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Ayyppankutty vs State Of Kerala on 11 April, 2019

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:
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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.

Crl.Appeal No.1079/14
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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.

Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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,
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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.
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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)”.

Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
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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.
Crl.Appeal No.1079/14
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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
Crl.Appeal No.1079/14
-26-

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
-27-

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
Crl.Appeal No.1079/14
-28-

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
Crl.Appeal No.1079/14
-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

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