Kerala High Court
Cheluvi vs State Of Kerala on 4 April, 2019
Equivalent citations: AIRONLINE 2019 KER 73
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941
CRL.A.No. 1254 of 2014
AGAINST THE JUDGMENT IN SC 157/2012 of SESSIONS
COURT,KALPETTA DATED 24-04-2013
APPELLANT/ACCUSED:
CHELUVI, W/O KUNJIRI,
AGED 44 YEARS,
PANAPPADI COLONY, KALLOOR, NOOLPUZHA AMSOM,
SULTHAN BATHERI.
BY ADVS.
SRI.K.V.RAMABHADRAN
SMT.ANUPAMA SUBRAMANIAN
SRI.K.R.SRIPATHI
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
THROUGH CIRCLE INSPECTOR OF POLICE, OF SULTHAN
BATHERY POLICE STATION, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN:682 031.
SR.PP. SRI.K.B. UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.03.2019, THE COURT ON 04.04.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.1254/14
-:2:-
JUDGMENT
Shaffique, J.
This appeal is preferred by the appellant Cheluvi challenging the judgment of conviction and order of sentence passed by the Sessions Court, Kalpetta in S.C. No. 157 of 2012 with C.P. No. 25 of 2012 arising out of Crime No. 810 of 2011 of Sulthan Bathery Police Station by which she was found guilty for offence under Sections 302, 201 and 318 of the Indian Penal Code, 1860 (for short 'IPC') and sentenced to undergo simple imprisonment for life and to pay a fine of `2,000/- (Rupees Two Thousand only) with a default stipulation of simple imprisonment for three months for offence under Section 302 of IPC; also sentenced to undergo simple imprisonment for two years and to pay a fine of `500/- (Rupees Five Hundred only) with a default direction for three months for offence under Section 201 of IPC; further to undergo simple imprisonment for one year for offence under Section 318 of IPC. All sentences were directed to run concurrently.
2. The prosecution has the following case against the Crl.Appeal No.1254/14 -:3:- appellant:
The appellant Cheluvi lost her husband two years prior to the incident and she was residing along with her children in house No. NPVI/433 of Noolpuzha Panchayath which is owned by her father-in-law. While so, she became pregnant out of extra- marital relationship and on 23/10/2011, she gave birth to a baby boy in the aforesaid house during night hours. In order to hide the illegitimate birth of the child and thereby to save her face in the society, she smothered the baby and caused its death. She destroyed evidence by burying the dead body in a pit near her house.
3. To prove the case, prosecution examined PW1 to PW14 as witnesses, marked documents Exts.P1 to P17 and identified material object MO1. She was examined under Section 313(1)(b) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') and she pleaded innocence. No evidence is adduced from the side of the defence.
4. Learned counsel appearing for and on behalf of the appellant submitted that there is absolutely no evidence against the appellant. Prosecution alleged a very serious allegation Crl.Appeal No.1254/14 -:4:- against this illiterate, tribal woman but failed to adduce even one piece of evidence against her. She is the mother of five children. There is no eyewitness to the incident. Evidence adduced in this case is totally insufficient to hold that infanticide had in fact happened. Prosecution failed to prove the motive for the crime. There is no evidence to show that the appellant had any intention to commit murder. Medical evidence also did not support the prosecution case. Learned counsel pleaded for an acquittal by extending benefit of doubt.
5. On the contrary, learned Senior Government Pleader Sri.K.B.Udayakumar argued that the case is proved by the prosecution beyond reasonable doubt. He supported the verdict of the trial Court. The husband of the appellant died two years back and she became pregnant and gave birth to a baby boy. Evidence clearly shows that she buried the infant alive for the purpose of saving her face before the society. Medical evidence clearly shows that the child died due to smothering. Evidence available in its entirety proves the guilt of the appellant. He sought to dismiss the appeal.
6. We heard both counsel in detail and perused the Crl.Appeal No.1254/14 -:5:- evidence on record. Court below is of the view that the infant was born alive and the appellant knowing fully well that the baby boy is alive, buried him in the compound of her house with the intention to kill him. The motive for the said act was to save herself from the shame of having given birth to an illegitimate child. To assess the correctness of the said findings, it is necessary to reappreciate the entire evidence.
