Kerala High Court
Swarni @ Radha vs State Of Kerala on 13 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal.810/2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
CRL.A NO. 810 OF 2018
CRIME NO.811/2014 OF Kottayam West Police Station, Kottayam
SC NO.205 OF 2014 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - IV, KOTTAYAM / II ADDITIONAL MACT, KOTTAYAM
APPELLANT/ACCUSED
SWARNI @ RADHA,AGED 52 YEARS, W/O. SELVARAJ,
KAITHAKUZHY COLONY, PEREKONAM BHAGOM, WARD NO.IV,
OTTASEKHARAMANGALAM VILLAGE, KATTAKKADA THALUK,
THIRUVANANTHAPURAM.
RESPONDENT/COMPLAINANT
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN
AND CHILDREN
SMT.BINDU O.V. - PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
9.12.2024, THE COURT ON 13.01.2025 DELIVERED THE
FOLLOWING:
Crl. Appeal.810/2018
2
Crl. Appeal.No.810 of 2018
--------------------------------
Dated : 13th January, 2025
JUDGMENT
C.Pratheep Kumar, J.
Being jealous of a beautiful woman is not going to make you more beautiful - Zsa Zsa Gabor, the Hollywood legend.
This case reveals the brutal homicide of a woman by another woman, solely out of jealousy. The accused in Sessions Case No.205/2014 on the file of the Additional Sessions Court-IV, Kottayam is the appellant herein. She stands convicted for the offences punishable under Sections 302 and 326-A IPC and sentenced inter alia, to imprisonment for life for the offence under Section 302 IPC.
2. The prosecution case is that the accused Swarni @ Radha and the deceased Salini were sex workers in Kottayam. It is stated that Salini was younger and more beautiful than the accused and she earned more money from the sex work. As per the prosecution case, due to that reason, the accused harboured enmity towards Salini. Therefore, the accused with the intention to murder Salini, on 14.1.2014 at about 9 p.m, while she was engaged in sexual Crl. Appeal.810/2018 3 intercourse with PW2, at an open place near Dhanya - Remya theatre at Kodimatha kara in Kottayam village, poured formic acid from a jar on the face and body of the deceased and as a result of which she died at about 11.45 pm on the same day. It is also alleged that in the incident, PW2 who was engaged in sexual intercourse with the deceased also sustained burn injuries.
3. The evidence in the case consists of the oral testimonies of PWs1 to 27 and Exts.P1 to P38 and Ext.D1 to D5. MOs1 to 12 were also identified. After evaluating the available evidence, the learned Sessions Judge found the accused guilty of the offences punishable under Section 302 as well as under Section 326- A IPC and convicted her as stated above. Aggrieved by the above judgment of conviction and sentence, the accused preferred this appeal raising various grounds.
4. Now the points that arise for consideration are the following :
(i) Whether the conviction rendered and sentence passed by the learned Sessions Judge against the appellant under Section 302 IPC is legally sustainable ?
(ii) Whether the learned Sessions Judge was justified in convicting the appellant under Section 326-A IPC ?
(iii) Whether the impugned judgment of conviction and sentence Crl. Appeal.810/2018 4 calls for any interference, in the light of the grounds raised in the appeal ?
5. Heard Sri.Nandagopal S.Kurup, the learned counsel for the appellant and Smt.Bindu O.V., the learned Public Prosecutor.
6. Point No.1 :- The trial Court mainly relied upon the oral testimony of PW2 to prove the charge against the appellant. According to the learned counsel for the appellant, the evidence of PW2 is not at all reliable. It was argued that the police initially suspected PW2 as the culprit and later on, due to his influence, he was made a witness and the accused was falsely implicated in this case. He would also argue that in this case, there is no proper identification of the accused by any of the witnesses and also that the identification made by PW2 is not at all reliable. Therefore, he prayed for acquitting the accused by allowing the appeal. Finally he made one more submission to the effect that in case this Court finds that the deceased died due to the acid attack by the accused, it is to be found that she had no intention to cause the death of the deceased and also that she did not even have any knowledge that she is likely by such act to cause the death of Salini. It was urged that, even as per the prosecution case, the motive is that the deceased being younger and more beautiful than the accused, earned more from sex work and therefore, there was no intention to cause her death and at the most, Crl. Appeal.810/2018 5 her intention was only to disfigure the deceased. Therefore, it was argued that even if culpable homicide is proved, the same does not amount to murder but will come only under 304 Part-II IPC. He also invited our attention to the fact that conviction under section 326-A IPC was made without framing a formal charge on that head.
7. On the other hand, the learned Public Prosecutor would argue that the intention of the accused was very clear as she had not only poured acid on the face of the deceased but poured the same into her mouth so that it went inside her body; and otherwise, the deceased would not have died. Therefore, it was argued that the prosecution has proved the offence of murder and therefore, she prayed for dismissing the appeal.
8. PW1, the first informant was conducting a Paan shop near Dhanya - Remya theatre, Kottayam. He would swear that one day at about 8.30 p.m., a lady came towards his shop, screaming aloud and fell down in front of his shop and begged for water. He along with his wife were there in the shop and he smelt a pungent smell of acid from her body and due to that smell, tears came from his eyes. Though several persons assembled near the lady, none of them went near her, because of the pungent smell of acid. Immediately he informed the matter to the police and police came there and took the lady to the hospital. On the next Crl. Appeal.810/2018 6 day he came to know that the said lady died because of the injuries. He also had given Ext.P1 FI Statement to the police with respect to the above incident and he identified his signature in Ext.P1, FI statement.
