IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941
CRL.A.No. 1079 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 161/2009 of ADDITIONAL DISTRICT
COURT SESSIONS COURT – I, KALPETTA DATED 25-06-2014
APPELLANT/ACCUSED:
AYYPPANKUTTY
AGED 49 YEARS, S/O.AYYAPPAN,
KAPUKUZHIYIL HOUSE, PUTHUR, VALAD,
MANANTHAVADY TALUK, WAYANAD DISTRICT.
BY ADV. JOSEPH JERARD SAMSON RODRIGUES(STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(REP. BY S.I. OF POLICE, THALAPUZHA POLICE STATION
(CRIME NO.145/2008) REP. BY STATE PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2019,
THE COURT ON 11.04.2019 DAY PASSED THE FOLLOWING:
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JUDGMENT
Ashok Menon, J.
The appellant is the accused in S.C.No.161/2009 on
the file of Additional Sessions Court-I, Kalpetta
challenging judgement of the trial court convicting
the accused for uxoricide, punishable under Section 302
and 449 of Indian Penal Code, sentencing him to undergo
imprisonment for life and to pay a fine of Rs.20,000/-,
in default to undergo rigorous imprisonment for one
year under Section 302 and to undergo rigorous
imprisonment for 10 years and to pay a fine of
Rs.10,000/-, in default to undergo rigorous
imprisonment for six months under Section 449.
2. “Marriage is that relation between man and
woman in which independence is equal, dependence is
mutual and the obligations reciprocal”-Louis K.
Anspracher.
3. The prosecution case is that of an interfaith
love marriage going sour with the passage of time,
ending in a gruesome murder. The appellant, a Hindu by
birth, married Lilly, a Christian, after falling in
love with each other, about two decades ago, and begot
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a son in the wedlock. The couple fell out and started
living separately, three years prior to the occurrence.
Their son, however, continued residing with the
accused. It is the prosecution case that Lilly was
constantly harassed, ill-treated and subjected to
physical and mental cruelty, by the accused. Criminal
cases were also filed against the appellant by the
deceased. Ext.P13 is the copy of one such complaint in
M.C.No.6/2007 filed by the deceased under the
provisions of Protection of Women from Domestic
Violence Act, and Ext.P14 is the order of the
Magistrate in that petition, granting a protection
order and restraining the accused from entering the
house where the deceased resided alone. Maintenance at
the rate of Rs.1,000/- per month was also directed to
be paid to her. Yet, the appellant failed in complying
with the order to pay maintenance. Ext.P15 is another
complaint filed by her, accusing the appellant of an
offence punishable under Section 498A of the I.P.C. and
Exts.P15 and P16 are copies of the complaint and F.I.R.
in Crime No.111/2007 against the accused. PW19 is the
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Junior Superintendent of the JFCM-I, Mananthavady, who
on request made by the investigating officer issued
Exts.P13 to P16.
4. Lilly intended to approach the Court for
executing the order of maintenance. Appellant peeved
with the matrimonial litigations against him,
threatened to liquidate her. Nursing this grouse
against his wife, and to accomplish his motive, on
28.08.2008 at about 11.15 p.m., the appellant allegedly
trespassed into the house, where Lilly was staying, and
attacked her brutally with MO1 chopper, which he had
got whetted, a couple of days ago, for the purpose by
PW11 a blacksmith, causing fatal injuries to her.
5. Ext.P11 autopsy report prepared by PW16, the
Police Surgeon, describes the injuries as thus:-
“1. Incised wound (slash) 19×2 cm, arch shaped, convexity
upwards, over left side of head. Front end 3 cm outer to
orbit, back end 4 cm above occiput. Upper margin coursed
upwards reaching 3 cm each below frontal and parietal
eminenaces; lower margin showed a bifurcation curved down 7
cm long 5 cm behind mastoid (11 cm behind – front end).
There was a tag of skin 2.5 cm long at middle portion of
lower border. This wound showed bevelling down and to right
with flap directed obliquely downwards with edges showing
mild contusion, hair along the edges seen cut. Underneath the
skull showed a transverse cut 9 cm long, with bevelling
directed down and to right. The cut involved the entire
thickness of left tempero parietal bones and involved the
dura and left temporal lobe showed a transverse cut 8×0.3×0.5
cm. Diffuse thin subarachnoid haemorrhage present at left
front temporo parietal region.
