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STATE OF KERALA v. SEBASTIAN @ CHEVATHIYAN - CRL A No. 1405 of 2003  RD-KL 891 (26 September 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRL A No. 1405 of 2003()
1. STATE OF KERALA, REPRESENTED BY THE
1. SEBASTIAN @ CHEVATHIYAN,
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.V.B.PREMACHANDRAN.STATE BRIEF.
The Hon'ble MR. Justice K.S.RADHAKRISHNAN The Hon'ble MR. Justice K.PADMANABHAN NAIR
O R D E R
K.S.RADHAKRISHNAN & K. PADMANABHAN NAIR ,JJCrl. Appeal.NO.1405 of 2003 Dated, this the 26th day of September, 2006
Padmanabhan Nair, J.The appellant State is challenging the acquittal of the respondent accused in S.C.No.705/2002 by the learned Sessions Judge, Thiruvananthapuram.
2. The respondent was charge sheeted by the Circle Inspector of Police, Poonthura alleging that he committed the offences punishable under Sections 363, 376, 379, 302 and 201 of Indian Penal Code. The allegation against the respondent was that at or about 12.45 p.m. on 25.12.2001, a Christmas day, the accused kidnapped Salini aged 7 years, the daughter of PW1 from his lawful guardianship and took her into the church building. He committed rape on her and thereafter killed her. The prosecution case was that the accused strangulated Salini using MO4 towel and committed theft of the ear rings worn by her. It was also alleged that he had concealed the dead body under an asbestos sheet in the second storey of the bell tower of church in which the church bell was fitted. PW1 is a fisherman by profession and at the relevant time employed at Kochi. PW1 married the mother of the deceased. The deceased Salini was born to them in the wed lock. She had a brother by name Savu. The mother of Salini died. Thereafter PW1 married PW6. In that wedlock also two children are born. Salini and her Crl.Appeal No.1405/2003 -:2:- brother were residing with their grandmother. Occasionally she came and stayed with PW6 also. PW1 came to the house from Kochi on 25.12.2001 at about 3 p.m.. He sent PW6 to bring Salini and her brother. PW6 came back and informed PW1 that Salini was not in the house of her grandmother. She also told PW1 that the grandmother of the deceased was searching for Salini from noon onwards. PW1 also started searching for Salini. But her whereabouts could not be found out. At about 11 p.m. PW1 went to the Police Station and gave Ext.P1 statement in which he had stated that Salini was missing from 12 noon on 25.12.2001. PW17 recorded the F.I. Statement and registered Ext.P1(a) FIR under the caption 'man missing'. PW18 took over the investigation on the same night. At 7 a.m. on 26.12.2001 he arrested the accused and questioned him. During interrogation the accused confessed that he murdered the girl and concealed her body in the bell tower of the church. The accused led the police party to the church. In pursuance of the information furnished by him the dead body of Salini was found. PW18 the Circle Inspector of Police prepared Ext.P7 inquest report between 8 - 10.30 a.m.. Thereafter the dead body was taken to the Medical College Hospital, Thiruvananthapuram for conducting postmortem. PW12 the Associate Professor and Police Surgeon conducted postmortem on the body of Salini and issued Ext.P13 postmortem certificate. PW18 prepared Ext.P8 scene mahazar. The accused also confessed that he had concealed the towel used for commission of the Crl.Appeal No.1405/2003 -:3:- offence near the bottom of a coconut palm. He took the police party to the place where he concealed the towel. MO4 towel was recovered in pursuance of the information furnished by him. The accused also confessed of having committed the theft of the ear rings worn by the deceased. He sold the same to PW4. In pursuance of the information furnished by the accused MO3 series ear rings were also seized. Witnesses were questioned. When the investigation was over PW18 filed the final report before the Judicial First Class Magistrate II, Thiruvananthapuram. The learned Magistrate after observing the formalities committed the case to the Sessions Court, Thiruvananthapuram for trial and disposal. The respondent was in custody. The accused was produced before the learned Sessions Judge. Since the respondent did not engage a counsel for his choice, Adv. Smt. Ragini A.L. was appointed as a counsel on State Brief to defend him.The learned Sessions Judge framed the charges under Sections 363, 376, 379, 301 and 201 of Indian Penal Code after hearing both sides. Charges were read over and explained to the accused. He understood the same and pleaded not guilty. On the side of prosecution PWs 1 to 18 were examined. Exts.P1 to P19 proved and marked. MOs 1 to 10 identified. After the evidence was over the respondent was questioned under Section 313 of Criminal Procedure Code. He denied all the incriminating circumstances brought against him. The case was posted for defence evidence. No defence evidence was adduced. The learned Crl.Appeal No.1405/2003 -:4:- Sessions Judge after hearing both sides found the respondent not guilty of the offences charged against him and acquitted him. Challenging that acquittal the State has filed this Criminal Appeal.
