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2019 Supreme(Ker) 1063
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, A.M. BABU, JJ.
Muhammad Afsal S/o Hashim – Appellant
Versus
The Sub-Inspector of Police, Thalassery Police Station – Respondent
Crl. Appeal No. 1221 of 2014
Decided On : 12-04-2019
Advocate Appeared:
For the Appellant : Sri. Sunny Mathew.
For the Respondent: Smt. S. Ambika Devi.
Important points:
The FI statement was recorded without much delay. The FIR was registered promptly. But there was some delay in forwarding the FIR to the magistrate. The delay was not inordinate. We do not see anything to suspect any manipulation in the FI statement and FIR. Therefore the slight delay is not sufficient to view seriously
Headnote:
Indian penal Code- Sections 302 and 447 -Commit murder of Shafna -Motive loses importance when the evidence is strong- The appellant criminally trespassed into the courtyard of the house of the victim to commit a crime-The appellant thus committed criminal trespass - Evidence of PW-1 is admissible in evidence and is relevant under Sec. 6 of the Indian Evidence Act as res gestae -Liable to be convicted and sentenced under Sections 302 and 447 of IPC
Statement of facts:
Appellant was the sole accused in S.C. No. 576/2013. That was a case on the file of the court of session, Thalassery division. The appellant was tried, convicted and sentenced by the first additional sessions judge of the said court. The offences for which the appellant was convicted and sentenced were those punishable under Sections 302 and 447 of the Indian Penal Code (IPC).
Finding of the court:
No acceptable evidence in support of the prosecution version that the appellant had taken revenge as his proposal to have a love affair was refused by the victim-Motive loses importance when the evidence is strong- The appellant criminally trespassed into the courtyard of the house of the victim to commit a crime-The appellant thus committed criminal trespass also. He was liable to be convicted and sentenced under Sections 302 and 447 of IPC. The sentences imposed on the appellant are also not liable to be interfered with
Result: Appeal Dismissed.
JUDGMENT :
A.M. BABU, J.
1. Appellant was the sole accused in S.C. No. 576/2013. That was a case on the file of the court of session, Thalassery division. The appellant was tried, convicted and sentenced by the first additional sessions judge of the said court. The offences for which the appellant was convicted and sentenced were those punishable under Sections 302 and 447 of the Indian Penal Code (IPC).
2. Prosecution case is this:
Shafna was a college student. She was residing with her parents. The appellant proposed to Shafna to have a love affair. She refused. He therefore had a grudge against her. He criminally trespassed into the courtyard of her house. He chopped her to death. He with a billhook cut her on her neck, head, hands and other parts of her body. The incident occurred at 12.45 p.m. on 23.1.2014 at the courtyard of her house.
3. Charges were framed against the appellant under Sections 302 and 447 of IPC. He denied the charges. PWs. 1 to 20 were examined and Exts.P1 to P25 and MOs 1 to 11 were marked on the side of the prosecution. Exts.D1 and D2 were marked on the defence side during the course of prosecution evidence. Exts.C1 an C2 were also marked. The appellant was examined under Sec. 313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and circumstances relied on by the prosecution. He was not acquitted under Sec. 232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He chose not to adduce any evidence.
4. The trial court found the appellant guilty of both the offences charged against him. He was sentenced to imprisonment for life and a fine of Rs. 50,000/- under Sec. 302 of IPC. Under Sec. 447 of IPC, he was imposed a punishment of rigorous imprisonment for three months and a fine of Rs. 500/-. Separate sentences in default of payment of the fine amount were also imposed. The substantive sentences of imprisonment were directed to run concurrently. The mother of the victim was awarded a compensation of Rs. 40,000/- from out of the fine amount.
5. Heard Sri. Sunny Mathew, the learned counsel for the appellant and Smt. S. Ambika Devi, the learned special public prosecutor for cases involving atrocities against women and children.
6. Shafna had her untimely death at the age of 18. She died on 23.1.2004. It was a homicide. Her homicidal death is an admitted as well as a proved fact. She was brought dead to the government general hospital at Thalassery. PW-8, assistant surgeon, confirmed the death and sent the body to the mortuary. PW-17, the district police surgeon, conducted autopsy. Ext P19 is the report of autopsy. PW-17 found 29 ante-mortem wounds on the corpse. He described all those wounds in Ext P19. He deposed to those wounds in court. The learned trial judge extracted all the wounds in the impugned judgment. Therefore those injuries need not be reproduced once again. Injury Nos. 1, 5 to 11, 13 to 18, 21 to 25 and 28 are incised wounds. Injury Nos. 2 to 4, 12, 19 and 20 are chop wounds. Injury Nos. 26, 27 and 29 are multiple small abrasions, abated contusion and contusion respectively. Wounds were mostly inflicted on the neck and the head. The prosecution proved that Shafna was murdered. Ocular evidence and circumstantial evidence are relied on by the prosecution to prove the complicity of the appellant.
7. PW-2 is the ocular witness for the prosecution. She is the mother of the victim. PW-2 spoke as follows:
The incident occurred at 12.45 p.m. on 23.1.2004. She alone was in the house at the time of the incident. Being a Friday, her husband had gone to the mosque for his juma prayer. PW-2 was sitting in her house in the varandah which was covered with grills. Her daughter came in an autorikshaw. The daughter came to the mother for money to pay the fare to the driver of the autorikshaw. The fare was paid to the driver. PW-2 went to the kitchen. She heard the cry of her daughter. PW-2 came to the front of her house. At that time Shafna was running towar
