Mahandra Deva, C.No.4068 vs State Of Kerala

P.B.Suresh Kumar, J

The sole accused in S.C.No.454 of 2017 on the files of the Court of the Additional Sessions Judge-V, Ernakulam is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Sections 302 and 354 of the Indian Penal Code (IPC).

The victim in the case was a domestic help aged about 60 years. She was working in a few houses including the house of one Parvathy, located at Palace road in Mattanchery. At the time of occurrence, the only son of Parvathy was living with his family at Mysore. Parvathy was only occasionally living in her house at Mattanchery as she was also staying with her son in Mysore. When Parvathy was away from her house, she used to entrust one set of the keys of her house with Latha, the daughter-in-law of her elder sister who was residing close to her house and another set of the keys with one Vasantha, who is also one of her neighbours. The victim was working, at the time of occurrence, as a maid in the house of Latha as well.

The accused though a native of Karnataka, was doing petty jobs in the locality where Parvathy was residing and he used to sleep at the veranda of the house of Parvathy. The accused also used to do petty work in the house of Parvathy. On 23.01.2017, the victim went to the house of Latha at about 1 p.m., and after having lunch from there, she proceeded to the house of Parvathy for work after obtaining the keys of the house of Parvathy which were entrusted with Latha. While doing so, the victim had kept some of her belongings in the veranda of the house of Latha. At about 5.30 p.m. on that day, having noticed that the belongings kept by the victim in the veranda of her house were not taken by the victim, Latha called the victim on her mobile phone. The daughter-in-law of the victim who received the call stated that the victim has not reached home. Latha then proceeded to the house of Vasantha to ascertain whether the keys of the house of Parvathy entrusted by Latha to the victim had been returned to Vasantha. Latha then noticed that the said keys were hung in the house of Vasantha and she was told by Vasantha that they were given to the sister-in-law of Vasantha by the accused. Latha and Vasantha then proceeded to the house of Parvathy in search of the victim and when they opened the main door, they found the victim lying face down on her chest on the floor in the front room of the house in a pool of blood. They immediately informed the matter to another neighbour of Parvathy, viz, Ravi, and he, having found that the victim is no more, informed the matter to the police. On receiving information, the police came to the scene and thereupon, after recording a statement from Latha, a case was registered in connection with the death of the victim.

The investigation conducted in the said case revealed that it was the accused who caused the death of the victim. Accordingly, final report was filed in the case against the accused alleging commission of offences punishable under Sections 354 and 302 IPC. The accusation against the accused in the case is that on the date of occurrence, between 01.30 p.m and 3 p.m., the accused outraged the modesty of the victim by hugging her when she came to the house of Parvathy for her routine work and when the victim resisted the attempt of the accused, the accused pushed her down forcefully and when the victim cried out loud, with a view to prevent her sound from being heard by others, the accused tied her neck with her saree, stuffed a portion of the saree into her mouth and thereupon, smothered her to death using his hands.

On the accused being committed to trial, the Court of Session framed charges against him to which he pleaded not guilty. Thereupon, the prosecution examined 24 witnesses as PWs 1 to 24 and proved through them 34 documents as Exts.P1 to P34. MOs 1 to 30 are the material objects in the case. When the incriminating circumstances were put to the accused in terms of the provisions contained in Section 313 of the Code, the accused denied the same. The Court of Session, thereupon, on a consideration of the evidence on record, held that the accused is guilty of the offences for which he was charged, convicted, and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 IPC and to undergo imprisonment for a period of one year for the offence punishable under Section 354 IPC. The accused is aggrieved by his conviction and sentence.

Heard the learned counsel for the accused and the learned Public Prosecutor.

The learned counsel for the accused made elaborate submissions. The essence of the submissions made by the learned counsel for the accused is that the only circumstance established in the case is that the right hand nail clippings of the deceased and the nail clippings of the accused contained mixed DNA profile of the victim as also that of the accused and that from the said circumstance alone, it is not possible to come to a conclusion that it was the accused who caused the death of the victim after outraging her modesty. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the said circumstance along with other circumstances established in the case, are sufficient to justify a conclusion that it was the accused who caused the death of the victim after outraging her modesty. The learned Public Prosecutor has also brought to our notice the various other circumstances claimed to have been established by the prosecution in the case. We are not referring to the said circumstances, as we propose to deal with the same, elaborately, in the succeeding paragraphs of this judgment.

In the light of the submissions made by the learned counsel for the parties on either side, the point that arises for consideration is whether the conviction of the accused on the charges framed against him and the sentence imposed on him, are sustainable in law.

