitted that the trial court relied on six<\/p>\n
circumstances, enumerated in paragraph 14 of the judgment under<\/p>\n
appeal. The learned counsel submitted that circumstance (b) that<\/p>\n
there was an earlier alleged attempt from the part of the appellant to<\/p>\n
ravish a school going girl, cannot be pressed into service as a link in<\/p>\n
the circumstances proved against him. It is also submitted that the<\/p>\n
extra-judicial confession, stated to be given to the doctor, mentioned<\/p>\n
as circumstance (f) in paragraph 14 of the judgment, being one made<\/p>\n
while in police custody, has to be eschewed from consideration. If<\/p>\n
those two circumstances are excluded, the chain of incriminating<\/p>\n
circumstances is not complete and therefore, the appellant is entitled<\/p>\n
to get the benefit of doubt.\n<\/p>\n
       4. The learned counsel for the appellant pointed out that the<\/p>\n
second husband of PW1, Shaji was the real culprit. The victim was<\/p>\n
staying in a neighbouring house as a domestic help because of the<\/p>\n
ill-treatment of her   by Shaji, her stepfather. The police did not<\/p>\n
CRA 1710\/05                        4<\/span><\/p>\n
question him or make him a witness. The chances of the girl, being<\/p>\n
raped and killed by him, cannot be ruled out, it is pointed out.<\/p>\n
      5. The learned Public Prosecutor, on the other hand, submitted<\/p>\n
that there is no reason to doubt the genuineness of Ext.P14<\/p>\n
mahazar, under which the blouse of the victim, which was hidden<\/p>\n
under the wild grown grass was recovered. The injuries on the body<\/p>\n
of the appellant, including those on his private parts, remained<\/p>\n
unexplained. He was found near the scene of occurrence, by an<\/p>\n
independent witness. There is also evidence on record that the victim<\/p>\n
reached near the place of occurrence at the relevant time. The<\/p>\n
recovery of the blouse, at the instance of the accused and the<\/p>\n
medical evidence regarding the injuries on him alone are sufficient to<\/p>\n
sustain the conviction. They unerringly point to the guilt of the<\/p>\n
accused. The trial court has rightly found him guilty. Even if the extra-<\/p>\n
judicial confession made by him, while in police custody, is also<\/p>\n
excluded from consideration, the remaining circumstances are<\/p>\n
sufficient to complete the chain and to prove the guilt of the accused<\/p>\n
beyond reasonable doubt. It is also pointed out that regarding the<\/p>\n
injuries sustained by him, the appellant has given a false explanation<\/p>\n
under S.313 IPC, stating that the injuries suffered on his body were<\/p>\n
CRA 1710\/05                        5<\/span><\/p>\n
those caused by a motor-bike accident. When the medical evidence<\/p>\n
regarding the injury on his penis was put to him, he simply denied<\/p>\n
that he sustained any injury there. The omission to explain the injury<\/p>\n
on his private parts and the false explanation given to the injuries,<\/p>\n
are circumstances against the accused.           The learned Public<\/p>\n
Prosecutor pointed out that the doctor, in his deposition, has stated<\/p>\n
that the injuries found on the body of the appellant cannot, normally,<\/p>\n
be caused on a fall from a motor-bike. Therefore, the learned Public<\/p>\n
Prosecutor prayed for dismissing the appeal.\n<\/p>\n
      6. Before dealing with the rival contentions, we will refer to the<\/p>\n
evidence on record. PW1 is the mother of Soorya, the victim. Her<\/p>\n
