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2018 DIGILAW 188 (KER)

V. P. Ashraf v. State of Kerala

2018-02-27

A.M.SHAFFIQUE, P.SOMARAJAN

body2018
JUDGMENT : Somarajan, J. 1. The accused came up with this appeal against the judgment of conviction and order of sentence under Section 302 IPC, dated 16.09.2014, in Sessions Case No. 592/2013 of the IInd Additional Sessions Judge, Kozhikode. 2. The victim involved is the wife of accused. The alleged incident took place within the secrecy of the bedroom of accused and victim during the odd hours of night on 05.12.2012. Some of the children of victim and accused were present in the said house. Two married daughters, PW4 Asheeba and Afsath were present in the said house besides PW1, the son of deceased, PW2, another daughter of the deceased and the mother of the deceased. On that night by 11.00 p.m. all of them went to their respective bedrooms. By 1.30 a.m. PW2 woke up. While she was on her way to bathroom, she found the bedroom of accused and deceased lying open. The electric light in the bedroom was burning, besides the light at the central hall and verandah. The front door of the house was also lying opened. PW2 entered into the bedroom of accused and deceased and saw the deceased lying on the bed. Her dress was in a lifted condition. There was bleeding from her nose. The dress worn by the deceased was found to be not in position. Seeing this, PW2 cried aloud and screamed. PW1 and PW4 rushed to the bedroom, on hearing the screaming. 3. By 3.30 a.m. on 06.12.2012, PW1 went to the police station and gave Exhibit P1 FIS before PW15, based on which Exhibit P1(a) FIR was registered. PW16 conducted the investigation. The accused was arrested under Exhibit P13 arrest memo. Inquest on the body of the deceased was conducted by PW16 and prepared Exhibit P11 inquest report. MO2 maxi worn by the deceased, MO3 series of pillow covers found in the bedroom of the deceased and MO4 bed-sheet found on the body of the deceased were seized. Exhibit P2 letter kept under the bed of the deceased and Exhibit P4 diary kept in the bedroom of the deceased were also seized by PW16. At the time of inquest, PW16 applied cellaphone tape on the ligature mark on the neck as well as on the hands of the deceased and collected evidence. Post mortem examination on the body of the deceased was conducted by PW8. At the time of inquest, PW16 applied cellaphone tape on the ligature mark on the neck as well as on the hands of the deceased and collected evidence. Post mortem examination on the body of the deceased was conducted by PW8. The post mortem findings are as follows:- “1. Contusion 2x0.5x0.3cm on either sides of frenulum of lower lip. 2. Contusion 2x1.5x1cm front of tip of right shoulder. 3. Linear scratch abrasion, vertical 12 cm long, back of left arm 7cm above elbow. 4. Linear scratch abrasion, vertical 2.5cm long, on back of tip of right shoulder. 5. Ligature mark was a pressure abrasion transversely placed on neck, on right side 7.5cm below root of ear (0.8cm wide) coursed to right side of neck reached 4cm below right angle of jaw (0.8cm wide) on front 5cm behind tip of chin (1cm wide) and 10cm above the root of neck, further coursed to left side of neck reaching 4cm below left angle of jaw (1cm wide) then coursed indistinctly to left side of neck. On right side the ligature mark continued to back of neck, transversely reaching 7cm below occiput (0.8cm wide) and reached left side of neck merging with undistinct portion 7.5cm below root of left ear. The following scratch abrasions found on right side of neck. – (a) Scratch abrasion, vertical reaching mastoid from ligature mark, 7cm right of midline. (b) Another vertical scratch abrasion 2.5cm long 9cm right to midline from upper portion of ligature mark. (c) There was a transverse scratch abrasion 1.2cm on right side of neck 9cm outer to midline and 0.5cm below the ligature mark. Flap dissection neck done under bloodless field showed infiltration correspondingly under neck ligature mark on soft tissues of neck. Hyoid muscles and blood vessels were intact. Thyroid showed only left lobe (other parts removed during old surgery). 6. Contusion 1x1.5x0.5cm on back of left side of neck, 3cm outer to midline, 4cm above top of shoulder. 7. Contusion 1x1x1cm on the outer aspect and front of left thigh 6cm above knee. 8. Linear vertical scratch (with pale brown adherent scab) 5cm on inner border of upper aspect of left forearm. All injuries were fresh and of similar duration of infliction. The last injury (No.8) was a few days old. Skull, brain 1040gm, mouth and pharynx were intact. Contusion 1x1x1cm on the outer aspect and front of left thigh 6cm above knee. 8. Linear vertical scratch (with pale brown adherent scab) 5cm on inner border of upper aspect of left forearm. All injuries were fresh and of similar duration of infliction. The last injury (No.8) was a few days old. Skull, brain 1040gm, mouth and pharynx were intact. Ribs and chest wall, pleural cavities, diaphragm, mediastinum and thymus, oesophagus, trachea and bronchi were normal and intact. Lungs right 550gm and left 450gm edematous. Heart 300gm. Walls, valves and chambers were normal. Coronary vessels patent. Abdominal wall, peritoneal cavity were normal. Liver 1200gm. Spleen 110gm. Kidneys 120gm each, pancreas, adrenal glands were congested. Stomach was half filled with rice (Biriyani rice) and curry. No unusual smell. Mucosa pale. Intestines and mesentery, urinary bladder, external genitalia were normal. Bilateral tubal ligation present on fallopian tubes. Ovaries and uterus were intact. Spinal column and cord were intact.” 