Abdul Salim vs State Of Kerala

AGAINST THE ORDER/JUDGMENT DATED 14.09.2018 IN SC

NO.32 OF 2017 OF ADDITIONAL SESSIONS COURT - IV, KOLLAM

APPELLANT/ACCUSED:

ABDUL SALIM

AGED 39 YEARS

S/O ISMAYIL KUNJU, C.NO. 2988, CENTRAL PRISON AND

CORRECTIONAL HOME, POOJAPPURA,

THIRUVANANTHAPURAM, AND RESIDED AT

THAIKKOOTTATHIL HOUSE, KADATHUR MURI,

KULASEKHARAPURAM VILLAGE, KOLLAM.

RESPONDENT/COMPLAINANT:

1 STATE OF KERALA

REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF

KERALA.

2 THE SUB INSPECTOR OF POLICE

KARUNAGAPPALLY POLICE STATION.

BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES

AGAINST WOMEN & CHILDREN & WELFARE OF W & C

OTHER PRESENT:

SRI RENJITH T R, SR. PP

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

17.02.2025, THE COURT ON 21.02.2025 DELIVERED THE

FOLLOWING:

Crl.Appeal No.872 of 2019 2

2025:KER:14989

RAJA VIJAYARAGHAVAN V,

&

P.V.BALAKRISHNAN,JJ.

-------------------------------------

Crl.Appeal No.872 of 2019

---------------------------------

Dated this the 21st day of February 2025

JUDGMENT

P.V.BALAKRISHNAN,J

This appeal is filed by the sole accused in SC 32/2017 on the files of the Additional Sessions Court-IV, Kollam, challenging his conviction and sentence imposed under Section 302 IPC by the said court.

Prosecution case 2. The deceased Sanooja was the wife of the accused. Two children were born in their wedlock. The accused used to doubt the chastity of Sanooja and they regularly indulged in fights. On getting agitated by some words spoken to by Sanooja during the fight, the accused, with an intention to kill Sanooja, on 6/11/2016 at about 9.30 pm, inside the bedroom of his house, banged the head of Sanooja on the wall. When Sanooja became Crl.Appeal No.872 of 2019 3

2025:KER:14989

unconscious, the accused made her lie prone in a cot.

Thereafter, the accused took a knife from the kitchen and cut a piece from the plastic rope of a cradle kept in the bedroom.

Using this, the accused strangled Sanooja by tying it on her neck and killed her. Hence, the prosecution alleged that the accused has committed an offence punishable under Section

302 IPC.

Proceedings before the trial court 3. From the side of the prosecution, PW1 to PW24 were examined, and Exts.P1 to P35 and MO1 to MO24 were marked.

When questioned under Section 313 Cr.P.C.,the accused denied all the incriminating circumstances appearing against him in evidence and contended that he is innocent. He stated that while he was having food, Sanooja tied herself onto the rope attached to the cradle and when he cut the rope her head hit on the cot lying nearby and she fell down. Even though the accused was granted an opportunity to adduce evidence, no evidence was adduced. The trial court, on an appreciation of the evidence on record and after hearing both sides, found the accused guilty Crl.Appeal No.872 of 2019 4

2025:KER:14989

and convicted him under Section 302 IPC. He was sentenced to undergo imprisonment for life and to pay a fine of Rs.1 Lakh under Section 302 IPC. In case of default, the accused was ordered to undergo simple imprisonment for a further period of one year. The fine amount, if realised, was ordered to be paid to PW2 as compensation under Section 357(1) Cr.P.C.

Prosecution evidence 4. PW1 is the brother of Sanooja's father. He deposed that on 6/7/2016 at about 11 pm, while he was in his shop, his brother called him and asked him to come to Sanooja's house.

When he reached there, he saw Sanooja's father and mother crying. When he tried to open the door, he found it locked and he went inside the room through the door on the eastern side.

There, he saw Sanooja lying motionless on the floor and he lifted her and laid her in the cot. At that time, he noticed a ladder and a rope attached to a cradle lying there. Thereafter, Sanooja was taken to a hospital in a car, where she was declared 'brought dead'. Then, he went to the police station and lodged Ext.P1 FIS.