daughter did not reach the house of PW3, where she was staying, in<\/p>\n
time on 08.10.2002. When she did not reach the house of PW3 even<\/p>\n
by 6 pm. on the said date, Sony, the brother of PW3 went to the<\/p>\n
house of PW1 and told her about the same. Therefore, she, along<\/p>\n
with her husband Shaji went to the house of PW3 and enquired<\/p>\n
about the matter. On the next day morning, PW1 went to the Police<\/p>\n
Station and gave Ext.P1 F.I. statement regarding the missing of her<\/p>\n
daughter. She identified MO1 blouse as that of Soorya. She also<\/p>\n
identified MO2 bag and the contents of the bag like books, tiffin box,<\/p>\n
CRA 1710\/05                         6<\/span><\/p>\n
water bottle etc. The learned Sessions Judge has recorded that on<\/p>\n
seeing them, the witness wept loudly from the box. The body of her<\/p>\n
daughter was recovered from the nearby river on 10.02.2002 and she<\/p>\n
was told of her death, only at the time of burial of the body.<\/p>\n
      7. In the cross examination, an attempt was made to show that<\/p>\n
Shaji, the second husband of PW1 was ill-treating her daughter and<\/p>\n
therefore, she was sent to the house of PW3. She has also deposed<\/p>\n
that on 8.10.2002 at 6 pm, Shaji was also in the house and they<\/p>\n
together went to the house of PW3 to enquire about Soorya. We<\/p>\n
notice that nothing has been brought out in the cross examination,<\/p>\n
which makes her version unreliable.\n<\/p>\n
      8. PW2 is a person, residing in the neighbourhood of PW1. She<\/p>\n
knew Soorya and also the appellant. While she was sitting in her<\/p>\n
house, which is by the side of the road, at about 4 pm., on 8.10.2002,<\/p>\n
she saw Soorya going home from the school. She stated that Soorya<\/p>\n
was carrying a school bag and an umbrella. She was wearing a blue<\/p>\n
coloured blouse and skirt. She identified MO1 blouse as the one<\/p>\n
worn by Soorya, at the relevant time. She also identified the school<\/p>\n
bag MO2. She was also cross-examined by the defence, but nothing<\/p>\n
was brought out to discredit her version.\n<\/p>\n
CRA 1710\/05                       7<\/span><\/p>\n
      9. PW3 was residing at a distance of about one km. from the<\/p>\n
house of PW1. Soorya was residing with her for about ten days<\/p>\n
before 8.10.2002. She has seen her last at 9 am. on 8.10.2002,<\/p>\n
when she went to the school. At that time, she was wearing a blue<\/p>\n
skirt and blouse with golden lace on its hands. She was studying in<\/p>\n
Kadambanad Government High School. Normally, Soorya returned<\/p>\n
from school at about 4.30 pm. On the aforementioned day, she did<\/p>\n
not reach home even after 5 pm.. So, she sent her brother, Sony to<\/p>\n
the house of PW1, to inform her about the same. She identified MO1<\/p>\n
blouse worn by Soorya and also MO2, which is her school bag. The<\/p>\n
attempt of the defence in her cross-examination was to show that<\/p>\n
Shaji, the second husband of PW1, was harassing Soorya and<\/p>\n
therefore, Soorya was sent to the house of PW3, by PW1. But her<\/p>\n
version remained unshaken, notwithstanding the cross-examination<\/p>\n
by the defence.\n<\/p>\n
      10. PW4 is a friend of the deceased. They were studying in the<\/p>\n
same school. On 8.10.2002, they came together in the same bus.<\/p>\n
They got down at Nellimughal Junction. It was raining and they<\/p>\n
walked together upto the house of PW4. Since Soorya was not<\/p>\n
having any umbrella, she gave her umbrella to Soorya. She saw<\/p>\n
CRA 1710\/05                       8<\/span><\/p>\n