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2) Incised wound (slash) 11×1 cm transverse at left side of neck
front end at angle of jaw (produced a cut fracture of ramus
underneath) coursed 1 cm below left ear lobule back end was
at back of neck 2 cm left to midline. No bevelling edges
showed mild contusion. Back end was more deep (5 cm) reached
the left half of posterior cranial fossa.
3) A cresentic superficial incised wound 1.5×0.1×0.1 cm with
convexity directed upwards and back, over left zygoma 1 cm
infront of left tragus.
4) Incised wound 5×3 cm with full thickness scalp avulsion, at
vertex of head with a tail 1 cm at outer margin of back right
end. Hair seen cut and margins showed minimal contusion.
5) Incised wound 8×0.8×0.8 cm at top of head front end was 15 cm
above root of nose and 1 cm left to midline. Back end was 2
cm above parietal eminence (right) margins showed contusion,
hair seen cut and skull underneath (parietal bones) showed a
nick.
6) Incised wound (slash) 15×3 cm, over right side of face and
neck, almost transverse, front end 5 cm right to midline at
lower end of zygoma, back end was at back of neck 2 cm right
to midline and 3 cm above root of neck. Edges showed
bevelling directed downwards and left with minimal contusion.
Upper margin had passed through zygomatic arch cut the lobule
and helix of right ear for 4 cm then passed through under
aspect of mastoid to back of neck, lower margin had ear
lobule and portion of pinna attached to it. Back end showed
a bifurcation 0.5 cm long. In depth the right angle of jaw
showed a cut, also the soft tissues and muscles involved.
The wound edges showed bevelling downwards and to left the
minimal contusion. Scalp hair 4 cm behind mastoid seen cut
at edges of wound. Depth of back half was more.
7) Superficial incised wound 3 cm over left palm 0.5 cm inner
and parallel to hypothera eminence.
8) Linear contused abrasion 2 cm, obliquely, back of right
shoulder blade, upper inner end was 5 cm below shoulder and 5
cm right to midline.
9) Linear contused abrasion 2.5 cm oblique at back of root of
neck, upper inner end was 4 cm left to midline.”
6. The Surgeon opined that the death was due to
multiple incised wound with a heavy cutting weapon
involving head and neck. He also supports the
prosecution version that the injuries could be caused
by a weapon like MO1.
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7. There were no eye witness to the occurrence.
PW7 Tomy, who is the area committee member of CPI(M)
was engaged in a meeting in the party office, that
night when he received a telephone call from
Thalappuzha Police Station about the occurrence, and by
about 11.30 p.m., he met the accused, who had come to
the party office to inform that he has done away with
his wife. On coming to know about the occurrence, PW7
immediately informed the Police about the confession
made by the accused to him. Thereafter, he called PW1,
the brother of the deceased, over the phone and
intimated him about the occurrence. PW1 admits having
got the call from PW7 and rushed to the scene of
occurrence to find Lilly lying dead in a pool of blood.
PW1 went to the Thalappuzha Police Station and gave
Ext.P1 F.I.Statement, on the basis of which PW20, the
ASI of Police on duty at the Station, registered
Ext.P1(a) FIR, as Crime No.145/2008.
8. PW22, the Circle Inspector of Police,
Mananthavady conducted the initial investigation. He
went to the scene of occurrence and conducted inquest
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and prepared Ext.P6 report as witnessed by PW7. He also
prepared Ext.P4 scene mahazar witnessed by PW4.
Thereafter, he sent the body for post-mortem. PW21,
the successor-in-office of PW22, completed the
investigation and filed final report under Section
173(2) of the Cr.P.C. before the Judicial First Class
Magistrate’s Court-I, Mananthavady, for offences
punishable under Sections 449 and 302, I.P.C. against
the accused, which was taken cognizance of as
C.P.No.13/2009, and after due compliance of the
formalities under Sections 207 and 209, Cr.P.C., the
case was committed for trial to the Court of Sessions,
Kalpetta.
8. The accused appeared and pleaded not guilty to
the charges framed and read over to him by the Court,
and faced trial.