4. The opinion as to the cause of death was stated to be died due to ligature strangulation. 5. There is no eye witness to the alleged incident. Hence, the prosecution heavily relied on the circumstantial evidence. PWs 1, 2 and 4 are the children of deceased and the accused. The alleged incident happened within the secrecy of the bedroom of both the accused and the deceased. They are in agreement that within the locked bedroom the accused and the victim alone were there on the ill fated night. The death of the victim was came to their notice at about 1.30 - 1.45 a.m., when PW2 woke up for urination. On seeing light in the bedroom of the victim and the accused, she entered into the bedroom and had seen the victim lying on the bed. Blood was oozing out from her nose. Her dress was also not in position. Hearing the screaming and crying of PW2, the other children, PW1 and PW4, came to the room. The absence of accused in the bedroom was also noticed by them. The front door of the house was also lying opened. 6. The oral evidence tendered by PWs 1, 2 and 4, who are the children of both the victim and accused, are consistent in all respects regarding the commission of offence. The absence of accused in the bedroom was also noticed by them. The front door of the house was also lying opened. 6. The oral evidence tendered by PWs 1, 2 and 4, who are the children of both the victim and accused, are consistent in all respects regarding the commission of offence. Their version would show that the accused was very much present in the house on the night of the alleged incident and the accused and the victim went to their bedroom by 11.30 p.m. and locked the room from inside. After a few hours, by 1.30 a.m. in the same night, the room was found lying opened. There were lights burning inside the room and the central hall besides the verandah. The front door of the house was also lying opened. Inside the room the dead body of the deceased was found lying and blood was oozing from her nose. Her dress was found to be not in position. From the consistent version given by all these three witnesses, it is clear that (1) the accused was very much present at the time when the victim went for sleeping in her bedroom. (2) The accused and the victim went for sleeping on the alleged night in the same bedroom by 11.30 p.m. (3) The bedroom was locked from inside at that time. (4) The bedroom was found lying opened by 1.30 a.m. on the same night. (5) Inside the bedroom the dead body of the deceased was found lying in a compromising position with blood oozing from her nose. (6) The lights were burning in the bedroom, central hall and the verandah. (7) The accused was absent and disappeared from the said house. (8) The door of the house was found lying opened. 7. The fact that the accused was with the victim during odd hours of the night of the alleged incident; that they were alone in that room and that the alleged incident was happened within the secrecy of their bedroom during night hours would cast a duty on the accused to reveal what is within his special knowledge regarding the commission of offence. The alleged incident was happened within the secrecy of their bedroom and the accused and the victim alone were there in the locked bedroom. The alleged incident was happened within the secrecy of their bedroom and the accused and the victim alone were there in the locked bedroom. If that be so, it is upon the accused to explain how the alleged incident took place and what happened to the victim. Section 106 of the Evidence Act is wide enough to engulf an incident within the special knowledge of the accused which was happened within the secrecy of their bedroom in spite of the fact that there were other inmates in the said house at the time in which the alleged incident happened. The presence of other inmates in the house may not be relevant when the alleged incident happened within the secrecy of their bedroom and that too, during the odd hours of night in order to attract Section 106 of the Evidence Act and what is relevant is the special knowledge attached to the accused regarding the alleged incident and whether it was happened in a secluded place without the juncture of other competent witnesses. 8. In Balram Prasad Agrawal v. State of Bihar and Others ( AIR 1997 SC 1830 ) and in Ram Gulam Chaudhary and Others v. State of Bihar ( 2001 (8) SCC 311 ), the application of Section 106 of the Evidence Act was considered and laid down the principle behind it. It was again elaborately considered by the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006 KHC 1469). The Apex Court laid down the very same principles on an earlier decision in State of West Bengal v. Mir Mohammad Omar and Others [ 2000 (8) SCC 382 ]. 