3. Before this Court also the respondent did not engage a counsel of his choice. It was reported that he is still under judicial custody in connection with some other cases of similar nature. Notice was served on the respondent through the Superintendent of Central Prison and Advocate Shri V.B.Premachandran was appointed as counsel on State Brief to defend the respondent. We heard Public Prosecutor Shri Sujith Mathew Jose and Advocate Shri V.B.Premachandran, counsel appearing for the respondent.
4. The learned Public Prosecutor has strenuously argued before us that the learned Sessions Judge erred in acquitting the accused. It is argued that the learned Sessions Judge misread the evidence and made severe factual mistakes while discussing the evidence of various witnesses. It is argued that the reason stated for rejecting the discovery of material objects such as MO3 series ear rings and MO4 towel are flimsy and without any basis. It is also argued that the the reasoning of the learned Sessions Judge that even before the arrest of the accused the prosecution witnesses were aware of the fact that the accused committed the offence and concealed the dead body in the bell tower of the church is not based on any legal or acceptable evidence. It is also argued that the learned Sessions Crl.Appeal No.1405/2003 -:5:- Judge committed illegality in relying on the statement under Section 161 of Criminal Procedure Code without marking those contradictions. It is argued that the court below ignored the scientific evidence. It is argued that the presence of the fiber of the cloths of the accused and presence of blood in the nail clippings of the deceased were not considered. It is contended that the significance of the presence of nail marks on the face, neck and upper chest of the accused, etc. were also not considered. It is argued that the fiber of the ligature taken from the neck and that of MO4 towel were identical. It is argued that the Sessions Judge discarded material evidence without assigning any reason.
5. Advocate Shri V.B.Premachandran, the counsel appearing for the respondent accused has argued that there is absolutely no material to connect the respondent to the offences alleged against him. It is argued that the evidence of PWs 2 and 3 even if accepted in toto will not help the prosecution to prove the guilt of the respondent. Their evidence is contradictory and mutually destructive. It is argued that the evidence of PW9 disproves the entire prosecution case. The discoveries were not properly proved and hence the learned Sessions Judge was perfectly justified in acquitting the accused.
6. Following are the points raised by the court below for consideration:
"(1) Whether the accused kidnapped Salini aged 7 from her lawful guardian? Crl.Appeal No.1405/2003 -:6:- (2) Whether the accused committed sexual intercourse with Salini? (3) Whether the accused intentionally killed Salini? (4) Whether the accused has intentionally taken away MO.3 series from the ears of Salini? (5) Whether the accused concealed the dead body with intention to disappear the evidence? (6) Whether the accused have committed any offence, if so, what is/are the offence? (7) Sentence or order."
7. The learned Sessions Judge had stated that he had considered all the points together. But a reading of the judgment shows that the learned Sessions Judge has not considered points 1 to 3 at all. This is a case of rape, murder and theft. The prosecution has also got a case that the deceased was kidnapped. So the essential points to be proved is whether Salini, a girl aged 7 years was raped and whether she died. The next question to be considered was whether it was a case of homicide. Unless it is established that the death of Salini was a homicide, the respondent cannot be called upon to answer the charge. Unfortunately the learned Sessions Judge has not considered whether Salini was raped and murdered. There is absolutely no discussion as to whether it is a case of homicide, suicide or natural death. There is also no finding to the effect that Salini was raped. The Crl.Appeal No.1405/2003 -:7:- court below straight away proceeded to consider the oral evidence in the case and acquitted the accused. This is a serious illegality committed by the learned Sessions Judge.