Crl.Appeal No.872 of 2019 5

2025:KER:14989

5. PW2 is the mother of deceased Sanooja. She deposed that at about 11 pm, her husband received a telephone call asking to come to Sanooja's house and when they went there, she saw her daughter lying on the floor. She also stated that the accused was always doubtful about the chastity of Sanooja.

6. PW3 is the brother-in-law of the accused. He deposed that he had come to his wife's family house to celebrate Ramzan and while he was there, his wife informed him that the accused was calling him. When he went to the house of the accused, he told him that he had a fight with Sanooja and that he had beaten her. The accused also told him that Sanooja was lying motionless . Thereafter, the accused went to call Rasheed and informed him about the incident. When the sister of the accused Shyma questioned him, he left the place. Shyma went inside the house and found the deceased lying there and all of them took her to the hospital. He also gave Ext.P2 statement before the Magistrate. In his cross examination, PW3 stated that he along with his wife were present in the house of the accused till 8.30 pm and that period was uneventful.

Crl.Appeal No.872 of 2019 6

2025:KER:14989

7. PW4 is a neighbour of the deceased. She stated that when she went to the house of the accused on getting information, she saw Sanooja lying on the floor, motionless. She also noticed a plastic rope and a ladder nearby.

8. PW5 is the sister of the accused. She deposed that she had come to her parental house, which is situated near the house of the accused. At about 10.30 pm, she saw the accused going towards his brother's house and coming back with PW1.

At that time, Rasheed also came there. When she enquired with the accused, he told her that his wife is not feeling well. She went to the house of the accused and saw Sanooja lying there, motionless. When she again enquired with the accused, he told her that he committed a mistake and had given a small beating to his wife. Thereafter, the accused ran away from that place and Sanooja was taken to the hospital. In her cross examination she stated that she did not notice any rope or ladder in the room.

9. PW6 is the father of the deceased. He deposed that when he reached the spot, he saw her daughter lying on the Crl.Appeal No.872 of 2019 7

2025:KER:14989

floor motionless and the accused was not seen there. He also saw a ladder and a plastic rope in the room. He further stated that the accused was always suspicious about the chastity of his wife.

10. PW7 is a witness, who had reached the spot after the incident and had witnessed the victim being taken in a car to the hospital. PW8 is a witness to Ext.P4 inquest report. He also stated that the accused was suspicious of the chastity of his wife and there used to be regular fights between them. On many occasions, he had stood as mediator for them.

11. PW9 is a person residing near to the house of the accused. He deposed that on 6/11/2016 at about 11 pm while he was standing in Panamood Junction, he saw the accused walking away hastily. He also stated that, before that he had heard shouts from the house of the accused and when he went there, saw the deceased being taken in a car.

12. PW21 is the doctor, who conducted the postmortem examination of deceased Sanooja and issued Ext.P14 certificate.

She noted three ante mortem injuries on the body of the Crl.Appeal No.872 of 2019 8

2025:KER:14989

deceased and the third injury was a pressure abrasion 32 cm long almost horizontal around the neck with discontinuity of 5.5.cm on the left side of the back of the neck. She opined that the cause of death was due to constriction force around the neck and stated that MO11 can cause injury No.3. In her cross examination, she stated that she had not given any definite opinion as to whether the constriction force around the neck was due to strangulation or hanging.

13. PW22 is the police officer, who conducted a part of the investigation. He prepared Ext.P4 inquest and seized MO3 to MO9 dresses and produced them before the court as per Ext.P15 property list. The articles collected by the scientific assistant were also forwarded to the court as per Ext.P16 property list. Later he prepared Ext.P7 scene mahazar and seized MO10 shawl, MO11 piece of rope, MO12 cradle, and produced the same before the court as per Ext.P17 property list.

Through him Ext.P20 FIR registered by CW14 was also marked.

14. PW 23 is another investigating officer, who conducted a part of the investigation. He deposed that he prepared Ext.P6 Crl.Appeal No.872 of 2019 9

2025:KER:14989

mahazar, filed Ext.P21 report giving the name and address of the accused and seized Ext.P22 diary and Ext.P23 cheque book as per Ext.P8 mahazar. He also seized MO 13 Tab as per Ext.P12 mahazar and forwarded it to the court as per Ext.P24 property list.