9. PW2 is the star witness of the prosecution. It was when he had sexual intercourse with the deceased, the accused allegedly attacked them with acid. He would swear that on 14.1.2014 in the evening he came to Kottayam bus stand by bus and while so he saw the deceased Salini(Salu) along with 2 -3 other ladies. According to him, he came there for having sex and on seeing Salu he asked her as to whether she is ready to accompany him into some room. At that time, Salu replied that rooms are not available there. After a while she informed him that a nearby place is available and she hired an auto-rickshaw and took him and another boy in that auto-rickshaw towards the place of occurrence. When the auto-rickshaw reached near the place of occurrence, she asked PW2 to wait till she gets rid of the boy. After about ten minutes, the boy returned and then she invited PW2 to come near her. When he went near the deceased, she received Rs.500/- from him and thereafter they engaged in sexual intercourse. Whilst so, something fell on his body and he felt burning sensation and presence of acid. He suddenly stood up and moved away. At that time, the accused poured acid on the face and into the mouth of the deceased. According to PW2, he knew the accused Crl. Appeal.810/2018 7 previously and at the time of the incident, she was wearing a check shirt with saffron colour. He immediately went to his residence in an auto-rickshaw and saw Salini screaming and running towards the road. He would further swear that due to shame, he has not disclosed about the actual incident to others. At the same time, he went to the Medical College Hospital Kottayam, and obtained treatment from there. In the said hospital, he told the doctor that somebody poured acid towards him. He had given 164 statement in that respect to the Magistrate and he identified his signature in Ext.P2, 164 statement as well.
10. PW3 is another sex worker, having acquaintance with the deceased as well as the accused. She would swear that, on 14.1.2014 at about 8 p.m. she saw the deceased. At that time, along with her, another sex worker Moly was also present. Though the accused was also present along with them, she first went from there in an auto-rickshaw. Thereafter, the deceased also went in an auto- rickshaw. Then she also got a customer and so, she also went from there. When she returned to that place, after disengaging with her customer, she saw a mob and police jeep near Dhanya-Remya theatre. Since there was police there, she remained inside the auto-rickshaw. The auto-rickshaw driver told her that a fat lady was lying there. From the description of the lady given by the auto-rickshaw driver, she understood that the said lady was Salini, the deceased. Thereafter, she Crl. Appeal.810/2018 8 went in the said auto-rickshaw to the place near Anupama theatre and there she saw the accused and Moly. On seeing them, she informed them about the deceased lying in front of the shop near the Dhanya-Remya theatre and about the presence of police. According to PW3, on hearing about the condition of the deceased, Radha began to sweat and started shivering. She suspected that the deceased was attacked with acid by none other than the accused, as according to her, the accused had previous history of attacking others with acid. She would also swear that, among the sex workers, the deceased had more demand and in that respect, the accused quarrelled with the deceased.
11. PW4 was the Assistant Sub Inspector, Control Room, Kottayam, who, on getting information about the incident, reached in front of the shop of PW1 at about 9.10 p.m. and took the deceased in the jeep to the District hospital, Kottayam. Thereafter, the deceased was taken to the Medical college hospital. According to PW4, on the way, he asked the lady about the details of the incident and at that time, she told him that somebody poured acid on her body. He also deposed that while speaking to her, the lady was screaming saying she lost her eye sight.
12. PW5 was the salesman in the shop 'Kaniyamparambil Agencies' owned by his father. He would swear that in the said shop he sells fertilizers, Crl. Appeal.810/2018 9 pesticides and formic acid used for coagulating rubber milk. He would also swear that one day in December 2013, the accused came to his shop and purchased half litre formic acid in a jar. He would further swear that after the incident, the police brought the accused to his shop and that he identified her as the person who had purchased formic acid from his shop.
13. PW16 was the Casualty Medical Officer, Medical College hospital, Kottayam. He would swear that on 14.1.2014 at about 10.00 p.m. he had examined a lady, who was brought there with acid burns and that the lady died at about 11.45 p.m. Ext.P13 is the copy of the intimation given in that respect to the police. He would also swear that on the same day, he examined PW2, with the history of acid thrown at him, at Samkranthi, with 10% superficial burn on the back of right shoulder. Ext.P14 is the wound certificate issued by him in that respect.
14. PW23 was the Assistant Surgeon, District hospital, Kottayam, who had examined the deceased and issued Ext.P21 wound certificate. According to him, the deceased was brought before the District hospital with 90% burns. The alleged history given was "(ധന ത യ ററ ന സമ പ ) ആയ ഒ ൾ ആസ ഡ ഒഴ ചത ൽവച." He noticed burns on the face of the patient and the patient was referred to the Medical college hospital. Crl. Appeal.810/2018 10
15. PW22 was the Additional Professor and Deputy Police Surgeon attached to the Medical college hospital, Kottayam, who had conducted the postmortem examination on the body of the deceased and issued Ext.P18 postmortem certificate. PW22 has noticed the following antemortem injuries on the body of the deceased:
"1. Abraded contusion on right side of front of chin 0.5x0.5 cm, 1 cm outer to midline.
