S H IMAM HUSSAIN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 2nd Additional Sessions Judge II, Kasaragod in S.C. No. 701 of 2012 dated 19/11/2013 as per C.P. No.147 of 2012 arising out of Crime No.161/CR/KNR/2008 (Crime No. 103/1993 of Badiadukka Police Station by which he was found guilty for offence under Sections 449, 302,461, 392, 397 and 201 of the Indian Penal Code, 1860 (for short 'IPC') in which a couple were murdered and was sentenced to undergo imprisonment for life for each of the two offences of murder under Section 302 of I.P.C. and also to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for one year each; also sentenced to undergo rigorous imprisonment for seven years for offence under Section 392 read with Section 397 of IPC; further to suffer rigorous imprisonment for three years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for six months under Section 449 of IPC; again to undergo rigorous imprisonment for one year for offence under Section 461 of I.P.C. and also to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) with default sentence of rigorous imprisonment for six months for offence under Section 201 of I.P.C. The appellant was not found guilty for offence under Section 354 and also for offence under Section 511 of 376 of I.P.C.

(2.) Prosecution case is that the accused who is an astrologer and performer of black magic belonged to Shimoga district of Karnataka and he used to visit the deceased persons Sreekrishna Bhat (herein after called 'Mr.Bhat') and his wife Sreemathi Bhat (herein after called 'Mrs.Bhat') at their house bearing door No.XVI/64 in Enmakaje Grama Panchayath in Kasaragod district where the deceased persons were residing along with three school going children. By making the deceased persons believe that he would unearth treasure from their landed property, the accused/appellant used to perform poojas also. With the intention to kill the deceased persons and to rob the gold ornaments and cash kept in the drawer of the table, the appellant was waiting for an occasion with preparation and on 09/10/1993 at 09.15 P.M., he as usual conducted poojas and made the deceased persons drink water mixed with powdered sleeping pills stating that it is 'prasadam' (remnants of offerings to God or deity given to devotees). The appellant took the deceased Sreekrishna Bhat towards the nearby pit which was already dug for planting coconut sapling and asked him to enter into the pit and pray for getting treasure. While Sreekrishna Bhat was praying by bowing down from the pit, the appellant about 11.30 P.M., stabbed on his head and on the backside of the head and body with a chopper causing as many as nine deep injuries and thereafter he buried the deceased Sreekrishna Bhat in the same pit in such a manner that one of his legs and hands protruded out. Thereafter, he committed criminal trespass by entering into the house of the deceased person at about 12.30 at night and tore the blouse worn by the deceased Sreemathi Bhat off who was lying unconscious and bit her breast causing injuries and thereby outraging her modesty and made an attempt to commit rape on her. Thereafter, he, by using a knife which he had subsequently abandoned into the pond, stabbed Sreemathi Bhat on her neck causing deep injury. Thereafter, he took away 10 sovereigns of gold ornaments and cash kept in the drawer of the table inside the house. Initially the case was investigated by the local police but subsequently, CBCID had taken over investigation. Thus, the appellant was charge-sheeted for the above-said offenses.

(3.) To prove the case, prosecution examined PW1 to PW39 as witnesses, marked documents Exts.P1 to P63 and identified MO1 to MO19 as material objects. After adducing prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). He denied all incriminating circumstances levelled against him. He filed written statement in which he stated that he had never absconded as alleged by the prosecution. In 1992, a case had been initiated against him and after disposal of the said case, he had shifted to his native place at Shimoga since there was communal riot at Mangalore. Thereafter, he has been residing at Shimoga and it was from his house at Shimoga, he was arrested. He had never gone to Devalokam as alleged and was forcibly taken by police to the said place after he was arrested. Before he was produced in Court, many photographs had been taken and it was the said photographs which had been shown to the witnesses before conducting the Test Identification Parade. He had not resided at Mangalore lodge after December 1992. The shoe produced before the Court is not the one used by him. The visiting card alleged to have been seized from the house of the deceased also has no connection with him. After obtaining police custody, the police officials had forcefully taken his thumb impression in the document without his permission.