MOHAMMAD DWARA RAWTHER ISMAIL Vs. STATE OF KERALA

JUDGEMENT

(1.) SRI Mohammed Dwara Rawther Ismail, the accused in Sessions Case No. 35 of 1981, on the file of the Sessions Court, Trivandrum, is the appellant in this criminal appeal. He was prosecuted for offences punishable under Ss 302 and 201 of the I. P. C alleging that he had committed murder in respect of his wife Safia between 9 p. m. and 10. 30 p. m. on 17-9-1930 from the house in which they resided in Kilimanoor, and that he attempted to destroy the evidence concerning the offence. The trial court found him guilty under Sections 302 and 201 I. P. C. convicted him thereunder and sentenced him to undergo imprisonment for life under Section 302 I. P. C. and rigorous imprisonment for one year under Section 201 I. P. C. the sentences to run concurrently. Aggrieved by this conviction and sentence this appeal has been preferred.

(2.) THE prosecution case was that the accused and Safia, whom he had married on 23-7-1978, were living in a house in Kilimanoor with their son Feroz who was aged about 2 years, Safia, a double graduate, was employed as a teacher in a Government school in Kilimanoor the accused was an overseer in the Kerala State Electricity Board. Till about one month prior to the date of occurrence the accused was in Kasara-god, occasionally paying visit to Kilimanoor to see his wife and son. He got a transfer to Kilimanoor just about a month prior to the date of occurrence and thereafter they had been staying together. On 14-9-1980 the accused left for Pathanamthitta, the place from where he hails, telling Safia that he would return the same day. However, he returned only the next morning and on that account there were wordy quarrels between the husband and wife ending in the husband beating the wife. Thereafter till the evening of the 17th there had been exchange of words, beating by the husband, the husband refusing to take food from the house etc. , and the next important event is his coming back from office at about 9 p. m. on 17-9-1980. The prosecution case is that the accused beat Safia, pushed her towards the southern wall of the bedroom, her head hit the wall, she fell down, and later on spinning a cord with one end of a sari he strangled her with the aid of that cord and further, to make it appear that it, was a case of death by suicide bv hanging with the other end of the sari passing over the beam of the room, he tied the other end of the sari in such a posture as to make the appearance of Safia kneeling as in prayers. Thereafter he closed the room from outside after so manipulating the screws of the tower bolt of the door as to give way as soon as least force was applied. He then went to pw. 3 Alima Beevi, a thirteen year aged girl who is the niece of PW. 1, father of Safia, sleeping in another room, awakened her and asked her to knock at the door of the bedroom and call out the name of Safia to enable the accused to take some pills which he was urgently wanting. Though PW. 3 attempted to do so, there was no response: and this was followed by the accused kicking open the door. At that time PW. 3 saw Safia in the hanging position. Though PW. 3 was asked to untie the knot, she refused to do so and the accused himself did it. Later on he went to the house of PW. 2. about 40 metres away from his house, and told the inmates that Safia was found in an unconscious condition and that he would like to have a taxi. They came to the house and saw Safia lying on a cot. With PW. 2's sister and PW. 3 who brought a taxi, Safia was taken by the accused to Sarala Hospital where PW. 7 Dr. M. Mandekures examined her and declared that she was already dead. Though PW. 7 advised the accused to take her to government hospital, as probably post-mortem might be necessary, the accused went to a friend of his by name Hameed and after returning from him, took the dead body in the same car to his house. Later, information was conveyed to the relatives of the accused and deceased Safia. PW. 1 the father of Safia, with his wife reached the house by about 5. 30 a, m. on 18-9-1980. First information statement in this case was given by PW. 1 at Kilimanoor police Station at 7. 30 a. m. and that was recorded. Ext. P-1 is that statement and Ex. P. 1 (a) is the F. I. R. Investigation proceeded inquest was conducted by PW. 23, the Circle Inspector of police, between 3 and 6 p. p. m M. Os. 1 to 6 wearing apparels found on the body of Safia and M. Os. 9 to 11 gold ornaments found on the person were also recovered at that time. Ext, p-5 is the inquest report. The body was sent for post-mortem. PW. 16 Dr. Ramankutty conducted the autopsy over the body of Safia. Ext. p-10 is the post-mortem certificate issued by PW. 16. At the inquest some witnesses were questioned. Investigation was in the hands of PW. 23 till 9-10-1980 on which date investigation was taken over by PW. 24, Circle Inspector of Crime Branch under instructions from supe-riors, On 14-10-1980 he questioned PWs. 2, 7 and 11; on 16-10-1980 he went to the place of occurrence and recorded the statements of PW. 1 and the accused. M. Os. 1 to 8 (a) were taken back from court (M. O. 7 is the screw driver and M. Os. 8 and 8 (a) are the socket of the tower bolt and 2 screws on the door of the bedroom of the house of the accused ). Thereafter PW. 16 Dr. Raman-kutty and PW. 18, Dr. Jayapalan, were brought to the scene of occurrence as per a requisition sent through police officers. They questioned the accused and asked him to demonstrate the manner in which the body of Safia was seen hanging. PW. 15, the Director of Forensic. Laboratory, Trivandrum, also examined the doors with particular reference to M. Os. 7, 8 and 8 (a) as to whether it would have been possible for the accused to kick open the door unless it was tampered with earlier and so manipulated as to give way easily. On 19-10-1980 the accused was asked to be present on the scene. It would appear that he was there by 7 a. m. and P. Ws. 16 and 18 also reached the scene. That day PW. 18 questioned the accused, and during the course of that questioning the accused made a confession that it was he who caused the death of Safia by strangulation. This in brief is the factual basis with which the prosecution went to the court.

(3.) AT the trial PWs. 1 to 24 were examined and Exts. p-1 to p-21 were marked on the side of the prosecution. On the side of the accused no witness was examined, but Exts. D-1 to D-20 were marked. At the close of the trial the accused was questioned under of the Criminal p. c. The plea of the accused was one of total denial of the offence. The learned Sessions Judge, believing the prosecution case and rejecting the plea of the accused, found him guilty under Sections 302 and 201 I. P. C After hearing the accused on the question of sentence, to. be awarded, to him, the punishments of imprisonment for life under Section 302 I. P. C. and rigorous imprisonment for one year under Section 201 I. P. C. to be run concurrently, were awarded.