Soorya, going home with her umbrella. At that time, she was wearing<\/p>\n
a blue coloured silk skirt and blouse. She identified MO1 blouse as<\/p>\n
the one worn by Soorya. She also identified MO2 series school bag<\/p>\n
and its contents. Nothing was brought out to discredit her version in<\/p>\n
her cross examination by the defence.\n<\/p>\n
      11. PW5 is a person, residing in the neighbourhood of the<\/p>\n
appellant. He is a rubber tapper. The witness and the appellant<\/p>\n
reside in the same colony. The house of the appellant is at a distance<\/p>\n
of 100 yards from his house. On 8.10.2002, he went to the shop of<\/p>\n
one Mr.Thankachan in the afternoon. Since it was raining, he waited<\/p>\n
there for some time. Later, after purchasing milk, he returned home<\/p>\n
at about 3.45 pm. On the way, when he reached Kurumakkad bridge,<\/p>\n
he found the accused standing under the bridge. He was peeping out<\/p>\n
from under the bridge. He thought, the accused was fishing from the<\/p>\n
stream. Later, on coming to know that the school bag of Soorya was<\/p>\n
recovered from a place near to the bridge, he told Thankachan and<\/p>\n
others on 9.10.2002 that he had seen the appellant under the bridge<\/p>\n
on the previous day. He has also deposed that the appellant entered<\/p>\n
the house of one Ravindran, PW6, by removing the roof tiles and<\/p>\n
tried to outrage the modesty of Ravindran’s daughter, two years<\/p>\n
CRA 1710\/05                        9<\/span><\/p>\n
back. Thereafter, the appellant had gone underground and has<\/p>\n
returned only about 5 months back. That was the reason, why he<\/p>\n
doubted the accused and told about sighting him near the bridge at<\/p>\n
the relevant time, to others. He was also extensively cross-examined<\/p>\n
by the defence, but nothing was elicited to discredit his version.<\/p>\n
      12. PW6 was examined to prove that the accused, about two<\/p>\n
years back with reference to the date of the incident in this case, had<\/p>\n
attempted to rape his daughter by entering his house, after removing<\/p>\n
the roof tiles. He stated that because of his concern for the future of<\/p>\n
his daughter, he did not complain about the incident before the<\/p>\n
police. The defence cross-examined him, suggesting that it was a<\/p>\n
false story cooked up by him, but he denied the same.<\/p>\n
   13. PW7 was the witness to Ext.P2 mahazar, as per which MO2<\/p>\n
school bag was recovered from the bushes on the bank of the stream<\/p>\n
called “Pallickal Aar”. He was not cross-examined by the defence.<\/p>\n
PW8 was a witness to Ext.P3 inquest report, prepared by the Sub<\/p>\n
Inspector of Police on 10.10.2002.   PW9 was the witness to Ext.P4<\/p>\n
scene mahazar, prepared by the Investigating Officer. PW10 was the<\/p>\n
doctor, who examined the appellant on 12.10.2002 at about 2 pm. At<\/p>\n
the relevant time, he was the Medical Officer in the Department of<\/p>\n
CRA 1710\/05                            10<\/span><\/p>\n
Forensic Medicine of Thiruvananthapuram Medical College. He<\/p>\n
examined the accused produced by the police and issued Ext.P5<\/p>\n
wound certificate. The said certificate recorded the following injuries<\/p>\n
found on the body of the appellant :\n<\/p>\n
     “1. Contusion 2×1.2 cm on the right side of neck, 5 cm below the
\n     ear.\n<\/p><\/blockquote>\n
     2. Abrasion 1×0.3 cm, oblique, on the top of right shoulder 8 cm
\n     outer to root of neck and overlying the collarbone.\n<\/p><\/blockquote>\n