The point: Before proceeding to consider the point formulated for decision, it is necessary to ascertain whether the case on hand is a case of homicide. PW6 is the doctor who conducted the post-mortem examination on the body of the victim. Ext.P7 is the post-mortem certificate issued by PW6. The ante-mortem injuries noticed by PW6 at the time of post-mortem examination on the body of the deceased, as deposed by PW6, are as follows:

Lacerated wound, 4.6x0.8x0.5cm, obliquely placed on middle of forehead with its lower right end 2.5cm above root of nose in midline.

Abraded contusion, 4x3.5x0.4cm, involving the whole thickness on the left side of forehead, 3.5cm above eye brow and 2cm outer to midline.

Contusion, 6x4.5x0.4cm, incorporating a lacerated wound, (3x1x0.4cm) on left side of forehead obliquely along the outer 1/3rd of left eye brow.

Contusion, 8.5x7x0.5cm, on left side of forehead just above the eye brow and 5cm outer to midline.

Lacerated wound with a surrounding contusion, 1.3x1x0.2cm, on left side of nose, 1cm below its root and 0.5cm outer to midline. The nasal spine showed an abnormal mobility for its lower half and the area was swollen.

Lacerated wound, 0.5x0.4cm, through 'n through, on outer aspect of left side of upper lip, 0.5cm outer to midline and just above the lip margin (corresponding to the left upper central incisor tooth). The left upper central incisor tooth showed an abnormal mobility with the displacement mainly in an inwards manner. The gum margin was in a lacerated state.

Lacerated wound, 1x0.6cm, through 'n through, on outer aspect of left side of upper lip, 1.5cm outer to midline and just above the lip margin (corresponding to the left upper lateral incisor tooth).

The right upper central incisor tooth was seen partially broken with the stump remaining in the socket. Socket was seen blood stained.

Lacerated wound, 1x0.6x0.4cm, on inner aspect of left side of lower lip, 0.5cm outer to midline (corresponding to the tip of left upper central incisor tooth).

Curved abrasion, 0.7x0.1cm, obliquely placed on right cheek 6cm outer to midline and 4cm below the lower eye lid.

Abrasion, 04x0.1cm, on right cheek, 1cm outer to the above injury.

Linear abrasion, 1cm long, obliquely placed on right side of face with its lower inner end 1.5cm outer to the right angle of mouth.

Contusion, 1.8x1.3x0.3cm, on right side of face, 8cm outer to midline along the lower jaw margin.

Contusion, 1.9x1.5x0.5cm, on right side of face, 5cm outer to midline along the lower jaw margin.

Brain was edematous.

Abrasion, 0.8x0.1cm, on left side of neck, 4.5cm below the ear.

Abrasion, 8.5x0.4cm, obliquely placed on front and right side of neck with its left, inner extent 3cm outer to midline and 4cm below the lower jaw margin. The right outer extent of the injury was 5.5cm below the lower jaw margin in the same oblique line.

Flap dissection of neck was done under bloodless field. Subcutaneous tissue underneath the abrasion appeared normal. Other deep structure of neck including hyoid bone, thyroid cartilage, carotid vessels and strap muscles of neck appeared normal and intact.

Contusion, 4.5x2.3x0.3cm, on tip of right shoulder.

The cause of death certified by PW6 as deposed by her in evidence is that the death was due to smothering. PW6 also deposed that she collected and entrusted to the police, the nail clippings as also the pubic hair sample of the victim for forensic examination. PW6 asserted in him evidence that the ante-mortem injuries 5, 6, 7, 8 and 9 noticed by him in the body of the victim are classic examples of smothering and they are suggestive of possible application of hand over those points while victim was struggling. To a specific question put to PW6 as to whether injuries 1 to 3 could be produced by a hit on a wall, the answer given by PW6 was that it can be caused by local blunt force when that part of the body is hit on a hard surface. It was also deposed by PW6 that the face of the victim was in a swollen state and PW6 observed sign of asphyxia and the same are also suggestive of smothering. The evidence given by PW6 as narrated above is not seen seriously challenged in cross-examination. Needless to say, the prosecution has established beyond reasonable doubt that the case on hand is a case of homicide.

