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Sunil Kumar @ Sunil v/s State of Kerala Reptd. by Public Prosecutor, High Court of Kerala, Ernakulam


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

Company & Directors' Information:- SUNIL KUMAR PVT LTD [Strike Off] CIN = U17111RJ1985PTC003429

    Criminal Appeal No. 1273 of 2015

    Decided On, 06 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Appearing Parties: K.M. Sanal, K.B. Udayakumar, Advocates.



Judgment Text


A.M. Shaffique, J.

1. Appellant Sunil Kumar @ Sunil is the sole accused in the case. He is before us in appeal challenging the verdict passed against him by the learned 1st Additional Sessions Judge, Mavelikkara in S.C. No.645 of 2013 dated 29/11/2014 by which he was found guilty for offences under Section 302 and Section 392 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/- (Rupees Twenty Five Thousand only) for offence under Section 302 of I.P.C. and further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) for committing offence under Section 392 of I.P.C. Fine amount, if realized, was directed to be paid to PW3 Pookunju as compensation under Section 357 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). Substantive sentences were directed to run concurrently.

2. Case of the prosecution is as follows:

Accused had developed intimacy over a long period with the deceased Rasheeda through contact over mobile phone. He intended to rob the gold ornaments of Rasheeda after having sexual intercourse with her in her house. To fulfill his desire and execute his plan, he collected sleeping pills from Maanu Memorial Hospital, Manjeri on 04/07/2010 and left Manjeri at 05.45 a.m. on 11/07/2010. On the same day, by about 04.00 p.m., he reached KSRTC bus stand, Kayamkulam. From there, he hired an autorickshaw and reached Irshad Manzil in Ward No.23 of Kayamkulam Municipality at Cheravally Muri and Kayamkulam Village, wherein Rasheeda is residing with her family. Then, on the bedroom on the southern side of the kitchen, he engaged in sexual intercourse with Rasheeda twice. Thereafter, he began to sleep beneath the cot. During night, when husband of Rasheeda was asleep, by about 10.30 p.m., he again engaged in sexual intercourse with Rasheeda. Then the appellant gave the sleeping pills stating that it is for sexual rejuvenation and made her to consume the same. When Rasheeda became drowsy due to the administration of sleeping pills, accused strangulated her and also hit her head against the floor and the vortex region on the legs of the cot. Due to strangulation and forceful hit, Rasheeda died. Thereafter, the appellant herein removed two gold chains, three bangles and one ring worn by Rasheeda and also took away her mobile phone. Appellant was charged with the above-mentioned offences and was convicted and sentenced as detailed above.

3. To prove the case against the appellant, prosecution relied on oral testimonies of PW1 to PW39, documentary evidence Exts.P1 to P43 and material objects MO1 to MO17. After closing the evidence of the prosecution, appellant was questioned under Section 313 of Cr.P.C. with a view to enable him to explain the incriminating circumstances appearing in evidence against him. In addition to his oral replies, he filed detailed statement also which, in brief, is as follows:-

