1. This is an appeal from jail challenging the conviction and sentence. The appellant was found guilty of the offences punishable under Sections 302, 392 and 449 of the Indian Penal Code by the Sessions Judge, Kollam in Kerala, for having caused the death of one Sabitha Beevi and her three children Jasmin, Jiyas and Navas. The learned Sessions Judge imposed the capital punishment and the death sentence was confirmed, however, the conviction and sentence of the appellant under Section 392 IPC was set aside, and in its place the appellant was found guilty of offence punishable under Section 380 IPC by the High Court and his sentence was reduced to three years. We have heard learned senior counsel for the appellant and also learned senior counsel for the State.
2. The prosecution case reads as follows :
The deceased Sabitha Beevi, with her three children, Jasmin, Jiyas and Navas, was staying at Jiyas Manzil near Ashtamudi Mukku at Kollam. Her husband Hashim died about two years prior to the incident. The appellant Ramasubramanian had been engaged by Hashim for sundry jobs at the poultry farms. The appellant was residing in a small shed constructed at the terrace of the house, and was taking food from that house. After the death of Hashim, the appellant continued to work in the poultry farm and, according to prosecution, the appellant gradually developed illicit relation with the deceased Sabitha Beevi. Later, the appellant started misbehaving with the eldest daughter -Jasmin, who was aged about 14 years. Jasmin brought this fact to the notice of her mother and Sabitha Beevi wanted to terminate the services of the appellant. She waited for the opportunity and it so happened that due to the negligence of the appellant, some of the chicks in the poultry farm died and there was also an allegation that the appellant committed theft of a cycle from the neighbourhood. Taking advantage of this situation, the service of the appellant was terminated. The further case of the prosecution is that the appellant was enraged by the conduct of Sabitha Beevi in terminating his service and he came to the place of the incident and gained entry into the house of Sabitha Beevi in the night of 8.8.1999. PW -1, the father-in-law of Sabitha Beevi had been in the house till about 11 o'clock in the night of 8.8.1999 and he left the premises thereafter. PW 1 was staying in the house about 19 mtrs. away from the house of Sabitha Beevi. On the next day morning at 7.30 he came to the house of Sabitha Beevi in order to read the daily newspaper. He found the house closed. He searched for his daughter-in-law but there was no response. He switched on the calling bell but there was no answer and went around the house and searched in the nearby poultry farm. He went to the terrace and searched the room occupied by the appellant and the room was found open. Ultimately he pushed open the door of the house and went inside the house and found the bedroom locked. He saw the key of the bedroom under the floormat and opened the bedroom and found the deceased Sabitha Beevi and her children Jasmin, Jiyas and Navas with multiple injuries. The deceased Sabitha Beevi and Jasmin died by that time and Jiyas and Navas were in a serious condition. He send another person to inform the police and the police came within a short time.
3. At about 8.30 a.m. PW 1 gave the F.I.Statement and PW 53 took over the investigation. The injured. Jiyas and Navas were sent to the hospital and the dead-bodies of Sabitha Beevi and Jasmin were sent for post-mortem. During the course of investigation, the chance finger prints were found on the almirah kept in the bedroom were taken and other incriminating articles were seized by him. The investigating offices recovered a 'lunki' and shirt from the nearby well. Later, PW 55 took over the investigation and the appellant herein was arrested on 30th March, 2000. Pursuant to the information given by the appellant, series of articles were seized. They are mostly gold ornaments allegedly worn by the deceased Sabitha Beevi and Jasmin. Samples of hair were taken from the appellant and sent for forensic examination for comparison with the hair recovered from the scene of offence. MO 22, the weapon of offence, was also recovered at the instance of the appellant from the roof of the poultry shed.
4. On the side of the prosecution PW 1 to 55 were examined and the Sessions Judge accepted the prosecution case and found the appellant guilty and was sentenced him to death. The Court mainly relied on the evidence of the appellant being seen with the deceased and also the presence of the appellant near the place of incident after the incident and the scientific evidence produced by the prosecution in the form of comparison of the hair and the report on the chance finger print out found at the place of occurrence. The Court relied on the presence of semen found in the vaginal swab of the deceased Sabitha Beevi. The presence of blood-stains on the various articles were also taken into consideration by the Court. The High Court re-appreciated the entire evidence and confirmed the conviction and sentence.
5. Learned senior counsel for the appellant contended that the prosecution could not satisfactorily prove the guilt of the accused. It was submitted that the weapon of offence was a stick having the length of 50.5 cms. and the incident had happened inside the house and it was not possible for a single individual to commit the murder of four persons with such a weapon. Counsel also contended that in the near vicinity there were other houses and if the victim had made any outcry it would have been certainly heard by the neighbours and the prosecution case is thus highly improbable. Counsel pointed out that an iron rod was recovered from a corner of the house and the same might have been used as a weapon of offence and it indicated that there must have been more than one assailant. Counsel further stated that there was one more inmate in the house of Sabitha Beevi, who was the mother of PW 1 and this witness was not even questioned by the appellant and the non-examination of this witness is fatal to the prosecution case. Counsel pointed out that the most crucial evidence that could have been adduced by the prosecution was the DNA finger print but the samples of semen were not supplied for DNA test and the prosecution withheld the evidence of DNA test, thereby it failed to adduce evidence that could have been available to the prosecution.
6. All these contentions were rebutted by counsel for the State. It was submitted that the Amin Ummal, the mother of PW 1, who was present in the house of Sabitha Beevi was aged about 94 years and there is evidence of PW 1 to the effect that Amin Ummal was deaf and dumb and she was not in a position to know what might have been happened in the house. As regards recovery of iron rod recovered from the place of the incident, it was submitted that it must have blood stains when the appellant washed his hands immediately after the incident. As regards the DNA test, it was submitted that the sample was not suitable for DNA test and that is why it was not supplied for the DNA test.
7. The evidence adduced by the prosecution in this case satisfactorily proves that the appellant and none else has committed this crime. The appellant had been working as a servant in the house of Sabitha Beevi for about 8 to 9 years prior to the incident. He was taking food from the house and he was staying in a room in the terrace of the house. This shows that the appellant had enjoyed full freedom in the house and there is evidence to the effect that the services of the appellant were terminated prior to the incident. PW 5, is an LIC agent and a close friend of the appellant. He deposed that the appellant had met him and told that his service was terminated by Sabitha Beevi and that he was not given any compensation. The appellant was very much annoyed and even told PW 5 that if he was sent away, he would not even allow Sabitha Beevi to run the poultry farm. It shows that the appellant had a strong enmity with the deceased Sabitha Beevi. There is evidence to the effect that the appellant came to the house of Sabitha Beevi on the date of the incident and there is satisfactory circumstantial evidence to show that Sabitha Beevi had also consumed liquor on that date and the appellant had sexual relation with Sabitha Beevi. There is reliable evidence to show the movement of the appellant immediately after the incident. PW 2, a tea shop owner, saw the appellant at about 3 o'clock in the morning of 9.8.1999. PW 2 used to open his tea shop at about 2.45 a.m. and he identified the appellant as he saw the appellant on that day. PW 11 is an auto rickshaw driver who took him to the Railway station. PW 12, another auto rickshaw driver who met the appellant on that day. The appellant told him that he wanted to engage a taxi. PW 12 got the help of PW 13 who was the owner of a taxi and the appellant was driven in a taxi to Tenkassi in the morning of 9.8.1999.
8. The scientific evidence adduced by the prosecution is also very clear and convincing to prove the guilt of the appellant. The chance finger print out found on the handle of the almirah in the bedroom of the deceased Sabitha Beevi was taken immediately after the occurrence and it was compared with the finger prints of deceased Sabitha Beevi and Jasmin, Jiyas and Navas, but it did not tally with their finger prints. Eight months thereafter the appellant was arrested and his finger prints were taken and the finger prints taken from the appellant tallied with the chance finger prints taken from the handle of the almirah. This evidence is very crucial and convincing to show that the appellant had been in the room of the deceased Sabitha Beevi.
9. The recovery of various gold ornaments pursuant to the information given by the appellant has been satisfactorily proved by the various witnesses. The gold ornaments were recovered from PW 24 who was staying at Tenkassi. This proves that the appellant sold out all these gold ornaments and PWs 1, 4 and 14 identified these gold ornaments as that of the deceased Sabitha Beevi and her daughter Jasmin. It is also pertinent to note that certain pieces of hairs were recovered from the saree and under garments of the deceases Sabitha Beevi. These were compared with the hairs taken from the samples of the appellant and they were found to tally with each other. The recovery of weapons also is an important evidence. All these prove the guilt of the appellant beyond reasonable doubt and the Sessions Judge rightly found him guilty for the offence and the High Court was fully justified in confirming the same.
10. The appellant was sentenced to death and the counsel for the State submitted that the crime was cruel in nature and the appellant killed the three innocent children along with their mother and he deserves the death penalty, whereas the counsel for the appellant submitted that the prosecution could not adduce the best evidence and even if he is found guilty, his sentence is liable to be (sic) to life imprisonment. The counsel for the State relied on the decisions of this Court in Praveen Kumar v. State of Karnataka reported, in , Gurdev Singh and Anr. v. State of Punjab and State of Rajasthan v. Kherajram in this connection. It is true that the crime committed by the appellant is cruel and dastardly in nature and the appellant deserves no mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9.8.1999. The appellant was annoyed by the fact that his services were terminated without: being paid any compensation despite services his employer for quite a long period. Taking the overall facts into consideration, we do not find that this is one of the rarest of the rare cases where death sentence could be the only punishment. Therefore, the sentence of death imposed on the appellant is commuted to life imprisonment. To that extent, the appeal is allowed. However, his conviction and sentence as regards on all other counts are maintained.