Kerala High Court
Laila vs State Of Keral - Represented By The on 31 July, 2008
Bench: K.Balakrishnan Nair, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 558 of 2004()
1. LAILA, W/O.PUNNAKKADAN MOIDEEN,
... Petitioner
Vs
1. STATE OF KERAL - REPRESENTED BY THE
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :31/07/2008
O R D E R
K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.
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CRL.A.NOs.558 & 574 OF 2004
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DATED THIS THE 31st DAY OF JULY, 2008
J U D G M E N T
Balakrishnan Nair, J.
Crl.A.No.558/04:
The appellant was the first accused in S.C.No.336/2000, before the Additional Sessions Court (Adhoc), Fast Track No.II, Manjeri. She was tried along with the second accused for the offence under Section 302 read with Section 34 IPC. She was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence imposed on her, the appellant has come up in appeal.
2. The facts of the case in brief are as follows:
The appellant was the wife of CW1, Moideen. Fathimuthu, CW2 was the 5th wife of Mr.Moideen. Two children named Noorul Nihar alias Munna( CW3) and Noorul Najma alias Ponnu (the deceased) were born to CW2 out of that wedlock. The children were aged 5 and 3= years respectively. The said Moideen divorced CW2 and married the CRL.A.NOs.558 & 574/04 -2- first accused, who is stated to be his 7th wife on 3.11.1994. One child was born in that marriage also. It appears that CW2 left the two minor children in the custody of their father CW1. CW1 along with his present wife (A1) and three children were living together in his house. PW1 was a guard, who used to come during nights to stand guard for the family of CW1. The 2nd accused Najmath was the maid servant of the first accused and she was also living in that house. CW1 left for Gulf on 21.3.1997. After about one month, on 20.4.1997, the deceased Noorul Najma(second daughter of CW2 and CW1) was brought in an unconscious state to the Kottakkal Nursing Home. She was taken to the hospital by PW2, who is the brother of CW1, along with the first accused. Since the condition of the child was very bad, the Doctor who attended the child in that Nursing Home referred her to the Medical College Hospital, Kozhikode. But, she was taken to Maulana Hospital and Scanning Centre, Perinthalmanna for treatment. She was admitted there. At the time of admission, she was in an unconscious state and even painful stimuli did not have any effect on her. When she was brought to the said hospital, there were multiple injuries on her body also. The alleged cause of unconsciousness stated CRL.A.NOs.558 & 574/04 -3- by the persons who brought her was a head injury resulting from a fall. The child was thereafter under treatment in the said hospital and she breathed her last on 2.5.1997. In the meantime, on the basis of the telephonic information given by PW2 and the first accused, CW1 came to the hospital on 25.4.1997. After the death of the child, CW1 lodged Exhibit P21 first information statement before the police and crime No.84/97 was registered by PW15, the Head Constable attached to the Kalpakancheri Police Station, for unnatural death. The reason for the injury leading to the death of the child was shown as fall from a stair-case in the house of CW1. PW18 conducted the inquest and prepared Exhibit P1 report on 3.5.1997. PW10 conducted the post- mortem examination and prepared Exhibit P13 post-mortem certificate. He also gave Exhibit P14 final opinion on 8.9.1999, that the cause of death was due to infection. The opinion was that the "death was due to cardio respiratory failure as a result of septicemia and multiple system failure due to the extensive injuries sustained". The investigation by the police led to the filing of reports before the Magistrate's Court incorporating the offence punishable under Section 302 read with Section 34 of the IPC in the crime and also arraying A1 CRL.A.NOs.558 & 574/04 -4-
and A2 as the accused. The accused were arrested also. The Circle Inspectors of Police, PWs 16, 18, 19 and CW48 conducted the investigation and PW17 laid the final charge before the Judicial First Class Magistrate's Court, Tirur on 21.1.2000. The learned Magistrate committed the case for trial by the Sessions Court. The accused pleaded not guilty to the charges before the Additional Sessions Judge, who tried the case. From the side of the prosecution PWs 1 to 20 were examined and Exhibits P1 to P28 were marked. MO1 series were also produced, which were the dresses worn by the deceased at the time of her death. From the side of the first accused Exhibits D1 and D1(a) were marked, which were the contradictions in the deposition of PW2 with reference to his statement recorded under Section 161 Cr.P.C. From the side of the 2nd accused, Exhibit D2, which is the abstract of the admission register of her school, showing her date of birth, was produced. The accused were questioned under Section 313 Cr.P.C. No witness was examined from the side of the defence. The learned Additional Sessions Judge after hearing both sides found both the accused guilty of the offence under Section 302 read with Section 34 of the IPC. They were convicted and sentenced accordingly.
CRL.A.NOs.558 & 574/04 -5- Hence this appeal by the first accused.
