Kerala High Court
Muhammed Iqbal vs The Station House Officer on 30 October, 2018
Author: P. Somarajan
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940
CRL.A.No. 881 of 2013 (D)
AGAINST THE JUDGMENT IN SC No.280/2009 of ADDL.SESSIONS COURT
(ADHOC-II), KASARAGOD, DATED 07-03-2012
APPELLANT/ACCUSED:
MUHAMMED IQBAL, AGED 33 YEARS,
S/O.U.M.KHADER, URNI HOUSE, DHYGOLI,
KODALAMUGARU GRAMAM (NOW RESIDING AT SASIGOLI IN MEENJA
GRAMAM).
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 THE STATION HOUSE OFFICER,
MANJESHWAR POLICE STATION.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.S. AMBIKA DEVI, SPL. PUBLIC PROSECUTOR FOR
OFFENCES AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2018, THE
COURT ON 30.10.2018 DELIVERED THE FOLLOWING:
Crl. Appeal No.881 of 2013 2
C.R.
JUDGMENT
P. Somarajan, J.
Against the judgment of conviction and order of sentence under Section 302 IPC in Sessions Case No.280/2009 of the Additional Sessions Judge (Adhoc-II), Kasaragode, dated 07.03.2012, the accused came up with this appeal.
2. The accused was charge sheeted for the offence punishable under Section 302 IPC for the infanticide of Shouvana aged 6 months and also for the commission of offence under Section 306 IPC for abetting suicide of her mother Saramma aged 32 years. The accused was found guilty for the offence punishable under Section 302 IPC for the murder of minor child Shouvana and sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/-, in default to undergo imprisonment for two years. He was acquitted for the charge under Section 306 IPC, for abetting the commission of suicide of the mother of the minor child, Saramma. No appeal was preferred by the State Government or the near relatives of the victim Saramma as against the order of acquittal of accused for the charge under Section 306 IPC. In short, we are only concerned with the judgment of conviction under Crl. Appeal No.881 of 2013 3 Section 302 IPC and the sentence awarded thereunder for the murder of Shouvana, aged six months.
3. There is no eye witness to the alleged incident. The witnesses who were examined by the prosecution includes PW1 and PW6, two brothers of deceased Saramma, PW4 and PW5, two of her neighbours, PW2 - her daughter, PW3 - a nearby shop owner, PW12 - the witness to Exhibit P7 seizure mahazar and PW11 - the Police Surgeon who conducted autopsy on both the victims/deceased.
4. PW1 is the brother of Saramma. He was examined to show the first marriage of Saramma with one Abdul Razak, who died after the birth of three daughters, the second marriage with the accused and the birth of Shouvana in her second wedlock, her strained relationship with her second husband, the accused, after the birth of Shouvana and the harassment meted out on her, on several occasions, by her second husband doubting the paternity of Shouvana. On the alleged day, he went to the house of his sister Saramma, by 4.15-4.30 p.m. on getting information from Nabeesa that on her arrival, the house of victim was found lying locked. The front door of the house was found locked from outside and the back door from inside. He along with his elder brother Hameed and Mathew, a neighbour, broke open the back door and Crl. Appeal No.881 of 2013 4 entered into the house and had seen the dead body of Saramma lying on the floor covered with a sheet. The child was also found lying dead between the pillows covered by another sheet. By that time Nabeesa along with CW2 and Sayisa came there. Thereon he went to the police station and gave Exhibit P1 FIS.
5. PW2 is the minor daughter of deceased Saramma. She was examined by the prosecution to show her relationship with the accused and the previous and subsequent conduct of the accused. She used to call the accused as "elappa" (step-father). The strained relationship between her mother and the accused and their frequent quarrel were also spoken by her. On the date of incident she was taken from her house to a bus stand along with her younger sister under the guise of purchasing some sandals by their step-father, the accused. Then he left them in the bus stand and came back only after some time. Then he asked them to go to the house of their aunt Nabeesa under the pretext that her mother had gone to Hosangadi for purchasing medicine. But, when the minor children went to their house along with Nabeesa, the house was found locked.
6. PW6 is the another brother of the victim Saramma. He was also examined to show the relationship between Saramma and her second Crl. Appeal No.881 of 2013 5 husband, the accused, and the birth of Shouvana in her second wedlock. Three daughters were born in her first wedlock with Abdul Razak. He had also deposed about the strained relationship between the accused and Saramma after the birth of minor girl Shouvana, and gave evidence in tune with PW1 that they went to the house of the victim by 4.30 p.m. and had seen the dead body of both the victims. PWs 4 and 5, the two neighbours, also joined hand with what is spoken by PW1.