15.PW24 is the investigating officer, who completed the investigation and laid the charge. He arrested the accused, by preparing Ext.P26 to P28 documents, seized the bag and dresses of the accused and produced them before the court. He also seized MO23 knife used by the accused as per Ext.P10 mahazar.

Contentions of the appellant 16. The learned Counsel for the appellant Adv.A.G.Aditya Shenoy contended that the prosecution has not proved its case beyond reasonable doubt. He argued that the prosecution has not proved the entire chain of circumstances leading to an inference of guilt against the accused. He submitted that the medical evidence adduced is not conclusive as to whether the death of Sanooja is homicide or suicide. He argued that the Crl.Appeal No.872 of 2019 10

2025:KER:14989

prosecution has also not proved the motive alleged in this case and the scientific evidence let in improbabilise the case that the victim was strangled using a rope by the accused. He also submitted that the extra judicial confession allegedly made by the accused is very vague and the same alone cannot be relied upon to convict the accused. Hence, he prayed that this appeal may be allowed.

Contentions of the Public Prosecutor 17. Learned Public Prosecutor Adv.Ranjith T.R. contended that the prosecution has proved its case beyond reasonable doubt. He argued that the evidence of PW21 coupled with Ext.P14, rules out the possibility of suicide and the accused has failed to discharge the burden cast upon him to show as to what happened within the four corners of his house wherein, he was residing with his wife. He also submitted that the extra judicial confession made by the accused to PW3 and PW5 clinches the prosecution case and that they are reliable and creditworthy.

Hence, he prayed that this appeal may be dismissed.

Crl.Appeal No.872 of 2019 11

2025:KER:14989

Evaluation of evidence 18.The first and foremost question to be considered in this appeal is whether the death of Sanooja is homicidal or not. It is the prosecution case that the accused has strangled the neck of Sanooja using a piece of rope and has killed her. On the other hand, it is the contention of the accused that Sanooja has hanged herself in the rope attached to the cradle and the accused has only cut the rope and helped her. While considering this question, the opinion evidence of PW21, the doctor who conducted the postmortem examination, and Ext.P14 certificate issued by her assumes much relevance. PW21 noted the following three ante-mortem injuries on the body of the deceased Sanooja:

"1. Contusion 5.5x3.5x0.4cm on left side of back of head 2cm to left of midline lower extent at the level of occiput.

2. Superficial lacerated wound 0.3x0.2cm on inner aspect of lower lip 1 cm to left of midline.

3. Pressure abrasion 32cm long, almost horizontal around the neck with a discontinuity of 5.5cm on left side of back Crl.Appeal No.872 of 2019 12

2025:KER:14989

of neck. It was placed 9 cm below right ear(0.5cm broad), 8 cm below chin over the thyroid cartilage (0.5 cm broad), 7.5cm below left year (0.5cm broad) and 8cm below occiput (0.5 cm broad). Flap dissection of the neck was done in a bloodless field, the subcutaneous tissue underneath the pressure abrasion was normal.

Thyrohyoid muscle on left side showed infiltration of blood (2.5 x 2x0.3cm). Base of tongue showed contusion 3x2.5x2cm. All other neck structures including bones, cartilages and soft tissues were intact and normal."

She also gave her opinion that death was due to constriction force around the neck. She further stated that injury No.3- pressure abrasion can be caused by MO11 plastic rope and that the pressure abrasion is almost horizontal in nature. But, it is very pertinent to note that PW21 did not give any definite opinion to conclude that the cause for constriction force around the neck was either due to strangulation or hanging. It is again pertinent to note that, even after MO11 was shown to PW21, she did not definitely state anything about the afore fact. At this juncture, we will also take note of the fact that the postmortem Crl.Appeal No.872 of 2019 13