9. Nothing was whispered and no explanation was forwarded by the accused during his examination under Section 313 Cr.P.C. about what happened to the victim within the secrecy of their bedroom on the ill fated night. 10. The learned Sessions Judge applied the theory of “last seen together” as one of the incriminating circumstances against the accused. The Apex Court in Ashok V. State of Maharashtra [ (2015) 4 SCC 393 ] clarified the legal position regarding the application of theory of “last seen together” and the role of prosecution. It was held that the initial burden of proof is on the prosecution to adduce sufficient evidence pointing towards the guilt of the accused. The Apex Court in Ashok V. State of Maharashtra [ (2015) 4 SCC 393 ] clarified the legal position regarding the application of theory of “last seen together” and the role of prosecution. It was held that the initial burden of proof is on the prosecution to adduce sufficient evidence pointing towards the guilt of the accused. However, in case, it is established that the accused was last seen together with the deceased, the prosecution is exempted to prove the exact happening of the incident as accused himself would have special knowledge of the incident and thus, would have the burden of proof as per Section 106 of the Evidence Act. But, “last seen together” itself is not a conclusive proof. The liability which cast upon the accused to speak about what happened to the victim during the night time within the secrecy of their bedroom is so heavy than the liability under the theory of “last seen together”, as the circumstance in the former one is so grave in nature. The commission of offence of homicide of wife within the secrecy of the dwelling house or bedroom during night time while she was alone with her husband is so grave in nature and it casts a heavy liability on the accused to explain what happened to the victim under the peculiar circumstances such as (1) within the secrecy of the dwelling house/bedroom (2) during night time. 11. This Court had an occasion to consider the above said question in Gijin @ Giji v. State of Kerala reported in ILR 2017 (4) Kerala 877 = 2017 (4) KLT SN 81 (C.No.94), wherein it was held as follows: “The statutory duty cast under Section 106 of the Evidence Act to speak when something within the special knowledge of accused only, when the incident was happened within the secrecy of either in the dwelling house of victim and accused or some other exclusive place without the presence of any other witnesses/inmates stands on a more rigorous footing, being a species under the theory “last seen together”. In other words, when the victim and accused alone were in the dwelling house and when the incident was happened within the secrecy of dwelling house, without having witnessed by any other person, the duty cast upon the accused to explain what happened to the victim is so heavy and more rigorous than the duty cast under the theory of “last seen together”. 12. In the instant case, the accused and the victim were alone in their bedroom during the odd hours of the ill fated night and the incident was happened between 11.30 p.m and 1.30 a.m. They locked the bedroom from inside when they went for sleeping. This would cast a duty on the accused to speak what happened to the victim within the secrecy of their bedroom, that too during the odd hours of the night. No explanation was forwarded by the accused. 13. Two subsequent conducts were also brought to our notice regarding the abnormal behaviour of the accused after the commission of the offence that: (1) he had disappeared from the occurrence place/the bedroom and the house during night without intimating or informing any of the inmates in the house; and (2) he had written a letter admitting the commission of offence and its motive. The fact that he had disappeared from the bedroom as well as from the house is so crucial and presumptive of what actually done by him on the victim. The disappearance of the husband from the bedroom and from the house during odd hours of night and commission of a crime within the secrecy of bedroom would fall under the category of a subsequent conduct relevant under Section 8 of the Evidence Act unless there is sufficient explanation or compelling reason for his disappearance. The said subsequent conduct of the accused by his disappearance from the bedroom, that too during odd hours of night without informing any of the inmates in the house and without locking the house, is so abnormal in nature. 14. Exhibit P2 letter admitting the commission of offence and the motive behind the crime, proved to be that of accused, is yet another incriminating circumstance brought out by the prosecution against the accused. 14. Exhibit P2 letter admitting the commission of offence and the motive behind the crime, proved to be that of accused, is yet another incriminating circumstance brought out by the prosecution against the accused. The handwriting in Exhibit P2 letter which was found kept under the bed in the bedroom of the deceased, scientific analysis under Exhibit P23 report and the finding that it belongs to the accused, on comparison with the sample writing under Exhibit P4, would be an additional link in the circumstances pointing towards the guilt of accused completing the chain without any loop hole or lacuna. The fact that he had written a letter expressing his feelings and admitting the motive behind the crime so as to bring the same to the notice of lawful authorities concerned is also yet another circumstance pointing towards the guilt of accused. Exhibit P2 letter proved as that of accused would rule out all other hypothesis inconsistent with the guilt of accused. 15. PWs 1, 2 and 4 are also consistent with the motive behind the crime. The accused used to manhandle the victim doubting her chastity and it is his usual practice to pick up quarrel with his wife, the victim. It is settled that sometimes it may not be possible for the prosecution to trace out the real intention behind the crime. When there is strained relationship or hatred-ness established by the prosecution, it would suffice. Exhibit P2 letter also reveals the actual motive behind the crime, the alleged illicit relationship of the victim with her second son-in-law, which has been witnessed by the accused on one occasion, and also her persistent attitude against the will of accused. 16. The finding rendered by the learned Sessions Judge based on MO1 nylon rope as the ligature used for strangulation, simply on the reason that it was kept by the accused in the bedroom two or three days before the incident, cannot be sustained. The fact that it was kept by the accused in the bedroom of the deceased alone is not sufficient to enter into an inference that it is the ligature used for strangulation. The fact that it was kept by the accused in the bedroom of the deceased alone is not sufficient to enter into an inference that it is the ligature used for strangulation. The further observation of the learned Sessions Judge based on the alleged recovery of MO1 nylon rope cannot be sustained as nothing was mentioned or discussed in the impugned judgment as to whether the MO1 object is an incriminating object or whether it is an object attached with an incriminating factor without which the alleged recovery cannot be brought under the purview of Section 27 of the Evidence Act. What is important is the discovery of a fact pursuant to and in consequence of the information supplied by the accused by way of confession while he was under the custody of police. In criminal proceedings the expression “fact is deposed to as discovered” as incorporated under Section 27 of the Evidence Act should be understood as a relevant incriminating factor. In order to have the application of Section 27 of the Evidence Act in criminal matters, the fact should be an incriminating fact discovered pursuant to the confession made by the accused while under police custody. The forensic lab examination conducted on the cellaphone tape collected from the ligature mark of the victim, which is item No.1, found to be similar to the yellow nylon fibres of item No.10 (MO1 nylon rope). The presence of very same yellow coloured fibres in item No.1 cellaphone tape taken from the ligature mark of the victim is relevant and would make MO1 yellow coloured nylon rope as an incriminating object. The oral evidence tendered by PW6 regarding recovery of MO1 nylon rope from a bushy area lying adjacent to the place of occurrence and the confession statement alleged to have been given by the accused while under custody would bring the recovery within the sweep of Section 27 of the Evidence Act, giving an additional link to the circumstances pointing towards the guilt of accused. The above said circumstances brought out by the prosecution are complete and consistent pointing towards the guilt of accused. The additional link supplied by proving Exhibit P2 letter as that of the accused would rule out all other hypothesis inconsistent with the guilt of accused. No other hypothesis other than the one consistent with the guilt of accused is possible. The above said circumstances brought out by the prosecution are complete and consistent pointing towards the guilt of accused. The additional link supplied by proving Exhibit P2 letter as that of the accused would rule out all other hypothesis inconsistent with the guilt of accused. No other hypothesis other than the one consistent with the guilt of accused is possible. Further the chain of circumstances are complete and consistent with the guilt of accused alone. 17. The accused, during his examination under Section 313 Cr.P.C., advanced a case of alibi and insanity. The alibi advanced that he was away in Thalassery at the time in which the alleged incident happened can only be a falsehood, when tested with the incriminating circumstance discussed above. 