Having found that the case on hand is a case of homicide, let us now consider whether the evidence let in by the prosecution would establish that it was the accused who caused the death of the victim after outraging her modesty. In order to answer this question, it is necessary to refer to the relevant evidence in the case. The witness who was examined as PW1 is Latha, the daughter-in-law of the elder sister of Parvathy. PW1 deposed that when she found the belongings of the victim in the veranda of her house, at about 5.30 p.m. on the date of occurrence, she immediately called the victim on her mobile phone and having noticed that the victim did not reach home, she proceeded to the house of Vasantha, where she found the keys of the house of Parvathy entrusted by Latha to the victim. PW1 deposed that when she along with Vasantha opened the main door of the house of Parvathy in search of the victim, they found the victim lying face down on her chest on the floor in the front room of the house in a pool of blood. PW1 also deposed that they immediately informed the matter to PW3, Ravi, another neighbour of Parvathy and he, having found that the victim is no more, informed the matter to the police. PW1 affirmed that it was she who gave Ext.P1 First Information Statement. PW1 identified the accused as the person who is living in the locality, and testified that the accused used to sleep in the veranda of the house of Parvathy and that she did not notice the presence of the accused on 23.01.2017. PW1 identified MOs 1 to 4, the belongings of the victim which were kept by the victim on the veranda of her house and MO5 and MO1 series keys of the house of Parvathy.

PW2 is Vasantha who accompanied PW1 to go to the house of Parvathy in search of the victim. PW2 gave evidence consistent with the evidence tendered by PW1. In addition, PW2 deposed that it was only in the early hours of 23.01.2017 that Parvathy left for Mysore along with her son and his family by car and that the keys of the house with which PW1 opened the house of Parvathy was one entrusted by the accused to Seethalakshmy, the sister-in-law of PW2, at about 3 p.m. on that day. PW3 gave evidence in tune with the evidence tendered by PW1. In addition, PW3 also deposed that the accused is a person who was working as watchman in the house of Parvathy and that he did not see the accused after 23.01.2017. PW7 is the daughter-in-law of the victim who was contacted by PW1 on the mobile phone of the victim on the date of occurrence. PW7 gave evidence consistent with the evidence tendered by PW1. PW8 is none other than Parvathy herself, the owner of the house. PW8 deposed that she stays in her house only occasionally and she left home only at about 5.30 a.m. on the date of occurrence. PW8 affirmed in her evidence that the accused used to sleep in the veranda of her house and she knows him for the last 30 years. PW8 also deposed that the accused used to do petty work in her house and also outside and that when PW8 left home on 23.01.2017, the accused was very much in her house and that it was he who kept her bags in the car in which they proceeded to Mysore. PW8 also deposed that she returned home on receiving information about the death of the victim and by the time she reached home, her daughter-in-law informed that the accused reached her son's residence at Mysore. PW9 is the son of PW8. PW9 also gave evidence consistent with the evidence of PW8. PW9 deposed that when he came to know that the accused reached his residence at Mysore, his office informed the matter to the local police and within an hour, they took the accused into custody. PW9 also deposed that later, the Kerala police received the custody of the accused from the local police in Mysore.

PW10 is a scrap merchant at Mattanchery. PW10 deposed that he has acquaintance with the accused, as the accused used to sell scrap to PW10 and that on 23.01.2017, the accused sold a few articles to him. PW12 is a person who hails from Nepal. PW12 is working in the canteen of the Mattanchery Government Hospital. PW12 deposed that he has acquaintance with the accused, as the accused used to come to the canteen for tea. PW12 also deposed that he saw the accused at about 3 p.m. on 23.01.2017 and that the accused borrowed a sum of Rs.100/- from him on that day for going back to his native place. PW12 identified MO12 as the bag carried by the accused then. PW13 was a person working in the Karnataka Road Transport Corporation. PW13 deposed that on 23.01.2017, he was the conductor in the bus starting from Kottayam to Mysore via Kozhikode. PW13 identified the accused as a person who travelled to Mysore in the said bus on that day and deposed that the accused was sleeping in the back seat of the bus.

PW16 was the Scientific Officer (Biology) attached to the Forensic Science Laboratory, Thiruvananthapuram. PW16 deposed that she received a parcel consisting of three sealed packets and an unsealed packet along with an internal forwarding note from the Serology division of the Laboratory and that DNA was extracted from the material objects forwarded to her and it was found that the right hand nail clippings of the deceased and the nail clippings of the accused contained a mixed DNA Profile of the victim as also that of the accused. PW16 affirmed that Ext.P10 is the report published by her. PW21 was the police officer who took the accused to the duty doctor attached to the General Hospital, Ernakulam for collecting the nail clippings of the accused. PW21 deposed the said fact in his evidence and in addition, he deposed that the nail clippings of the accused collected by the duty doctor were entrusted by him to the investigating officer.