7. PW3, a nearby shop owner, was examined by the prosecution to show the relationship of the accused with the victims and also the birth of three children in her first wedlock with one Abdul Razak. He came to know about the strained relationship between Saramma and her second husband, the accused, and the harassment meted out by her on various occasions from her second husband as the same was told to him by her. On the previous day, she along with her husband, the accused, came to his shop. She was found to be gloomy and sad and on enquiry she made a passing comment that there is no guaranty for her life. The alleged incident happened on the next day. All these witnesses had undergone a very lengthy cross examination, but nothing was brought out to discredit their evidence. No material contradictions or omissions were marked. On the other hand, their oral evidence is found to be trustworthy and Crl. Appeal No.881 of 2013 6 inspires confidence in all respects. All of them are rustic witnesses from a hamlet.
8. PW12 is the attestor to Exhibit P7 mahazar under which MO12 lock was seized. MO9 key was recovered from the accused at the time of his arrest. PW11 is the Police Surgeon who conducted autopsy on the body of deceased Shouvana and her mother Saramma. Exhibits P5 and P6 are the postmortem examination reports. Exhibit P5 postmortem report is pertaining to Saramma wherein 16 ante-mortem injuries were noted. Exhibit P6 postmortem report is pertaining to the minor daughter Shouvana wherein 14 ante-mortem injuries were noted besides injury to the neck.
The neck findings are as follows:
"There was a pressure abrasion around the upper part of neck, with a discontinuity of 4 cm at the back. It was situated 3cm below the right ear (3cm broad), 4cm below the chin (4cm broad) and 3.5 cm below the left ear (2.5cm broad).
Underneath, the subcutaneous tissues on the right side and right side of back of neck were infiltrated with blood. Cricothyroid muscle on the left side was contused. The soft tissues around the right half of hyoid bone were also infiltrated with blood. Hyoid bone was intact."
9. All the 14 injuries except injury No.13 are contusions of a peculiar nature having a length ranging from 3cm to 10cm with a Crl. Appeal No.881 of 2013 7 uniform width of 1cm or little less than 1cm. The Doctor who conducted autopsy had given expert opinion that there are findings to suggest that the child was beaten with a stick many times prior to the death. 16 ante- mortem injuries of the same character were noted at the time of autopsy of Saramma.
10. The cause of death of minor child is stated to be due to ligature strangulation. But, the cause of death of Saramma is stated as "post-mortem findings are suggestive of death due to poisoning. "
11. A child aged only 6 months was beaten with a stick many times causing 14 ante-mortem injuries would show the cruelty meted out to the said victim. The mother Saramma also had received 16 ante-mortem injuries. Even according to PW2 daughter, there was frequent quarrel between her mother and step-father, the accused herein, and on one occasion he took the child by holding on her leg and whirled around the air. It would tell upon the extensive nature of cruelty meted out to a minor child aged 6 months and her mother from the hands of the accused. There is no other probability or possibility of having the said injuries from any other person other than the accused. The cruelty meted out to both the victims in the hands of accused just before the commission of offence is an indication pointing towards the Crl. Appeal No.881 of 2013 8 guilt of accused. Among the elder three daughters born to Saramma in her first wedlock, CW3 was residing in a "yatheenkana" (an orphanage maintained by muslim community) as on the date of commission of offence. The two minor daughters alone were residing in the house apart from the two victims, the mother and the minor girl child aged 6 months, besides the accused.