4. The appellant was taken to the house of Rasheeda after her death. He saw PW11 and PW13 for the first time in Court. On every posting date, at the time of trial, PW13 was seen present in the Court. When money was demanded by PW13, appellant did not give. Appellant used to go to Maanu Memorial Hospital which is near his workshop. He never went to the said hospital complaining lack of sleep. He worked in the workshop run by Sasikumar, Eldos and Hamsa. He belongs to Palakkad. The owners of the workshop had rented a house near the workshop at Cherani junction. It is true that he was taken to the said house after his arrest, but he was not allowed to get down from the jeep. Besides him, the brother of Sasikumar is also working in the workshop. Appellant had often seen the said person talking to women over phone. It is true that the workshop functioned from 09.00 a.m. to about 06.00 p.m. On 11/07/2010 and the following day, appellant was in Manjeri itself. It is not correct to state that Eldos did not go to Kayamkulam as he had eye disease. Mother of the appellant is illiterate. She cannot remember 10 digit mobile number. When number was put to her in chief examination, she only gave the answer in the affirmative, without knowing the number. His hair and blood were collected. Lady Doctor who examined him collected hairs. When he was in the police custody, there were four other persons. One police constable told him that those four persons had illicit connection with Rasheeda. There was a news item in the daily that Circle Inspector received Rs. 25,000/- as bribe. Appellant never produced gold ornaments as alleged. In his written statement, he stated that he is innocent. He was a worker in the workshop of Eldos. Eldos had taken a house for rent for the workers. One day in the afternoon, he saw Eldos engaging in sexual activity with one lady and he told the same to his friends. Eldos became inimical to him. He was expelled from his job. Thereafter, appellant was engaged in rubber tapping work. While so, at the instigation of Eldos, a false case was registered against him stating that he committed theft of gold chain of one lady. While so, Eldos was caught by the police in some case. Appellant was asked to report at Kayamkulam Police Station for ascertaining about the people with whom Eldos had engaged in conversation. Appellant was taken by Sasikumar and Hamsa to Kayamkulam Police Station. Eldos told the Circle Inspector that it was the appellant who talked to ladies over phone. Circle Inspector asked as to how long he has engaged in conversation with Rasheeda. Appellant replied that he did not know Rasheeda. Then, without any reason, Circle Inspector abused and slapped on his cheek. Then some gold ornaments were shown to him and asked whether he had committed theft of the same. Then, appellant, Eldos and other persons were asked to put signature in some papers. Later, appellant was taken to some houses. Appellant was taken to the Doctor and his hair and blood were collected. At last, appellant was produced before Court. It is because of the enmity of Eldos towards appellant that a false case is foisted. No witnesses were examined from the side of the defence. Exts.D1 and D2 were marked through PW11 and PW14.

5. Learned Counsel for the appellant Sri.K.M.Sanal argued that the case against the appellant is not proved by the prosecution beyond reasonable doubt. Rather, it is apt to say that even a definite case is not evident from the evidence adduced by the prosecution against the appellant herein. Case rests on circumstantial evidence. Court below erred in convicting the appellant. Witnesses presented by the prosecution to prove various circumstances are planted witnesses. They are not natural witnesses. Scientific Assistant who allegedly collected the items from the scene of occurrence was not examined. PW3 who is the husband of the victim is also a suspect and no investigation is conducted in that direction. His version that he does not know how his wife died in that night is total falsehood. The appellant was falsely implicated. The mobile SIM number allegedly recovered is not his. The alleged recovery of ornaments is fabricated and planted. In the totality of the evidence, it is clearly seen that Court was totally wrong in convicting the appellant. He pleaded to acquit the appellant extending benefit of doubt.

6. In reply, learned Senior Public Prosecutor Sri.K.B.Udayakumar argued that there are clinching evidence against the appellant in the nature of strong circumstances. Enough evidence is available to show that the appellant had connection with the deceased prior in point of time also and that he was seen near the place of occurrence on the fateful day at 04.30 p.m. by witnesses and there is evidence to show that the appellant was following the deceased. Next day at 01.30 a.m., the appellant had left the place for which fact also, there is evidence. Ext.P25 call details coupled with recovery of mobile phone proves the involvement of the appellant. Hair samples collected from the place of occurrence and the stump of cigarette seized, on DNA examination was found to be that of the appellant herein. That apart, the gold ornaments belonging to the deceased were recovered on the basis of disclosure statement of the appellant from Manjeri, which is the place of the appellant. Court below is fully justified in convicting the appellant. He pleaded to dismiss the appeal.