     3. Abrasion 1.5×0.3 cm. on the right shoulder, 1 cm above the
\n     collarbone and 4 cm inner to the former injury.\n<\/p><\/blockquote>\n
     4. Abrasion 3×0.2 cm oblique, on the left shoulder, across the
\n     collarbone, the upper inner end 2 cm above the collarbone and 5
\n     cm. outer to root of neck.\n<\/p><\/blockquote>\n
     5. Three abrasions 1.5×0.1 cm, 1.8×0.1 cm. and 2×0.1 cm, all
\n     being oblique and parallel to each other, over an area of 3×2 cm,
\n     on the back of right elbow.\n<\/p><\/blockquote>\n
     6. Healing superficial wound 0.4×0.3 cm, oblique, on the back of
\n     right ring finger, across the nail base, it was covered with brown
\n     adherent scab.\n<\/p><\/blockquote>\n
     7. Abrasion 0.4×0.3 cm. on the back of right ring finger 3.5 cm.
\n     below its root.\n<\/p><\/blockquote>\n
     8. Multiple small abrasions, varying in size from 0.2×0.2 cm to
\n     0.6×0.6 over an area of 4×3.5 cm on the front and inner aspect of
\n     right knee.\n<\/p><\/blockquote>\n
     9. Abrasion 0.5×0.2 cm on the front of right leg 6 cm below injury
\n     No.8.\n<\/p><\/blockquote>\n
     10. Multiple small abrasions of sizes varying from 0.2×0.2 cm to
\n     0.5×0.3 cm over an area of 2.5×2 cm, on the top of root of right big
\n     toe.\n<\/p><\/blockquote>\n
CRA 1710\/05                            11<\/span><\/p>\n
       11. Abrasion of 0.6×0.2 cm on the inner aspect of right big toe, 1.5
\n       cm in front of its root.\n<\/p><\/blockquote>\n
       12. Abrasion 0.6×0.2 cm on the inner aspect of root of left big toe.\n<\/p><\/blockquote>\n
       13. Abrasion 1.5×1 cm on the front of left leg 4 cm below the knee.\n<\/p><\/blockquote>\n
       14. Abrasion 0.4×0.3 cm on the front of left leg 15 cm below injury
\n       No.13.\n<\/p><\/blockquote>\n
       15. Abrasion 2×0.1 cm oblique on the back of left forearm, the
\n       lower inner end 16 cm above root of middle finger.\n<\/p><\/blockquote>\n
       16. Abrasion 0.5×0.3 cm on the back of chest 4 cm to the left of
\n       midline and 11.5 cm below the level of top of shoulder.\n<\/p><\/blockquote>\n
       17. Two abrasions 0.5×0.1 cm and 0.6×0.1 cm, 0.5 cm apart, one
\n       below other and horizontal on the back of chest 1.5 cm to the right
\n       of midline and 7 cm below the level of root of neck.\n<\/p><\/blockquote>\n
       18. Abrasion of 0.8.0.5 cm on the back of hip 4.5 cm to the right of
\n       midline and 2 cm below the rim of hip bone.\n<\/p><\/blockquote>\n
       19. Abrasion 0.2×0.2 cm covered with reddish brown adherent
\n       scab on the right side of inner aspect of foreskin, its edges were
\n       swollen.\n<\/p><\/blockquote>\n
              All the abrasions were covered with reddish brown adherent
\n       scab, the contusion was reddish brown in colour.”\n<\/p><\/blockquote>\n
The history and alleged cause of injury recorded in Ext.P5 wound<\/p>\n
certificate is that the appellant sustained them while attempting to<\/p>\n
overpower the girl. The doctor has deposed that the history and<\/p>\n
alleged cause of injury was noted as alleged by the appellant. He<\/p>\n
opined that the injuries found on his body could be caused by the<\/p>\n
struggling victim, at the time of rape and strangulation. The injuries<\/p>\n
found on his private parts may also be caused by the victim, at the<\/p>\n
CRA 1710\/05                           12<\/span><\/p>\n
time of rape. The doctor denied the suggestion that the injuries found<\/p>\n
on the appellant could be caused in a motor-bike accident. The<\/p>\n
witness added that the injuries would have been more severe, if they<\/p>\n
were caused in a bike accident. He was extensively cross examined<\/p>\n
by the defence. But, we find that nothing has been elicited to<\/p>\n
discredit his version. The doctor also examined the appellant and<\/p>\n
gave Ext.P6 potency certificate, in which he has certified that nothing<\/p>\n
is found to take the view that the appellant was incapable of sexual<\/p>\n
act.\n<\/p>\n
      14. PW11 is the doctor, who conducted autopsy on the body of<\/p>\n
the victim and gave Ext.P7 postmortem certificate. She noted the<\/p>\n
following injuries on the body of the deceased :\n<\/p>\n
       “1. On flap dissection of neck under bloodless field, the following
\n      antemortem injuries were noted.\n<\/p><\/blockquote>\n
      a. Contusion 5×1.5×0.4 cm of the front portion of right sterno-
\n      mastoid muscle, 4.3 cm above its lower attachment.\n<\/p><\/blockquote>\n
      b. Contusion 2×0.5×0.2 cm of the front portion of left sternohyoid
\n      muscle at a point 4.6 cm above its lower attachment.\n<\/p><\/blockquote>\n
      c. Contusion of back wall of pharynx 1.5×0.8 cm involving its whole
\n      thickness.\n<\/p><\/blockquote>\n
      Hyoid bone, cartilages and other neck structures appeared normal
