1. 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 alone with the above criminal appeal.
3. The case of the prosecution can be summarized 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 Ernad Taluk of Malappuram District, the accused viz, 20 year old Poothala Aboobaker @ 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 he 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 a 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 PWs.1 to 44 and got marked 53 documents as Exts.P1 to P53 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 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 DWs1 and 2 the reporter and news editor of the Malayalam daily Mathurbhumi and got marked exts.D1 to D7 series of newspaper reports and three photographs as Exts.D7(d), D7(e) and D(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 Session Judge imposed the extreme penalty of death of 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. He D.S.R comes up before us to consider whether the death sentence imposed by the court below is liable to be confirmed or not.
8. We heard Adv.Sri. T.K.Ajithkumar, the learned counsel who defended the accused and Adv.Sri Sujith Mathew Jose, the learned Public Prosecutor who defended the State.
9. Both sides argued at length their respective contentions.
ARGUMENTS OF THE PUBLIC PROSECUTOR
10. Canvassing for confirmation of the death sentence imposed on the accused and for dismissal of the criminal appeal filed by the accused, the learned Public Prosecutor made the following submission before us:-
The prosecution has proved the following circumstances from which an inference of the guilt of the accused can indubitably be drawn:-
(i) The 12 year old girl who had left her house for school at about 9 'o' clock in the morning on 8-9-2004 to write her quarterly examination did not reach home and was found missing from 4.30 p.m, onwards. A frantic search for the girl in the nearby houses and her school, was in vain. This is proved by P.Ws 1 to 3 and 5 and 9. P.W.1, the father of the girl thereupon lodged Ext.P1 F.I. statement before the Kondotty police at 8.30 p.m, 8-9-2004.
(ii) The evidence of P.Ws.3 and 5 and Ext.P6 will show that the girl did not attend the school on 8-9-2004.
(iii) A through search for the girl made by the local people and the police on 8-9-2004 and subsequent days was futile. The evidence of P.Ws. 1 to 9 and 27 proves this circumstance.
(iv) The deadbody of the girl was found in the unfinished house of Abdul Latheef at about 2 p.m, on 11-9-2004 . This is proved by PWs 1 to 5, 8, 9 and 44 and Ext.P7 inquest report.
(v) The girl used to take a short cut to her school along the pathway in between the house of Manakkadvan beeran Koya and Abdul Latheef. This is prove by P.Ws. 1 to 6 and 9.
(vi) The accused was a worker under P.W.6, a building contractor in the construction of the house of Berankoya and he was engaged for applying black oil on the iron panels used for concreting work. This is proved by P.Ws. 6, 7, 24 and 34.
(vii) Eventhough there was no work in Beeran Koya's house on 8-9-2004 (as spoken to P.Ws. 6 and 7) the accused was seen in the vicinity of Beeran Koya's house on that day. (See P.Ws. 10,11 and 38).
(viii) After the body of the missing girl was found in the house of Abdul Latheef on 11-9-2004 P.W.6 who was the building contractor of Beerankoya's house was asked by the police to produce all his workers with a view to rule out the possibility of any of them being the culprit. All the workers except the accused presented themselves before the police. The abscondence of the accused evoked the suspicion of the police and the local people. (See PWs 6 and 44).
(ix) Mos 4 to 12 which were the belongings of the deceased when she left for the school on 8-9-2004 were recovered from the house of the accused on 14-9-2004 at 5 p.m, as evidenced by Ext.P9 search list and the testimony of P.W.44.
(x) Autopsy on the dead body by P.W.39 doctor showed evidence of rap on the girl whose death was found to be due to ligature strangulation. (See Ext.P36).
(xi) Recovery of incriminating articles consequent on the arrest of the accused at 7 p.m, on 16-9-2004.
(a) Sec.27 recovery of Mos 23 to 25 (5 pieces of coir ropes, red towel, white towel) incriminating materials as per Ext.P30 mahazar at the instance of the accused from the house of Beerankoya pursuant to Ext.P30(a) confession.
(b) Sec.27 recovery of Mos14 to 16 dress of the deceased form beneath a culvert as per Ext.P31 mahazar at the instance of the accused who had given Ext.P3(a) confession.
(c) Sec.27 recovery of MO13 series of three pieces of writing pad carried by the deceased, as per Ext.P34 mahazar from the bushes in the paramba situated near the culvert at the instance of the accused who gave Ext.P34(a) confession.
(xii)The seizure of Mos.27 dhoti and MO28 underwear from the person of the accused and M.O.29 yellow shirt from his house as per Ext.P35 mahazar.
(xiii) The conduct of the accused in showing the house of Beerankoya and Abdul Latheef.
(xiv) Scientific evidence:- Ext.P24 F.S.L. report shows the following:-
(a) Eight black hairs found inside the depth of the vagina of the deceased by P.W.39 (Autopsy Surgeon) and 3 of the five hairs obtained from the house of Beeran Koya by P.W.35 (Scientific Assistant, F.S.L) as per Ext.P33 were similar to the specimen public hair of the accused taken by P.W.15 (Dr.Shaukathali) as per Ext.P12 certificate.