7. Evidence adduced by the prosecution, in short, are as under:-

PW1 is the sister-in-law of Rasheeda who deposed that, on 12/07/2010 by about 05.30 a.m., she had seen Rasheeda lying dead in the bedroom of her house. Husband and near relatives of the deceased were also present. She noted marks of nail and minor injuries on the upper part of the neck, contusion and blood behind the ears. PW2 is the daughter and PW3 is the husband of the deceased. PW4 is another sister-in-law of the deceased. PW5 is the sister of PW3. PW6 is a neighbour of the deceased who was required by the Investigating Officer to pump out the water from the well situated in the compound of the deceased. PW7 is an attestor to the recovery mahazar for the recovery of two diaries from the pond near the house of the deceased. He had collected the diaries as per the direction of the Investigating Officer who directed him to search it out, on the basis of the disclosure statement of the appellant regarding the same. PW8 is another relative of the deceased who deposed that gold chain weighing 5 sovereigns belonging to her was sold by her husband to Rasheeda for Rs. 60,000/-. PW9 is the Sales Manager at Arabian Jewellery, Kayamkulam. Out of the three bangles shown to him, he identified two of them having their seal and writing '916' (MO7 series). He described the fashion as 'tyre fashion'. PW10 Soman is the sales man at Alummoottil Jewellers, Kayamkulam. He identified MO9 chain having a locket bearing the emblem of their jewellery shop. PW11 is the auto-driver who deposed that the accused had hired his autorickshaw from KSRTC bus stand on 11/07/2010 at about 03.45-04.00 p.m. and as per his request, PW11 had taken him to Onnam Kutti. As they reached Onnam Kutti, the appellant telephoned a lady and handed over the phone to PW11 to ascertain the route. She told him the route. As they reached the place so informed by the lady, she was there. The appellant went after the lady who walked in the front. PW12 is the sales man at Vinod Medicals, Kayamkulam which was located on the eastern side of KSRTC bus stand. Four years back, the appellant came to the shop and bought two packets of condoms. PW13 Raju stated that he had given a lift to the appellant in his motor bike on 12/07/2010 after 01.30 p.m. from Onnam Kutti to KSRTC bus stand. He identified MO14 and MO15 as dresses worn by the appellant at that time. PW14 is a neighbour of the deceased. She stated that, on 11/07/2010 at about 04.00 p.m., she had seen deceased Rasheeda walking through the road towards her house and the appellant following her. She identified the appellant in Court. PW15 is an attestor to Ext.P4 inquest report. PW16 Dr.Muhammed Rameez's evidence is that in July, 2010, the appellant herein came to Maanu Memorial Hospital, Manjeri where he was working as RMO and he prescribed medicines for insomnia to the appellant, in the letter pad of the hospital. He also identified the appellant in Court. PW17 is examined to prove Ext.P7 chemical analysis report. PW18 is an attestor to Ext.P8 scene mahazar. PW19 Dr.Krishnan is the then Assistant Professor of Forensic Medicine, Government T.D. Medical College, Alappuzha who conducted the autopsy of the deceased and issued Ext.P9 post-mortem certificate. PW20 is an attestor to Ext.P11 mahazar prepared at the time of recovering gold ornaments belonging to the deceased from the rented house in which the appellant was residing. The said recovery was effected based on the disclosure statement of the appellant. He identified the gold ornaments so recovered. PW21 is one of the partners of Three Star Engineering at Cherani. He is the employer of the appellant. He stated that he witnessed the recovery of gold ornaments and he signed Ext.P12 mahazar prepared at the time of recovering MO14 and MO15 dresses of the appellant. He identified the appellant in Court. He also identified MO12 mobile phone found at the hands of the appellant at the relevant time which he tried to sell through PW21. Ext.P13 is the mahazar for the recovery of medical prescription. PW22 is an attestor to Ext.P17 mahazar prepared at the time of seizing mobile phone from the house of the deceased. PW23 is the mother of the appellant. She stated that her son was using a mobile phone. To a suggestion whether the number of the said mobile SIM is 9744139930, she said in the affirmative. PW24 Asma Salim stated that her husband who is in Gulf countries had a mobile connection of BSNL and its number ends with 330370. The said phone and SIM were given to the deceased by her husband for the purpose of responding to the Bank officials since they had availed a loan with the help of the deceased. PW25 is a goldsmith who is an attestor to Ext.P15 mahazar. PW26 is the then Constable at Dog Squad of DCRB, Alappuzha. PW27 is an attestor to Exts.P16 and P17 mahazars prepared for the seizure of certificate issued by Dr.Divya Thomas of Government Hospital, Mavelikkara for the collection of hairs from the body of the appellant and certificate issued by Dr.Sindhu of Government Hospital, Kayamkulam for the collection of blood from the body of the appellant. PW28 conducted the guard duty of the corpse. PW29 is the then S.I of Police, Kayamkulam Police Station. Ext.P1 FIS is given to him by Jameela and Ext.P1(a) is the FIR registered by him. PW30 is the then Village Officer, Kayamkulam. Ext.P18 is the site plan prepared by him. PW31 Dr.Divya Thomas deposed that she collected hair samples of the appellant on 24/07/2010 as per the request of C.I. of Police, Kayamkulam. Ext.P19 is the certificate issued by her in that regard. PW32 is the then Alternate Nodal Officer, BSNL and he issued Ext.P20 call details. Ext.P21 is the attested copy of the application for the subscription of the said number. Ext.P22 is the ID proof. PW33 is an attestor to Ext.P23 mahazar prepared at the time of seizure of two diaries from the pond as shown by the appellant. PW34 Vinod Pillai conducted the investigation of the case. PW35 laid charge before the Court. PW36 continued the investigation and Ext.P39 is the report. Through PW37, Ext.P40 is marked. PW38 is the then Joint Director, Research and Assistant Director, DNA in FSL, Thiruvananthapuram. Ext.P41 is the report. Ext.P41(a) is the report regarding DNA typing done by Sunitha V.B., Scientific Assistant, Biology. PW39 Dr.Renju Raveendran was the then Assistant Professor, Forensic Medicine, Medical College, Alappuzha. Ext.P42 is the report prepared by her on examining Pookunju (PW3), who is the husband of the deceased. Ext.P43 is the register.