8. The court below had taken the view that there are material contradictions in the evidence of PWs 2 and 3. It was held that PW2 gave evidence to the effect that PW1 went to his house and brought the photograph of Salini when he wanted to see her photograph. It was held that PW3 gave evidence to the effect that PW1 got the photograph from his mother. PW2 had not stated that PW1 went to the house and brought the photograph. On the other hand the evidence of PWs 2 and 3 during chief examination was identical. Both of them said that the photograph was brought ( No further question was put to PW2 either by the Prosecutor or the defence lawyer. When a question was put to PW3, he answered that when he asked a photograph of missing girl PW1 went near his mother and got the photograph from her. So the finding of the court below that there are material contradictions in the evidence of PWs 2 and 3 on this aspect is not supported by any law. The court below did not consider the evidence of PWs 2 and 3 regarding the description of the dress worn by the girl when they saw her in the morning and the description of the dress of the deceased girl given in the inquest report. Crl.Appeal No.1405/2003 -:8:-
9. The court below has not considered the evidence adduced by the prosecution regarding discovery of dead body and towel. The learned Sessions Judge relied on a statement contained in the statement of PW9 recorded under Section 161 of Criminal Procedure Code to discredit his evidence. PW9 is the Vicar of the church. He was not confronted with the statement recorded under Section 161 of Criminal Procedure Code at all. PW9 deposed that on 26.12.2001 at about 7.30 a.m. when he was at Bishop' house at Vellayambalam he got a telephone message about the incident and he came to the church at or about 8.30 a.m. Then the people present in the church told him about the incident. But the learned Sessions Judge had held that the Assistant Vicar contacted PW9 over telephone at 7 a.m. and told him that on the previous day the accused raped a girl and murdered her. There is no such evidence. All that PW9 stated in the chief examination was that he got a telephone message. Nobody asked him as to who telephoned to him. On the other hand when a question was put to PW18 to the effect that information was given to PW9 by the Assistant Vicar at 7 a.m. the answer was that if the information was received after 7.30 a.m. it will be correct. PW9 also deposed that he got information about the incident at or about 7.30 a.m. The accused was arrested at 7 a.m. and questioned . PW14 the Scientific Assistant deposed that at 7.15 a.m. the information was received at the Office of the Police Commissioner and he went to the place of occurrence at 7.30 a.m. He Crl.Appeal No.1405/2003 -:9:- reached the place of occurrence at 8 a.m. In this connection it is to be noted that the inquest of the dead body was started at 8 a.m. and over at 10.30 a.m. The fact that the inquest of the dead body began at 8 a.m. would necessarily indicate that some time before 8 a.m. the police party along with the accused came to the place. So the evidence of PW9 that he came to know about the incident at 7.30 a.m. appears to be probable. So the reason stated by the learned Sessions Judge for discarding the evidence adduced by the prosecution to the effect that the dead body was not found in pursuance of the information furnished by the accused is flimsy and unsustainable. Equally unsustainable is the reasoning given by the learned Sessions Judge for discarding the discovery of MO3 ear rings. In Ext.P1 F.I. Statement PW1 stated that the deceased was wearing gold ear rings weighting half a sovereign. The pieces of ear rings were recovered from the shop of PW4. The weight of MO3 series was 1.300 grams. Nobody put any question either to PW1 or to PW6 regarding the difference in the weight. PW1 identified MO3 series and deposed that that was the part of the ear rings worn by the deceased. PW6 the stepmother of the deceased also gave evidence to the effect that MO3 was the ear rings worn by the deceased. The evidence of PWs 1 and 6 regarding identification of the ear rings were not challenged during their cross-examination. The ear rings were broken into pieces. Some portion was missing. So in the absence of evidence, the reasoning of the learned Sessions Judge that due to the Crl.Appeal No.1405/2003 -:10:- difference in the weight the discovery of MO3 series cannot be relied on is wrong. Another reason stated by the learned Sessions Judge for discarding the recovery is that in the seizure mahazar it was stated that the shop is having no name. It is true that PW4 gave evidence to the effect that the name of his shop was 'Rajalakshmy Jewellery Works'. PW4 was not asked whether he was displaying any name board in the shop. The shop may have a name but that does mean that a name board in which the name of the shop written was also displayed. PW5 who is an attester to the seizure mahazar deposed that while he was standing in front of Rose milk shop the police party came and he went to the shop of PW4. He also gave evidence to the effect that the shop of PW4 had no name. PW4 identified MO3 series as the portion of the ear rings sold to him by the accused. He deposed that when he purchased the same a portion of an ear ring was missing. The court below had not considered the evidence of PWs 4 and 5 before discarding the discovery of MO3 series.
