Abdul Salim vs State Of Kerala

2025:KER:14989 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946 CRL.A NO. 872 OF 2019 CRIME NO.2272/2016 OF KARUNAGAPALLY POLICE STATION, KOLLAM 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