8. Two questions are to be addressed primarily. Firstly, whether the death of Rasheeda is a homicide as alleged by the prosecution. Secondly, whether the trial Court is justified in convicting the appellant for committing the murder and robbery as alleged by the prosecution.

9. Regarding the first question, it is settled law that burden of proof lies on the prosecution to prove beyond doubt that the death of the victim was a homicide. Learned counsel for the appellant vehemently argued that prosecution failed to prove the cause of death of the victim. According to him, evidence adduced by the prosecution is insufficient to come to a conclusion as to the cause of death with certainty. Poisoning, suicide or even some other person committing the crime cannot be ruled out. Under such circumstances, it is totally unsafe to convict the appellant herein. Court below committed serious error in convicting the appellant, he argued.

10. To address the said argument, it is essential to scan the evidence, especially medical evidence. Ext.P4 inquest report coupled with the oral version of witnesses including near relatives proves the identity of the deceased. Coming to the medical evidence, Ext.P9 is the postmortem certificate issued by PW19 Police Surgeon. He deposed that he had noted the following ante-mortem injuries on the corpse of the victim:

"1. Dark brown parchmented pressure abrasion 0.8x1 cm over the right side of under surface of chin, its inner extent at the midline, its upper extent 2.5 cm below the lower border of chin.

2. Abrasion 0.7x1 cm, 0.4 cm above the previous injury.

3. Abrasion 0.5x1.3 cm, over the right side of front of neck, its inner extent 5 cm outer to midline, its upper extent 3.5 cm below the right angle of jaw.

4. Multiple abrasions 6 in number, over an area 2x4 cm, over the right side of front of neck, inner extent 1.5 cm outer to midline and upper extent 5 cm below the under surface of midpoint of chin, their sizes ranging from 0.2x0.1 cm to 0.4x0.2 cm.

5. Multiple faint linear excoriations over the entire right half of front of neck.

6. Multiple confluent faint contusions sizes ranging from 0.2x0.2 cm to 0.4x0.3 cm over the front of middle third of right side of face.

7. Contusion 2x2.7x0.2 cm along the left border of jaw, inner extent 2 cm outer to midline and upper extent at the jaw border. Contusion 1x0.8x0.1 cm immediately outer to previous injury. Contusion 2x3.5x0.2 cm over the middle third of left lower jaw border immediately outer to the previous injury. Contusion 2x2x0.3 cm over the left angle of jaw. Contusion 4x2x0.2 cm over the left cheek 2cm in front of tragus of ear. All the contusions mentioned above merged into each other at their borders.

8. Dark brown parchmented abrasion 0.5x0.5 cm, 3cm below left ear loblule.

9. Multiple abrasions over an area 1x2.5 cm over the upper half of left side of front of neck, inner extent 5 cm outer to midline.

10. Contusion 1x1 cm with an overlying abrasion 0.2x0.2 cm just below the root of left ear.

11. Contusion 1x0.8cm with overlying abrasion 0.5x0.1 cm over the left mastoid process.

12. Abraded contusion 0.3x2 cm, transverse, over the inner aspect of lower lip, extending to both sides of midline with an overlying superficial laceration 0.2x0.3 cm.