12. From the evidence adduced by the prosecution, the following subsequent and previous conducts of the accused are so relevant and would sufficiently bring home the guilt of accused without having any other hypothesis rather than the one consistent with his guilt. Firstly, the accused alone was residing with his wife Saramma and three minor girls in the house wherein the alleged incident happened. Secondly, the alleged incident had happened within the secrecy of their house which casts a duty on the accused to speak what actually happened to both the victims within the secrecy of their house. The dead body of both the victims were found lying on the floor of the house. Thirdly, the house was found lying locked and the key of the front door of the house was recovered from the possession of accused. The front door was found locked from outside and the back door locked from inside. None else was there in the house at the time of alleged incident, which is well Crl. Appeal No.881 of 2013 9 evident from the fact that the body of both the victims were found lying in the locked house. Fourthly, just before the alleged incident, the accused took both the minor girls, under the guise of purchasing sandals, to a distant place, a bus stand so as to avoid their presence in the place of occurrence. Fifthly, he disappeared from the bus stand for a while by retaining both the minor children in the bus stand and thereafter the minor children were asked to go to the house of their aunt instead of taking the minor children back to their house. Sixthly, a false story was advanced by him before the minor children that their mother went to Hosangadi for purchasing medicine as a reason for sending them to the house of their aunt and thereby he had tried to avoid their presence in the house for a further time. Seventhly, it is not explained by the accused where he had gone in the meanwhile. Eighthly, the alleged incident had happened between the time in which the children were taken to the bus stand and they were brought back to the said house by their aunt on the same day by 4.00 to 4.30 p.m. Both of them were alive at the time when the accused took both the children to the bus stand. The dead body of both the victims found lying inside the locked house when the minor children came back to their house. The disappearance of the accused during the interval and the possession of Crl. Appeal No.881 of 2013 10 key of the front door with him when he came back to the bus stand would sufficiently show that he had gone back to the house and he had locked the door of the house from outside. Thereafter the children were asked to go to the house of their aunt under a false pretext so as to avail a further time may be for the purpose of concealing the dead body or removing the dead body from the place of occurrence, the residential house of both the accused and the victim, and to destroy the evidence in connection with the commission of offence. No other inference is possible under the given circumstance. Both the victims were alive and present in the house at the time when the two minor daughters were taken to a nearby bus stand by the accused. This would show that the alleged incident had happened within the time at which the children were taken to the bus stand and they were brought back by their aunt to the said house. In other words, the alleged incident had happened during the time gap in which the accused disappeared from the bus stand and reappeared after a short while. The incident had happened within the secrecy of their dwelling house and in the absence of other persons, other than the spouse/the accused, would cast a duty on the accused to explain what actually happened within the secrecy of their dwelling house. No explanation was submitted by the accused. The legal position Crl. Appeal No.881 of 2013 11 is well settled by several decisions of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006 KHC 1469), State of West Bengal v. Mir Mohammad Omar and Others [2000 (8) SCC 382], Balram Prasad Agrawal v. State of Bihar and Others (AIR 1997 SC 1830) and Ram Gulam Chaudhary and Others v. State of Bihar (2001 (8) SCC 311). The possession of key of the house with him and the previous and subsequent conduct, by taking the children to a distant place to avoid their presence in the house, disappearance of the accused for a while keeping the children in a distant place, his reappearance after a short while before the children and that they were asked to go to the house of their aunt instead of their house under a false pretext that their mother went to Hosangadi for purchasing medicine, would complete the chain of circumstances pointing towards the guilt of accused. All these circumstances, being previous and subsequent conduct of the accused, are relevant under Section 8 of the Evidence Act. It is so unfortunate that though the dead body of the minor girl and her mother were found lying within the locked residential house of both the victims and the accused, the accused was charge sheeted only for the offence of commission of murder of the minor girl. He was charge sheeted only for an offence under Section 306 IPC for abetting commission of suicidal Crl. Appeal No.881 of 2013 12 death of her mother Saramma and the learned Sessions Judge acquitted the accused for the said charge and no appeal or revision was filed against the said acquittal. Interestingly, the offence was committed within the same set of facts and circumstances and it is not possible to draw a different conclusion from the circumstance leading to the death of both the victims though there may be different causes for their death. The victim Saramma died due to poisoning and the other victim, the minor child aged 6 months, died due to strangulation. But the circumstances leading to their death are one and the same, except the cause of death - one victim died due to strangulation and the other due to poisoning. But the bodies were found lying inside the locked house. The accused alone was residing with the victims besides the other two minor children in the said house. But the accused was found liable only for the death of minor child, Shouvana, which causes a very serious doubt as to the prosecution case and the way in which the matter was taken up before the Sessions Judge. No appeal or revision is seen filed against the order of acquittal though the circumstances under which the incident had happened are inherently connected, lending support to each other. The question whether in an appeal against conviction it is permissible for the Appellate Court to go into the circumstances relied on Crl. Appeal No.881 of 2013 13 by the Trial Court for acquitting the accused for some other offence, in the absence of an appeal or revision, requires consideration at this stage. In an appeal against an order of conviction, the jurisdiction of the Appellate Court is so extensive, and it can consider all the circumstances and its impact connected with the crime, though no appeal was preferred against an order of acquittal of some other offence which forms part of the same transaction, but with the circumspection of order of acquittal. It is well within the jurisdiction of the Appellate Court to go into all the circumstances, irrespective of the adverse finding rendered by the Trial Court on any circumstance so as to have an order of acquittal for some other offence which forms part of the same transaction, which is not under challenge by way of an appeal or revision. The only limitation is that the Appellate Court cannot interfere with the order of acquittal of any charge unless there is an appeal or revision. That does not mean that the reasons advanced or circumstances relied on by the Trial Court for an order of acquittal cannot be made available for adjudicating the commission of another offence which forms part of the same transaction.
