State of Kerala vs Aboobacker - 2006 Supreme(Ker) 525

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Ker) 525

Judges : K.S.RADHAKRISHNAN,V.RAMKUMAR
State of Kerala - Appellant
Versus
Aboobacker - Respondent
Case No : Crl.A.No.2051 of 2005 & Death Sentence Ref.No.6 of 2005
Decided On : 08/24/2006
Advocates Appeared :
For the Complainant: Sujith Mathew Jose, Public Prosecutor. For the Respondent: T.K. Ajithkumar, Advocate.

Headnote:
Criminal Procedure Code, 1973 - Sections 310, 313, 232, 162(1) - Framing of charges - deposition of witnesses - Powers to make local inspection -Findings of - Held, When superior police officers indulge in freely passing on such information to the public, they not only breach the conduct rules but also put unnecessary pressure on the subordinate officers who are in de facto investigation of the cases - Judge who falls a prey to this weakness is sure to be guided by the heart rather than the head - Judge cannot be living in a world of fantasy while marshalling the evidence before him in the process of dispensation of justice in order to reconstruct a story different from the one propounded by the prosecution - Wealth of judicial experience gained by him should make him more informed, detached and objective rather than publicity-oriented - With all the dynamism and activist potential at his command the judge should be free from the syndrome of functional overstepping which, very often than not, is likely to be misunderstood as the exploits of a prejudiced mind - Although it is the substance rather than the form which really matters in every human enterprise, the facade of "appearance" is an illusion which we, in the larger fraternity of law, have unfortunately fostered - Justice should not only be done but should also appear to have been done - Every Judge who has disciplined himself with this lofty ideal is sure to steer clear of an accusation of partisanship - What he had allegedly extracted during the interrogation of the accused could not have been permitted to be deposed nor recorded by the trial Judge - case of the prosecution as discernible from the police report (final report under S.173(2) Cr.P.C.) need not be the same when the prosecution lets in evidence to establish its case. What can be permitted during trial is only legal evidence which is admissible as per the provisions of the Evidence Act. - accused cannot be called upon to enter on his defence before reaching the stage of hearing under S.232 Cr. P.C. On the contrary, what is revealed by the record of examination of the accused under S.313(1)(b) Cr. P.C. is that immediately after the examination of the accused he was asked whether he had defence evidence to be adduced - Incriminating circumstances which have not been put to the accused and an opportunity given to the accused to explain those circumstances will have to be totally eschewed from consideration and cannot be relied on for entering a conviction against the accused - Attention of the accused should be drawn to every inculpatory material and failure in this regard may gravely imperil the validity of the trial itself.

Judgment :-

Ramkumar, J.

The above death sentence reference has been registered upon submission of proceedings by the Sessions Judge, Manjeri, under Sec. 366 Cr.P.C. for confirmation of the death sentence awarded to Poothala Aboobaker @ Babu for his conviction under sec. 302 IPC along with other offences by the Addl. Sessions Court (Fast Track Court No.I - Ad hoc), Manjeri in S.C. No. 113/2005. The above criminal appeal has been filed by the said accused challenging the conviction entered and the sentence passed against him by the aforesaid court for offences punishable under secs. 376, 377, 302 and 201 IPC.

2. With the consent of both sides the death sentence reference was heard along with the above criminal appeal.

3. The case of the prosecution can be summarised as follows:

On 8-9-2004 at or about 9.30 a.m. inside the common bathroom on the upstair portion of the partially built house belonging to one Manakkadavan Beerankoya at Muchirakkad near Kondotty in Emad Taluk of Malappuram. District the accused viz. 20 year old PoothalaAboobaker @ Babu who was employed as a labourer under a building contractor, forcibly abducted a minor girl aged 12 years by name Khairunissa on her way to school and committed carnal intercourse on her body against the order of nature and thereafter committed rape on her after gagging her mouth with a towel and tying her legs on to two laterite stones and tying both her hands behind her body with a coir rope and tying a towel around her face closing her eyes. After sexually assaulting the girl as above, the accused committed murder of the girl by tying one end of the towel around her neck and tightening the same by lifting the other end to make sure her death. Thereafter with the intention of causing disappearance of the evidence of the offence and to screen himself from punishment, the accused concealed the dead body by carrying the same into the nearby building of Abdul Latheef under construction and dumped the dead body on the loft above the bathroom attached to the bedroom on the upstair of the said house. The accused then closed the loft using laterite stones and thereafter made himself scarce. The accused has thereby committed offences punishable under secs.376, 377, 302 and 201 IPC.

4. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 44 witnesses as P.Ws.1 to 44 and got marked 53 documents as Exts. P-1 to P-53 and 38 material objects as M.Os.1 to 23, 23(a) to 23(e), 24 to 26, 26 (b) and 27 to 33.

5. After the close of the prosecution evidence, the accused was purportedly examined under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances allegedly appearing against him in the evidence for the prosecution. He denied the incriminating circumstances put to him and maintained his innocence.

6. Soon after the completion of the examination of the accused under sec.313 Cr.P.C., he was called upon to enter on his defence. He examined as D.Ws.1 and 2 the reporter and news editor of the malayalam daily Mathrubhumi and got marked Exts. D-1 to D-7 series of newspaper reports and three photographs as Exts. D-7(d), D-7(e) and D-7 (f).

7. After the conclusion of trial, the learned Addl. Sessions Judge as per judgment dt. 31-10-2005 found the accused guilty of all the offences with which he was charged. After hearing the accused on the question of sentence, the learned Sessions Judge imposed the extreme penalty of death for the conviction under sec. 302 IPC subject to confirmation by the High Court. In view of the capital punishment awarded for the offence of murder, no separate sentence was imposed for the conviction under secs. 376, 377 and 201 IPC. It is the said judgment which is assailed in the above appeal by the accused. The D.S.R. comes up before us to consider whether the death sentence imposed by the court below

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