13. Two spot abrasions 0.1x0.1 cm and 0.2x0.1 cm over the tip of chin abutting the midline.

14. On dissection of the neck under bloodless field the subcutaneous tissue in the midline was contused over an area 5.5x3x0.5 cm, 7 cm below the chin. The left Sternocleidc mastoid muscle was contused over an area 7x2x1 cm over its middle third. The right and let Sternothyroid, Thyrohyoid, Sternohyoid muscles showed a confluent contusion with superficial lacerations and fraying of fibres. The upper part of the right lobe of thyroid gland was contused. The thyroid cartilage was found fragmented with prominent vertical fracture in the midline. The Hyoid bone was flexible and elastic and was devoid of any fractures. The soft tissues immediately adjacent to both greater cornua were infiltrated with blood. The vertebra and blood vessels were intact.

15. The scalp on dissection showed four contusion. They were located at (a) corresponding to the left parietal eminence - 4x2.5x0.5 cm, (b) over the top of head in the midline-2x1.8x0.5 cm (c) at the top of head, 1.5 cm to the right of previous injury-1.2x1.4x0.3 cm and (d) at the left side of back of head, 4 cm behind the left ear - 6x2x0.3 cm. The skull was devoid of any fractures."

11. Pw17 was the Assistant Chemical Examiner, Chemical Laboratory, Thiruvananthapuram who issued Ext.P7 report. The said report would show that no poison was detected on examining viscera and other organs.

12. Evidence of PW19 however remains unchallenged by the prosecution. PW19 has deposed that death was due to strangulation. He opined that it could be either ligature strangulation or manual strangulation. He further opined that there are lot of injuries on the neck which are more than 14. There are external and internal injuries as well, which is suggestive of the fact that the subject was conscious at the time of strangulation and had put up resistance. He further deposed that the injury No.12 which is a transverse, abraded contusion over the inner aspect of lower lip with a superficial laceration proved that the said injury might be caused since the mouth was forcibly closed from outside. He also stated that the death would have occurred within 6 hours of her last meal as stomach contained partially digested food. Though the Doctor was cross-examined, nothing has been brought out to discredit the said evidence. In the light of the testimony of PW19, it is rather clear that the death was on account of a homicide.

13. The next question to be considered is whether the appellant/accused is responsible for committing the aforesaid crime. As already stated, initially it was thought that death of the victim was a natural death. Only when PW1 noticed certain marks of nail and minor injuries on the upper part of the neck, contusion and blood behind the ears, that a doubt had arisen as to whether it was a homicide or not. As already stated, evidence of PW19 discloses the fact that it was a homicide.

14. The first question to be considered is whether the presence of the accused in the house of Rasheeda has been proved by the prosecution on the fateful day. According to the prosecution, the accused had come to her residence, he stayed in her bed room. They had sexual relationship, he gave her sleeping pills and thereafter he strangulated her to death. To prove the presence of the accused/appellant, prosecution had relied upon the evidence of PW11.

15. Pw11 is an autorickshaw driver. He deposed that he had seen the accused. The accused had come to the auto stand where he parked his autorickshaw between 3.45 and 4 p.m on 11/7/2010 and hired his auto to proceed to Onnamkutty. On the way, accused was talking to somebody over phone. When they were about to reach Onnamkutty, PW11 asked him where he should go. Accused replied that he will make the phone call and tell him. They parked the vehicle near Onnamkutty. PW11 was given the phone and he was asked to find out the way. A lady talked to him and he was asked to proceed towards south of Onnamkutty and thereafter towards the east. He proceeded to that place for about 200 metres towards the south. From there, they have to proceed towards east and PW11 asked the accused how far they should go. Accused said that he will call the lady again. She informed him that if they proceed from a chappath on the north-east direction, there is a tar road and if they proceed a little further, she will be waiting there. While proceeding, they saw a lady by the side of the road. He slowed the vehicle. Accused asked him to stop the vehicle. From the place where they stopped the vehicle, there is another small road towards the south. The lady walked through that road without saying anything. Accused asked for the charges. He received Rs. 40/-. The accused thereafter proceeded behind the lady. He noticed the accused as he was talking a different dialect as that from Malappuram area. According to him, if they were relatives he would have talked to her. But he just went behind her. He identified the accused at the police station. Though he was cross-examined at length, nothing has been brought out to discredit the said witness. But apparently, the only evidence is that accused reached near Onnamkutty and he walked behind a lady on 11/7/2010 at about 4.00 p.m.