2. Abraded contusion on right side of front of chin 0.4x0.4 cm, 0.5 cm outer to injury No.1.
3. Abraded contusion on right side of lower jaw region 0.4x0.4 cm, 4x7 cm outer to front midline.
4. Blackish Burned area on entire face, entire neck and entire back of shoulder and entire front of chest (41x41 cm), entire left upper arm. The left axillary region, front of left forearm (11x7 cm), upper end at elbow line, and back of right side of chest 17x14 cm, vertical, inner end at midline and an area on front of left knee 15x15 cm with spatters around (more than 27%)."
16. The other findings entered into by PW22 are the following:
"The skull intact. The brain congested, mouth and pharynx mucosa corroded black in colour. Neck and its structures. Flap dissection of neck was done in a bloodless field. The bones, soft tissues and cartilages or neck were intact. The pleural cavities contained 75 ml of serous fluid. Oesophagus mucosa corroded black in colour. Trachea and bronchi contained white froth mucosa congested, glottis and vocal Crl. Appeal.810/2018 11 cords intact. The right lug weighed 600 gm left lung 550 gm. The lungs congested and markedly oedematous. The heart walls, valves, chambers and coronaries were normal. The intima aorta showed early brownish discolouration of decomposition. The liver weighed 1500 gm, congested, biliary passages patent. Stomach and contents weighed 375 gm, contained a blackish fluid partly digested boiled ricy food beefy materials with a pungent and fermented odour, the mucosa showed corrosion, the other layers of stomach wall intact intestines and mesentery normal. Urinary bladder empty. General organs uterus and its appendages appeared normal. Hymen showed carunculae multiform is spinal column and cord intact. All other organs congested, otherwise normal, viscera, blood, vaginal swab and smears sand for laboratory investigations."
17. According to PW22, during the postmortem examination, he had collected viscera and blood from the deceased and they were sent for chemical analysis. He received the chemical analysis report dated 8.4.2014 from the Chemical Examiner and the report reveals that: "formic acid, a corrosive poison together with ethyl alcohol was detected in blood and viscera. The blood contained 30 mg / 100 ml of ethyl alcohol. Based on the above finding, opinion about the cause of death is, the death was due to formic acid poisoning." Ext.P19 is the chemical analysis report proved by him.
18. PW22 would further swear that on 15.1.2014 he had examined PW2 Crl. Appeal.810/2018 12 involved in the same crime and noted the following injuries on his body :
"A chemical burn area with blackish discolouration and emanating pungent smell, on right buttock (3x3 cm), front of left thigh 2x2 cm, front of left knee 2x2 cm, on front of left thigh 4x2 cm transverse, 15 cm above knee, and on right upper arm and back of right shoulder over an area of 26x7 cm, vertical with blisters."
19. During the cross-examination of PW22, the attempt of the learned counsel for the accused was to show that, the burn injury sustained by PW2 could be caused in a scuffle during acid attack. When such a suggestion was put to PW22, he replied in the affirmative. At the same time, he would further swear that these injuries are also possible if somebody else applies acid on the body of PW2. Ext.P20 is the certificate issued by him in that respect. He would also swear that the injuries noted in Ext.P18 can be caused, if acid is poured over the mouth and face of a lady lying in supine position.
20. During the cross-examination PW22 deposed that on the front of left thigh and front of left knee of PW2 he had noticed burn injuries. However when PW2 was examined, he claimed that he sustained injuries on the back of his body alone and not on the front side of his body. In the light of the above discrepancy in the medical evidence and ocular evidence of PW2, it was argued by the learned counsel for the accused that PW2 denied having sustained any burn injures in the Crl. Appeal.810/2018 13 front side of his body, in order to cover up his involvement in the commission of the offence. It is true that, during the cross-examination, PW2 claimed that he sustained burn injury only on the back side of his body and not on the front side of his body, while the medical evidence reveals that, in addition to the injuries on the back side of his body, he sustained injuries on the front left thigh and front left knee also. In this context it is to be noted that the main injury sustained by PW2 was on the right upper arm and back of right shoulder over an area of 26 x 8 cm, vertical with blisters. There was also a burn injury 3x3 c.m. on right buttock. When compared to the injuries on the back side (26x8 cm), the injuries on his left thigh (4 x 2 cm) and on the front of left knee (2 x 2 cm) are very small. In the above circumstance, for the mere reason that PW2 deposed before the Court that he has not sustained any injuries on the front part of his body and that he sustained injuries only on the back side and shoulder, no adverse inference can be drawn against him.
21. The learned counsel for the accused would further argue that there is discrepancy in the evidence of PW2 with regard to the time at which he reached Kottayam bus stand, the place at which he alighted from the bus and the place where he first saw the deceased. It was also argued that the evidence of PW2 that the accused poured acid on the face and into the mouth of the victim is an Crl. Appeal.810/2018 14 omission. He would further argue that there is no guarantee that MO6-dhothi and MO7 shirt does not belong to a Nepali, who was allegedly residing along with the accused in the very same room from where the said MOs were recovered.