3. Before referring to the rival contentions of the appellant and the prosecution, we will refer to the evidence on record in this case. PW1 Shaji was the security guard working in the house of the first accused and he gave evidence as follows: The house belongs to CW1, Moideen. The first accused, the wife of Moideen and the 2nd accused, the maid servant of the house were residing there. When he joined duty, Moideen was there. Two months thereafter, Moideen left. Thereafter, in the house, the accused and the children were there. He was not aware, the children belonged to whom. While so, on a day, the second child was taken to the hospital. She was brought back dead from the hospital. He further deposed that he had seen the second accused beating the child using a bamboo stick. Beating was done outside the house. The same happened four or five days before the child was taken to the hospital. In the cross-examination, he has stated that he did not see the first accused ill-treating the children. He has also deposed, in answer to a specific question, that the first accused was looking after the children, in the same manner, she was looking after her child. In the cross-examination by the second CRL.A.NOs.558 & 574/04 -6- accused, he has stated that a cane stick was used for beating the child by the second accused. The beating was done on the buttocks of the child. He does not know the date or month when the second accused had beaten the child. He has also deposed that one Mr.Manu used to come to the house.
4. The next witness is PW2, who is the brother of CW1 Moideen. He deposed that he was residing close to the house of CW1. In the house of his brother, the accused and the three children were there. One of them was the child of the first accused and the other two children were born to Fathimuthu (CW2). The second child among them died. PW1 came to him and told that the child was not keeping well. She was in an unconscious state. The said child was taken to Kottakkal Nursing Home by PW2 along with the first accused and others. Later, the child was taken to Maulana Hospital, Perinthalmanna and admitted there. At the time of admission, there were injuries on the body of the child which appeared to have been caused by burning. When he was asked how the injuries were caused, he told that he did not know and the first accused may be asked about the same. After the child was admitted, he called CW1 who was CRL.A.NOs.558 & 574/04 -7- working in the Gulf. Before CW1 went to the Gulf, the witness went to his house and took photos. On the previous day of the date of leaving of CW1 for Gulf, PW2 went to that house. At that time no injuries were noted on the body of the child. After the departure of his brother to Gulf, the first and second accused, the three children and the security guard Shaji alone were residing in the house. The relationship between CW1 and PW2 was not cordial. CW1 has married seven times. The first accused was his 7th wife. She is hailing from Bheemanadu. The mother of the deceased child was the 5th wife. She belongs to Edakkara. The child was in the hospital for about one week. She died of burn injury. In the cross-examination, he has stated that when he took the photos, the children were in a very happy mood. They were found playing with the first accused. He has taken the photos of the first accused as well as the children. He, further stated that the 1st accused gave him the golden chain and bangles worn by her to pledge and raise funds for the treatment of the deceased and PW2 pledged those gold ornaments and the amount was given to the first accused. The suggestion of the defence that he was giving false evidence at the instance of CW1 was denied by him. A CRL.A.NOs.558 & 574/04 -8- suggestion was also made to the effect that CW1 was harbouring doubts regarding the paternity of the deceased child. The same was also denied by PW2.
5. PW3 was the witness to the inquest report Exhibit P1 dated 3.5.1997. PW4 was the photographer who took the photos of the dead body of the child as requested by the police. Through him Exhibit P2 series photographs (13 numbers) and Exhibit P3 series negatives of those photos were marked. PW5 was the witness to the second inquest report dated 18.6.1997. Exhibit P4 is the said inquest report. The body was exhumed and a second inquest report and a post- mortem certificate were prepared. PW6 was the witness to the scene mahazar, Exhibit P5 prepared on 31.5.1997 by the police. PW7 was the Judicial First Class Magistrate, Ponnani, who recorded Exhibit P6 statement of CW3 under Section 164 of the Cr.P.C., on 20.5.1998. CW3 is the elder sister of of the deceased. PW8 was the doctor who was serving in the casualty of the Maulana Hospital. It was he who admitted the injured child at 4 PM on 20.4.1997 in the hospital. Exhibit P7 is the wound certificate issued by him dated 2.5.1997. Exhibit P8 is the case sheet concerning the treatment of the deceased.
CRL.A.NOs.558 & 574/04 -9- Exhibit P9 is the mahazar prepared by the police for recovering Exhibit P8 case sheet. Exhibits P7, P8 and P9 were marked through PW8. In Exhibit P7, the history and the cause of injury is shown as "alleged torture from the step mother and found unconscious". The wound certificate also reveals the injuries on the body of the child. PW9 was the Neuro Surgeon who treated the child. Exhibits P10 to P12 were marked through him. Exhibit P10 is the C.T. scan report. Exhibit P11 is the C.T. scan film and Exhibit P12 is the mahazar prepared by the police for the seizure of Exhibits P10 and P11. PW9, who was the Neuro Surgeon of Maulana Hospital has deposed that the patient was in comatose condition and there was no response to painful stimuli. He also stated that there was severe head injury and total brain damage. He noted that chances of survival of the child were remote. He has further deposed that the injury on the sole of the foot was one week old. The submental injuries were 3-4 days old. The burn injuries were two weeks old. He also stated that from her appearance, it can be inferred that the child was not given medical aid. All possible medical aid was given to the child in the Maulana Hospital, he submitted. In the cross-examination by the first accused, PW9 has CRL.A.NOs.558 & 574/04 -10- stated that in the reference letter from the Kottakkal Nursing Home, it was mentioned that the child was having fits. He also said, by the time the patient was brought for treatment in Maulana Hospital, brain function was completely lost. PW10 was the doctor of Government Hospital, Perinthalmanna who conducted the first post-mortem examination on 3.5.1997. Exhibit P13 is the post-mortem certificate. The final opinion regarding the cause of death is Exhibit P14 dated 8.9.1999. He has noticed 22 injuries on the body of the deceased child. He has also stated that all the injuries were ante-mortem. He also deposed that the skull was intact and the brain and meninges were otherwise normal. His final opinion regarding the cause of death was due to cardio respiratory failure, as a result of septicemia and multiple system failure due to extensive injury sustained. Later, the body was exhumed. The second inquest was conducted by PW13, the Tahsildar and he prepared Exhibit P4 inquest report dated 18.6.1997. PW11 was the doctor who conducted the second post-mortem examination. Exhibit P15 is the certificate dated 18.6.1997 given by the said doctor. Exhibit P16 is the final opinion regarding the cause of death, given on 10.12.1998. In Exhibit P16, the said doctor has stated CRL.A.NOs.558 & 574/04 -11- that no definite opinion as to the cause of death can be given. PW11 also gave Exhibit P17 report based on Exhibit P2 photographs. In the said report, he has noticed 23 injuries and has stated as follows:
" All the injuries are of different stages of healing. Based on the above findings on the photographs I am of opinion that the child had sustained multiple trauma of different ages on multiple parts on the body. These findings are suggestive of non accidental injuries (Battered Child Syndrome). "
6. PW12 was the Village Officer who prepared Exhibit P18 site plan. The scene of occurrence is the house of CW1. PW14 was the Secretary of the Jama-Ath Committee, who produced Exhibit P19 certificate regarding the marriage between CW1 and the first accused on 3.11.1994. The said certificate was seized by the police under Exhibit P20 mahazar dated 23.5.1998. PW15 was the Head Constable, who recorded Exhibit P21 FI statement of CW1 on 3.5.1997 and prepared Exhibit P22 first information report, for unnatural death. PW16 was in charge of the investigation from 6.9.1998 to 2.6.1999. Earlier, the case was investigated by CW48, Mr.Basheer, during the period 1997-98. The inquest report Exhibit P1 was prepared by PW18. PW19 also was in charge of the investigation from 2.6.1999 to CRL.A.NOs.558 & 574/04 -12- 8.10.1999. It was he who arrested the first accused and conducted part of the investigation. The 2nd accused was arrested by PW16. PW17 laid the final charge sheet before the Magistrate's Court. PW20 was the Judicial First Class Magistrate, Parappanangadi, who recorded the confession statement of the second accused.
7. Based on the above evidence, both the accused were found guilty and convicted. The learned senior counsel Mr.M.K.Damodaran, who appeared for the first accused, the appellant herein, attacked the findings of the court below on various grounds. We heard learned counsel Mr.K.P.Mujeeb, who is appearing for the 2nd accused who filed the connected Crl.A.No.574/04. We also heard Mr.Jai George, learned Public Prosecutor for the State.
8. The learned senior counsel appearing for the appellant submitted that there is no evidence to connect the first accused with the crime. The learned senior counsel referred to us the principles laid down by the Apex Court, concerning the conviction of an accused based on circumstantial evidence. In the light of those well settled principles, the learned senior counsel attacked the findings of the learned Additional Sessions Judge in paragraph 25 of the judgment.
CRL.A.NOs.558 & 574/04 -13- The said paragraph is extracted below for convenient reference.
"25. From the evidence on record the prosecution has proved the following factors.
1. The accused and children were alone in the house.
2. They were leading a cloistered life. PW2 stated that CW1 never liked people frequenting that house.
3. Before CW1 left for Gulf countries PW2 took photographs of the family members and at that time there was no injury on the person of the child.
4. PW1 has seen A2 beating the child with a cane with impunity - it is seen that this is only a tip of an ice berg.
5. There were multiple injuries like burn injuries, an incised wound and contusions all over the body of the child including on the genitalia.
6. The injuries were inflicted on different dates and are not accidental injuries.
7. No medical attention was given to the child till it slipped into coma.
8. When the child was brought to the hospital there was total brain damage.
9. The photographs of the body shows the nature of the infected injuries which are heart rending and revolting.
10. A1 and A2 were the only adult members of the house.
11. The explanation given by the accused with regard to the injuries is highly improbable outslandish, grotesque and not supported by any facts and circumstances."
CRL.A.NOs.558 & 574/04 -14-
9. The learned senior counsel pointed out that the finding concerning circumstances 1 and 10 mentioned above, is plainly untenable. The learned counsel pointed out that apart from accused 1 and 2, a third man called Manu was also staying in the house. He referred to the deposition of PW1 and also the confession statement of the 2nd accused, which is produced as Exhibit P28. In the said exhibit also, the presence of Manu is mentioned. The learned counsel fairly admitted that the said document cannot be admitted in evidence and it was rightly not relied on by the trial court. The learned counsel also pointed out that the second circumstance taken as proved in this case, that the inmates of the house of CW1 were leading a cloistered life, is rendered based on no evidence. No one has spoken to that they were leading a life cut off from the outside world. The finding under point No.3 is also equally fallacious, it is submitted, as the photographs concerned were not produced. The learned senior counsel also submitted that the fourth point mentioned above relates to the second accused only. The findings under Point Nos.5 and 6 are illegal, submits the learned senior counsel for the reason that the learned Additional Sessions Judge failed to discuss as to which injury caused CRL.A.NOs.558 & 574/04 -15- the death of the child. The finding No.7 is that no medical attention was given to the child till it slipped into coma. The learned senior counsel pointed out that the child slipped into coma only on 20.4.1997. In fact, she was taken to the hospital at Kottakkal on 19.4.1997, as evident from the FI statement. Circumstance No.8 found by the court below is that the child was brought to the hospital with total brain damage. The learned senior counsel submitted that the said finding is also unsustainable, in view of Exhibit P10 scan report, which does not speak of total damage to the brain. The learned senior counsel who had occasion to see Exhibit P2 series photographs did not dispute the finding of the court below on point No.9 that the nature of the injuries is heart rending and revolting. The 11th point deals with the explanation given by the accused for the injuries on the body of the deceased. According to the learned Additional Sessions Judge, the explanation is highly improbable, outslandish and grotesque and also not supported by any facts and circumstances. The learned senior counsel pointed out that the said finding is also factually not correct. Most of the circumstances taken to have been proved by the learned Additional Sessions Judge are not, CRL.A.NOs.558 & 574/04 -16- in fact, proved and therefore, the appellant is entitled to the benefit of doubt and consequential acquittal, it is submitted. The learned senior counsel pointed out the following circumstances, which, according to him are consistent with the hypothesis of innocence of the first accused.