16. The other evidence that had been proved by the prosecution to infer the presence of the accused in her house are the telephone details. According to the prosecution, the number 9495330370 was being used by Rasheeda though the SIM card was in the name of PW24 who was the sister-in-law of Rasheeda, Asma Salim. PW24 had deposed that mobile phone with SIM card was entrusted to Rasheeda. The phone was produced by PW2, daughter of Rasheeda on 17/7/2010. The phone is marked as MO11 and the SIM card MO12. The phone number 9744139930 is that of the accused. PW34, the investigating officer deposed that when he made a call to the said number, it was attended by the accused. Later when again he called, it was attended by one Eldos and they were asked to produce the same before the police station. The phone was brought by the accused to the police station. Apparently, there is no evidence to prove that the number was taken in the name of the accused. Ext.P25 is the call list relating to the number 9495330370. The call details from 25/6/2010 to 12/7/2010 is produced. There were number of calls, incoming call from mobile no.9744139930 and also to the number 9495330370 and vice-versa. The call details Ext.P25 would prove that there was an incoming call from mobile number ending 930 to mobile number ending 370 on 11/7/2010 at 4.49 a.m. There were outgoing calls from number ending 370 to 930 on 11/7/2010 at 15.51 and 16.01 and there was an incoming call from number ending 930 to mobile number ending 370 at 16.04. Therefore, the call details tallies with the oral testimony of PW11 that if the number ending 930 is with the accused, there were calls from the accused to Rasheeda which also is a corroborative piece of evidence.

17. The site plan produced in the case as Ext.P18 and the mahazar Ext.P8 would further indicate that the house of Rasheeda was near Onnamkutty. PW5, who is the sister of Pookunju (PW3) deposed that on 11/7/2010 by about 4.30 p.m., she saw an autorickshaw on the northern side of her house and a person getting down from the autorickshaw. Rasheeda was seen waiting by the side of the road. Thereafter, Rasheeda started walking towards her house and the said person followed her. She also identified the said person who came in the auto as the accused. PW14 is yet another witness who deposed of having seen Rasheeda by about 4 p.m on 11/7/2010. She is a nearby resident. She also deposed that she saw a young person getting down from the autorickshaw and on seeing him, Rasheeda walked back towards her house and the said person followed her. He was wearing a red shirt which she identified as MO14 and she identified the young person as the accused.

18. From the aforesaid evidence, it is rather clear that the accused came near the house of Rasheeda at around 4.00 p.m. Next question to be considered is whether the accused stayed in the house of Rasheeda in accordance with the prosecution case. PW3 Pookunju is the husband of Rasheeda. He deposed that since Onam, both of them were sleeping in separate rooms in the same house. Ext.P24 is the property list with reference to the material objects that were collected from the house of Rasheeda. The properties were collected by a Scientific Assistant among which item No.5 is a cigarette bud collected from the slab in the kitchen room of the house. PW38 who is the Joint Director in the Forensic Science Laboratory, Thiruvananthapuram examined the same. Human saliva was detected and thereafter DNA typing was done. The DNA extracted from nail clippings from the body of Rasheeda was also examined for DNA typing. Ext.P41 is the report which would show that the DNA typing in the nail clippings does not match with the saliva in the cigarette bud. Similarly, the hair of Rasheeda also did not match with that of the saliva. Hair of the accused was collected by PW31 Dr.Divya Thomas. The hair collected from the accused matched with the DNA typing of the saliva contained in the cigarette bud. This fact had been spoken to by PW38. Therefore, the presence of the accused inside the house of Rasheeda also stands proved on account of the fact that the cigarette bud collected from the kitchen contained the saliva of the accused.

19. Once it is proved by the prosecution that the accused was inside the house of Rasheeda, next question to be considered is whether he had committed the overt act. The prosecution further placed reliance on the recovery effected pursuant to the confession statement of the accused. While being questioned, the accused deposed that he would show the place where he had thrown the diaries taken from the house of Rasheeda on the basis of which diaries were recovered. Diaries were marked as Exts.P2 and P3 and PW7 is the witness to the same. On the basis of confession statement of the accused, the police had recovered certain gold ornaments. Ext.P11 is the mahazar on the basis of which gold ornaments were recovered on 15/7/2010, which were identified as MO7 series, MO8, MO9 and MO10. It was recovered from beneath a waste from the back side of a house and near a cemented drainage. PW2, daughter of Rasheeda identified these ornaments as belonging to her mother. PW3 has also identified those ornaments as belonging to his wife. Further, PW4, her sister-in-law and PW5 has also identified the gold ornaments. PW9 and PW10 sales man of different jewelleries had also spoken that MO7 and MO9 respectively were sold by them.