13. The paramount consideration of the Court should be to avoid miscarriage of justice. In considering the evidence as a whole, the appellate Court may come to the conclusion that the evidence against Crl. Appeal No.881 of 2013 14 the person acquitted was also good and need not have been discarded. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate Court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to convict or visit the acquitted person with criminal liability, but is relevant only against the convicted person and his constructive criminal liability.
14. In Gurucharan Singh and another v. State of Punjab [AIR 1956 SC 460], a three Judge Bench of the Apex Court had the occasion to consider the jurisdictional power of Appellate Court by virtue of Section 367 of Code of Criminal Procedure, when some of the accused were acquitted and appeal came up only against the conviction of others. The legal position was enumerated that "merely because two of the four accused have been acquitted, though the evidence against all of them, so far as the direct testimony went, was the same it does not necessarily follow that the other two must be similarly; acquitted."
15. Further, in Brathi @ Sukhdev Singh v. State of Punjab [AIR 1991 SC 318] the Apex Court reiterated the legal position as under : Crl. Appeal No.881 of 2013 15
"Where the evidence examined by the appellate court unmistakenly proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding.
In the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. In considering the evidence as a whole, the appellate court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality."Crl. Appeal No.881 of 2013 16
16. Another Three Judge Bench of the Apex Court in Khujji @ Surendra Tiwari v. State of M.P. [AIR 1991 SC 1853] laid down the legal position that the liability under Section 34 IPC can be fastened even though some of the accused were acquitted, when there is evidence regarding the involvement of other person in crime, by following the legal position settled in Brathi's case (supra).
17. The specific case advanced by the accused is that it was Saramma who killed the child by strangulation. It is true that there are two possibilities for the death of the minor child. It might have been done by the accused or his wife Saramma who lost all her expectations of life and decided to commit suicide and there is every probability and possibility for her to do away her feeding daughter before the commission of suicide. But that possibility would come into play only when it is proved that she had committed suicide. The Doctor who conducted post mortem examination on the body of the deceased Saramma opined that the postmortem findings are suggestive of death due to poisoning. Even he had gone up to the extent of stating that the poison consumed is zinc phosphate. We are really in darkness on what basis such an opinion was rendered by the Doctor who conducted autopsy on the body of Saramma. Post-mortem examination certificate Crl. Appeal No.881 of 2013 17 reveals ante-mortem injuries 1 to 16 - all are contusions and abrasions or abraded contusions. The stomach was found full with watery fluid mixed with plantain pieces and black fine granular material with garlicky smell, submucosal haemorrhages were seen. All other organs were found normal, except endometrium which was found congested. Without having a chemical analysis either on the viscera preserved or on the blood collected, an emphatic opinion was given by the Doctor who conducted autopsy on the body of the deceased stating that the post- mortem findings are consistent with death due to poisoning - zinc phosphate. Submucosal haemorrhage in stomach may be an indication for poisoning. But, there may be other reason for submucosal haemorrhage such as peptic ulcer and not confined to poisoning. Post- mortem examination reveals no other indication of poisoning. It is not clear from where he had borrowed such a wisdom without having the assistance of chemical analysis. The basis for his conclusion as to cause of death neither disclosed in Ext.P5 postmortem report nor at the time of his examination as PW11. It casts a reasonable doubt as to the acceptability of the opinion given by him as to the cause of death. We are also in darkness from where the investigation had borrowed a case of suicidal death of Saramma ignoring the fact that the real cause of Crl. Appeal No.881 of 2013 18 death of both the victims are in the special knowledge of the accused alone who was in the company of both the victims during the relevant time of commission of offence. The medical opinion that she had consumed zinc phosphate, in our view, is also a wrong assessment without any basis. Administration of poison by the accused, in the given circumstance, cannot be ruled out. The constructive liability under Section 106 of the Evidence Act is so crucial while adjudging the real cause which lead to the death of both the victims. The principle behind under Section 106 of the Evidence Act was elaborately considered by the Apex Court in Balram Prasad Agrawal's case (supra), Mir Mohammad Omar's case (supra), Ram Gulam Chaudhary's case (supra) and Trimukh Maroti Kirkan's case (supra). It is obligatory on the part of accused, while being examined under Section 313 of Code, to furnish some explanation with respect to the incriminating circumstances associated with him. If it is with respect to a special knowledge, which would come under the purview of Section 106 of the Evidence Act, the liability and obligation attached to the accused to explain the incriminating circumstance is so grave in nature, having great importance and he cannot wriggle out of the liability, otherwise he will be visited with the consequences thereof. The non explanation as to what Crl. Appeal No.881 of 2013 19 happened to the victims within the secrecy of their dwelling house by the accused hence looms large, gives an additional link in the chain of circumstance pointing towards the guilt of accused.
