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2024 DIGILAW 16 (KER)

Sarada v. State of Kerala

2024-01-05

JOHNSON JOHN, P.B.SURESH KUMAR

body2024
JUDGMENT : Johnson John, J. The appellant, who is the accused in S.C. No. 288 of 2017 on the file of the Special Court for the Trial of Offences against Children (Additional Sessions Court-I), Manjeri, filed this appeal challenging the conviction and sentence imposed on her for the offences under Sections 302 and 201 of IPC as per the judgment dated 06.03.2019 2. The prosecution case is that the accused committed murder of her 13 days old girl child on 12.06.2016 at about 5 am., in her house at Nayadampoyil ST Colony and thereafter buried the dead body near to her house and thereby, committed the offences punishable under Sections 302 and 201 of IPC. 3. Exhibit P10(a) FIR was registered under Section 174 Cr.P.C on 13.06.2016 on the basis of Exhibit P1 First Information Statement of PW2 Panchayat Ward Member. PW23, Circle Inspector of Police, Nilambur, completed the investigation and filed the final report before the Judicial First Class Magistrate Court, Nilambur. After committal, the case was numbered as S.C. No. 288 of 2017 and on production of the accused before the trial court, charge was framed for the offences under Sections 302 and 201 of IPC and when the accused pleaded not guilty, PWs 1 to 23 were examined and Exhibits P1 to P25 and Mos 1 and 2 were marked on the side of prosecution to prove the charge against the accused. No evidence was adduced from the side of the accused. 4. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional District and Sessions Judge-I, Manjeri, by the impugned judgment dated 06.03.2019, convicted the accused and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offences under Sections 302 and 201 of IPC. 5. Heard Sri. C.C. Anoop, the learned counsel representing the learned counsel for the appellant on record and Smt. Sheeba Thomas, learned Special Public Prosecutor. 6. The point that requires consideration is whether the conviction and the sentence imposed on the appellant as per the impugned judgment is legally sustainable. 7. 5. Heard Sri. C.C. Anoop, the learned counsel representing the learned counsel for the appellant on record and Smt. Sheeba Thomas, learned Special Public Prosecutor. 6. The point that requires consideration is whether the conviction and the sentence imposed on the appellant as per the impugned judgment is legally sustainable. 7. The learned counsel for the appellant argued that the court below rendered a finding against the accused based on the circumstances revealed from the evidence of PW6 and PWs 12 to 14 without properly appreciating the circumstances narrated by the accused at the time of 313 questioning, and if the facts and circumstances brought out in evidence are taken cumulatively, it cannot be held that those circumstances are of a definite tendency unerringly pointing towards the guilt of the accused and that the same is inconsistent with the innocence of the accused. 8. But, the learned Public Prosecutor argued that it is not in dispute that the accused is the mother of the 13 days old infant and that she attempted to conceal her pregnancy for the reason that she conceived illegitimately after the death of her husband and the said facts are revealed from the evidence of PWs 11 and 12 and it is also revealed from the evidence of PW12 that the accused quarrelled with PW12 on the allegation that PW12 has disclosed about the pregnancy of the accused to others and therefore, the prosecution has succeeded in establishing the motive and further the accused delivered the child on 30.05.2016 and she was discharged from the hospital on 10.06.2016 and thereafter, the child was always in the custody of the accused and since the child was found missing from the custody of the accused and she has not filed any complaint in this regard, the circumstances proved by the prosecution has a conclusive nature and tendency unerringly pointing to the guilt of the accused and excluding every hypothesis inconsistent with her innocence. 9. In Padala Veera Reddy v. State of A.P. and Ors. 9. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 , the Hon'ble Supreme Court has laid down that:- "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 10. The Hon'ble Supreme Court of India in "Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh", reported in AIR 1952 SC 343 , has observed thus:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved." 11. In Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43 , the Hon'ble Supreme Court held as follows:- "Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and the sentence would follow." 12. PW1 is the Tahsildar in whose presence the inquest was conducted. PW2 is the Panchayat Ward Member who gave Exhibit P1 First Information Statement to the police on 13.6.2016 and in cross examination, PW2 stated that at the time of giving Exhibit P1, he was not aware about the death of the child. According to PW2, the accused is having a son in her first marriage and a daughter in her second marriage. It is not known to PW2 whether the accused was looked after by her first husband after the death of her second husband Vasu. PW2 further admitted that he has given complaint to the Police on the basis of the information received from some members of the colony, including one Usha. 13. PW3 is a relative of the accused and witness to Exhibit P2 inquest report. PW4 is the brother of the accused and according to him, he saw the accused going to hospital along with their mother and his evidence in cross examination shows that even before the occurrence, he was not in good terms with the accused. 14. PW5 is a witness to Exhibit P3 seizure mahazar prepared for the recovery of MO1 Health Record and MO2 Discharge Card from the house of the accused. The evidence of PW6, doctor, and Exhibit P6 treatment certificate shows that the accused was admitted in Government Medical College Hospital, Kozhikode on 30.05.2016 and discharged on 10.06.2016 after treatment for transient tachypnoea of newborn and new natel hyper bilirubinemia. The evidence of PW6, doctor, and Exhibit P6 treatment certificate shows that the accused was admitted in Government Medical College Hospital, Kozhikode on 30.05.2016 and discharged on 10.06.2016 after treatment for transient tachypnoea of newborn and new natel hyper bilirubinemia. It is necessary to analyse the evidence of PW12 regarding the motive and the alleged quarrel between the accused and PW12, in the light of the evidence of PW6, doctor that the accused was admitted in Government Medical College Hospital, Kozhikode from 30.05.2016 to 10.06.2016. According to PW12, when she went to the house of the accused during January, 2016, in connection with kudumbasree meeting, she suspected that the accused is pregnant and accordingly she informed PW11, a staff of the Primary Health Centre and the Panchayat Ward Member and subsequently, she came to know that the pregnancy of the accused is confirmed in a test conducted by PW11 and that the accused also delivered a child. PW12 deposed that subsequently the accused quarreled with her by stating that she told others about her pregnancy and when PW12 suspected that the child is missing, she informed the Ward Member and thereafter the Ward Member informed the police. In cross examination, PW12 stated that her house is at a distance of ½ kms from the house of the accused and she would say that the accused is residing with her 6 year old child and it is not known to PW12, whether the mother of the accused used to reside with the accused. 15. In cross examination, PW12 stated that it was on 2nd June, at about 10 a.m., the accused reached her house and quarrelled with her. But it can be seen from the evidence of PW6 doctor that the accused was admitted in Medical College Hospital, Kozhikode from 30.05.2016 to 10.06.2016 and therefore, there is no possibility for the accused to reach the house of PW12 at 10 am on 2nd June and in that circumstance, we find that the evidence of PW12 regarding the motive is not reliable. In this connection, it is also pertinent to note that at the time of 313 questioning, the accused stated that at the time of occurrence, her mother was residing along with her and her brothers and her mother subjected her to harassment. In this connection, it is also pertinent to note that at the time of 313 questioning, the accused stated that at the time of occurrence, her mother was residing along with her and her brothers and her mother subjected her to harassment. She would say that her brother was also there in the house and when she returned from the bathroom, she found her child lying dead and she also saw her brothers and mother burying the child in a pit. According to the accused, after the death of her father, her mother and brothers directed her to vacate the house and they physically harassed her and also threatened that they will kill her, if she fails to vacate the house. The accused also stated that till the death of her father, she was in possession of the documents relating to her house and after the death of her father, her brothers demanded the documents for mortgaging the property. 16. PW22 was the Circle Inspector of Nilambur Police Station, who took charge of the investigation of this case on 14.06.2016. According to PW22, on the basis of Exhibit P19, extract of the confession statement of the accused, that she will point out the place where the child is buried, he proceeded to the place pointed out by the accused and exhumed the dead body in the presence of the Tahsildar, Scientific Assistant and Department Photographer. In cross examination, PW22 stated that the pit had a depth of 75 cm. 17. The specific case of the accused is that on the date of occurrence, her mother and brothers were there in the house and when she came out of the bathroom, the child was lying dead and it was her mother and brothers who took the pit and buried the child. The evidence of PW13 doctor who conducted the postmortem, and Exhibit P9 postmortem certificate shows the following ante-mortem injuries: "1. Contusion 4 x 2.5 x 0.4 cm on the right lower lip (blush purple) 2. Contusion 3 x 1.5 x 0.3 cm on the left upper lip at its center (in both above injuries inner mucosa was spared. 3. Purplish blue contusion 6 x 4 x 0.2 cm on middle of left side nose, left cheek and both eyes. 4. Contusion 4 x 2.5 x 0.4 cm on the right lower lip (blush purple) 2. Contusion 3 x 1.5 x 0.3 cm on the left upper lip at its center (in both above injuries inner mucosa was spared. 3. Purplish blue contusion 6 x 4 x 0.2 cm on middle of left side nose, left cheek and both eyes. 4. Contusion scalp 9 x 7 x 0.3 cm on left parietal area with multiple comminuted fractures of left parietal bone, especially on the top left side which fragment the bone into 5 pieces. Extradural hemorrhage 1.4 x 8 x 0.4 cm on left side and top of parietal lobe and sub arachinoid hemorrhage beneath the same. Contusion brain parenchyma 5 x 4 x 0.2 cm on the left parietal lobe." 18. The opinion of PW13 as to the cause of death is that the deceased had died due to injury sustained to the head and that there was also evidence of attempted smothering which could have contributed to death. In cross examination PW13 stated that contusion could be possible on a fall, but multiple comminuted fractures of the bone underneath could be possibly due to blunt force impact and considering the other two injuries, it could not be possible on a fall. We find force in the argument of the learned counsel for the appellant that it is highly improbable for the accused, who is none other than the mother of the child, to use blunt force against her 13 days old infant and it is also highly improbable that a woman who delivered a child could dig a pit of 2½ feet depth without the assistance of anyone else for burying the child, especially in view of the fact the delivery was just 13 days before the occurrence. 