20. Yet another factor which was proved by the prosecution is that the accused had purchased sleeping pills and it was administered to Rasheeda before strangulating her. PW16 was the Medical Officer working at Maanu Memorial Hospital, Manjeri. He deposed that he had given Ext.P5 prescription and Ext.P6 is the bill issued from the hospital. The accused had come to the hospital complaining of lack of sleep and he prescribed Diazepam tablets. The tablets he had prescribed were Merygen and Zepose.

21. Yet another factor which was proved by the prosecution was the departure of accused from Rasheeda's house. PW13 has proved the said fact. He deposed that on 12/7/2010, at about 1.30 a.m, while he was going in his motorcycle, accused asked for a lift from Onnamkutty. He told the accused that he was going to Kayamkulam and took the accused to the KSRTC bus stand, Kayamkulam. PW26 was a constable of the dog squad. He came with dog No.188 to the scene of occurrence. The dog entered the bed room and smelled a shawl. The dog went to the kitchen and from the door on the western side of the kitchen, the dog went out, proceeded towards north for about 40 metres, reached the road, went towards west and reached the main road and remained there. Again the dog came to the room and sm

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elled the shawl. The dog repeated the same route and remained at the main road. He deposed that if the person washes himself near a tap in the main road or enters a vehicle, the dog cannot further detect the smell. From the aforesaid evidence, it is rather clear that the accused left the house of Rasheeda by about 1.30 a.m on 12/7/2010 and got a lift to Kayamkulam. Though the witnesses were thoroughly cross-examined, there is nothing to discredit their evidence. Dress of accused were also recovered as MO14 and MO15 as per Ext.P12 recovery mahazar from his house. Dress was identified by PW13 and PW14. 22. Yet another evidence that was relied upon by the prosecution was the dress of Rasheeda, which was recovered as per Ext.P8 mahazar. It was examined under ultra violet light and presence of seminal plaza was detected. Human spermatozoa was also detected. But the seminal stains in the said dress were insufficient for DNA typing. It only proves that Rasheeda had sexual intercourse at the relevant time. 23. Having regard to the evidence adduced by the prosecution, we are of the view that the prosecution was able to prove the presence of the accused in the house of Rasheeda and they were also able to prove that he reached the house of Rasheeda by about 4.30 p.m on 11/7/2010 and left at 1.30 a.m on 12/7/2010. Admittedly Pookunju was in the house and the defence version is that, there is every possibility that Pookunju had committed the murder. There were scratches on the body of Pookunju. But evidence of PW3 Pookunju is that he was sleeping in another room and he had absolutely nothing to do with the crime. The scratches on his chest, shoulder and neck regions happened when he scratched his body on account of mosquito bite. PW39 Dr.Renju Raveendran who examined him deposed that the injuries are on the upper part of the body. It was oriented upwards. The Doctor has opined that it is quite unlikely that such injuries would happen if Pookunju strangulates another person. He also stated that if the victim had caused the injuries, there would be possibility that there would be tissues under the victim's nail. Apparently, the DNA profile of the nail clippings of Rasheeda did not contain any other substance and therefore, the theory that Pookunju got the scratches while strangulating Rasheeda can be ruled out. The fact that the dog which came to the house of Rasheeda got a smell and reached up to the main road further indicates that the assailant had gone to the main road after committing the crime. Pookunju was very much there and he initially thought that her death was natural and he informed his daughter and other relatives and it was only at a time when the body of Rasheeda was being cleaned up that the injuries were noticed and immediately, the matter was informed to the police. Therefore, the involvement of Pookunju in the incident is only an attempt to wriggle out of the involvement of accused to the crime. In the light of the aforesaid discussion, it is rather clear that the accused himself had committed the crime and there is no other possibility that could be evolved from the circumstantial evidence that had been adduced in the case. Hence, we do not think that the trial Court had committed any error in finding the accused guilty and the sentence is also commensurate to the nature of crime committed. Appeal is hence dismissed.
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