18. Motive for the commission of offence plays special role in reaching conclusion where prosecution case is found to be based on circumstantial evidence. PW2 - daughter, PW1 and PW6 - two brothers of victim Saramma, PW3 - a nearby shop owner, PW4 and PW5 - the two neighbours, are in agreement what actually behind the crime and the motive, doubting the paternity of child Shouvana born in her second wedlock with the accused. Needless to say that even in the absence of a valid motive for the crime in a case resting on circumstantial evidence, though motive plays an important role, it is not at all permissible to reject the entire prosecution case simply on that reason, but it would cast a duty on the Court to scrutinize the evidence minutely so as to rule out any doubt or hypothesis other than the one consistent with the guilt of accused. The Apex Court had laid down the legal position in Sunil Clifford Daniel v. State of Punjab [LAWS (SC) 2012 9 15] by following the proposition laid down in Suresh Chandra Bahri v. State of Bihar [1994 AIR (SC) 2420], wherein it was held as under:
Crl. Appeal No.881 of 2013 20
"In a case of circumstantial evidence, the evidence bearing on the guilt of the accused nevertheless becomes untrustworthy and unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime. Therefore, if the evidence on record suggest sufficient/necessary motive to commit a crime it may be conceived that the accused had committed it."
19. In the instant case, a feeding baby of 6 months old had been beaten with a stick which is well evident from the fact that there are 14 linear contusions having a uniform width of 1cm all over the body of the child. Her mother, the deceased Saramma, also sustained 16 ante- mortem injuries. This would prima facie show a brutal attack on both the victims by the accused doubting the paternity of the child. The test under Section 306 IPC is to find out the mental condition of the victim and the motive on the part of accused in compelling or leading her by his acts, both physical and mental, to the commission of a suicidal death. The intention/motive on the part of the accused should be gathered from the attending circumstances and to evaluate whether it would abet the commission of a suicidal death. 'Abetment' as embodied under Section 306 IPC should be understood in relation to what is done by the accused and whether he was possessing such an intention or knowledge that the Crl. Appeal No.881 of 2013 21 act done by him would normally lead the victim to the extreme act of commission of suicide and when it was brought in evidence, the liability under Section 306 IPC would come into play. The legal proposition laid down by the Apex Court in Madan Mohan Singh v. State of Gujarath and another [2010 KHC 4581], SC Chheena v. Vijayakumar Mahajan and another [2010 KHC 5560], Mohd. Hoshan v. State of Andra Pradesh [2002 (7) SCC 414] and Sanju v. State of Madhya Pradesh [(2002) 5 SCC 371], were not considered by the court below.
20. The non detection of ligature used for the commission of offence may not, by itself, take away the prosecution case when all the circumstances leading to the death of the minor child were brought out without any missing link pointing towards the guilt of accused.
21. The ante-mortem injuries noted in Exhibit P6 comes to 14 contusions and abrasions and contused abrasions, which, according to the Doctor who conducted autopsy, would suggest that the child was beaten with a stick many times prior to death. This would show the brutality unleashed to a feeding baby aged only six months by the accused.
22. None of the exceptions to Section 300 IPC were brought to the notice of this Court and as such the conviction of accused for the offence Crl. Appeal No.881 of 2013 22 under Section 302 IPC and the sentence awarded, being the lesser one, deserves no interference.
Hence, the appeal fails, dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
DMR/AHZ JUDGE