1) The child was taken by the first accused to the hospital at Kottakkal on 19.4.1997. The same would show that she has given treatment to the child even before she fell into coma.
2) PW2 has deposed that the first accused caused to pledge her gold ornaments to raise the funds to save the child.
3) PW2 has also deposed that when he was taking photographs, on the day previous to the date of departure of CW1 to Gulf, the children were found very happy in the company of the first accused.
4) The first accused though contacted CW1 on 20.4.1997, he came only on 25.4.1997 to see the child. This submission is made in the context of the case of the first accused that CW1 was harbouring doubts regarding the paternity of the deceased child and therefore he was ill-treating her. In the statement under Section 313, the first accused has pointed out that CW1 was present in the house all along and he used to beat the child and caused burn injuries using burning cigarettes.
5) No witness has spoken before the court that the first accused was ill-treating the deceased child.
6) PW1 in the cross-examination has stated that the first
CRL.A.NOs.558 & 574/04 -17-
accused was looking after the children as if they were her own children.
7) From the evidence of PW7, it is clear that the appellant/first accused was attending to the child through out when she was in the hospital.
8) The reference letter from the Kottakkal Nursing Home to Maulana Hospital which is part of Exhibit P8 would show that the child was suffering from fits. So, the possibility of the child falling down as a result of fits cannot be ruled out.
9) The varying ages of the injuries stated by PW9 would show that they were not caused on 19.4.1997 or 20.4.1997.
10. The learned senior counsel also pointed out that there is no evidence to show who, among the two accused, has caused the injuries to the deceased. According to him, there were three persons in the house. That is, Manu was also there, apart from accused 1 and
2. At any rate, according to the prosecution, there were two persons in the house where the child sustained the injuries. There is no evidence, whatsoever, to show who among the two inflicted the injuries. Therefore, the first accused is entitled to get the benefit of doubt. The non-examination of CWs 1, 2, 3 and 48 vitiates the case of the prosecution. The first accused lost the chance to cross-examine them and to prove her innocence. The doctor who examined the child CRL.A.NOs.558 & 574/04 -18- on 19.4.1997 and 20.4.1997 in the Kottakkal Nursing Home was not questioned by the investigating officers and he was not made a charge witness even, it is pointed out.
11. Apart from the above, the learned senior counsel also pointed out certain defects in the trial of the case. The cause of death as per the medical opinion is infection from wounds inflicted on the child. But the charge framed against the accused is not to that effect. The same has vitiated the trial. The learned senior counsel relying on the decision of the Apex Court in Sharad Birdichand Sarda v. State of Maharashtra (1984 SCC (Cri.) 487) brought to our notice the Panchaseel formulated by the Apex Court concerning conviction based on circumstantial evidence. To buttress the said argument, reference was made to the decisions in Siddaiah v. State of Karnataka (2003 (10) SCC 224) and Anil Kumar Singh v. State of Bihar (2003 (9) SCC 67). To drive home the point that the defect in the charge will vitiate the entire trial, the learned counsel relied on the decision of the Division Bench of this Court in Chandran v. State of Kerala (ILR 2005(4) Kerala 568). To show the lethal effect on the prosecution, resulting from non-examination of material witnesses, the learned CRL.A.NOs.558 & 574/04 -19- senior counsel relied on the decision of the Apex Court in Mathura Yadav v. State of Bihar (2002 (6) SCC 451)
12. The learned Public Prosecutor, on the other hand, pointed out that the deceased child was under the care of the first accused and the only other adult member in the house was the second accused. Therefore they should be held liable for the injury sustained by the child in the house. He also pointed out that the case of the defence that CW1 was present in the house is improbable. PW1 and PW2 have sworn to about his absence and they mentioned about the calling of vehicle by PW2 to take the child to the hospital on 20.4.1997. If, CW1 was there, he would have taken the initiative to remove the child to the hospital. There is no reason to discard the evidence of PWs 1 and 2 on this point. The presence of Manu also has to be ruled out in view of the evidence of PW2. The learned Public Prosecutor further submitted that the findings made by the learned Additional Sessions Judge in paragraph 25 of the judgment under appeal are fully supported by the evidence on record. Evidence of PW2 would support finding Nos.1 and 10 in paragraph 25. The second point that they were leading a cloistered life is proved by PW2 and the admission of CRL.A.NOs.558 & 574/04 -20- the first accused in her statement under Section 313 Cr.P.C. In the said statement, she has stated that Moideen disliked her talking to anyone. He did not take even a telephone connection for his house, she has stated. The third point is also proved by PW2. Though the photographs are not produced, the children were found quite happy on that day. So, it can be presumed that there was no injury on that day on the child. The fourth point is supported by the evidence of PW1 and other circumstances proved in this case. Point Nos.5 and 6 are supported by unimpeachable medical evidence. Similarly, Point Nos.7 and 8 are supported by the evidence of PW9. The finding under Point No.9 is not disputed by the appellant. Since, the explanation given by the accused for the plight of the child is plainly false, the finding of the learned Additional Sessions Judge under Point No.11 is fully correct, submits the learned Public Prosecutor. The learned Public Prosecutor also pointed out that the defect in the charge pointed out by the defence is not of any consequence. Illustration (d) under Section 215 of the Cr.P.C. will save the defect, if any, in the charge. The learned counsel also took us through the decision of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006(4) KLT CRL.A.NOs.558 & 574/04 -21-
638) in support of his submissions.