7. Evidence adduced by the prosecution, in brief, are as follows:
PW1 is the then Sub Inspector of Police, Sulthan Bathery, who, based on Ext.P1 intimation from Taluk Head-Quarters Hospital, Sulthan Bathery registered Ext.P2 FIR suo motu. PW2 Chandran turned hostile to the prosecution. But he proved Ext.P4 mahazar by which MO1 spade was recovered. He also admitted his signature in Ext.P5 scene mahazar. PW3 is the Doctor who examined the appellant in Taluk Hospital and she issued Ext.P6 medical certificate. PW4 collected blood sample of the appellant for DNA test and through PW11, entrusted it to the Investigating Officer. PW6 stated that he witnessed the spot post-mortem done on the corpse of the baby near the house of the appellant. PW7 is Crl.Appeal No.1254/14 -:6:- the Tahsildhar who conducted the inquest and prepared Ext.P7 report. PW5 admitted his presence at the time of preparing inquest report. PW14 is a witness to the preparation of inquest. PW8 issued Ext.P8 certificate to show that the place of incident is part of a forest land. PW9 issued Ext.P9 ownership certificate to prove that the house in which the appellant was residing belongs to one Vella, her father-in-law. PW10 proved Ext.P10 sketch which shows that the corpse was buried in the rear courtyard of the house of the appellant. PW12 conducted the investigation of the case. He prepared Ext.P5 scene plan and applied for Exts.P8 to P10 documents. On arrest of the appellant, Ext.P11 arrest memo is prepared. Based on the disclosure statement of the appellant, PW12 recovered MO1 through Ext.P4 mahazar. He collected blood samples from PW11 as per Ext.P12 mahazar. Ext.P13 series are the property list, Ext.P14 is the copy of the forwarding note, Ext.P15 is the FSL report and Ext.P16 is the report for incorporating Section 302 I.P.C. to the accusation. The body was exhumed in the presence of witnesses. PW13 is the Doctor who conducted the autopsy of the dead child. Ext.P17 is the post- mortem report issued by him.Crl.Appeal No.1254/14
-:7:-
8. There is no eyewitness to the incident. Prosecution attempted to prove the case based on circumstantial evidence. First of all, whether the death of the infant was a homicide or not need to be looked into. PW1 is the then S.I. of Police, Sulthan Bathery. He received Ext.P1 intimation from Taluk Head-Quarters hospital disclosing illegitimate delivery and suspected infanticide. He reached the hospital and interrogated the appellant who was undergoing treatment there. PW3 the Doctor who was treating the appellant stated that the appellant should necessarily have undergone a delivery within 24 hours from 24/10/2011 and she might have given birth to a baby with a minimum growth of seven months and all post-natal symptoms were present on the body of the appellant. It is the version of PW1 that on receiving the said information from PW3, he rushed to the house where the appellant was residing and questioned PW2 Chandran who is a near relative of the appellant. PW2 stated that the appellant gave birth to a child during night hours of 23/10/2011 and the child could not be found. After registering Ext.P2 FIR based on Ext.P1 intimation, he made a request to the Sub Divisional Magistrate for conducting inquest and also for a spot post-mortem by forensic Crl.Appeal No.1254/14 -:8:- experts. He arranged scene guard. On 26/10/2011, the appellant was again interrogated by PW1. Then she disclosed that there was an abscess in the abdominal area and it got expelled and the same was buried at the rear courtyard of her house. Based on the said information, on 26/10/2011, PW1 along with PW7 and PW13 went to the spot and exhumed the body of the child. Inquest and post-mortem were done. Bone and muscle of the child were collected for DNA test. Based on the investigation upto 26/10/2011, PW1 sent to Court Ext.P16 report incorporating Section 302 of I.P.C. In cross-examination, PW1 admitted that he had not seized the case sheet prepared at the Primary Health Centre, Noolpuzha where the appellant was first taken for treatment.
9. PW2 is a near relative of the appellant. He deposed that he was informed by the child of the appellant Sandhya aged two years that her mother was pregnant and she delivered a child and the child is not seen. He admitted that he was present at the spot at the time when the corpse was exhumed. He stated that he is ignorant as to what had happened to the child.
10. PW3 examined the appellant on 24/10/2011 at 02.20 Crl.Appeal No.1254/14 -:9:- p.m., at Taluk Head-Quarters hospital, Sulthan Bathery as she was referred from Primary Health Centre, Noolpuzha. Ext.P6 is the certificate issued by her. PW3 stated that she suspected the version given by the appellant about the history of delivery and the intra uterine death. Hence she reported the matter to the police through Ext.P1 intimation. During cross-examination, she deposed that in intra uterine death also, symptoms of delivery will be present. She also stated that an ASHA worker accompanied her.
11. PW7 was the then Tahsildhar, Sulthan Bathery. He stated that he conducted the inquest of a new born child on 26/10/2011 and issued Ext.P7 inquest report. The corpse was found buried after being enclosed in a sack.
12. PW13 conducted the spot post-mortem examination of the corpse of the neonate. The following were the injuries noted on the corpse:-
"1. Abraded contusion 0.8x0.8cm margin of upper lip 0.5 cm right to midline. Circumoral pallor present.
2. Abrasion 0.8x0.3 cm on ala of right nose circumnasal pallor present.
3. Contusion 2x0.5x0.2 cm on right side of head at parietal eminence."Crl.Appeal No.1254/14
-:10:-
He noted three ante-mortem injuries on the dead body of the child. On examination of the internal organ of the child, he came to the conclusion that the child was a full term live born viable male infant. According to him, the death was due to smothering.