10. Ext.P17 medicolegal certicificate issued by PW16 after examining the accused immediately after arrest shows that PW16 had noted as many as 16 injuries on the person of the accused. All of them were found on the face, neck and upper part of the chest. The prosecution case was that those injuries were caused while the deceased resisted the attempt to rape and that those injuries were caused by nail. Blood was noted in the nail clippings of the victim. The Crl.Appeal No.1405/2003 -:11:- prosecution has also got a case that few of the fibers found on the right hand of the deceased and the fibers of the dress of the accused were similar. The court below has not discussed this evidence and considered its relevancy at all. The fiber of the ligature found on the neck portion of the deceased were identical to the fiber of MO4 towel as can be seen from Ext.P18 chemical analysis report.
11. The court below rejected the prosecution case on an admission made by PW18 Investigating Officer that he does not know whether the entire incident took place inside the church. The mere fact that the Investigating Officer deposed that he does not know where exactly the incident took place is not a ground to discard the entire prosecution case. Even assuming that there is some defect in the investigation that is not a ground to acquit the accused. The learned Sessions Judge has a duty to consider the entire material on record and take a decision. The evidence discussed above clearly shows that there is misreading of the evidence and there is total failure to appreciate the evidence from its proper perspective.
12. There is yet another aspect. The prosecution mainly relies on circumstantial evidences. According to the prosecution the presence of fiber found on the neck of the victim and MO4, the presence of blood in the nail clippings of the deceased and the injuries found on the person of the accused are relevant materials pointing out the guilt of the accused. But those evidence was Crl.Appeal No.1405/2003 -:12:- not specifically put to the accused while he was questioned under Section 313 of Criminal Procedure Code. Of course, the learned Sessions Judge put a large number of questions to the accused, but these matters also ought to have put to the accused as those circumstances were also relied on by the prosecution.
13. There is yet another serious illegality. The proceedings paper shows that the prosecution evidence was over on 13.1.2003. The case was posted for questioning the accused under Section 313 of Criminal Procedure Code to 16.1.2003. On 16.1.2003 the proceedings paper reads as follows - "Accused is produced. Questioned u/s.313 Cr.P.C. For defence evidence 21.1.2003". On 21.1.2003 the proceedings paper reads as follows - "Accused is produced. No defence evidence. For hearing 25.1.2003". On 25.1.2003 the proceedings paper reads as follows - "Accused is produced. Counsel for the accused applied for time. Adjourned". A reading of the proceedings paper shows that the learned Sessions Judge did not hear the prosecution and accused under Section 232 of Criminal Procedure Code.
14. It is trite law that compliance under Section 232 of Criminal Procedure Code is not an empty formality. In State of Kerala v. Aboobacker (ILR 2006 (3) Ker. 672) a Division Bench of this Court to which my learned brother was a party had considered the effect of non-compliance of Section 232 of Criminal Procedure Code. It was held that the non-compliance is fatal. There is Crl.Appeal No.1405/2003 -:13:- non-compliance of Section 232 of Criminal Procedure Code also. The illegalities and infirmities pointed out by us shows that the acquittal of the accused by the learned Sessions Judge was on very flimsy and irrelevant grounds and liable to be set aside. We are of the view that the case has to be proceeded from the stage of Section 313 of Criminal Procedure Code. For that purpose the case has to go back. In the result, the Criminal Appeal is allowed. The acquittal of the accused is set aside and the case is remanded to the Court of Sessions for fresh disposal in accordance with law. The learned Sessions Judge is directed to take S.C.No.705/2002 back to file and dispose of the same afresh from the stage of Section 313 of Criminal Procedure Code onwards in accordance with law. If the accused is under judicial custody the learned Sessions Judge shall secure the presence of the accused on receipt of the records and dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. K.S.RADHAKRISHNAN,
JUDGEK. PADMANABHAN NAIR
JUDGECrl.Appeal No.1405/2003 -:14:- cks
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