18. One of the main contentions raised by the appellant is that the accused was suffering from acute mental disorder at the time of alleged commission of offence and he was incapable of knowing the consequences of his act on account of his mental incapacity and ailment and took support from Exhibit D3 outpatient ticket and Exhibit P4 diary. Exhibit P2 letter written by the accused just after the commission of offence would sufficiently show that he was aware of the consequences of the act done by him at the time of commission of offence. Further, nothing worth profit to the defence was brought to our notice in that behalf. Exhibit D3 outpatient ticket shows only the ailment of asthma and breathlessness as on the date of alleged incident. He was again consulted in the year 2013 and an entry was made stating that the accused was suffering from delusion. Exhibit P4 is the diary kept by the accused. Both these documents were relied on by the appellant to claim the benefit of Section 84 IPC. 19. The plea of insanity/unsound mind as embodied under Section 84 IPC has to be understood in relation to the time in which the alleged incident happened. Previous insanity/treatment given or subsequent revelation of insanity/unsoundness of mind would be relevant in testing whether the accused was incapacitated to know about the nature of act done by him on account of unsoundness of mind/insanity. But the test is to find out the incapacity of the accused to understand the consequences of his act at the time of commission of the act and not the previous or subsequent state of mind. But the test is to find out the incapacity of the accused to understand the consequences of his act at the time of commission of the act and not the previous or subsequent state of mind. The previous and subsequent state of mind are relevant in determining the incapacity of the accused on account of unsoundness of mind at the time of commission of offence. There should be total deprivation of mental ability to understand the consequences of his act at the time of its commission and that alone would bring the matter within the sweep of Section 84 IPC. A mere suspicion as to the existence of some mental ailment or an abnormality alone would not be sufficient to satisfy the requirement under Section 84 IPC. Loosing of temper or a high temperament, irritability, uncontrolled anger, explosion of emotions, whatever may be its gravity, seriousness or magnitude cannot be and would not be brought under the umbrella of Section 84 IPC. Section 84 IPC would attract when the accused is under the disablement of knowing the nature of his act or its consequences. An eccentricity or strange behaviour, extremely gruesome act, abnormal behaviour shall not be substituted in the place of “unsoundness of mind”. The expression “unsoundness of mind” as embodied under Section 84 of the IPC is of such a nature depriving the person from knowing the consequences of his act. Further, drunkenness/intoxication either by the use of alcohol or drugs, also cannot be brought under the purview of “unsoundness of mind”. To have the application of Section 84 or to claim its benefit, the person who claims it should prove not only “unsoundness of mind” but also “the complete deprivation of knowing the consequences of his act” on account of “unsoundness of mind”. In other words, a complete deprivation of knowing the consequences of his act due to some other reason other than “unsoundness of mind” will not come under the purview of Section 84 of the IPC. The expression “unsoundness of mind” shall not be understood as the one created either by intoxication or by other means. It should be a defect/disease/disorder suffered by the person and shall not be one created either by intoxication or otherwise by the user of any drugs or liquor. The expression “unsoundness of mind” shall not be understood as the one created either by intoxication or by other means. It should be a defect/disease/disorder suffered by the person and shall not be one created either by intoxication or otherwise by the user of any drugs or liquor. A man may be suffering from some sort of insanity in the sense in which the expression is used by medical man, but may not be suffering from unsoundness of mind as contemplated by law. If he is capable of knowing the nature of the act or realizing that the act is wrong or contrary to law, he must be held to be guilty. The mere fact that on former occasion the accused can be occasionally subjected to mental delusion or hallucination or has suffered de-arrangement of the mind is per se insufficient to bring him within the exemption of Section 84 IPC. To invoke the defence of insanity, it must clearly be proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. There is no evidence to show that the appellant was suffering from any mental ailment as on the date and time of the commission of offence. A mere delusion, that too long after the alleged incident, cannot be brought under the purview of Section 84 IPC and hence there cannot be any interference to the finding of the learned Sessions Judge that the accused is not entitled to the benefit under Section 84 IPC and hence the finding of guilt of accused under Section 302 IPC and the conviction thereunder do not call for any interference by this Court. 20. The sentence awarded being a lesser one deserves no interference and hence appeal lacks in merits, deserves only dismissal and we do so. In the result, appeal is dismissed.