MOHANAN KANI Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT in Criminal Appeal 250/1992 was charged with offences under Ss. 376, 392 and 302 of the Indian Penal Code. Learned Sessions judge convicted him for all the said offences. For the offence under S. 302 of the Penal Code, accused was sentenced to death, subject to confirmation by the high Court. Accused was also sentenced to undergo rigorous imprisonment for seven years for the offence under S. 376 and for five years under S. 392 of the code. Accused challenges the conviction and sentences passed against him by filing Criminal Appeal 250 of 1992. Proceedings submitted by the Sessions Court for confirmation of the sentence of death was numbered as R. T. I of 1992. We heared counsel representing the accused and the learned Additional Director general of Prosecution in detail.

(2.) PROSECUTION case, in a nutshell, is to the following effect.--Bindu, aged 17 years, daughter of PW-2, was studying for the 1st year of the Pre-Degree course in Universal Tutorial College , palode. As usual, she went to the tutorial college at about 8. 30 A. M. on 4-4-1991. Usually Bindu was to reach home by about 4. 00 P. M. On 4-4-1991, she did not reach home at the usual time. PW-4, while returning home through the pathway passing through the Anjili plantation, after getting down from the bus, found the books, geometry box and chappels of Bindu scattered on the pathway. She also saw a red shirt by the side of the above articles on the pathway. She sent word to PW-2 about the presence of the books and other articles belonging to Bindu on the pathway. PW-2 went to the spot along with her daughter, pw-3. They could not find any of the above mentioned articles or Bindu. Meanwhile dead body of Bindu was located inside the forest about 96 metres to the west of that pathway.

(3.) IN this case, there is no eyewitness to the occurrence. Prosecution tries to bring home the guilt of the accused on circumstantial evidence. When a case rests on circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstance should be of a definite tendency unerringly pointing towards guilt of the accused; and (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else (vide Gambhir v. State of Maharashtra - AIR 1982 SC 1157; jaharlal Das v. State of Orissa - AIR 1991sc1388 ). The circumstantial evidence must be complete in all respects in order to point to the guilt of the accused. It should not be inconsistent with his innocence. IN the instant case, prosecutions attempt was to show that the evidence not only is consistent with the guilt of the accused but also is inconsistent with his innocence. Prosecution establishes the following circumstances.-Accused was familiar to the victim, bindu. He was in love with her, though there is nothing on record to show that it was being reciprocated by Bindu. After the class, Bindu got down from the bus at Adappupara. She had to pass through the lane which is lying across the anjili plantation for reaching her home. A few minutes prior to her arrival at adappupara, accused was at that place wearing a red shirt. Books, tiffin carrier, instrument box, chappels etc. of Bindu were seen lying scattered on the lane. Red shirt, belonging to the accused, was also seen near those articles. Bindu's dead body was seen at a place nearly 96 metres away from the lane in the Anjili plantation. The grass and plants there were seen crushed. Within hours after the incident, accused was arrested. On the basis of the information given by the accused, MO-1 series of gold ornaments, which were worn by Bindu, were recovered under Ext. P2 mahazar. The other articles of bindu, like books, tiffin carrier, chappels, instrument box, etc. were recovered under Ext. P3 mahazar on the basis of the information furnished by the accused himself. Human scalp hair collected from the place of occurrence were found similar to the samples of scalp hair of the accused. Two swabs containing saliva taken from the dead body were subjected to chemical analysis for comparing it with the saliva taken from the accused. They were found to be of non secreter group.