10. The prosecution evidence consists of the oral
testimonies of PW1 to PW22 and Exts.P1 to P22. The
material objects were identified as MO1 to MO16.
11. The above stated prosecution version is
narrated in detail by PW1, the brother of the deceased,
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and other witnesses. The couple were not in cordial
terms and lived separately. The accused allegedly had
illicit relationship with Philomina, the younger sister
of Lilly, and frequented her house. This led to
disharmony in their relationship, followed by frequent
quarrels between them. Distraught with the clandestine
relationship, Philomina’s husband committed suicide.
The accused was violent in the behaviour towards his
wife, and once, broke the doors of her house in
vengeance, about which, she made a complaint. In
retaliation, she was brutally beaten up by the accused,
and he also poured liquor into her mouth, by force. She
was admitted for treatment in the Medical College
hospital, for a fortnight. Testimony in support of
this assault is given by PW1 and also by PW6, the elder
sister of the deceased. Apart from them, PW2 Lilly’s
nephew, and her neighbours PW3, PW4 and PW9, also
testify about the troubled relationship of the couple
and their frequent rows over the extra-marital affair.
The neighbours, the other siblings of the deceased, as
also PW7, intervened in mediating the dispute between
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the deceased and the accused, have all spoken to about
the threats to life of Lilly, held out by the accused.
PW2 speaks of such a mediation that ensued in setting
apart of five cents of property exclusively for Lilly
to construct a house and reside.
12. PW2 and PW3 testified about witnessing seizure
of MO1 to MO12, vide Exts.P2 and P3 seizure mahazars.
Apart from witnessing the preparation of Ext.P4 scene
mahazar, PW4 is also a witness to the recovery and
seizure of gold chain identified as MO13 and Rs.9,000/-
in cash identified as MO14, from the house of PW5, as
per Ext.P5 seizure mahazar, based on disclosure made by
the accused. PW5 is also a witness to Ext.P5 mahazar.
But he turned hostile and denied the prosecution story
about the accused having entrusted him with MO13 to
MO15. PW6 and PW9 also identified MO9 and MO13 as the
gold cross and gold chain worn by the deceased.
13. PW7 is a person, who got to know about the
occurrence in the first instance. He is an area
committee member of the CPI(M) and states that he had
intervened to resolve the strained relationship between
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the deceased and the accused and it is in accordance
with the mediation talk that the couple decided to
reside separately. He states about how in a fit of
anger, the accused had once destroyed the doors of the
house belonging to the deceased. He also was aware
that there was a decree to pay maintenance to the
deceased by the Court. He was engaged in a committee
meeting in his party office, when he received a
telephone call from the Thalappuzha Police Station,
enquiring about the deceased and informed him about the
occurrence. A short while thereafter, by about 11.30
PM, the accused approached him at the party office, and
informed him that he has done away with his wife. PW7
informed this to the police and also to PW1. Apart from
being an attestor to Ext.P6 inquest report, he has
witnessed the seizure of MO1 to MO8.
14. PW8 is the son of the deceased and the accused.
He was residing with his father. He admits that the
couple used to quarrel frequently and that on the date
of occurrence his father did not return home.
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15. PW10 is a nun and the Director of
S.H.Snehalayam, Kattimoola. She testifies that after
having fallen out with her husband, the deceased had
sought shelter in her institution for about 3 to 4
months.
16. PW12 and PW13 are jewellers, who testify that
they had weighed MO9 and MO13 gold ornaments
respectively, at the request of the investigating
officer. PW14 is a Police Constable and attester to
Ext.P7 mahazar prepared for the handing over of MO16 CD
and Ext.P8 photographs clicked by PW17, the
photographer. PW15 is the Village Officer, who prepared
Ext.P9 site plan on request made by the investigating
officer and also issued Ext.P19 Possession Certificate.
Secretary of the Grama Panchayat is PW18, who issued
Ext.P12 ownership certificate. Ext.P17 is the report of
the Forensic Science Laboratory produced by the
investigating officer. PW22 produced the material
objects as per the property lists marked as Exts.P20 and
P21, and filed Ext.P22 forwarding note for sending the
material objects for chemical examination.