22. It is true that, there is some discrepancy in the evidence of PW2 with regard to the place where he alighted from the bus, the time at which he reached there and the place where he first saw the deceased. In the previous statement, he had stated that he alighted from the bus at Thirunakkara at about 6.00 p.m. and then reached Kottayam bus stand. At the time of evidence he claimed that he alighted at Kottayam at about 7 p.m. and not at Thirunakkara at 6 p.m. He also deposed that Thirunakkara is about 1 km away from Kottayam bus stand. According to him, he had seen the deceased for the first time near Anupama theatre, which is about 300 metres away from the Kottayam bus stand. According to PW2, thereafter when he went to the bus stand and waited there, at about 8.30 p.m. the deceased came there and at that time he saw the deceased as well as 3-4 ladies at the bus stand. He further deposed that he had seen the deceased and the other ladies at first near Anupama theatre and thereafter, at the Kottayam bus stand. In this context it is also to be noted that PW2 was examined before the Court in April 2017, while the incident was in January 2014. Even the accused has no case that PW2 was not present along with the deceased at the time of the Crl. Appeal.810/2018 15 incident. In the above circumstance, the above minor discrepancies with regard to the time at which he reached Kottayam, the place where he alighted from the bus and the place where he first seen the deceased etc. have no relevance, in the facts of this case.
23. At the time of evidence, an attempt was made by the learned counsel for the accused to show that PW2 himself was the culprit and in order to save him, the accused was falsely implicated in the case. During the cross-examination of PW2 some questions were put to him in that respect. One of the suggestions put to him was that he proposed to marry the deceased, which she declined and in retaliation, he attacked her by pouring acid on her body. However, the above suggestion was stoutly denied by PW2. Moreover, at the time of evidence, PW2 deposed that the accused was previously known to him, whereas he had seen the deceased for the first time on that day. The above evidence of PW2 that he was seeing the deceased for the first time on that day was not challenged during the cross-examination. In the above circumstance, we do not fine any merit in the contention of the accused that PW2 attacked the deceased using acid as she refused his proposal to marry him.
24. During the cross-examination of PW2, he claimed that he sustained burn injuries only on the back side of his body and that he has not sustained any Crl. Appeal.810/2018 16 injuries in the front side of his body. The above evidence of PW2 was also relied upon by the learned counsel in support of his argument. During the cross- examination of PW22, the Additional Professor and Deputy Police Surgeon, Medical College hospital, Kottayam, he deposed that on 15.1.2014, the police brought PW2 before him and he had examined PW2 and issued Ext.P20 certificate. In Ext.P20 certificate, he noticed a burn area with blackish discoloration and emanating pungent smell on the right buttock 3x3 cm, front of left thigh 2x2 cm, front of left knee 2x2 cm, front of left thigh 4x2 cm transverse, and on the right upper arm and back of right shoulder over an area of 26x8 cm vertical with blisters. Therefore, from the evidence of PW22 and from Ext.P20 it is revealed that there was two small burn injuries on the front left thigh and another small burn injury on the front of left knee of PW2. However, it is to be noted that major injuries noted on his body are on the right buttock and on the right shoulder. Similarly, when the size of the burn injuries are considered, it can be seen that the injuries on the front side are too minor when compared to that on his back side . In the above circumstances, the evidence of PW2 that he sustained injuries only on the back side of his body and no injuries were sustained on the front side, is to be evaluated in the above background. More over, PW2 was examined before the court in April 2017 and the incident was in January 2014. In Crl. Appeal.810/2018 17 the above circumstances, the above discrepancy in the evidence of PW2 with regard to the place where he sustained burn injuries has little relevance, in the facts of this cases.
25. At the time of evidence, it is revealed that at first, the police suspected PW2 as the culprit, which is revealed from the evidence of PW2 as well as from the evidence of PW27, the Investigating Officer. At the time of evidence, PW2 deposed that on the very same day on 14.12.2014, while he was under treatment in the Medical College hospital, Kottayam, the police came there and on the next day he was taken to the place of occurrence. Ext.P20 certificate issued by PW22 after examining PW2 at the instance of the Investigating Officer, also substantiates the above conclusion. Further, at the time of evidence PW27 also deposed that he had questioned PW2 on 16.1.2014 and got him examined by PW22.
26. In this context it is to be noted that at first, PW2 suppressed the actual facts from others. Before the Medical College hospital, Kottayam, the alleged history given by him to PW16, the Casualty Medical Officer was that somebody throw acid at him, at Sankranthi. In this context it is to be noted that the actual incident occurred at Kottayam, while the place of occurrence told by him to PW16 was Sankranthi, which is the place of his residence. The Crl. Appeal.810/2018 18 explanation given by PW2 for giving such a wrong information to the doctor is that it is because of shame. In this context it is to be noted that PW2 was married and he had a wife at the time when he went to Kottayam to have sexual relationship with a sex worker. The incident occurred while he was engaged in sexual intercourse with the deceased. Therefore, it is quite natural that a married man like PW2 who sustained burn injuries in such circumstance, at first tried to hide the place where he went. At the same time, since he had sustained burn injuries, he had rushed to the hospital and obtained necessary treatment for the same. In the above circumstances, the explanation given by PW2 for giving such a wrong information to PW16 is quite probable, natural and believable. Therefore, the above reason alone is not sufficient to disbelieve PW2. In other words, there should be strong suspicious circumstances to disbelieve the evidence of PW2.
27. From the evidence of PW3 who is another sex worker, it is revealed that the deceased was younger to the accused and was also more beautiful than the accused. She further deposed that, among the sex workers, the deceased had more demand among the customers. She also deposed that the deceased used to earn more income from sex work, than others. She further deposed that in that respect there was frequent quarrel between the accused and the deceased. The Crl. Appeal.810/2018 19 above evidence of PW3 that the deceased was more young, beautiful and that she used to earn more income from sex work and also that in that respect, there was frequent quarrel between the deceased and the accused were not challenged in cross-examination. Therefore, the evidence of PW3 in that respect remains unchallenged. More over, at the time of evidence, PW3 deposed that the previous lover of the accused Santhosh, was the lover of the deceased at the relevant time. The above evidence of PW3 was also not challenged in cross-examination. Therefore, from the evidence of PW3 it is revealed that during the relevant period there was some rivalry between the accused and the deceased, both professional as well as personal.
28. In this case, in order to corroborate the evidence of PW2 that it was the accused who poured acid into the face of the deceased, there is circumstantial evidence also. One of which is the recovery of MO8, a vessel containing formic acid, from near the place of occurrence, as per Ext.P15 seizure mahazar, on the basis of Ext.P15(a) disclosure statement given by the accused to PW27 is an attestor to Ext.P15 recovery mahazar in respect of MO8 plastic jar. He would swear that, on one day he saw the accused handing over MO8 plastic jar from a thicket, by the side of MC road, near Anupama theatre, to the Circle Inspector and he also admitted his signature in Extt.P15 recovery mahazar. PW20 is Crl. Appeal.810/2018 20 another witness to Ext.P15 recovery mahazar. He also identified MO8 as the plastic jar recovered by the Investigating Officer at the instance of the accused.
29. According to PW27, on questioning, the accused gave him statement to the effect that: "ഞ ൻ ക ണ വനAcid പ തത Kottayam Town-ൽ M.C. യറ ഡ ന സമ പ ഉള ട പട ച ടക ന സലത വച ട ണ.
എകന ,ട ക ണ യപ ൽ ഞ ൻ പ തത വച ക ന സലവ പ തതവ ഞ ൻ ണച ത ." On the basis of above disclosure statement,
he took the accused to a thicket at Kodimatha on the western side of MC road from where the accused took out MO8 and handed over to him. We do not find any grounds to disbelieve the evidence of PWs17, 20 and 27 regarding the recovery of MO8 as per Ext.P15(a) disclosure statement given by the accused.
30. Another circumstance is the presence of formic acid in MO8 plastic vessel. Ext.P38 is the FSL report in respect of examination of MOs 5, 6 , 7 and 8 and two other samples seized by the scientific assistant (PW24) from the place of occurrence. From Ext.P38 it is revealed that MO8 contained formic acid. With respect to the above recovery of MO8 on the basis of Ext.P15(a) disclosure statement given by the accused to PW27 and for the presence of formic acid in MO8, the accused has not offered any explanation. Since the deceased died because of formic acid poisoning, the presence of formic acid in MO8 and the Crl. Appeal.810/2018 21 recovery of MO8 on the basis of Ext.P15(a) disclosure statement given by the accused assumes significance. Absence of any explanation from the side of the accused for the presence of formic acid in MO8 recovered on the basis of her own disclosure statement further substantiates the prosecution case.
31. The prosecution has relied upon the recovery of MO5 jar, MO6 dhothi and MO7 shirt from the room wherein the accused was residing, as per Ext.P8 mahazar and on the basis of Ext.P8(a) disclosure statement given by the accused to PW27, to further substantiate the prosecution case. According to PW27, when he had questioned the accused, she gave the disclosure statement:"ഞ ൻ ഷർട മ ണ , ആസ ഡ വ ങ ജറ ഞൻ വട ക ത മസ ക ന മറ ൽ സ,ക ച ട ണ. എകന ,ട കക ണ യപ ൽ ഞൻ വട ക ത മസ ക ന മ റ , ഷർട മ ണ ആസ ഡ വ ങ ജറ ഞൻ ണച ത ." The accused was accordingly taken to the room on the upstairs of the residence of PW11 and from inside the said room she had handed over MO6-dhothi and MO7- shirt and from below the table she had taken out and handed over MO5 jar to him.
32. PW11, the landlord of the accused also deposed that the police party came along with the accused to the said room and from the room, the accused had Crl. Appeal.810/2018 22 taken out MO6 dhothi and MO7-shirt and from below the table, MO5 vessel and handed them over to the police. He also admitted his signature in Ext.P8 seizure mahazar prepared in that respect. The above evidence of PW11 substantiates the evidence of PW27 regarding the recovery of MOs5, 6 and 7, on the basis of Ext.P8(a) disclosure statement. In this context, it is also to be noted that as per Ext.P38 FSL report, MO5 jar contained formic acid and MO6 dhothi, MO7 shirt contained traces of formic acid.