13. The learned counsel for the second accused, who is appearing in the connected appeal supported the submissions of the learned senior counsel. He also pointed out that the child was not under her care. She was only a maid servant of the house. No motive has been attributed to her to do away with the child. Having regard to her position as a maid servant, it was inherently improbable that she would inflict such injuries on the body of the child of the master of the house. Except the stray incident of beating once using a cane, spoken to by PW1, there is no other whisper against her in the evidence, regarding the ill-treatment of the deceased. Going by the statement of PW1 in his cross-examination, the incident of beating, spoken to by him lacks credence. So, the learned counsel prayed for acquittal of the second accused. The learned counsel also pointed out, relying on Exhibit D2 that, the 2nd accused was aged only 15, when the alleged offence was committed. Therefore, she should have been tried only under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
14. We considered the rival submissions made at the Bar. We CRL.A.NOs.558 & 574/04 -22- perused the evidence on record and other materials. In the light of the facts and circumstances disclosed in the evidence, we are of the view that the following circumstances are proved in this case.
1) The deceased was a minor child who was under the care and custody of the first accused. That fact is proved from the evidence of PW1 and PW2 that the deceased was in the custody and care of the first accused.
(2) When the child was brought to the Kottakkal Nursing Home on 20.4.1997, and thereafter to the hospital at Perinthalmanna, she was unconscious. The state of the child will be evident from the reference letter written by the Chief Medical Officer of the Hospital at Kottakkal at 1.45 PM on the said date referring the patient to the Kozhikode Medical College. The said reference letter is part of Exhibit P8 medical records of Maulana Hospital and Scanning Centre, Perinthalmanna. The evidence of PWs 8 and 9 would also prove this point. PW8, Dr.Sasidharan who was the doctor in the casualty of Maulana Hospital and Scanning Centre, Perinthalmanna stated that he examined the child at 4 PM on 20.4.1997 and she was in Comatose and there was no response to painful stimuli. PW9, Dr.Gnanadas, the Neuro Surgeon of the Hospital also stated about the very same condition of the child.
3) The cause of death of the child was septicemia. This is proved by the evidence of PW10, Dr.Krishnan, the Civil Surgeon of Government Hospital, Perinthalmanna, who conducted the post- mortem examination of the body of the deceased child on 3.5.1997 at 4.05 PM. He issued Exhibit P13 post-mortem report wherein he CRL.A.NOs.558 & 574/04 -23- has noticed 22 ante-mortem injuries. He has given Exhibit P14 final opinion regarding the cause of death as "due to cardio respiratory failure, as a result of septicemia and mutli system failure due to extensive injury sustained." Merriam Webster's Medical Dictionary gives the meaning of septicemia as :
"invasion of the bloodstream by virulent micro organisms from a focus of infection that is accompanied by chills, fever and prostration and often by the formation of secondary abscesses in various organs - called also blood poisoning."
4) The infection which killed the child, arose out of the non- accidental injuries suffered by the child while in the custody of the first accused. The fact that infection which led to septicemia was caused from the multiple injuries suffered by the child is proved by Exhibit P13 post-mortem report and corroborated by Exhibit P2 series photographs and Exhibit P17 opinion given by PW11 Dr.Thomas Mathew, who was the Assistant Professor and Deputy Civil Surgeon of Medical College, Kozhikode. A perusal of Exhibit P2 series photographs would show that the child was subjected to inhuman cruelty. We were shocked on perusal of those photographs. Even in the weirdest of our dreams, we could never think that such injuries can be caused to a tender child of 3 = years age by any human being. But, it has happened in this case. In Exhibit P17 opinion given, PW11 has noticed the following.
(i). Photograph labelled as (1) shows an ulcer on the sole of foot involving the middle portion of foot with a sofra tulle pasted to the outer border of foot. The ulcer was infected and unhealthy.
(ii). Photograph labelled as 2, 3, 4, 5, 6 showing genitalia and CRL.A.NOs.558 & 574/04 -24- groin. There were multiple ulcers on both libia majora and inner aspect of right thigh. There was a contusion over the inner aspect of right thigh. Pubic area showed multiple healed injuries as evidenced by scars.