There was no serious challenge to the evidence of the witnesses referred to above in the cross-examination of the accused. The learned counsel for the accused has also not raised any argument as regards the acceptability of the said evidence, except the evidence tendered by PW2 that it was the accused who handed over the keys of the house of PW8 to the sister-in-law of PW2, who was residing with her. It was pointed out by the learned counsel for the accused that the sister-in-law of PW2, as referred to by PW2 in her evidence, namely, Seethalakshmy was not examined in the case. It was also pointed out by the learned counsel that PW24, the Investigating Officer in the case during his cross-examination, admitted that Seethalakshmy is a mentally retarded person. According to the learned counsel, the evidence tendered by PW2 that she was told by Seethalakshmy that it was the accused who entrusted the keys of the house of PW8 to Seethalakshmy is therefore, not reliable. We find force in this argument. It is seen that when PW24 himself was questioned as to whether he took the statement of Seethalakshmy, the answer was that she is a mentally retarded person, and even though he attempted to take her statement, he could not do so, owing to her mental retardation. It is to be noted that PW2 had not seen herself, the accused handing over keys of the house of PW8 to Seethalakshmy. As such, the said evidence of PW2 does not at any rate, establish that the keys of the house of PW8 was entrusted by the accused to Seethalakshmy. In other words, the prosecution has not established that it was the accused who entrusted the keys of the house of PW8 to the sister-in-law of PW2.

In the light of the evidence discussed above, the following are the circumstances that could be taken as proved in the case :

(i) that the ante-mortem injuries 5, 6, 7, 8 and 9 noticed by PW6 on the body of the victim suggest possible application of hand over those points while the victim was struggling.

(ii) that the victim was working as domestic help, among other places, in the house of PW8 also and she used to work therein even while PW8 was away.

(iii) that the accused was residing in the locality of the house of PW8 for about 30 years; that he was doing petty work in the house of PW8 and that he was sleeping in the veranda of the house of PW8 during night hours, for several years.

(iv) that PW8 left her house for Mysore in the early hours of 23.01.2017 and the accused was very much present in the house at that time.

(v) that the accused was seen by PW10, the scrap merchant at about 11 a.m. on 23.01.2017.

(vi) that the accused was seen by PW12 who was working in the canteen attached to the Government Hospital, Mattancherry at about 3 p.m. on 23.01.2017.

(vii) that the accused left the locality of the house of PW8 on 23.01.2017 after 3 p.m.

(viii) that the right hand nail clippings of the deceased and the nail clippings of the accused contained a mixed DNA profile of the victim as also that of the accused.

Before examining the question whether the circumstances aforesaid would establish the guilt of the accused, inasmuch as the circumstances include DNA evidence, it is necessary to mention that DNA evidence is in the nature of opinion evidence as envisaged under Section 45 of the Indian Evidence Act, and like any other opinion evidence, its probative value varies from case to case depending on the facts and circumstances and the weight accorded to other evidence on record [See Pattu Rajan v. State of T.N., (2019) 4 SCC 771]. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, after referring to various judgments rendered earlier, the Apex Court held that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper, and if there is no evidence as to the tampering of the samples, the DNA test report deserves to be accepted. Paragraph 228 of the said judgment reads thus:

“228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.”

In Mukesh, the Apex Court has quoted with approval, a passage from the judgment in Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607, wherein a two-Judge Bench of the Apex Court referred to the evidence tendered by an expert on the subject that the probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population. Reverting to the facts of this case, in the absence of any case for the accused that he has an identical twin, and in the absence of any material to indicate that the chain of custody as also the purity of the samples were not maintained during investigation, we are of the view that the DNA evidence let in by the prosecution can certainly be accepted.

No doubt, the following are the principles to be applied in a case on circumstantial evidence so as to answer the question whether the guilt of the accused has been established beyond reasonable doubt:

(i) that the circumstances from which the conclusion of guilt is drawn are fully established,

(ii) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) that the circumstances are of a conclusive nature and tendency,

(iv) that they should exclude every possible hypothesis except that the accused is guilty, and

(v) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

As rightly argued by the learned Public Prosecutor, the circumstances, viz, that ante-mortem injuries 5, 6, 7, 8 and 9 suggest possible application of hand over those points while the victim was struggling and that ante mortem injuries 1 to 3 are injuries that could be caused by local blunt force when that part of the body is hit on a hard surface, together with the forensic evidence that the right hand nail clippings of the deceased and the nail clippings of the accused contained a mixed DNA profile of the victim as also that of the accused, if understood in the background of other facts established in the case as referred to above in sequence, according to us, would certainly constitute a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and would show that in all human probability, the accused is the assailant. Needless to say, there is no merit in the appeal and the same is accordingly, dismissed.