33. For the presence of formic acid in MO5 jar and traces of formic acid in MO6 dhothi and MO7 shirt also, the accused has not offered any explanation. Instead, the learned counsel would argue that one person hailing from Nepal was residing in the said house after the accused, and the above shirt and dhothi may be that of the Nepali. During the cross-examination of PW27, when such a suggestion was put to him, he denied the same. During the examination of PW11, the landlord of the above room, it is revealed that earlier the accused was residing in the said room and in connection with the marriage of his brother, she was evicted from there and it was 2-3 months before the date of occurrence. He also clarified that after the marriage of his brother, the accused resumed residence in the said room. During the re-examination, PW11 clarified that it was during that small gap his brother allowed a Nepali to stay in the said room. Therefore, from Crl. Appeal.810/2018 23 the evidence of PW11 it is revealed that the above Nepali stayed in that room about 2-3 months prior to the incident and it is also revealed that during the relevant period, the accused alone was residing in the said room. Therefore, there is no merit in the contention of the accused that MO6 dhothi and MO7 shirt belonged to the above Nepali and not that of the accused.
34. At the time of evidence, PW2 in clear terms deposed that the accused was previously known to him. The above evidence of PW2 was not challenged by the accused. However, the attempt of the learned counsel for the accused was to show that the place of occurrence is a thicket wherein there is no light and therefore, there was no chance for PW2 to identify the accused. More over, he would argue that the deceased being a sex worker like the accused, she would have identified the accused, if the accused was the actual culprit. It is true that, when the deceased was taken to the hospital by PW4, the Assistant Sub Inspector, Control room, Kottayam and when she was examined by PW16, Casualty Medical Officer, Medical College hospital, Kottayam, she had not given the name of the accused as the assailant. To both of them, she stated only to the effect that, somebody threw acid and ran away.
35. On the other hand, the learned Special Public Prosecutor would argue that, at the time of the attack, the deceased and PW2 were engaged in Crl. Appeal.810/2018 24 sexual intercourse and it was at that time, the accused poured acid on the face of the deceased. Therefore, it was argued that, for the mere reason that the deceased could not identify the assailant, identification of the accused by PW2 could not be disbelieved.
36. The incident occurred when PW2 was engaged in sexual intercourse with the deceased. According to PW2, while he was engaged in sexual intercourse with the deceased, she was lying on the floor on her back. The time of the incident was 9.00 p.m. and the place of incident was a thicket, about 100 meters away from the main road. Here, PW2 could identify the assailant, while the victim could not. As argued by the learned Public Prosecutor, when two persons were attacked using acid while they were engaged in sexual intercourse, there is possibility that the person who was lying on the floor in supine position could not have seen the assailant, while the other person could have witnessed and identified the assailant. It is also to be noted, during the acid attack, PW2 sustained injuries only on his shoulder and lower limbs, while the deceased sustained injuries on her face and mouth. From the evidence of PW4 it is revealed that the deceased was screaming that she lost her eye sight. PW22 also noticed burn injuries on the entire face of the deceased. Therefore, it is to be believed that the acid poured on her face had fallen on her eyes also. It is quite Crl. Appeal.810/2018 25 natural that even if a drop of acid falls on the eyes, the victim will not be able to open the eyes so as to see and identify the assailant. Therefore, as argued by the learned Public Prosecutor, in the facts and circumstances of this case, there is nothing unnatural in PW2 identifying the assailant while the victim failed to identify the assailant.
37. It is true that there was no light near the place of occurrence. From the evidence on record it is revealed that the place of occurrence is part of a large vacant area with full of shrubs and that is why it was selected by the deceased for the illegal activity. PW2 in clear terms deposed that he went there to indulge in having sexual intercourse with sex workers and on previous occasions also he went there. He also claimed that the accused was previously known to him. Since the accused was a frequent customer of the sex workers at Kottayam and he categorically deposed that he knew the accused previously, it is quite natural that he could identify the accused even though the incident was at 9.00 p.m. At the time of evidence PW3 also deposed that even during the night, they could easily identify the other sex workers. Similarly, PW2 being a regular customer of the sex workers at Kottayam and since such activities are carried on mainly during the cover of night, it is quite natural that he was able to correctly identify the accused as the assailant.
Crl. Appeal.810/201826
38. Moreover, the accused has no case that PW2 had any animosity towards her so as to falsely implicate her in this case. It is true that she had raised a contention that PW2 himself was the assailant and to save himself he falsely identified her as the assailant. As we have already noted above, there is no merit in the argument advanced on behalf of the accused that PW2 proposed to marry the deceased and when she refused the said proposal, he attacked her to death. The evidence of PW2 that he had seen the deceased for the first time on that day also remains unchallenged. Further, the evidence of PW2 that at the time of the incident he was engaged in sexual intercourse with the deceased also remains unchallenged. The accused has not alleged any other motive for PW2 to attack the deceased. Therefore, there was absolutely no chance for PW2 to attack and murder the deceased, as alleged by the accused. It is true that the accused can take any defence of her own, in her attempt to prove her innocence. However, in the facts of this case, the attempt of the accused to put the entire blame on PW2, an innocent in the crime, and failure to prove the said allegation can be taken as an additional circumstance against the accused.
39. The fact that PW2 also sustained injuries in the acid attack assumes significance in this context. The presence of burn injury on the body of PW2 confirms his presence at the place of occurrence. Further, the accused also alleges Crl. Appeal.810/2018 27 that PW2 was present at the spot at the time of the incident. Since there is absolutely no evidence to prove that it was PW2 who attacked the deceased, the only other course available is to believe the evidence of PW2 that he came there only for having sexual intercourse with the deceased. In the above circumstances, PW2 is a probable and natural witness at the place of occurrence and there is absolutely no grounds to disbelieve his testimony that it was the accused who had poured the acid on the face of the deceased and at that time some acid fell on his body also.