(b) MO3 skirt, MO15 blouse, MO16 petticoat, MO16 (a) & (b) pieces of petticoat, MO14 Scarf (Maftha), MO24 red towel and some soil, small stones, paper etc, (taken from Abdul Lateef's house) contained human blood.
(c) MO27 (dothi) of the accused, MO29 (shirt) of the accused, MO28 (underwear) of the accused MO25 white towel, some soil, paper pieces taken from Beeran Koya's house a white soiled poluthene cover and some soil stones and paper pieces (taken from Beeran Koya's house) contained blood which was insufficient for determining the origin.
(d) Mo16 petticoat of the deceased and MO28 underwear of the accused contained human spermatozoa and semen.
ARGUMENTS ON BEHALF OF THE ACCUSED
11. Countering the above arguments, Advocate Sri.Ajith Kumar made the following submissions before us:-
It may be true that 12 year old Khairunnissa who had left her house for her quarterly examination on 8-9-2004 never returned home and thereafter it was her deadbody which was found in the incomplete building of abdul Latheef on 11-9-2004. But there is absolutely no evidence to conclude that the accused was the culprit. In the first place, even according to the prosecution witnesses the accused was engaged in the construction work of Manakadvan Beeran Koya's house but the deadbody of the girl was recovered from the house of Abdul Latheef. The prosecution witnesses were giving false evidence to the effect that the accused was absconding after the occurrence. If, as a matter of fact, the accused had committed rape of the girl and had thereafter murdered her sometime after 9 a.m, on 8-9-2004, one would not have expected him to get into the nearby tea shop of P.W.38 to have a cup of tea and a cake. Equally incredible is the prosecution case that after the occurrence the accused carried the school bag of the deceased to his house so as to facilitate recovery of her books and other belongings (Mos 4 to 12) from his house on 14-9-2004 at 5 p.m, as evidenced by Ext.P9 search list. Still more unbelievable is the prosecution story that MO27 dhothi and MO28 underwear which the accused was allegedly wearing on 8-9-2004 was continued to be worn by him on 16-9-2004 also when he was arrested so as to facilitate scientific evidence to stylish his nexus with the occurrence. The further case of the prosecution that the accused took out MO29 blood stained yellow shirt from the cloth lien of his bedroom on 17-9-2004 and not from any concealed place is also too artificial to be believed, having regard to the fact that the very same shirt would not have escaped the attention of the police on 14-9-2004 when a search of the house of the accused was undertaken by the police. MO4 plastic cover bearing the name "Oasis" is available to anybody who purchases articles from he shop of P.W.21. Mos. 5 to 12 were allegedly carried by the deceased in M.O.4 plastic cover. The victim was a student of standard VII whereas MO7 notebook is of standard VI. MO9 allegedly recovered from MO4 cover is a question paper pertaining to Malayalam examination which was already over. The examination which was scheduled for the girl on 8-9-2004 was Science. MO.10 is a Malayalam non-detailed by name which was prescribed for standard VI. MO13 writing pad belongs to Sadiya, he daughter of the sister of the deceased. P.W.12 who is the witness to the search and seizure would say that one book was taken from the sunshade on the left side of the house of the accused. But P.W.44 the investigating officer would say that the said house has no sunshade and its roof is tiled roof. The chances are that Mos. 4 to 12 were conveniently taken by the investigating officer from the residence of the deceased and planted in the house of the accused to enable their recovery in the course of a search of the house of the accused. The alleged confessional statements namely Exts.P30(a) P30(b), P31(a) and P34(a) are not disclosure statement falling under Sec.27 of the Evidence Act they also lack in authorship of concealment. P.W,12 who was the solitary witness to the recovery deposed before court that the recovered items were packed and sealed by the police officer. According to him each item was separately packed and sealed. But the evidence of P.Ws. 1 and 2 will show that these witnesses were shown the blouse, the scarf, the books, pen, torn petticoat and the slippers of the deceased girl on two occasions by the police. If so the seal on the packets must have been tampered with. There is sharp contradiction between P.W.35 the Scientific Assistant and P.W.44 the investigating officer regarding the dispatch of the properties for chemical analysis. According to P.W.35 there were altogether six packets of the properties for chemical analysis. P.W.35 would say that all the six packets were entrusted by him with the investigating officer, P.W.44. But P.W.44 would say that there were only two sealed packets handed over by P.W.35. Similarly, there was every chance of tampering with regard to the sample hair of the accused collected by P.W.15 and forwarded for chemical examination. The prosecution case that the accused was arrested only on 16-9-2004 at 7 p.m, is belied by Exts.D1 to D7 newspaper reports proved by DWs. 1 and 2 as per which the police had already taken the accused into custody on 12-9-2004. Ext.D3(a) report shows that the slippers (MO17 series) of the deceased were actually recovered on 12-9-2004 and not 17-9-2004. The very mode of collection of the hair by cutting the same using a pair of scissors as spoken to by P.W.15 will show that the samples were not properly collected. All the authorities in Forensic Medicine including Modi are of the opinion that such specimen hairs should be plucked and not cut. P.W.15 is the doctor who claims to have extracted samples of scalp hair, public hair and a hair of the mustache of the accused. He would depose that he had taken each category of hair samples in separate containers and packed and sealed the same. But P.W.15 was unable to give any convincing answer regarding the type of seal put on each packet and whether a specimen impression of the seal was separately sent. According to P.W.44, the doctor had used the seal available in the investigation kit of P.W.44. When the alleged samples of hair extracted by P.W.39 (autopsy surgeon) from the deadbody have not reached the expert in a tamper-proof condition before the apprehension of the accused and the investigating officer had ample opportunities to substitute the said hair samples with that of the accused, the opinion based on comparison of hair cannot be accepted or used against the accused. The scalp hair of the deceased was not recovered no sent for chemical examination. The 4 black hairs (item 11(a) in Ext.P24 F.S.L. report) obtained from Abdul Latheef's house, the 5 hairs (item 12(a) in Ext.P24) taken from Beeran Koya's house, the single black hair (item 12(f) in Ext.P24) recovered from Beeran Koya's house were not similar to the specimen scalp hair (item 13(a) in Ext.P24) of the accused. No attempt has been made to identify the persons to whom those hairs belong. Similarly, there was no seminal stains on MO3 shirt, MO15 blouse, MO16(a)(b) pieces of petticoat, MO14 scarf, MO27 dhoti of the accused, MO29 yellow shirt of the accused, and MO25 white towel taken from Koya's house. Likewise, no blood was detected on the above 4 black hairs, 5 hairs, 1 black hair and the safety pin. Moreover, the prosecution has not been able to establish a complete chain of circumstantial evidence so as to justify the conviction entered against the accused.
12. Had it not been for certain grave illegalities and infractions committed by the trial court, we would have considered the elaborate contentions raised on either side and would have arrived at a conclusion one way or the other. This is a case in which, upon a perusal of the oral and documentary evidence, the lower court records and the judgment passed by the court below, we are of the considered view that many of the salutary principles of criminal trial have been thrown to the winds by the trial judge who has exhibited an unfoundedly hostile prejudice towards the accused.
13. The judgment impugned in this appeal presents a rather disquieting and disturbing feature. Right from the stage of framing of the court charge, the elementary principles of criminal trial were not adhered to in this case. The following is the text of the charge framed by the trial judge in this case.
(name omitted), Additional District and Sessions Judge, Manjeri do herby charge you,
Poothala Aboobakcer @ Babu, S/o. Late Alavi, Muchirikkad Veedu, Arimbra, Morayur as follows:
That at about 9.30 a.m, on 8-9-2004 you had forcibly took a minor girl of 12 years namely Khamarunnisa on her way to School to the partially built house of one Manakkadan Beeran Koya, where you were working as a labourer under the building contractor and that you had committed unnatural sexual intercourse on her body after tying her mouth and eyes with two towels and tying her hands behind to the body and thereafter you had tied her legs with two laterate stones kept on either side of her body by using coir pieces and committed rape on her, from the common bathroom on the upstair of the building.
And that you had committed her murder by tying the towel around her neck and inflicted constructive force by partial hanging of the body by holing both ends of the towel till she breathed her last.
And that, with an intention to screen the crime you have had carried the dead body to the upstair of the partially built house of Abdul Latheef, in the same compound and concealed the copse on the extreme posterior side of the rack built on the roof of the bathroom attached to bedroom and enclosed the rack with stones to obstruct the visibility.
And that you had kept various incriminatory articles including the dress, chappals and books in various places to cause disappearance of evidence at Morayoor amsom desom, Kondotty.
And therefore you have committed the offences punishable under Sections 302, 376, 377 and 201 of I.P.C within the cognizance of this Court.
1. And that I do hereby direct that you be tried under the above charge".
14. The court charge does not contain separate head or count for each of the offences. The alleged acts of unnatural carnal intercourse and rape after tying the hands and legs of the victim and gagging her mouth etc are not discernible from the statements of any of the prosecution witnesses. Those details are available only in the elaborate record of interrogation of the accused by the investigating officer, (P.W.44). None of those statements amounting to confession were admissible being hit by Secs.25 and 26 of the Evidence Act. It is well settled that the charge need not set out the manner in which the alleged offences were committed. The detailed mode of committing the offence is not an ingredient of the charge. Similarly, for every distinct offence of which the accused is charges there should be a separate head or count of charge. The court charge framed in this case is an apology for the same.
15. The manner of recording the deposition of witnesses has also been in the most unsatisfactory manner without adherence to the principles of criminal trial. The height of illegality in this regard is discernible from the deposition of the investigating officer examined as P.W.44. The following extracts from the testimony of P.W.44 demonstrates the manner in which inadmissible evidence has been freely let in by the trial judge:-
****** ****** ******
Physically verified and found that two pieces of coir are not old and appears to be strong.
The above deposition of the investigating officer (PW44) that when he interrogated the accused the latter confessed his guilt and the coir ropes (MO16 series) were taken out and handed over by the accused stating that he had used them for tying the legs of the victim apart and MO3 red towel was used by him for tying the eyes of the victim while he committed rape on her, make shocking reading.
16. In several places of the deposition of P.W.44 we find that questions were freely put answered with regard to the contents of the case diary statements of several witnesses in flagrant violation of the embargo under Sec. 162 (1) Cr.P.C. Some of the witnesses such as P.Ws 22,23,24 and 34 examined by the prosecution were for the purpose of proving the previous bad character of the accused. In view of Section 54 of the Evidence Act it was not permissible for the prosecution to adduce any evidence in this regard nor was it permissible for the trail judge to allow such evidence to come on record.
17. Eventhough Sec. 310 Cr.P.C. gives power to the Judge at any stage of any inquiry, trial or other proceedings to conduct a local inspection of the place of occurrence, such power is given only for the purpose of property appreciating the evidence already on record and it does not empower the judge to assume the role of a witness. In this case, the trial judge after conducting a local inspection on 19-10-2005 has prepared two diagrams which have been incorporated in paras 22 and 58 of the judgment. In the second diagram the trial judge has shown the track chosen by the girl to cross the compound lying adjacent to the place of occurrence and from where the girl could have been carried to the spot on the upstairs of Beeran Koya's house from where the culprit allegedly had carnal knowledge of the victim and thereafter allegedly strangulated her to death. No witness has spoken about such a track leading to the spot where the alleged incident took place. During the course of local inspection the trial judge even made an inquisitive expedition at the scene of crime to locate a rubber basket kept in the room where the occurrence allegedly took place and made the following observation in para 59 of the judgment.
"I have seen a rubber basket kept in this room. Other thing are also kept. Then possibility of getting coir pieces is seen disputed by the accused, as the prosecution has marked 5 coir pieces. These are marked as MO.23(a), 23(b), 23(c), 23(d) and 23(e). The length of these pieces are measured before the court to see whether it is possible to tie the legs and hands of the girl by the offender as contended by he prosecution. I am convinced that these pieces of coir are strong enough and could be used for tying things. Curiously I have notices the presence of similar coir kept in the rubber basket in this room. The vision I got is that this room, is being used for storing the implements and the incidental materials in connection with the house construction".
We do not know whether the trial judge wanted to boast whether she had stumbled upon something which even the investigating officer had omitted to notice. But by indulging in such an exercise, the trial judge was virtually transforming herself into a witness.
18. Yet another serious illegality committed by the trial judge is with regard to the manner of examination of the accused under Sec.313 Cr.P.C,. Eventhough as many as 280 questions were prepared by the Judge, the questions have not been assigned any serial number. Hence, it is not possible to pinpoint any particular question or the answer given to such question. We therefore, had to undertake the task of assigning serial numbers to the questions. Many of the questions are complex and multiple questions. For instance, tow of the questions which we have numbered as question numbers 244 and 245 read as follows:
Examination of the accused under Sec.313 Cr.P.C is not merely an idle formality. The questions should be framed in an easily understandable manner and they should not be lengthy or complicated. (Vide State v. Kachara Sad AIR 1961 Gujrat 20; State of Karnataka v. Dashrath 1991 (3) Crimes 22). Several distinct matters of evidence should not be rolled up in a single question (Rama Shanker v. State of West Bengal AIR 1962 S.C. 1239). Long and involved questions embracing a numb or matters are not to be put to the accused. (State of A.P. v. Cheemalapati Ganeswar Rao AIR 1963 S.C. 1850 and State of Punjab v. Swaran Singh 2005 (6) SCC 101).
19. What is still more atrocious is the fact that out of the 280 questions prepared by the trial judge she omitted to put 86 questions to the accused. Those 86 questions for which no answer has been elicited from the accused cover several incriminating circumstances. But all those circumstances have been relied on by the learned judge for recording the conviction against the accused. It is well settled that 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 form consideration and cannot be relied on for entering a conviction against the accused. (Vide Sharad v. State of Maharashtra AIR 1984 SC 1622; Thankappan v. State of Kerala 1965 KLT 501). The 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. (Shivaji v. State of Maharashtra AIR 1973 SC 2622; S.Harnam Singh v. The State (Delhi Administration). AIR 1976 SC 2140.
20. If we are to consider the submissions made by the Public Prosecutor and confirm the conviction which is interalia founded on certain important incriminating circumstances which were not put to the accused, we also will be guilty of the very same mistake committed by the trial judge. At the same time it may not be fair to the prosecution as well by excluding those circumstances from consideration and recording an order of acquittal if those circumstances after being put to the accuse exhibit a sure tendency of completing the chain of circumstantial evidence against the accused.
21. We are left with the only alternative of remitting the case back to the lower court in view of yet another important infirmity in the trial. There is nothing discernible either from the proceedings paper or from the judgment that there was compliance with the provisions of Sec.232 Cr.P.C. That this is a mandatory requirement is now well settled. (Vide Sivamani v. State of Kerala 1992 (2) KLT 227; Radhanandan v. State of Kerala 1990 (1) KLT 516). The accused cannot be called upon to enter on his defence before reaching the stage of hearing under Sec.232 Cr.P.C. On the contrary, what is revealed by the record of examination of the accused under Sec.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. That was certainly no the stage at which the accused could be called upon to enter on his defence under Sec.233 Cr.P.C.
22. A perusal of the judgment under appeal makes shocking reading.
In paragraph 60 of the judgment we find the following statement:
"Prosecution case as deposed by P.W.44 is that the accused had snatched the girl from the kitchen door and she tried to cry aloud. But the accused pressed her mouth with one hand and forcibly dragged her inside the kitchen".
P.W.44 who is the investigating officer has no case that he had witnessed the occurrence. What he had allegedly extracted during the interrogation of the accused could not have been permitted to be deposed nor recorder by the trial judge. The case of the prosecution as discernible from the police report (final report under Section 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. Again in para 63 of the judgment it has been observed as follows:
"P.W.44 has identified M.O.30 and M.O.31. These are two laterite stones seized from the common bathroom on the upstairs, on the basis of the confession made by the accused that the had tied both legs of the girl with these stones by using coir pieces which are marked as M.O.23 series. As per confession statement, he had also seized both hands of the girl behind the body with coir pieces".
Such statements given by P.W.44 in contravention of sections 25 and 26 of the Evidence Act and Sec.162(1) Cr.P.C. should not have been admitted in evidence. Yet another observation found in para 63 of the judgment reads as follows:
"The cruel attack made on the girl could be perceived at this juncture. Her both hands were turned back and her legs were tied on two laterite stones kept on either side of the body. The intention behind this is not get the posture of the body, legs apart. The remaining act of the accused is left for perception and imagination of the reader. I am not trying to explain the cruel and heinous sexual intercourse enjoyed by the accused on a tiny girl".
Was the trial judge writing a crime thriller or giving vent to her righteous indignation?
Again in para 64 of the judgment, after adverting to inadmissible evidence, the trial judge made a conjuncture as follows:
According to P.W.44 accused used M.O.25 while towel (thorth) to tie the eyes of the girl and M.O.24 red towel (thorth) was used as a ligature. MO 25 was used as a ligature. Firstly he used this red towel (thorth) to tie the mouth of the girl. I could agree with the prosecution that by that time the girl might have completely exhausted. He possibility of slipping into unconscious state could not also be overlooked. Therefore it is possible for the accused to remove the red towel (thorth) used for trying the mouth and use it as a ligature for committing the murder".
Again the learned judge made the following surmise:-
Therefore the absence of semen and spermatozoa in 9 and 0 (M.O.24 and M.O.25) would corroborate the prosecution case that these articles are used by the accused for trying the eyes, mouth and for hanging the body. That is why no spermatozoa and semen could be detected from that items"
Again imagination of the trial judge ran riot to observe as follows:
"P.W.2 has given evidence that the girl was wearing a mufta and it was pinned in front side below the chin, to tight the muftha around the face. This muftha is marked as M.O.14. It is recovered as per Sec.27 recovery on 17-9-2004. This item is seen in a torn condition. M.O.16 pettycoat is seen torn and its two parts came out. These parts are marked as Mo.Os. 16(a) and 16(b). The blouse marked as M.O.15 is also torn in its front side. The skirt M.O.3 is also torn. Therefore, it is
quite evident that the offender had removed these items from the body of the girl by applying substantial force. He had no time to take off the dress from the body in the normal was as he was in an urge".
The trial judge did not stop her imagination there. She has observed as follows:
"The accused has no explanation for the appearance of healing wounds on his body. Therefore, it could be legitimately inferred that he sustained some aberrations in the incident as he was applying substantial force. More over he was carrying the girl through the staircase up to the first floor of both houses. The stair cases are yet to be plastered and no flooring was done. I find every possibility for sustained minor aberrations on the persons of the accused particularly on his knees and wrist as described in Ext.P12. In the first house he was carrying the girl alive and brought down the dead body after the incident. In the second house he was carrying a dead body up to the first floor. The girl was dumped in the upstair, may be in an exhausted condition, then he came down stair to collect coir pieces from the ground floor. The laterite stones can be expected at any place in a building under construction".
Was the trial Judge watching a movie or was it really an "aberration" as wrongly spelt in the judgment.?
Another figment of fertile imagination by the trial judge can be obtained from paragraph 78 of the judgment. It runs as follows:
"I have already perceived that the girl was subjected to forceful and horondorous attack, by using all the possible force by a strong person. The vaginal tear and the other injuries indicate the fierceness and cruel and violent sexual intercourse. Under such situation the falling of public hair could not be overruled. Moreover, I have justified P.W.44 in filing a report for addition of Section 377. The petticoat of the girl was smeared with semen and spermatozoa. Whereas the skirt M.O.3 is devoid of such stain indicating the fact that sexual intercourse was done after removing the entire dress from the body. Mafta was teat off. On the dead body, M.O.3 skirt was found as per the evidence and photographs. This skirt might have been replaced after the murder. Therefore semen and spermatozoa found in petticoat indicate an ejaculation outside. Being so, I find every possibility of loosening and falling down of public hairs. It might have been sticked on the penis. During the course of penetration the public hair already loosened and that sticked on penis, might have been deposited in the depth of the vagina of the girl. As the vaginal swab was devoid of any semen and spermatozoa it can also be inferred that ejaculation might have been occurred outside the body. But the vaginal tear will give a message that there was violent penetration. Therefore, I do not agree with the learned defence counsel that there was no possibility of depositing item No.16 hairs in the vagina of the girls and it might have been planted by the doctor to support the prosecution".
In paragraphs 87 and 88 of the judgment the trial judge has considered the evidence P.Ws. 22 and 23 with regard to the previous bad character of the accused. It is not as if the judge was ignorant of the interdict in Sec.54 of the Evidence Act as per which the previous bad character of the accused in a case of this nature is totally irrelevant. Such evidence should not have been allowed to go in. It was not only admitted in evidence but had also considerably influenced the trial Judge in her conclusions.
In para 91 of the judgment the learned judge concluded as follows:
"Thus on appreciation of the entire evidence brought on record before me by the investigating agency would definitely established the extreme culpability of the accused. I have to make it clear that P.W.44 was going on in the correct direction even at the threshold of the crime and that he has succeeded in proving the hypothesis of guilt of the accused, beyond all reasonable doubt. The circumstantial evidence is seen thoroughly corroborated by the scientific evidence and medical evidence. The circumstantial evidence means a combination of the facts creating a net work, through which there is no escape for the accused because the facts taken as a whole, do not admit of any inference, but the guilty of the accused. In that conclusion is drawn, I find that I have to hold that presumption of the innocence of the accused is thoroughly destructed. I have to already concluded that the criminal mind of the accused is manifested in the horondorous nature of the crime committed. Regarding the motive aspect nothing more is required to hold a view that it was nothing but lust. Therefore, I have no hesitation to find the accused guilty under Sec.s 302, 376, 377 and 201 of I.P.C".
23. After entering the sentencing sphere also the trial judge enumerated eight reasons in paragraph 95 of the judgment which persuaded her to award the extreme penalty of death to the accused. Out of those eight reasons the first and second are mere figments of creativity. Reasons 4 to 8 given by the trial judge read as follows:
"(4) As the Hon'ble Supreme Court has recently reminded the subordinate courts to consider the possibility of retribution by the aggrieved parents and relatives of the victim. Trial in a classic case of retribution taken place before this court last week wherein a father had committed murder in retribution of the murderer of his school going daughter of 12 years namely Krishnapirya. Unfortunately this court was constrained to award life imprisonment for the most aggrieved father of the victim in a similar and identical case. Being so, I have to consider the gravity of the punishment awardable to the present accused. If the life sentence awarded to the present accused, the performance of this court will render meaningless. In Krishnapriya's case I have even observed that the accused might have apprehended unmerited acquittal or inadequate punishment and that might be the reason for retribution.
(5) The heart wrenching pain and plight of an innocent tiny girl when her both hands were tied behind the body and both legs to the stones placed on either side of her body and committing sexual intercourse in such a heinous, posture should be visualized. Then nobody can take a lenient view by attributing to the age of the accused.
(6) Now a days, 'rarest of rare' case are being degraded not only as 'rare', but common as similar offence are gradually become rampant. Even two year old infants and 70 year old women are not being spared. Therefore, I prefer sterner sentence provided under law.
(7) The heart wrenching pain of the aggrieved parents of the girl, who have reposed total faith in this court, for justice could not be ignored.
(8) The court should hear the cry of the society for justice".
It is really unfortunate that the trial judge was more influenced by her personal predilections and other extraneous considerations than the proved circumstances in this case to justify the extreme penalty of death imposed by her on the accused. Most of the factors which influenced the Court below were irrelevant, having regard to the tests laid down by the apex court while identifying the species of "the rarest of the rare case" for warding the capital sentence. Advertence by the trial judge to the fate of another case (Krishnapriya's case) tried by her was wholly unwarranted. A judge cannot import into the case his own knowledge or belief of particular facts. (Vide Haro Pd. V. Sheo Dayal, L.R. 3 I.A.286 (PC) and Milhian Bibi v. Basher khan 11 Moo I.A. 213 (PC). The sixth reason stated by the learned Judge also stems out of her extra-legal perception. Such considerations should never enter the mind of a dispassionate repository of judicial power. A sentence has to suit not only the offence but also the offender. It should inter-alia be commensurate with the manner of perpetration of the offence and should not therefore be unduly harsh or vindictive. Before concluding the judgment the trial judge was virtually proposing her vote of thanks to the participants of the trial by observing as follows:
"Before departing, I have to appreciate the efforts taken by the investigating officer namely C.K. Sankaranarayanan, Circle Inspector of Police, Kondotty and the team work of his special squad. I do not forget the special responsibility undertaken by the Dy.S.P.Sri.P.Raju for giving appropriate direction and orders to his subordinate officers for unfurling the crime. Investigation was completed a short span of time, as he was supervising the work of the special team. At this context I have to appreciate the Learned Public Prosecutor Sri. Saju George for making his role meaningful. Finally, I have to extend my hearty appreciation to the learned counsel Sri. K.Radhakrishnan, who volunteered his valuable service to the accused under legal aid scheme. I am satisfied that I can render justice to the accused by appointing him as the defence counsel.
I am bound to extend my appreciation to all the witnesses who have joined their hands for a common cause, in quest of justice. I do not forget to extend a word of pacification to the aggrieved parents of the girl Khairunnisa".
The extracts from the trial Courts' judgment demonstrates the unpardonable lack of maturity, sobriety and moderation expected of a Sessions Judge. While a puritanical approach of 'untouchability' towards the cause under trial and rank escapism from the ground realties are eschewable heritage of the past, too much identification with agonies of one of the parties to the lis before court is certainly not a befitting quality for a judge. It is indeed desirable that given the opportunity offered to remedy a so lal pathology one should find a judge at the service (the suffering humanity. But it should not also be forgotten that a judge who with an outburst of empathy towards the victim of a crime involves himself too much with the lachrymal scenes of social tragedies played before him in the court room, is sure to be mistaken as a partisan or biased arbiter. 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 maters in every human enterprise, the faηade 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.
24. Criminal trial is not like a fairly tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of the witnesses. Every case in the final analysis would have to depend upon its own facts. (Vide State of Punjab v. Jagir Singh AIR 1973 SC 2407). It must be remembered that criminal trial is meant for doing justice not only to the victim but also the accused and the Society at large. (Vide Ambika Pd v. State (Delhi Administration) 2000 SCC Crl.522 and T.H.Hussain v. M.P.Modkakar AIR 1958 SC 376).
25. Rape and murder are undoubtedly brutal and diabolic sins constituting the worst forms of criminal incursions of the human body. The perpetrators of such crimes are indeed so despicable that, in appropriate cases, the award of the extreme penalty of death alone may be the most condign punishment for them. But a criminal court can do so only on proof before it according to law. Until such proof, the while case remains in the realm of allegations and accusations. Judges cannot act on such allegations or on the spicy versions supplied by the print or visual media. The temptation which a judge in his hermit-like existence should consciously resist is the populist media publicity for his deeds as a judge. In the divine function of a Judge, there is no place for popularity. A Judge who falls a prey to this weakness is sure to be guided by the heart rather than the head. A judge cannot be living in 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 on propounded by the prosecution. The wealth of judicial experience gained by him should make him more and more informed, detached and objective rather than publicity-oriented.
26. Yet another disturbing feature which has come tour notice is the undue media publicity with regard to the occurrence. Exts.D1 to D7 are reports in a Malayalam daily giving their own stories about the disappearance of the girl and the tardy investigation of the case by the police. Sustenance is even seen drawn from sources within the police in order to boost those garbled versions. Reliance was placed on them by the accused as well for certain purposes. Way back in the year 1959 a Full Bench of this Court gave expression to its displeasure as follows:
"The trial court as also the learned Judges of the Division bench have animadverted upon the apathy or indifference which the police showed with respect to this case, I am sure the authorities will take appropriate action in the matter. In that connection I may also state that several exhibits filed in the case from the side of the defence showed that the investigating officers have been freely giving out the progress made in the investigation from day to day to the Press. Exts.D1, D14, D21, D22, D23, D24, D25, D26, D27 and D28 showed that some newspapers were taking rather undue or unhealthy interest about the case. It is unfortunate that information gathered by the police during the course of the investigation should have been made available to the Press. It is not the first time such an instance comes to the notice of this Court and learned Judges have had occasion to state that the practice was highly objectionable. It is hoped that the authorities will take notice of this matter also and see that their officers as also the Press are not allowed to ride rough-shod over the provisions of the Criminal procedure Code or the Evidence Act. Information obtained during the course of the police investigation has to be kept confidential and police officers are not entitled to give out the contents of confessional statements of accused persons or the contents of statements made by witnesses interviewed by them for the benefit of the public or the Press".
(Vide para 29 Sivarajan v. State ILR (1959) Kerala 319).
The apex court was also not in a different vein when it observed as follows:
"We agree with the High Court that a great harm had been caused to the girl by unnecessary publicity and taking out morcha by the public. Even the case had to be transferred from Kohalpur to Satara under the orders of this Court. There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very anthithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law".
Vide para 37 AIR 1997 SC 3986 State of Maharashtra v. Rajendra Jawanma Gandhi).
Again in M.P.Lohia v. State of West Bengal 2005) 2 SCC 686 the Apex Court has deprecated the unwholesome practice of the trial by media in respect of a matter which is sub judice. The following observations are most appropriate;
"Having gone through the records, we find one disturbing factor which we feel is necessary to comment upon in the interest of justice. The death of Chandni took lace on 28-10-2003 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory bail was disposed of by the High Court of Calcutta on 13-2-2004 and special leave petition was pending before this Court. Even then an article has appeared in a magazine called "Sage" titled "Doomed by Dowry" written by one Kakoli Poddar based on her interview of the family of the deceased, giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that these type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who were responsible for the said article against indulging in such trial by media when the issue is sub judice. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the others concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.
It appears that notwithstanding the fact that a Full Bench of this Court more than four decades ago, had deprecated the reprehensible tendency of police officials going to the Press with details of investigation of cases, we unfortunately find that the tendency continues with increased vigour. Officers in the higher echelons of the police force appearing in the print and electronic media giving interviews and narrating stories unraveled through investigation, are not, infrequent sights these days. When superior police officers indulge in freely passing on such information the public, they not only breach the conduct rules but also put necessary pressure on the subordinate officers who are in de facto investigation of the cases. It is well known that many of the materials collected by the police during investigation are comprised of hearsay or inadmissible stuff and at times extracted from the alleged accused persons themselves by employing third degree methods. Such material will not stand the scrutiny of a court of justice. The Fourth Estate also does not seem to realize the irreparable damage inflicted on the victims of crimes and the alleged culprits and those close to them through the sensationalized journalistic adventures. Truth is very often suppressed, exaggerated or distorted to add flavour and spice to the stories. Trial by the media can do more harm than good to the society at large. Instances are not rare when test identification parades are reduced to mere farce due to the injudicious publicity given to the alleged assailants by publishing their photographs. Every such act of adventurism exert unnecessary pressure on the courts which are to eventually try the alleged offenders. The fickle minded which has been conditioned to believe a particular version through a calculated process of media indoctrination will be loath to accept a different conclusion. Hence if the court which finally tries the alleged culprit were to ultimately record an order of acquittal for want of legal evidence before it, it may not be out of place for the public at large to conclude that the verdict of the court is wrong. They may even attribute motives in the Presiding Judge. No disciplined society which believes in the rule of law can afford such state of affairs to come to stay. We wish to express our strong displeasure at the increasing trend of investigation lapses and trial by media in respect of matters which are sub judice. After the case under investigation is in the seizing of the court it is not open to the investigating agency or other busy bodies to give their own versions about a crime and influence the mind of the public without realizing the worth or otherwise of what has been collected during investigation and placed before the court concerned. Lapses in this regard will be viewed very seriously and the erring police officers and media persons will be proceeded against appropriately.
The Registry shall forward an extract of this judgment to the Director General of police and the Director General of Prosecutions for suitable prophylactic measures to ensure that recurrence of such lapses does not take place.
27. The failure to impose punishment for the conviction under Secs. 376, 377 and 201 I.P.C is also not proper. The law does not envisage a person being convicted for an offence without a sentence being imposed. Every conviction should be followed by a sentence. (Vide T.K.Musaliar v. Venkatachalam AIR 1956 SC 246, Varghese v. State 1986 KLT 1285; Thampi Sebastian v. State of Kerala- 1988 (1) KLT 247 and Saidy Mohammed v. State of Kerala 2005(4) KLT 46). The proper course should have been to impose separate sentences for each of the offences and to direct that those sentences would lapse upon the execution of the death sentence.
28. No judge with a sense of responsibility and seriousness could have conducted the trial in a grave crime in such a caviler and careless manner as has been done by the learned Sessions Judge in this case. It is important to note that the accused standing in the dock before the presiding judge has the insulation (penetrable, no doubt) by way of the presumption of innocence in his favour during the trial. He is also entitled to the benefit of all reasonable doubts. For him the fate of the case may be a question of life and death. Hence it is all the more necessary for the trial judge to conduct the trial in a fair and transparent manner giving no room for the accused to engender a fear that right from the very start of the trial he was presumed to be guilty rather than innocent and dealt with accordingly.
29. After bestowing our anxious consideration to the entire aspects of the matter, we are constrained to remit the case back to the trial court for fresh disposal after completing the examination of the accused under Sec. 313(1)(b) Cr.P.C and for proceeding with the case from that stage onwards. It shall be open to the court below amend the court charge, if need be, in order to make it in conformity with the Cr.P.C. The judgment under appeal is accordingly set aside and the matter is remitted to the court below for disposal afresh in the light of what has been stated above. Since the judgment appealed against has been set aside the question of confirmation the death sentence does not arise and consequently the D.S.R is disposed of accordingly.
30. The parties shall appear before the court below on 18-9-2006 without any further notice. The case shall thereafter be disposed of within three months from that date. In as much as the accused has been custody during the trial before the court below he shall continue to be an undertrial prisoner till the disposal of the Sessions Case.
31. The Registry shall send back the records forthwith to the court below.
A copy of this judgment together with a copy of the paper book shall be forwarded to the Director, Kerala Judicial Academy to have a feedback of the performance of the officer concerned and to consider whether an intensive and personalized training is warranted for the deficiencies and short comings in the impugned judgment as well as in the conduct of trial.