\n      except for decomposition changes.\n<\/p><\/blockquote>\n
      2. On examination of the external genitalia, the following<\/p>\n
CRA 1710\/05                           13<\/span><\/p>\n
      antemortem injuries were noted.\n<\/p><\/blockquote>\n
      a. Laceration 3x2x0.5 cm involving the lower meeting point of labia
\n      majora and adjoining part of posterior vaginal wall.\n<\/p><\/blockquote>\n
      b. Contusion 3.2×1.5×0.3 cm of the left lateral wall of vagina 2cm
\n      above its outlet.”\n<\/p><\/blockquote>\n
Ext.P8 is the final opinion given by PW11 regarding the cause of<\/p>\n
death, after receipt of Exts.P11 and P12 FSL reports. As per the<\/p>\n
final opinion, death was caused by the blunt force applied to the neck<\/p>\n
and drowning. PW11 has also stated that rape has been committed<\/p>\n
on the victim. The doctor has deposed that injury Nos.2(a) and (b) in<\/p>\n
Ext.P7 could be caused on account of the possible penetration of<\/p>\n
penis.\n<\/p>\n
      15. PW12 is the Assistant Director, Biology in the Forensic<\/p>\n
Science Laboratory, Thiruvananthapuram. Exts.P11 and P12 FSL<\/p>\n
reports were proved by the said witness. As per the FSL reports,<\/p>\n
blood was found on Item Nos.3 and 4, which were MOs 3 and 4.<\/p>\n
They were the dothi and the shirt of the appellant, recovered as per<\/p>\n
Ext.P15 mahazar, from the house of the accused.                 Though there<\/p>\n
was human blood on those items, it was not possible to do grouping<\/p>\n
for want of sufficient quantity of blood. PW13 is the Village Officer,<\/p>\n
who prepared Ext.P13 site plan. PW14 is an independent witness,<\/p>\n
CRA 1710\/05                       14<\/span><\/p>\n
who witnessed the recovery of MO1 blouse of the victim under<\/p>\n
Ext.P14 mahazar. He stated that on a Sunday at about 8.30 am,<\/p>\n
while he was coming back from the market, he saw Police and the<\/p>\n
accused, standing on Kurumakkad Bridge. He also stood there, on<\/p>\n
seeing the police.   The police, along with the appellant, moved<\/p>\n
towards the north. Out of curiosity to know what was happening, he<\/p>\n
also followed them. He found that in the nearby land, wild grass was<\/p>\n
growing. The accused from under the grass, took the dress of a<\/p>\n
child. He watched the same. It was a blue coloured blouse. Its hands<\/p>\n
had golden lace. He identified MO1 blouse as the one recovered on<\/p>\n
the said day. Though he was cross examined suggesting that he is<\/p>\n
speaking falsehood, we think, nothing has been brought out to<\/p>\n
disbelieve the witness.\n<\/p>\n
      16. PW15 was the person, who witnessed the recovery of MO3<\/p>\n
dothi and MO4 shirt from the house of the accused under Ext.P15<\/p>\n
mahazar. PW16 was the Police Constable, who received the<\/p>\n
deadbody after inquest and took it to the Medical College,<\/p>\n
Thiruvananthapuram for postmortem examination. After the autopsy,<\/p>\n
he released the body to the relatives. PW17 was the Sub Inspector of<\/p>\n
Police, who recorded Ext.P1 F.I. statement, for the missing of Soorya<\/p>\n
CRA 1710\/05                              15<\/span><\/p>\n
and also registered a crime for man-missing as per Ext.P16 FIR.<\/p>\n
PW18 was the Circle Inspector of Police, at the relevant time, who<\/p>\n
conducted major part of the investigation. He caused the conduct of<\/p>\n
preparation of the inquest report and sent the body for postmortem<\/p>\n
examination. He questioned the witnesses and recovered MOs 1 to<\/p>\n
4. MO1 blouse was recovered, based on Ext.P14(a) confession<\/p>\n
statement. The relevant portion of the said confession statement, on<\/p>\n
translation, would read as follows :\n<\/p>\n
             “While returning home, I placed the blouse under the grass
\n      in the land belonging to Kunhikrishnan, Kizhakke Chakkur House. If
\n      I am taken there, I will take out the blouse from there.”<\/p><\/blockquote>\n
      17. Based on Ext.P15(a) information, MO3 dhoti and MO4 shirt<\/p>\n
were recovered from the house of the accused under Ext.P15<\/p>\n
mahazar. Based on the materials disclosed, PW18 filed Ext.P17<\/p>\n
report    before the learned Magistrate, incorporating the offences<\/p>\n
punishable under Sections 376 and 302 IPC. PW19, the successor<\/p>\n
Circle Inspector of Police, completed the investigation, verified the<\/p>\n
charge and laid the final report before the               Judicial First Class<\/p>\n
Magistrate’s Court, Adoor. The learned Magistrate committed the<\/p>\n
case for trial by the Sessions Judge, as the offences disclosed were<\/p>\n
exclusively triable by the Court of Sessions.\n<\/p>\n
CRA 1710\/05                         16<\/span><\/p>\n
      18. Going by the deposition of the above witnesses, we do not<\/p>\n
find any vitiating circumstance to disbelieve any of the witnesses.<\/p>\n