(iii). Photograph labelled as 7. Two parallel linear contusion on the abdomen obliquely infected ulcers seen over the area of iliac spine and above to this parallel interrupted contusions also seen.
(iv). Photograph labelled as (8) (9). Back of forearm showed multiple healing and healed abrasions of different ages. On the front and sides of abdomen multiple linear parallel contusion seen over upper part and in the lower part there are multiple contusions and contused abrasions of different ages can be seen upto the level of umbilicus. Left hand swollen. Below the level of umbilicus two parallel linear contusions can be seen. In the lower part of abdomen and there were multiple contusion can be seen.
(v). Photograph marked as (10) left knee front aspect showed multiple ulcers and lower part of the thigh showed multiple contusion.
(vi). Photograph showing left leg marked as (11). A circular ulcer on the front of leg and multiple contusions seen over upper part.
(vii). Photograph of lower part of leg and foot (left) marked as 12 showed multiple contusions and infected ulcers and healed areas of ulcers seen as scars.
(viii). Photograph marked as (13, 14) showing back of forearm hand. Middle finger shows an infected wound and back of CRL.A.NOs.558 & 574/04 -25- forearm showed multiple ulcers. Back of hand and wrist showed multiple contusions and abrasions of different ages. White ointment found smeared over the wound.
(ix). Photograph marked as (15, 16, 17, 18, 19) showing multiple healed scars on forehead left side of root of nose. On the tip of right side of nose there was a contusion and adjacent to the right ala of nose, there is a blister. There was frothy mucoid fluid coming out of nostrils. Left side of face around malar eminence showed multiple heal. Contused abrasion. Upper lip in middle left angle of mouth and left side of lower lip showed contusion brownish black in colour. Lower lip showed two superficial wounds.
(x). Photographs marked as 20 shows ulcer on inner aspect of hand towards inner borders.
(xi). Photograph labelled as 21, 22 shows multiple infected wounds on both buttocks.
(xii). Photograph labelled as (23) showed an infected ulcer. Thereafter the said witness has given the following opinion.
"All the injuries are of different stages of healing. Based on the above findings on the photographs I am of opinion that the child had sustained multiple trauma of different ages on multiple parts on the body. These findings are suggestive of non accidental injuries (Battered Child Syndrome). "
So, in view of the above evidence, it is clear that the infections from the non accidental injuries caused septicemia, for want of proper medical care. The child was brought to the hospital, after she CRL.A.NOs.558 & 574/04 -26- became unconscious, evidently, as a result of affliction of infection to the vital organs. The suggestion attempted by the defence that the child would have been saved by proper medical care is belied by the evidence of PW9 who has stated that chance of survival of the child was remote because of the condition of the brain. The said contention is untenable in law also in view of the 2nd explanation to Section 299 of the IPC.
15. From the above proven facts, certain inferences can be drawn. The main dispute raised in this appeal is regarding the inference drawn by the learned Additional Sessions Judge based on the facts proved. Going by the above facts, we are of the view that the child suffered battering, which caused the ante-mortem injuries on her body, at the hands of the first accused. The appellant/accused tried to put the blame in her Section 313 statement on the father of the child, who was allegedly harbouring doubts regarding the paternity of the child. She also stated that some of the injuries were caused by accidental spilling of hot tea over the child. But from the evidence of PWs 1 and 2, it is proved that at the relevant period, CW1 Moideen the father of the deceased was away in the Gulf. He went to Gulf on 21.3.1997. As requested by PW1, it was PW2, who arranged the CRL.A.NOs.558 & 574/04 -27- vehicle to take the child to the hospital. PW2 has categorically stated that at the relevant time, CW1 was not there in the house and only the first and second accused were there, apart from the children. If CW1 was there, he would have taken the child to the hospital. If the claim of the first accused is correct, CW1 remained underground from 20.4.1997 and surfaced only on 25.4.1997. The said claim is inherently improbable. Further, the nature of injuries on the body of the child will disprove the story of spilling of hot tea. Most of the injuries like those on the genital parts and sole of the foot can never be caused by spilling of tea. So, the explanation given for the injuries on the body of the child is false. A1 being one of the inmates of the house and the child being under her care and custody, she must know the reason for the injuries suffered by the child. But, she has chosen to state falsehood before the trial court under Section 313 Cr.P.C. The presence of Manu, the 3rd person, who occasionally visits the house of CW1, is also ruled out by the evidence of PWs 1 and 2. So, the injury must have been caused either by the first accused or the second accused.
16. Now, we will examine the possibility of the second accused CRL.A.NOs.558 & 574/04 -28- causing these injuries on the child. Having regard to normal human conduct, a maid servant will never cause such injuries on the tender child of her master. Most of us have brought up children and those who are employed among us might have left the children in the care of maid servants also. While in the care of the servant, if the child suffers a single injury, the servant will be immediately fired and other action, as the occasion warrants will be initiated against her. In this case, the child suffered multiple injuries on various dates and the child was made to suffer the same in silence and she finally slipped into comatose, as a result of septicemia and then only the step mother woke up and thought of taking the child to the hospital. If the step mother was an affectionate guardian of the child and the maid servant has caused the injuries, the story would have been different. As stated earlier, having regard to the normal human conduct, it is inherently improbable that a maid servant will inflict such injuries on various days on the child. If the role of the maid servant is ruled out, the only person remaining is the first accused. The other two children aged about five years and two years cannot cause the injuries. Having regard to the attending circumstances and the facts proved, we have CRL.A.NOs.558 & 574/04 -29- no doubt in our mind that it was the first accused who inflicted the injuries on the child under her care and custody and denied medical aid to her. Thus the proven facts, unerringly point to the guilt of the first accused only.