19. PW14 is a neighbour of the accused and she deposed that at about 7 p.m., on 10.06.2016, she saw the accused coming with the child and at that time the mother of the accused was also with them. According to PW14, thereafter she had no occasion to see the child alive and after two days, she saw the police digging out the dead body of the child. In cross examination, PW14 deposed that she is residing at a distance of 50 metres from the house of the accused and that the brothers of the accused are known to her. In cross examination, PW14 deposed that she is residing at a distance of 50 metres from the house of the accused and that the brothers of the accused are known to her. According to PW14, the brother of the accused is the tribal chief and the accused and her brothers are not in good terms. It is clear from the evidence of PW14 that when the accused proceeded to her house with the child after the discharge from the hospital on 10.06.2016, the mother of the accused also accompanied her to the house. Even though the mother of the accused is cited as CW12, in the final report, she is not examined as a witness from the side of the prosecution and the proceedings of the trial court dated 14.02.2018 shows that CW12 was given up and there is nothing in the proceedings as to why the prosecution has given up such a material witness, and in that circumstance, we find force in the argument of the learned counsel for the appellant that the prosecution has suppressed material evidence causing prejudice to the accused. 20. Another aspect that requires consideration is regarding the recovery of the dead body on the basis of the alleged disclosure statement of the accused. The evidence of PW22 shows that the recovery was on 14.06.2016. But, the evidence of PW12 in cross examination shows that police came there on the day before the recovery of the dead body and at that time, the brothers of the accused were there, and before the accused was taken to custody, she saw the accused pointing out the place where the dead body was buried, to the police. Therefore, it can be seen from the evidence of PW12 in cross examination that the place where the dead body of the child is buried is known to the police even prior to the arrest of the accused and in that circumstance, it cannot be held that any fact is discovered on the basis of the information received from the accused. The learned counsel for the appellant also pointed out that the alleged disclosure statement of the accused is that she will point out the place where the child is buried and this statement does not suggest that the accused indicated anything about her involvement in the burial of the dead body of the child and in support of the said contention, the learned counsel for the appellant also relied on the decision of the Hon'ble Supreme Court in Sahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra [2022 KHC 6709]. 21. The evidence of PW11, who was working as a nurse at Public Health Centre, Chaliyar during 2016 shows that she met the accused in the colony on 18.05.2016 and conducted UPT test and confirmed that the accused is pregnant and she also advised the accused to avail treatment from Government Taluk Hospital, Nilambur. According to PW11, two days thereafter when she met the accused, the accused told her that she aborted the pregnancy, but subsequently, it is learnt that the accused went to the Hospital on 30.05.2016 and delivered a child. It is not in dispute that the accused was admitted in Medical College Hospital, Kozhikode from 30.05.2016 to 10.06.2016 and after discharge from the hospital, she proceeded to her house with the child, and it is also clear from the evidence of PW14 that on 10.06.2016, she saw the accused, her child and the mother of the accused proceeding to their house and as noticed earlier, the evidence of PW12 that the accused came to her house on 2nd June and quarrelled with her, is not at all reliable. The fact that the accused subjected herself to conduct a pregnancy test by PW11 and subsequently availed treatment from the hospital in connection with the delivery is inconsistent with the motive alleged by the prosecution that there was an attempt on the part of the accused to conceal the pregnancy and do away with the child. In the circumstances, it cannot be said that the proved facts 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. In the circumstances, it cannot be said that the proved facts 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. Even if the proved circumstances raise a serious suspicion against the accused, that by itself cannot be accepted as legal proof to substantiate the charge in a case of murder, as it is well settled that when the charge is grave, greater should be the standard of proof required and that there is a long mental distance between 'may be true' and 'must be true' and we find that in this case, the evidence adduced did not conclusively lead to the guilt of the accused and only pointed a needle of suspicion towards the accused and therefore, we find that the accused is entitled for the benefit of reasonable doubt and the prosecution has not succeeded in proving the offences charged against the accused. 22. The point is answered accordingly. Therefore, the impugned judgment requires to be interfered with and we do so. 23. In the result, this appeal is allowed. The conviction and the sentence passed by the trial court against the accused for the offences punishable under Sections 302 and 201 of IPC as per the impugned judgment is set aside and the accused is acquitted under Section 235(1) Cr.P.C. She shall be set at liberty forthwith, if not required in any other cases. Registry shall send a copy of this judgment to the Superintendent of jail concerned where the appellant is now detained. Interlocutory applications, if any pending, shall stand closed.