ANSARI Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT was convicted and sentenced to imprisonment for life and fine of Rs. 10,000/ - and in default rigorous imprisonment for one year for the offence under Section 302 of Indian Penal Code by Additional Sessions Judge, Thodupuzha in S.C. 170/2007. Appeal is filed challenging the conviction and sentence. The prosecution case is that on the night of 15/4/2002, appellant committed murder of his brother Hyderali from the room in his possession bearing building No. AGP VII/26 at Adimaly where he is conducting a soda shop by name Highrange Soda and Soft Drinks, by stabbing him with MO. 3 knife and thereafter he covered the body in sacks and carried it to the nearby well in the property of PW1 and put the body in the well and thereby committed the offences under Sections 302 and 201 of Indian Penal Code. It was also alleged that appellant hatched a criminal conspiracy with the second accused Shahir and he also joined the appellant while appellant inflicted injuries on the deceased and second accused strangulated Hyderali by pressing his mouth and nose with a towel and the appellant thereby committed the offence under Section 120B of Indian Penal Code also. As the appellant was absconding, after procuring the presence of second accused, he was tried in S.C. 110/2004. Based on the evidence recorded, learned Additional Sessions Judge acquitted the second accused. After the appellant was arrested and produced, and the charge for the offences under Sections 302, 201 and 120B of Indian Penal Code was framed and read over, appellant pleaded not guilty. The prosecution examined 17 witnesses and marked 16 exhibits and identified 10 material objects. While cross examining the prosecution witnesses, Exts.D1 to D13, portions of statements recorded under Section 161 of Code of Criminal Procedure, as well as the portions of the deposition in S.C. 110/2004 when those witnesses were examined earlier, were marked. When the appellant was questioned, under Section 313 of Code of Criminal Procedure after closing the prosecution evidence, appellant denied the evidence of prosecution witnesses and contended that he was not in the shop on the night of 15/4/2002. His case was that out of the two keys of his shop room, one was in the possession of deceased Hyderali and the other was with the appellant. On 14/4/2002 appellant had been with a friend residing at Kambilikandam and returned back only on the morning of 15/4/2002 and he omitted to take the key from Kambilikandam. When he reached the shop room, he found it closed by the brother who had left the place. It was contended that the deceased brother had earlier informed the appellant that he will leave in the morning. As the shop could not be opened, from PW7 Aby he procured soda and distributed it to the customers. As usual, shop room was opened on 17th April, 2002. On the evening of 18/4/2002 police arrested him while he was collecting money for the sale of soda and he was falsely implicated in the case and he is innocent. Though appellant was called upon to enter on his defence and adduce evidence, he did not adduce any evidence.

(2.) LEARNED Sessions Judge based on the evidence found the appellant guilty. He was convicted and sentenced accordingly. It is challenged in the appeal.

(3.) LEARNED Public Prosecutor pointed out that the material evidence was not challenged at the time of cross examination of the prosecution witnesses. Learned Public Prosecutor submitted that evidence of PW5, the owner of the shop building establish that the building was rented out to PW7 Aby, under Ext.P5 agreement and that building was used for conducting soda shop by PW7 earlier and at that time appellant was his employee. Evidence of PW7 establish that when PW7 started another soda shop, the building was given to the appellant directing to pay the rent to the owner and appellant was conducting the soda business and evidence of PW4 that he was the employee in that soda shop under the appellant from February 2002 onwards, was not disputed. It was pointed out that evidence of PW4 establish that deceased Hyderali, brother of the appellant, used to come and stay in the shop room, and Hyderali had been there on 12/2/2002 and he disclosed to PW4 that he will leave on the morning of 16/4/2002, as appellant promised to repay Rs. 25,000/ - which was earlier taken by the appellant from Hyderali, as that money is to be utilized for the marriage of his sister. It is submitted that the evidence of PW4 establish that deceased was there in the shop room on the night of 15/4/2002 when he left the shop room and evidence of PW3 establish that he found the appellant and the deceased talking at about 8.45 -9 p.m on that night in the space in between the shop rooms, on that night and nobody had seen Hyderali alive thereafter. It is therefore, argued that appellant has a duty to explain what happened to his brother Hyderali on the night of 15/4/2002 and the case of alibi pleaded at the time of questioning under Section 313 of Code of Criminal Procedure was not only not proved but also not even attempted to be proved and is disproved by the evidence of PW3. It was also argued that evidence of PW4 shows that the shop room was not opened on 16/4/2002 and as the appellant disclosed to PW4 that he kept the key at Kambilikandam and the shop room was opened only on the morning of 17/4/2002. Evidence of PW4 that unusually incense sticks (Agarbatties) were lighted in the shop room and when PW4 enquired the reason, appellant disclosed that it was due to the foul smell coming from outside was not even challenged. Evidence of PW4 also shows that blood stains were found on the floor and appellant explained that skin of bison was kept there and the evidence establish that on the evening of 18/4/2002, the dead body was found in the well near to the shop and PW1 and PW4 identified the dead body as that of Hyderali. It was argued that appellant who is in exclusive possession of the shop room, has a duty to explain the presence of the blood stains in that room and he has no valid explanation at all and it establishes that deceased Hyderali was murdered from that room by inflicting the injuries. It was argued that evidence of PW14 the doctor who conducted autopsy and prepared Ext. P11 postmortem certificate establish that death of Hyderali was due to the injuries inflicted on the chest and abdomen and each of the injuries is sufficient in the ordinary course of nature to cause death. Learned Public Prosecutor also argued that evidence of PW17 with that of PW6 and Ext.P6 recovery mahazar establish that MO. 3 knife was recovered from the room where the appellant resides along with PW8, as pointed out by the appellant and in such circumstances, the conviction is perfectly legal and correct.