17. Now, we will examine the circumstances stated by the learned senior counsel, which according to him are consistent with the innocence of the first accused.
1) The child was taken to Kottakkal Nursing Home on 19.4.1997 even before she fell into coma. There is no evidence on record to support this claim, except the mentioning of the same by CW1 in the FI statement. PW1 and PW2 were not cross-examined by the first accused on this point. CW1 must have stated so in the FI statement based on the information given to him by his wife A1. In the lengthy statement filed by the accused under Section 313, she does not have any such case. Having regard to the nature of the injuries, the age of the injuries, the different stages of the injuries, etc., even if it is proved that the first accused has taken the child to the hospital on 19.4.1997, the same will not prove her innocence.
2) The first accused has given her ornaments to raise funds for the treatment of the child. The same is part of her desperate bid to save herself from the gallows. The same will not show that she is innocent.
3) PW3 stated that he found the children happy in the company of the first accused when the photographs were taken on the previous CRL.A.NOs.558 & 574/04 -30- day of departure of CW1 to Gulf. Showing a pleasant face when facing a camera will not have any effect on the culpability of the first accused proved in this case. The pleasant conduct of the children on the said date would show that the child was not suffering from any injury on that date. Though, the photos taken on that date were not produced, the child's conduct on that day would show that she sustained the injuries only subsequently, that is, after CW1 left for Gulf.
4) The delay from the part of CW1 to come to see the child would prove that it was CW1 who caused the injuries. We have already found that CW1 was not in the house as alleged by the first accused. So, the said contention is untenable.
5). There is no direct evidence in the form of deposition of witnesses regarding ill-treatment of the deceased by the first accused. The case is sought to be proved relying on circumstantial evidence and therefore the said point has no relevance.
6.) PW1 has deposed that the first accused was looking after the children affectionately. PW1 is a security guard who normally comes to the house only during night time. He is not a privy to the ongoings inside the house. Therefore, his opinion lacks credence and the same will not in any way help the first accused.
7) PW7 stated that the first accused was attending to the child all throughout in the hospital. It is a natural conduct of the first accused to save herself from the blame. That conduct will not prove that she had not inflicted the ante-mortem injuries.
8) The reference letter of Kottakkal Nursing Home, which is part of Exhibit P8 shows that the child was suffering from fits and therefore, it is possible that the child suffered the injury by falling CRL.A.NOs.558 & 574/04 -31- down while suffering from fits. The mentioning in the reference letter regarding fits would not show that the child was having a history of fits. The child suffering the condition of septicemia may show the signs of fits also. That will not show that the child was regularly suffering from fits and therefore sustained the injuries. The cause of injury as per the medical opinion cannot stand with this claim of the first accused.
9) The varying age of the injuries would show that they were not caused on 19.4.1997 or 20.4.1997. This fact also will not help the accused in any manner. So, the above circumstances will not go with the theory of innocence of the first accused.
18. The other contentions raised by the learned senior counsel are also not tenable. The findings summarised by the trial court in paragraph 25 of the judgment under appeal are fully supported by the evidence on record. The criticism raised against those findings by the appellant has been met and fully explained by the prosecution. The submissions of the learned Public Prosecutor are fully supported by evidence on record. We have already ruled out the possibility of Manu or the second accused causing the injuries on the body of the child. The criticism of the learned senior counsel about non-examination of CWs1, 2, 3 and 48 is also devoid of any merit. In the judgment under appeal, the learned Additional Sessions Judge has explained why those CRL.A.NOs.558 & 574/04 -32- witnesses could not be examined. CW1 and CW48 were abroad. CW1 did not take any interest to come forward and depose against his wife. CWs 2 and 3 mysteriously disappeared at the time of trial of the case and process could not be served on them. Normally, the first accused or the husband of the first accused, CW1 may be behind their disappearance. Any way, we are not expressing any final opinion on that point. But, we are sure that the prosecution cannot be blamed for non-examination of the above said witnesses. They have taken all possible steps to procure the presence of the witnesses. The learned senior counsel also pointed out the defect in the charge with reference to the date shown therein. But, we are of the view that, the said defect is not of any consequence. Illustration (d) under Section 215 of Cr.P.C. will save the defect, if any, in the charge, which is quoted below for convenient reference.
(d): A is charged with murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in CRL.A.NOs.558 & 574/04 -33- the charge was immaterial.
19. Going by the Panchaseel formulated by the Apex Court in Sharad Birdichand Sarda v. State of Maharashtra (1984 SCC (Crl.) 487) and other decisions, we feel that the circumstances proved in this case point only to the guilt of the accused. No circumstance has been brought to our notice, which is inconsistent with the guilt of the accused. We are of the view that no prejudice has been caused to the accused by the defect in the charge. So, the decision of this Court in Chandran v. State of Kerala (ILR 2005(4) Kerala 568) has no application to the facts of this case. The decision in Mathura Yadav v. State of Bihar (2002 (6) SCC 451), concerning non-examination of material witnesses, is also not of any relevance, in view of the facts of this case.