40. It is true that at the time of evidence PW3 deposed that before and after the incident, when she saw the accused, she was wearing sari and blouse. However, PW2 deposed that the deceased was wearing a check shirt with suffron colour. The above discrepancy in the evidence of Pws2 and 3 was highlighted by the learned counsel for the accused. In this context it is to be noted that PW3 had seen the accused in sari and blouse while she was at the road side, where she was waiting expecting, soliciting and enticing her customers. However, PW2 identified the dress of the accused when she came at the place where he was engaged in sexual intercourse with the deceased. Therefore, as observed by the trial court, the possibility of the accused changing her dress in the meantime could not be ruled out. More over, we have already found that there is absolutely Crl. Appeal.810/2018 28 no scope for disbelieving the evidence of PW2 in identifying the accused. The recovery of MO5 to 8 on the basis of the disclosure statement given by the accused corroborates the evidence of PW2 and as such the above discrepancy in the dress worn by the accused as spoken to by PWs2 and 3 is of little relevance in the facts of this case.
41. During the cross-examination of PW2 it is revealed that on 15.1.2014, the police party took him to the place of occurrence. Therefore, the learned counsel for the accused would argue that subsequent recovery of MO8 Jar from near the place of occurrence could not be believed. It is true that on 15.1.2014 the police party took PW2 to the place of occurrence. It was on 18.1.2014, PW27 arrested the accused, recorded her disclosure statement and effected recovery of MO8 from near the place of occurrence. In this context, it is to be noted that the place of occurrence is part of a large extent, full of shrubs, away from the main road and that is why it was being used by persons like the accused and the deceased for their sex work. Since it was a thicket full of shrubs and MO8 containing formic acid was traced out from there by the accused and handed over to PW27, we do not find any grounds to disbelieve the above recovery for the mere reason that on 15.1.2014, PW1 was taken to the place of occurrence by the police.
Crl. Appeal.810/201829
42. From the evidence of PW11 it is revealed that when the police party took the accused to the room where she was residing, for the recovery of MO5, 6 and 7, it was the police who had opened the said room using the key. Therefore, the learned counsel would argue that the above recovery could not be believed. It is to be noted that nobody has a case that prior to 18.1.2014 the police party came there and opened the said room. PW11, the landlord was residing in the ground floor of that room and in the upstairs there is only one room which was occupied by the accused. Since nobody has a case that prior to effecting recovery, the police party came there and opened the same, we do not find any grounds to suspect the recovery of MO5, 6 and 7 from the said room. More over, the police party came there along with the accused on the basis of Ext.P8(a) disclosure statement given by her. PW11 also admitted his signature in Ext.P8 recovery mahazar. In the above circumstances, for the mere reason that the lock was opened by the police, the recovery of MOs5, 6 and 7 from the said room could not be suspected, especially because MO5 is a jar used for purchasing acid and MO6 and 7 are the dhothi and shirt allegedly used by the accused at the time of the commission of the offence, namely personal belongings of the accused. Therefore we do not find any grounds to suspect the recovery of MO5, 6 and 7 also.
Crl. Appeal.810/201830
43. The recovery of MOs5, 6 and 7 on the basis of the disclosure statement given by the accused from the room in which she was staying, recovery of MO8 on the basis of the disclosure statement given by the accused from near the place of occurrence and presence of formic acid in MOs5,6,7 and 8 along with absence of any explanation from the side of the accused in that respect also substantiates the evidence of PW2 to prove the prosecution case. In Ext.P2 164 Cr.P.C statement given to PW26 also, PW2 has given evidence almost in tune with his evidence before the Court and as such Ext.P2 further corroborates the evidence of PW2.
44. Therefore, from the evidence of PW2 and from the recovery of MO5 to 8, on the basis of Exts.P8(a) and P15(a) disclosure statements given by the accused and in the light of the evidence of PWs11, 17, 20 and 27, the prosecution has succeeded in proving that it was the accused who poured formic acid on the face of the deceased at 9.00 pm on 14.1.2014 as alleged by the prosecution. From the evidence of PW22, who had conducted postmortem examination on the body of the deceased it is also revealed that though the deceased sustained serious burn injuries, she died due to formic acid poisoning. It can only because, a portion of the acid thrown by the accused on her face went inside her mouth. Since Salini died because of the above act of the accused in Crl. Appeal.810/2018 31 pouring formic acid into her face, it is a case of homicide as defined under Section 299 of IPC.
45. It was argued by the learned counsel for the accused that even if it is found that it was the accused who had committed culpable homicide of the deceased, there is absolutely no reason to suspect that she had the intention to commit murder of the deceased. He would also argue that there is absolutely no reason to suspect that the accused had even the knowledge that she is likely by such act to cause death of the victim. Therefore, according to him, at the most, her act will amount to culpable homicide not amounting to murder punishable under Section 304 Part II IPC alone. On the other hand, the learned Public Prosecutor would argue that the accused poured a considerable quantity of formic acid into the mouth of the deceased and therefore, there is every reason to believe that she had the intention to cause the death of the deceased and at least she had the intention of causing such bodily injury, which is sufficient in the ordinary course of nature to cause the death of the deceased. The Prosecutor would therefore argue that it is a case of murder punishable under Section 302 IPC.