2025:KER:14989

examination revealed that the subcutaneous tissue underneath the pressure abrasion, and all the neck structures including bones, cartilages and soft tissues of the deceased were intact and normal, and there were no peri ligation injuries. Further, there was no ecchymosis around the abrasion and no scratches, fingernail marks or bruises on the face, neck and other parts of the body, which would be normally present in cases of manual strangulation. In the light of the afore evidence and the fact that no definite opinion is forthcoming from the side of PW21, we have no hesitation to find that there are no materials to conclude that the death of Sanooja is homicidal. At this juncture, we will also take note of the observations of the Hon'ble Apex Court in Machindra v. Sajjan Galfa Rankhamb [(2017) 13 SCC 491], wherein it was held that, in criminal cases pertaining to offences against human body, medical evidence has a decisive role to play and a medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. It was also observed that, where medical evidence is such that it does Crl.Appeal No.872 of 2019 14

2025:KER:14989

not give any clear opinion with respect to injuries inflicted on the body of the victim or deceased, possibilities that injuries might have been caused by the accused are also ruled out. If the report of an expert is slipshod, inadequate or cryptic, then his opinion is of no value and such opinions are of no use to the court and often lead to the breaking of very important links of prosecution evidence, which are led for the purpose of prosecution.

19. That apart, in the present case it is to be seen that there is no direct evidence available to inculpate the accused in this crime. The evidence of PW1, PW3, PW5, PW6 & PW7 would go to show that they have reached the spot only after the incident. Evidence is also lacking to prove the motive alleged, which is the quarrel leading to an alleged raunchy talk by the deceased, based on a movie. The only material available is an alleged extra judicial confession made by the deceased to PW3 and PW5, in which the accused has stated that he had beaten the deceased. It is a settled law that an extra judicial confession is a weak piece of evidence and unless there is other Crl.Appeal No.872 of 2019 15

2025:KER:14989

corroborative evidence, no reliance can be placed upon it. (See Nikhil Chandra Mondal v. State of West Bengal [(2023) 6 SCC 605] . In the present case, no other corroborative piece of evidence is available so as to enable this Court to rely upon the alleged extra judicial confession.

20. The evidence on record also goes to show that the prosecution has not conducted any investigation as to how the lock in the room, where the incident took place, had broken as deposed by PW20 & PW23. It is to be kept in mind that, it is the specific case of the accused that it is he, who had broken open the door and has cut the rope in which his wife was found hanging. It is also to be noted that the prosecution does not offer any explanation as to the presence of a ladder near the place of occurrence, as spoken to by PW1, PW4 & PW6.

Similarly, it is to be taken note that even though Ext.P35 chemical analysis report speaks about the details of the examination after extracting samples from the fingernails and neck of the deceased, absolutely no evidence is forthcoming to show as to who, when and how the samples were collected. In Crl.Appeal No.872 of 2019 16

2025:KER:14989

other words, there is no link evidence to connect Ext.P35 report with the samples allegedly taken from the body of the deceased.

Again, it is pertinent to note that even though the prosecution case is that on the basis of the information given by the accused, MO23-knife, which has been allegedly used in the commission of the crime, has been recovered, the evidence of PW24 is totally silent on this aspect. PW24 did not even choose to depose the exact information he received from the accused, which led to the alleged discovery, and therefore, recovery of MO23 by PW24 also cannot be acted upon. In the light of all the afore facts and circumstances, no much importance/weightage can be given to the act of the accused allegedly absconding from the place of occurrence immediately after the incident, for sustaining a conviction.

21. The upshot of the afore discussions on evidence is that the prosecution has utterly failed to prove that the death of Sanooja is homicidal. It also failed to prove all the circumstances in the chain from which an inference of guilt can be made against the accused. The trial court has not properly Crl.Appeal No.872 of 2019 17

2025:KER:14989

appreciated the evidence on record and it has arrived at a wrong conclusion of guilt against the accused. If so, we find that this appeal is only liable to be allowed, thereby setting aside the conviction and sentence passed against the appellant/accused.

22. In the result, the appeal is allowed as follows:

The conviction and sentence passed against the appellant/accused under Section 302 IPC, in SC No.32/2017 by the Additional Sessions Court-IV, Kollam is set aside and the appellant/accused is set at liberty.

Sd/-

RAJA VIJAYARAGHAVAN V

Judge

Sd/-

P.V.BALAKRISHNAN

dpk Judge