20. In this case, the child aged 3 years and 6 months sustained burn injuries and other injuries. The infection from those injuries aggravated and finally she fell into comatose and died. Medical evidence showed that septicemia was the cause of death. The 1st accused alone knew that what was happening inside her house. No independent witness has access to the house to speak about the CRL.A.NOs.558 & 574/04 -34- incident. The circumstances proved in this case and the inference that can be drawn based on normal human conduct in the proven circumstances, will drive home the guilt of the accused. In this context, we refer to the decision of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006(4) KLT 638(SC). Paragraphs 12 to 14 and 16 of the said decision read as follows:
"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.(See Stirland v. Director of Public Prosecution (1944 AC 315) -quoted with approval by Arijit Pasayat, j. in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led.
The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind S.106 of the Evidence Act which says that when any fact is CRL.A.NOs.558 & 574/04 -35- especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket.
The burden of proving that he had a ticket is on him." Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S.106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
13. A somewhat similar question was examined by this Court in connection with Ss.167 and 178-A of the Sea Customs Act in Collector of Customs, Madras & Ors. v. D.Bhoormull (AIR 1974 SC 859) and it will be apt to reproduce paras 30 to 32 of the reports which are as under:
30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of S.167 to which S.178-A does not apply, the burden of proving CRL.A.NOs.558 & 574/04 -36-
that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof.Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.
31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered- to use the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 63 CRL.A.NOs.558 & 574/04 -37- at p.65 " according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying S.106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen CRL.A.NOs.558 & 574/04 -38- property", though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. (Emphasis supplied).
The aforesaid principle has been approved and followed in Balram Prasad Agarwal v. State of Bihar & Ors. (AIR 1997 SC 1830) where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless.
14. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under S.364 read with S.34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed CRL.A.NOs.558 & 574/04 -39- an appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of S.106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the CRL.A.NOs.558 & 574/04 -40- law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when S.114 is incorporated in the Evidence At. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least CRL.A.NOs.558 & 574/04 -41- until he was in their custody."
Applying the aforesaid principle, this Court while maintaining the conviction under S.364 read with S.34 IPC reversed the order of acquittal under S.302 read with S.34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life.
15.xxxxxx xxxxxxxxx
16. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. (See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr.Ravindra Prakash Mital (AIR 1992 SC 2045) (para 40); State of Maharashtra v.Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)." (Emphasis supplied)
21. In view of the above principles laid down by the Apex Court and having regard to the special circumstances in which the crime was committed, we are fully justified in drawing the inference from the proven facts that it was the first accused who committed the offence.
CRL.A.NOs.558 & 574/04 -42- The child, who was under the care and custody of the first accused, suffered injuries while it was in the house which was in her occupation. So, she knew actually what happened to the child. But, she has given a false explanation for it. So, it is an additional link in the case of the prosecution. We, therefore, agree with the conclusions of the trial court that the first accused/appellant is guilty of the offence under Section 302 IPC.
In the result, we confirm the conviction and sentence imposed on the first accused/appellant by the Additional Sessions Judge, (Adhoc), Fast Track Court No.II, Manjeri in S.C.No.336/2000 and dismiss the appeal. The bail bonds executed by her and her sureties, pursuant to the order of this Court dated 25.5.2004, suspending the sentence imposed on her, shall stand cancelled.
Crl.A.No.574/04:
While dealing with Crl.A.No.558/04, we have already found that the possibility of the 2nd accused inflicting the injuries on the deceased child is inherently improbable. The solitary incident of beating the child using a cane spoken to by PW1, is not sufficient to find that the second accused, who is the appellant herein is guilty. Therefore, we CRL.A.NOs.558 & 574/04 -43- are of the view that the appellant herein is entitled to get the benefit of doubt. Accordingly, she is acquitted of the offence. The conviction and sentence imposed on her by the Additional Sessions Judge, (Adhoc), Fast Track Court No.II, Manjeri in S.C.No.336/2000 are set aside. She is set at liberty. The bail bonds executed by her and her sureties shall stand cancelled.
The appeal is allowed as above.
K.BALAKRISHNAN NAIR,JUDGE.
M.C.HARI RANI, JUDGE.
dsn
CRL.A.NOs.558 & 574/04 -44-
K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.
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CRL.A.NOs.558 & 574 OF 2004
----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 GIST OF THE JUDGMENT Balakrishnan Nair, J.
Crl.A.No.558/04:
xxxxxx xxxxxxx xxxxx CRL.A.NO.574/04 While dealing with Crl.A.No.558/04, we have already found that the possibility of the 2nd accused inflicting the injuries on the deceased child is inherently improbable. The solitary incident of beating the child using a cane spoken to by PW1, is not sufficient to find that the second accused, who is the appellant herein is guilty. Therefore, we are of the view that the appellant herein is entitled to get the benefit of doubt. Accordingly, she is acquitted of the offence. The conviction and sentence imposed on her by the Additional Sessions Judge, (Adhoc), Fast Track Court No.II, Manjeri in S.C.No.336/2000 are set aside. She is set at liberty. The bail bonds executed by her and her sureties shall stand cancelled. The appeal is allowed as above.
K.BALAKRISHNAN NAIR,JUDGE.
M.C.HARI RANI, JUDGE.
dsn