46. Even according to the prosecution, the motive alleged against the accused is her jealousy towards the deceased. It is alleged that, the deceased being younger and beautiful than the accused, used to earn more income out of Crl. Appeal.810/2018 32 sex work. The means adopted by the accused to wreak vengeance against the deceased assumes significance in this context. She purchased formic acid from the shop of PW5 and poured the same on the face of the deceased, while she was engaged in sex work. In this context it is to be noted that, the victim died due to formic acid poisoning and not due to the burn injuries sustained due to pouring of acid.
47. As argued by the learned counsel for the accused, there is no valid grounds or sufficient evidence to suspect that the accused had the intention to murder or to inflict such bodily injury which is sufficient in the ordinary course of nature to cause the death of the deceased. It is true that, PW2 deposed that the accused poured formic acid on the face and also into the mouth of the deceased. However, in the statement given by him under section 161 CrPC, he had stated only to the effect that the accused poured acid on the body of the deceased. In his previous statement, there is no averment to the effect that the accused poured acid on her face and mouth. Therefore, the evidence of PW2 that the accused poured acid into the mouth of the deceased as such could not be believed, as it is an omission. In short, from the evidence of PW2 what can be received is only to the extent that the accused poured acid on the body of the deceased, during the night. From the evidence of PW16 and 22 and from Ext.P14 and P22 documents it is Crl. Appeal.810/2018 33 revealed that, in the acid attack the victim suffered burn injuries on her face and she ultimately died of formic acid poisoning. Therefore, the possibility of formic acid accidentally entering into the body of the victim through her mouth, when the accused poured acid on her face could not be ruled out. Since formic acid is a highly corrosive and poisonous substance, the person who pours the same, into the face of a lady lying supine on the floor, in darkness, should definitely have the knowledge that it is likely to cause death. As argued by the learned counsel for the accused, it is a case of culpable homicide not amounting to murder, punishable under Section 304 Part-II IPC, and not murder punishable under Section 302 IPC.
48. The punishment provided for the offence under Section 304 Part II IPC is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. In this case, the accused as well as the deceased are sex workers. The accused, due to her jealousy towards the deceased as she was young and beautiful earning more income from sex work, decided to brutally attack her by pouring acid on her face and thereafter attacked her by pouring acid, which resulted in her death in a very cruel and brutal manner. In the above circumstances, the accused does not deserve any leniency, though she is a lady. Hence, we hold that rigorous imprisonment for a period of ten years and a fine of Crl. Appeal.810/2018 34 Rs.10,000/- with a default clause will be a suitable punishment in this case. Point No.1 answered accordingly.
49. Point No.2:- The learned Sessions Judge has found the accused guilty of the offence punishable under Section 326-A IPC also, for causing hurt to PW2 by using acid. On a perusal of the court charge, it can be seen that, the learned Sessions Judge has not framed any charge against the accused under Section 326-A IPC. In the court charge the offences mentioned are under Section 302 IPC and Section 326 IPC alone. From the evidence adduced by the prosecution it is revealed that the accused has caused hurt to PW2 by throwing acid on his body. In no stretch of imagination it can be held that the offence under Section 326-A IPC is the minor offence of Section 326 IPC. In the above circumstances, it is to be held that, punishment imposed on the accused under Section 326-A IPC, without any specific charge on that head has caused prejudice to her. Therefore, the learned Sessions Judge was not justified in convicting the accused under Section 326-A IPC without a formal charge in that respect. Therefore, the conviction of the accused under Section 326-A IPC is liable to be set aside.
50. On the other hand, from the evidence of PW2 and PW16 it is revealed that the accused by pouring acid on the body of PW2, has voluntarily Crl. Appeal.810/2018 35 caused hurt to him. Therefore, the above act of the accused will amount to the offence of voluntarily causing hurt by dangerous weapons or means, punishable under Section 324 IPC. Since the offence under Section 324 IPC is a minor offence of Section 326 IPC, there is nothing wrong in convicting and sentencing the accused under Section 324IPC, even though there is no specific charge on that head.
51. The punishment provided for the offence under Section 324 IPC is imprisonment of either description for a term which may extend to three years or with fine or with both. Considering the nature and gravity of the offence committed by the accused, we hold that rigorous imprisonment for a period of one year will be a suitable punishment for the offence under Section 324 IPC. Point No.2 answered accordingly.
52. Point No.3:- In the result, this appeal is allowed in part as follows :
The conviction and sentence passed by the Sessions Judge against the accused under Section 302 IPC is set aside and modified to Section 304 Part II IPC. The accused is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for six months under Section 304 Part II IPC. The conviction and sentence passed under Section 326-A IPC is set aside. The accused is found guilty under Section Crl. Appeal.810/2018 36 324 IPC. She is convicted and sentenced to undergo rigorous imprisonment for one year under Section 324 IPC. The substantive sentences shall run concurrently.
Sd/-
P.B.Suresh Kumar, Judge Sd/-
C.Pratheep Kumar, Judge Mrcs/18.12.