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17. On closure of the evidence, the accused was
questioned under Section 313, Cr.P.C. He denied the
entire incident and also filed a written statement
pleading innocence, and that at the instance of his
brother-in-law and other members of his deceased wife’s
family, a false case has been foisted against him. He
denies making any disclosure,recovery or seizure of any
incriminating articles through him as alleged by the
prosecution. The trial court did not find the case fit
for acquittal under section 232 Cr.P.C. No defence
evidence was adduced by the accused on being given the
opportunity to do so.
18. The circumstantial evidence relied upon by the
trial court to hold the accused guilty, is; Motive,
Extra-Judicial Confession, Disclosure statement of the
accused leading to recovery of the incriminating
articles, medical evidence and other corroborative
evidence.
19. The learned Counsel for the appellant questions
the impugned judgment on the ground that material
witnesses supporting the prosecution version examined
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as PW1, PW2 and PW6, who are all relatives of the
deceased. PW7 and PW9 are neighbours, but their
testimony do not inspire confidence. It is further
pointed out that reliance placed by the trial court on
the testimony of PW6, the sister of the deceased, who
testifies regarding her having seen the accused coming
out of the house of the deceased in the evening, is not
believable, because she allegedly saw the accused
between 5.00 to 5.30 PM on the date of occurrence
coming out of the house of the deceased. Admittedly,
the accused and the deceased were living separately and
therefore there is no possibility of the accused to go
into house of the deceased and if PW6 had seen him, she
would immediately have questioned him about the reason
why had gone there. It is also suspicious for another
reason, because PW6 would say that she had gone to the
bank for collecting her title deed deposited there, in
the morning, and she claims to have returned only past
5.00 o’clock to see the accused coming out of the house
of the deceased. It is highly improbable that she was
held up in the bank till the evening. Hence, her
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testimony is highly suspicious. Moreover, she being
the sister of the deceased can only be expected to
support the case against the accused, with whom she was
in inimical terms.
20. The learned Counsel for the appellant also
points out that no DNA finger printing has been
conducted to find out the details of blood smears found
on the dress of the accused as well as on MO1 chopper.
Not even finger prints are lifted from the chopper.
Recovery of MO13 to MO15 on the alleged confession made
by the accused is also not believable, because PW5, to
whom the accused had allegedly entrusted these
ornaments, has returned hostile.
21. It is also pointed out by the learned Counsel
that it is very surprising that none of the neighbours
heard the cries of the deceased when she was chopped
brutally to death. It is submitted by the learned
Counsel that the prosecution case rests solely on the
circumstantial evidence and the chain of circumstances
leading to the guilt of the accused has not been linked
completed. The extra-judicial confession has not been
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proved adequately, because PW7 cannot be relied upon,
argues the learned Counsel.
22. There is no doubt that the present case is
based on circumstantial evidence for there are no eye
witness to the occurrence. In cases where there is no
direct evidence, and the prosecution case hinges on
circumstantial evidence, motive assumes importance, and
needs to be fully established like any other
incriminating circumstance. It is true that there are
no yardstick or golden scales to decide what will
operate as sufficient motive for commission of a
particular crime. It varies from individual to
individual, depending on the character, psychology and
various other factors. Motive is something which
prompts a person to form an intention to do something.
For some individuals, even a very slight motive may be
enough to get him provoked, and for some it may be the
result of malice or revenge or even to gain a small
pecuniary advantage. Therefore, whether the accused
had motive to commit a crime such as murder, depends
what sort of individual he is and for that purpose
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evidence must be taken into consideration regarding how
the accused had acted or performed on being provoked.
Surrounding circumstances, previous and subsequent
events, can therefore, be referred to in coming to a
conclusion regarding the motive. In cases purely based
on circumstantial evidence, motive has to be
established by the prosecution. The circumstances
should exclude the reasonable possibility of anyone
else being the real culprit within the chain of
evidence that is produced and the circumstances should
be complete so as to hold the accused guilty. In
ordinary human conduct, a person cannot be expected to
kill another without adequate reasons or motive, and
therefore, the proof regarding motive has an important
role to play, in cases where the prosecution rests on
circumstantial evidence alone. Even though motive may
not be necessary or very material in cases depending
upon direct evidence, the Honourable Supreme Court has
in State of U.P. v. Babu Ram, (2000) 4 SCC 515, held
that there is no legal warrant for making such a hiatus
in criminal cases as for the motive for committing a
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crime. Motive is relevant factor in all criminal
cases, whether based on testimony of eye witnesses or
circumstantial evidence. The question in this regard
is whether the prosecution was failed because it failed
to prove the motive or even whether inability to prove
motive would weaken the prosecution to any perceptible
limit. No doubt, if the prosecution proves the
existence of a motive, it would be well and good for
it, particularly in a case depending on circumstantial
evidence, for such motive could then be counted as one
of the circumstances. However, it cannot be forgotten
that it is generally different area for any prosecution
to bring on record what was in the mind of the
accused, even though the investigating officer may have
succeeded in knowing it through interrogation. That
cannot be put in evidence by them, due to the ban
imposed by law. Therefore, motive has to be proved by
other means corroborating the prosecution version.
Motive in criminal cases based solely on positive,
clear, cogent and reliable, ocular testimony of
witnesses is not at all relevant. In such a fact
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situation, the mere absence of strong motive to commit
the crime, cannot be of any assistance of the accused.
Motive behind a crime is a relevant fact regarding
which evidence must be let. The absence of motive is
also a circumstance, which may be relevant for
assessing the evidence (vide Gurcharan Singh v. State
of Punjab, AIR 1956 SC 460, Rajinder Kumar v. State of
Punjab, AIR 1966 SC 1322, Datar Singh v. State of
Punjab, AIR 1974 SC 1193, and Rajesh Govind Jagesha v.
State of Maharashtra, AIR 2000 SC 160.
23. In Sheo Shankar Singh v. State of Jharkhand,
AIR 2011 SC 1403 while dealing with the issue of
motive, the Honourable Supreme Court held thus:
“Proof of motive, however, recedes into the background in cases
where the prosecution relies upon an eye-witness account of the
occurrence. That is because if the court upon a proper appraisal
of the deposition of the eye- witnesses comes to the conclusion
that the version given by them is credible, absence of evidence
to prove the motive is rendered inconsequential. Conversely even
if prosecution succeeds in establishing a strong motive for the
commission of the offence, but the evidence of the eye-witnesses
is found unreliable or unworthy of credit, existence of a motive
does not by itself provide a safe basis for convicting the
accused. That does not, however, mean that proof of motive even
in a case which rests on an eye- witness account does not lend
strength to the prosecution case or fortify the court in its
ultimate conclusion. Proof of motive in such a situation
certainly helps the prosecution and supports the eye witnesses.
(See: Shivaji Genu Mohite v. The State of Maharashtra, AIR 1973
SC 55; Hari Shanker v. State of U .P. (1996) 9 SCC; and State of
Uttar Pradesh v. Kishanpal and Ors., (2008) 16 SCC 73)”.
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24. Applying the precedents to the facts of this
case, we would like to examine the evidence on motive.
The accused was in no cordial terms with the deceased
for a fairly long time, and lived separately. She had
filed criminal cases against him under Section 498A,
I.P.C. and had also filed petition for maintenance as
is evident from Exts.P14 to P16. It is pertinent to
note that the accused had earlier gone into her house
and destroyed the doors of her house. She made a
complaint before the police regarding that incident and
she was beaten up black and blue by the accused. After
which he even poured liquor into her mouth and she was
rendered unconscious. This incident is spoken to by
PW1, PW6 and PW7 and even stated in Ext.P13 complaint
that was filed before the Court by the deceased. The
fact that deceased had questioned the illicit
relationship between the accused and Philomina, which
led to the rift between the couple has also been spoken
by PW1, PW6 and PW9. Ext.P13 complaint also states
regarding this fact. It is also stated by the
witnesses and in the petition by the deceased this
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illicit relationship between the accused and Philomina
had even abetted Philomina’s husband to commit suicide.
PW7 is an independent witness, who is a politician and
a member of the CPI(M). In Ext.P13 petition the
deceased has stated that the accused was a CPI(M)
sympathiser and she was provided with a separate place
of residence on interference by the members of the
party. PW7 also supports this version by stating that
he had intervened in their dispute and helped the
deceased to set up a separate residence for herself.
PW1, PW2 and PW6 would also testify regarding the
deceased setting up a separate residence following
mediation. The relatives of the deceased, and her
neighbours such as PW4 and PW9 would testify that the
deceased had frequent quarrels with the accused and
that the accused had even threatened to kill her. PW9
is a co-worker and even on the date of occurrence the
deceased was engaged under in a MGNREGA Scheme. She
states that the work had to be stopped because of the
incessant rain and the deceased returned home early.
PW9 also states that a week prior to the occurrence,
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the deceased had disclosed about her apprehension about
the threats held out by the accused. PW10 is a nun in
whose institution the deceased had taken refuge after
being harassed and neglected by the accused. All these
incidents would indicate that the accused and the
deceased were in inimical terms. The accused was
directed by the Court below to pay maintenance to the
deceased at the rate of Rs.1,000/- per month, as
evidenced by Ext.P14 judgment. This had provoked him
enough to form a motive to do way with his wife, and he
had even disclosed such an intention to PW7. The
disclosure made to PW7 assumes importance, because he
is the one who had intervened and mediated in settling
the dispute between the accused and the deceased. PW1
does not appear to have any animosity against the
accused, having any reason to perjure. His testimony,
would therefore, bear much importance. We are of the
view that the prosecution has succeeded in establishing
the motive for the accused to commit the murder of the
wife.
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25. The next point that needs consideration is
extra-judicial confession allegedly made by the accused
to PW7. As we have already mentioned that PW7 appears
to be a responsible and well-meaning social worker and
his testimony cannot be brushed aside. On getting some
information about the occurrence, even the police had
first informed PW7. The accused himself approached PW7
by about 11.30 at night and confessed about eliminating
his wife. Even though in the cross-examination and in
answer to the query put to him under Section 313,
Cr.P.C., the accused had retracted the alleged
confession. We will have to scrutinise whether the
alleged extra-judicial confession is an important
circumstance to find the accused guilty.
26. Extra-judicial confession, as is well known,
can form the basis of a conviction. But precedents
would suggest abundant caution and therefore, the Court
will have to look for corroboration before accepting
the extra-judicial confession. The extra-judicial
confession, however cannot ipso facto be termed to be
tainted. What the Court has to examine is whether the
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extra-judicial confession was made voluntarily or not.
The Honourable Supreme Court in Nazir Khan v. State of
Delhi, (2003) 8 SCC 461, held;
“a free and voluntary confession is deserving of the
highest credit, because it is presumed to flow from
the highest sense of guilt.”
Hence, an extra-judicial confession if voluntary and
true and made in a fit state of mind can be relied upon
by the Court. The value of the evidence as to such a
confession would always depend on the reliability of
the witness, who gives that evidence of having received
an extra-judicial confession from the accused. The
Court cannot start with a presumption that extra-
judicial confession is a weak type of evidence, because
it always depends upon the nature and circumstances of
each case (vide State of Rajasthan v. Raja Ram, (2003)
8 SCC 180, Kulvinder Singh v. State of Haryana, (2011)
5 SCC 258). The Honourable Supreme Court in Jagta v.
State of Haryana, AIR 1974 SC 1545 and in State of
Punjab v. Bhajan Singh, AIR 1975 SC 258 held that
evidence of extra-judicial confession with the very
nature of things, is a weak piece of evidence.
However, it would not be open to the Court to start
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with such a presumption and therefore it always depends
on the circumstances of each individual case.
27. Coming to the evidence in this case, we have
already found PW7 to be very reliable, socially
responsible citizen, who had made earnest attempt to
settle the dispute between the accused and the
deceased. He testifies that accused has been
threatening to do way with his wife, so did, PW1, PW6
and PW9 testify. Hence the threat held out by the
accused has been sufficiently testified by a number of
witnesses. It is in the background of such threats
held out by the accused long before the commission of
the offence, coupled with the judgment against him to
provide maintenance to the deceased that provoked to do
what he did. The alleged extra-judicial confession is
made by the accused after the occurrence when he went
directly to PW7 at the party office and told him that
he has accomplished what he desired to liquidate. We
strongly rely on the extra-judicial confession spoken
to by PW7 as a circumstance against the accused.
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28. Apart from the motive and extra-judicial
confession, the disclosure made by the
accused, are also circumstances leading to the recovery
of MO13 to MO15. It is true that PW5 turned hostile.
But the identity of MO13 to MO15 has been established
as that belonging to the deceased. MO13 is the gold
chain worn by the deceased and MO14 is the cash she was
holding, wrapped in MO15 paper. As per the confession
statement made in Ext.P19 to PW22, who recovered MO13
to MO15 from PW5 the accused had entrusted. There are
witnesses such as PW4 to the seizure of these articles
as per Ext.P5 mahazar. PW4 is running a business in
the same building, where PW5 is residing and therefore
he is a natural witness to the recovery and seizure.
The prosecution case regarding the recovery cannot be
discarded merely because one of the witnesses
pertaining to recovery has turned hostile [Ramesh
Harijan v. State of U.P., (2012) 5 SCC 5177 and State
of U.P. v. Ramesh Prasad Mishra, AIR 1996 SC 2766].
PW5 has admitted his signature on Ext.P5, and
therefore, it is very clear that he was deliberately
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attempting to shield the accused. PW6 and PW9 had
testified that the deceased used to wear MO9 cross in
MO13 gold chain. The fact that the couple were
residing separately for the last 3 years prior to the
occurrence and thereafter on disclosure, made by the
accused, MO13 being recovered from PW5, is a very
strong circumstance to show that the accused had a
grudge towards the deceased and had taken MO13 chain
from her either before doing away or after he had done
away with her.
29. MO1 chopper was got whetted by PW11 on request
of the accused a few days prior to the offence and PW11
has identified MO1 as the chopper he had whetted. MO9
cross usually worn by the deceased was also recovered
from the accused. As per Ext.P3 mahazar of PW22, which
is attested by PW3, who testifies regarding the seizure
of the cross from the pocket of the inner garment worn by
the accused.
30. The learned defence Counsel has taken exception
of none of the neighbours hearing a hue or cry or sound
when the deceased was brutally murdered with a chopper.
She would definitely have raise some alarm. But the fact
Crl.Appeal No.1079/14
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that the neighbours did not hear it, raises suspicion
against the prosecution case. PW1, PW2 and PW9 have
testified that there was heavy rain on the date of
occurrence and it is possible that due to showers of the
pouring rain, the cries of the deceased got muffled. PW9
has testified that the deceased had returned home early
that day and the accused was seen coming out of the house
by PW6. Ext.P17 report of the F.S.L. has identified
human blood on the dress worn by the accused, as also MO1
chopper. The mere fact that the blood identified from
the cloths of the deceased and the chopper is not
established as that of the deceased, cannot be a reason
for discarding the prosecution case. The learned defence
Counsel has also argued that Philomina, with whom the
accused was allegedly having an amorous relationship, has
neither been cited as a witness by the prosecution nor
questioned during investigation. Philomina, the sister
of the deceased, was having a clandestine relationship
with the accused, which in fact, led to the discordant
relationship between the accused and the deceased. It
also led to rift in Philomina’s own marital relationship
with her husband, driving him to commit suicide. The
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investigating officer states that though he attempted to
question Philomina, he could not reach her. We do not
think that the non-examination of Philomina is fatal to
the prosecution case. Not only did the siblings of the
deceased, her neighbours too have testified regarding
this relationship, which paved the way in spoiling the
romantic relationship of the deceased and the accused.
31. The argument of the learned defence Counsel that
finger prints could not be lifted from MO1 chopper is
also not of much consequence. Because the chopper was
recovered from the place of occurrence and it had human
blood on it. That apart, there is extra-judicial
confession of the accused, apart from the threat he has
been holding out to liquidate the deceased, as spoken to
by witnesses. There is sufficient corroboration to assist
the prosecution case. The medical evidence, and the
scientific evidence, referred to by us earlier would also
supply the chain of circumstances. All these put
together, would unflinchingly point towards the guilt of
the accused. The chain of circumstances has been
completed without any links missing. We do not find the
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-29-
probability of anyone other than the accused nurturing a
grouse against the deceased to have her eliminated.
We are therefore convinced that the learned Sessions
Judge has come to a correct conclusion regarding the
guilt of the accused. The conviction and sentence is
upheld.
The Criminal Appeal is therefore dismissed confirming
the conviction and sentence of the accused.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
ASHOK MENON
dkr JUDGE