13. Ext.P15 is the FSL report cum DNA test report. It shows that item no.1 is the blood sample collected by PW13 at the time of autopsy from the child and item no.2 is the sample blood collected from the appellant. The DNA procedure test of both these samples proves that the appellant is the biological mother of the child.
14. In our anxious consideration of the entire case, we find it difficult to agree with the finding of the learned Sessions Judge. In a case of circumstantial evidence, motive assumes much importance. First of all, nothing is available on record to show that the appellant was entertaining any motive for doing away with her new born baby. It is true that her husband had died two years prior to the incident and that her pregnancy was the result of an extra-marital relation. Apart from that, nothing is there on record to show that she had hidden the pregnancy from others or that she entertained the idea to eliminate the child either at the Crl.Appeal No.1254/14 -:11:- foetus stage or subsequently. Under such circumstances, the conclusion that the appellant had entertained the motive for the crime is found to be baseless.
15. Coming to the next aspect, the specific case of the prosecution is that the appellant, after delivering the child, smothered and buried it. It is proved by the evidence of PW13 read with Ext.P17 that the neonate died due to smothering. But nothing is forthcoming from evidence to prove that the appellant herein has smothered the child before burying it. It is relevant to note that though the accused was represented by a counsel, PW13 had not been cross-examined. Even the Court did not feel it necessary to put any questions. PW13 appears to have arrived at a conclusion that there was smothering, may be on account of the injury noted on the corpse. But, such injuries can also be caused at the time of burial. Such a contingency has not been excluded while PW13 was examined. Prosecution did not have any material on record to conclude at what point of time the death occurred. The burden is on the prosecution to prove the case in its entirety. PW1 in his evidence stated that the treatment records from the Primary Health Centre is not seized by him. PW3 Crl.Appeal No.1254/14 -:12:- the Doctor who treated the appellant at the Taluk Headquarters Hospital stated that the appellant alleged a history of intra uterine death and delivery. During cross-examination of PW3, she stated that in normal delivery as well as in intra uterine death cases, the symptoms of delivery is almost the same. As already found, since the prosecution failed to conclude as to when the death actually happened - whether after burial or before that - the above explanation assumes importance. Nobody can be held liable for murder, unless the prosecution proves beyond doubt the intention of that person to commit the said offence. In the case at hand, prosecution failed to prove that the appellant herein had any intention to kill her child. Even assuming the child was buried alive, the evidence on record does not show that appellant had any intention to kill the child. Benefit of doubt must go to this illiterate, tribal woman who is the mother of five children in that respect. Admittedly, it was not an institutional delivery. Nobody can expect the same amount of expertize or safety available in a hospital under circumstances like this when the mother risking herself by deciding to deliver in her own home. The fact that she buried the child is proved. But unless the Crl.Appeal No.1254/14 -:13:- prosecution proves that the appellant had committed a crime and that knowing that she is destroying the evidence of such crime, the appellant cannot be convicted for destroying evidence under Section 201 of I.P.C.
16. This is a case in which the prosecution could prove that a new born baby was buried in the compound of his mother's house. That the appellant had committed the murder of the child by smothering and then buried the child, remains a mere allegation. Prosecution could not prove the case against the appellant beyond the shadow of reasonable doubt. Motive for the offence is not proved. We don't find conclusive evidence to elicit intention on the part of the appellant to commit murder of the child. Under such circumstances, we have no option but to reverse the finding of the Court below as far as the offences under Sections 302 and 201 of I.P.C. are concerned.
17. Section 318 of I.P.C. reads as under:-
"318. Concealment of birth by secret disposal of dead body.--Whoever, by secretly burying or otherwise disposing of the death body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a Crl.Appeal No.1254/14 -:14:- term which may extend to two years, or with fine, or with both".
18. It is on record that the appellant had given birth to a child in the night hours of 23/10/2011 at her house. It is also brought in evidence that the said child was missing and was found buried in the compound of the house of the appellant. The said act of the appellant was done by her in secrecy and it came to light only after she was admitted in Taluk Head-Quarters hospital, Sultan Bathery and examined by PW3. The proved circumstances mentioned above show that the appellant committed offence defined under Section 318 of IPC. It is seen from the records that accused was arrested on 22/5/2012 and thereafter she was in custody as an under-trial prisoner. The order of sentence was passed by the Court on 24/4/2013. Bail has been granted by this Court as per order dated 20/12/2014. She was therefore in custody until she was released as per order dated 20/12/2014. The maximum sentence for an offence u/s 318 of I.P.C. is 2 years or with fine or with both. It is only appropriate that she is sentenced for a period of one year for the offence u/s 318 of I.P.C.
Crl.Appeal No.1254/14-:15:-
In the result, the appeal is partly allowed. The appellant is acquitted of charges levelled against her by the prosecution under Sections 302 and 201 of I.P.C. by extending benefit of doubt. She is found guilty for an offence under Section 318 of IPC. Accused is sentenced to undergo imprisonment for a period of one year. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. Since she had already undergone the imprisonment, the bail bond shall stand cancelled and she is set at liberty.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge