HANEEFA Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED in S.C. 108/2007 before Additional Sessions Court, Palakkad filed this appeal challenging his conviction and sentence for the offences under sections 302, 376, 404 and 201 of Indian Penal Code. Appellant is the husband of the sister of deceased Kaula alias Kaulath. PW18 Salim is the husband of Kaula and PW2 Jamsheera is their daughter. PW3 Fathima and PW5 Hajira are the sisters of Kaula. Prosecution case is that deceased Kaula along with her daughter PW2 were living in a separate house and Pws. 3, 5 and others are living in an adjacent house. Kaula used to earn money by selling milk and was maintaining cow. Deceased sought the help of the appellant to purchase a cow. Appellant along with the deceased approached PW15 Vasantha who was having a cow. PW15 agreed to sell the same for Rs. 9300/ - to Kaula. Deceased paid Rs. 100/ - as advance and agreed to pay the balance and take the cow after one week. On the morning of 8.10.2005 at about 9 a.m. appellant along with the deceased left the house to purchase the cow. Appellant was then wearing M05 lungi, M06 shirt and was having in his possession M07 towel. Deceased was wearing M02 saree, M03 blouse, M04 underskirt and M014 brassier. PW18 had given Rs. 5000/ - to PW2 who in turn handed it over to the deceased earlier and the deceased kept it with PW3 to be utilised for purchasing the cow. By sale of another cattle the balance amount was with the deceased. She entrusted it also to PW3. Before the deceased left the house, PW3 handed over the money to the deceased enclosed in M01 purse. PW5 Hajira had left the house to her work place, a tailoring unit at Sulthanpetta, immediately after the appellant and the deceased left the house. When PW5 reached the bus stop, she found the appellant and the deceased waiting for the bus. When PW5 got into the bus, she found the appellant and the deceased standing in the bus stand. PW6 Najmudheen the autorikshaw driver had taken the appellant and the deceased from near the house of the deceased in his autorikshaw KL9G 1618 upto the A1 Department Store, where PW4 Shabeer is working as an employee. PW4 sold M09 and 10 coir and wollen thread to the appellant and the deceased. They purchased them for taking the cow after purchase to the house of the deceased as by practise the owner of the cow will not part with the coir of the cow sold. The deceased was not seen alive after PW5 had seen her with the appellant in the bus stand. As the deceased did not return back to the house even by 6 p.m. PW1 Basha informed it to the Police Station. He furnished Ext. P1 First information. It was recorded by PW14, the Sub Inspector of Police, who prepared Ext. P1(a) F.I.R. and registered the case under the caption 'man missing'. Though PW14 and Crl. A. 2657/2008 4 the police men along with others searched for the deceased on that night, she could not be traced. On the morning of 9.10.2005 PW14 found the appellant and took him to the Police Station and questioned him. On the information furnished by the appellant and getting satisfied that the deceased was murdered after committing rape, PW14 furnished Ext. P18 report to the Magistrate incorporating the offences under sections 366, 364, 376, 201, 302, 404 and 354 of Indian Penal Code. PW14 reported the matter to PW16, the Circle Inspector of Police. Based on the information furnished by the appellant PW16 the body of deceased was found out inside the forest. She was found strangulated using M02 saree on her neck. PW16 prepared Ext. P19 Inquest report. At the time of inquest, M03 blouse M04 underskirt, M014 brassier, M012 ear studs and M013 ornaments were seized. Pw16 obtained cellophane prints from both the palms and chest of the deceased. He prepared Ext. P2 scene mahazar and seized M011 muftha and M09 series of wollen thread and M010 coir found at the scene of occurrence. PW16 on the information furnished by the appellant recovered M01 purse under Ext. P9 recovery mahazar from among the rocks near to the place where the body was found, when the accused took it and handed over to PW16. The body was sent for post mortem examination. PW9 Dr. Gujaral, District Police Surgeon conducted the autopsy and prepared Ext. P3 postmortem certificate. M02 saree which was found on the neck of the deceased and used as ligature was removed by PW9 and entrusted to the police man. It was later seized by PW16 under Ext. P21 mahazar. PW9 collected the pubic hair and nail cuttings of the deceased and handed over them to the police. The vaginal swab was also collected and sent for chemical analysis and obtained Ext. P5 and P6 reports of chemical analysis. Based on the findings recorded in Ext. P3, P5 and P6, PW9 furnished Ext. P4 final report that the deceased was subjected to rape and her death was caused by strangulation and hanging. PW16 seized M05 to 7 dresses worn by the deceased at the time of the occurrence, from his house as pointed out by the appellant, under Ext. P10 mahazar. The material objects were produced before the court under Ext. P20 property list and were forwarded for chemical analysis by submitting Ext. P23 forwarding note and obtained Ext. P24 report. After completing the investigation PW16 submitted the final report.

(2.) LEARNED Magistrate committed to the Sessions Court under section 209 of Code of Criminal Procedure who made it over to the Additional Sessions Court for trial. Appellant remained in custody and was defended by a counsel appointed by the court. When the learned Sessions Judge framed charges for the offences under sections 366, 364, 376, 302, 404 and 201 of Indian Penal Code and read over to the appellant, he pleaded not guilty. Prosecution then examined 18 witnesses and marked 28 exhibits and identified 15 material objects. After closing the prosecution evidence, appellant was questioned under section 313 of the Code of Criminal Procedure. When questioned, apart from denying the incriminating evidence put to him appellant did not disclose any fact. As it is not a case for acquittal under section 232 of Code of Criminal Procedure Addl. Sessions Judge called upon the appellant to enter on his defence and adduce evidence, if any. Appellant did not let in any defence evidence. Learned Additional Sessions Judge on the evidence found the appellant not guilty of the offences under sections 364 and 366 of Indian Penal Code and acquitted him of the offences. But he was found guilty of the offences under sections 302, 376, 404 and 201 of Indian Penal Code and sentenced the appellant to imprisonment for life and a fine of Rs. 75,000/ - and in default rigorous imprisonment for three years for the offence under section 302 of Indian Penal Code, with a direction to pay the fine if realised, to the children of the deceased as compensation under section 357(1) of the Code of Criminal Procedure. Appellant was also sentenced to rigorous imprisonment for seven years and a fine of Rs. 25,000/ - and in default rigorous imprisonment for one year for the offence under section 376 IPC, rigorous imprisonment for one year and a fine of Rs. 10,000/ - and in default rigorous imprisonment for one month for the offence under section 404 IPC and rigorous imprisonment for three years and a fine of Rs. 10,000/ - and in default rigorous imprisonment for six months for the offence under section 201 of Indian Penal Code. The conviction and sentence are challenged in the appeal preferred from jail. As the appellant did not engage a counsel, a counsel from the panel of Senior State brief, was appointed to appear for the appellant.

(3.) LEARNED Counsel appearing for the appellant and learned Public Prosecutor were heard.