The contention of the learned counsel for the appellant is that MO1<\/p>\n
was recovered under Ext.P14, at the time of the second round of<\/p>\n
questioning and therefore, the same is not reliable. The doubt raised<\/p>\n
by him regarding the recovery of MO1 cannot be accepted. We find<\/p>\n
no reason for the police to falsely implicate the appellant in this case<\/p>\n
by sparing the real culprit. But, the point to be considered is whether<\/p>\n
the facts unfolded before the Court were sufficient to sustain the<\/p>\n
conviction against the appellant. According to the learned counsel for<\/p>\n
the appellant, the chain of events proved, are not sufficient to say<\/p>\n
that it was the accused, who committed the crime. We notice that<\/p>\n
MO1 was recovered under Ext.P14, from a “purayidom”(dry land),<\/p>\n
which is not frequented by people. Wild grass was growing there.<\/p>\n
MO1 blouse was hidden under the grass. The deadbody recovered<\/p>\n
was naked. PW2, the lady in the neighbourhood, PW3, with whom<\/p>\n
the victim was staying and PW4, the schoolmate of the victim have<\/p>\n
identified MO1 as the blouse worn by the victim on the fateful day.<\/p>\n
PW1 has stated that MO1 was the blouse belonging to the victim.<\/p>\n
CRA 1710\/05                       17<\/span><\/p>\n
When the deadbody of the victim was found naked and it was proved<\/p>\n
that she was raped, strangulated and later thrown into the river,<\/p>\n
which caused her death and the accused produced MO1 from a<\/p>\n
hidden place, it can be safely inferred that it was the appellant, who<\/p>\n
committed the crime. Otherwise, he should come up with a proper<\/p>\n
explanation as to how MO1 blouse came to his hand and why he hid<\/p>\n
it under the grass. We find that he has not given any explanation<\/p>\n
whatsoever, for hiding MO1 blouse under the grass in a “purayidom”<\/p>\n
near the scene of occurrence. The medical evidence, concerning the<\/p>\n
injuries on the body of the appellant including those on his penis,<\/p>\n
would further corroborate the case of the prosecution. He sustained<\/p>\n
the injuries, which could be caused by the victim, while struggling to<\/p>\n
save herself. Going by the medical evidence, he has given a false<\/p>\n
explanation for the injuries sustained by him. So, the presence of<\/p>\n
injuries on the body of the appellant, for which a false explanation<\/p>\n
has been given by him, is a very strong circumstance against him.<\/p>\n
Further, the presence of the victim and the appellant, at the scene of<\/p>\n
occurrence at the relevant time on the fateful day, is also spoken to<\/p>\n
by independent and reliable witnesses. We feel that the prosecution<\/p>\n
can be asked to prove, only what it can prove. We cannot ask them<\/p>\n
CRA 1710\/05                        18<\/span><\/p>\n
to prove the impossible. The appellant committed the crime stealthily,<\/p>\n
unnoticed by others. Normally, a crime of rape will be committed,<\/p>\n
only in such a situation. We think that the recovery of naked<\/p>\n
deadbody of the victim and the recovery of MO1 blouse, coupled with<\/p>\n
the proof of injuries on the body of the appellant, are sufficient to hold<\/p>\n
that it was the appellant, who committed the crime. The medical<\/p>\n
evidence proved beyond doubt that the victim died of blunt force<\/p>\n
applied on the neck and drowning. It also shows that she was<\/p>\n
subjected to rape. So, the death of the victim is homicide and it is the<\/p>\n
appellant, who committed the crime. So, even after eschewing from<\/p>\n
consideration, the extra judicial confession made by the appellant to<\/p>\n
the doctor, while in police custody, we are of the view that the<\/p>\n
remaining evidence is sufficient to sustain the conviction. In the<\/p>\n
result, we find no merit in the appeal and accordingly, it is dismissed.<\/p>\n
\n\n\n\n\n                                   K.BALAKRISHNAN NAIR, JUDGE\n\n\n\n\n                                   P.BHAVADASAN, JUDGE\n\nsta\n\nCRA 1710\/05    19\n\nCRA 1710\/05    20\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ajayan @ Rajan vs State Of Kerala on 5 October, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1710 of 2005() 1. AJAYAN @ RAJAN, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :SRI.GRASHIOUS KURIAKOSE For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice K.BALAKRISHNAN NAIR The Hon’ble […]<\/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-37298","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAjayan @ Rajan vs State Of Kerala on 5 October, 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\/ajayan-rajan-vs-state-of-kerala-on-5-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajayan @ Rajan vs State Of Kerala on 5 October, 2009 - 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