Kerala High Court
Asokan vs State Of Kerala on 4 June, 2009
Bench: A.K.Basheer, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 819 of 2005()
1. ASOKAN, S/O. THANKAPPAN,
... Petitioner
2. LEKHA, D/O. SHYAMALA,
Vs
1. STATE OF KERALA,
... Respondent
2. THE DY. SUPERINTENDENT OF POLICE,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :04/06/2009
O R D E R
A.K.Basheer & P.S.Gopinathan, JJ.
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Crl.A.No.819 of 2005
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Dated this the 3rd day of June, 2009.
JUDGMENT
Basheer,J.
The small village of Kidangayar in Kanayannur taluk in Ernakulam distrcit woke up from slumber in the early hours of October 16, 2003 to the dreadful and horrifying news of the death of six members of a family.
2. Shyamalakumari, aged about 54 years was found strangulated on her bed inside the house. Her daughter Sudha was found hanging on a sari in another room. Two other daughters, Latha and Lathika and son Suresh were found dead in the well situated in the residential compound. Six year old Sujith, the son of Sudha was also found dead in the well.
3. The surviving daughter of Shyamala Kumari, namely, Lekha (Appellant No.2) was found clinging to the side wall of the well along with Ashokan (Appellant No.1). They were taken out of the well by the neighbours including P.Ws.1 and 24 and were taken to the nearby hospital. The matter was reported to Mulanthuruthy police by P.W.1. His statement was recorded at about 8.45 a.m. (Ext.P5). It came to light that all the six people, who were found dead, had also consumed poison (Lambda Cyhalothrin, a Pyrathroid insecticide).
4. It is on record that the police registered the crime under the caption "unnatural death" on the basis of Ext.P1 statement given by P.W.1. Inquests were held. Autopsy on the dead bodies was conducted.
Crl.A.819/2005. : 2 :
5. On October 20, 2003, the investigating officer, Circle Inspector of Police, Piravom, (P.W.58), who had been investigating the case at that time, filed a report before the Judicial Magistrate of First Class-I, Ernakulam informing that further investigation in the case had revealed that offences punishable under Sections 302, 306 and 201 read with Section 34 I.P.C. were also involved and the appellants were suspected to have committed the crime. Subsequently, investigation was continued and charge-sheet was laid against the appellants by the Deputy Superintendent of Police, C..B.C.I.D.(P.W.15).
6. After committal, the case was tried before the Sessions Court, Ernakulam. Prosecution examined P.Ws.1 to 59 and marked Exts.P1 to P55 and M.Os.1 to 14 on its side. There was no oral or documentary evidence on the side of the defence.
7. The trial court, after an elaborate consideration of the oral and documentary evidence on record, found that the prosecution had succeeded in proving the charge against the appellants/accused. Accordingly, they were convicted and sentenced under Section 302 read with Section 34 I.P.C. to undergo imprisonment for life and to pay a fine of Rs.10,000/- each. In default of payment of fine, they were directed to suffer simple imprisonment for one year each. The appellants were also convicted and sentenced under Section 306 read with Section 120B I.P.C. to undergo rigorous imprisonment for two years each and to pay a fine of Rs.10,000/- each. In default of payment of fine, it was further directed that appellants shall undergo simple imprisonment for one year each. The appellants were also convicted and sentenced to undergo imprisonment for three years each and to pay Crl.A.819/2005. : 3 :
a fine of Rs.5,000/- each for the offence under Section 201 I.P.C. with a default sentence of imprisonment for six months each. It was further directed that the sentence imposed on the two appellants would run consecutively.
8. Before we deal with the oral and documentary evidence adduced by the prosecution in support of its case, it would be profitable to refer to the prosecution case in brief.
9. Prosecution alleged that, Asokan, Appellant No.1 had been maintaining illicit relationship with Appellant No.2 for quite sometime. Asokan married Mallika (P.W.21) in the year 1995. A child was born in the said wedlock. Both of them hail from Thiruvananthapuram District. But the marital relationship, it appears, was not cordial. The family of Shyamalakumari also hail from Thiruvananthapuram. Asokan had started the illicit relationship with Appellant No.2, the second daughter of Shyamalakumari while they were living in Thiruvananthapuram. It came out in evidence that the family of Shyamalakumari along with Asokan took the residential building situated in Chottanikara in Ernakulam District belonging to P.W.29 on rent and started to live there since the last four years. The prosecution alleged that Asokan had been in the habit of borrowing money from his friends and relatives and had thus incurred heavy liability even before he shifted his residence to Chottanikara. After he joined the family of Shyamalakumari and her children, he had borrowed money from several people. The family led a very luxurious life beyond its means. The only bread-winner of the family was Suresh, the son of Shyamalakumari. Asokan always used to remain in the house along Crl.A.819/2005. : 4 :
with Shyamalakumari and her children.
10. The case of the prosecution was that Asokan in connivance with Lekha (Appellant No.2) hatched a conspiracy to finish off the other members of the family, so that they could lead a peaceful life. The further case of the prosecution was that at the instigation of Asokan and Lekha, the entire family members decided to commit suicide by consuming poison. The immediate provocation pointed out by the prosecution was that on October 16, 2003, the landlord of the residential building (P.W.29) had come to the house and demanded for the arrears of rent of around Rs.2,400/- from Asokan. P.W.29 had further threatened Asokan that the entire family would be thrown out of the house if the arrears of rent were not paid immediately. There was also allegation that P.W.29 had hit Asokan in the course of the altercation that followed. Anyhow the prosecution alleged that this incident had turned out to be the immediate provocation for the family to take a decision to commit suicide and the appellants succeeded in persuading or abetting the other family members to do so.
11. According to the prosecution, the family members, except the appellants, consumed poison between 8.45 and 9.15 p.m. on the fateful night. Latha and Lathika jumped into the well after consuming poison. Sudha hanged herself on a sari after consuming poison. Suresh tried to hang himself on the branch of a nutmeg tree in the compound. But, he did not succeed and fell down and collapsed. He also ultimately ended up in the well. Shyamalakumari was strangulated with the help of M.O.3 thorthu mundu (bath towel) by the appellants. Sujith, the six year old son of Sudha was dumped into the well after Crl.A.819/2005. : 5 :
administering poison to him. Thereafter, the appellants climbed down to the well with the help of a rope used for drawing water and remained inside there till they were rescued by the neighbours on the next day morning.
12. As mentioned earlier, P.W.1 had reported the matter to the police at about 8.45 a.m. According to P.W.1, while he was returning from the nearby tea shop at about 6.30 a.m., he found his wife Alice (P.W.23) and Lenin, S/o.Ayyappan and others in the residential compound of Syamalakumari. They were weeping looking inside the well. P.W.1 was informed by his wife that Syamalakumari and Sudha were lying dead inside the house. P.W.1 found the appellants perched on the ring of the well clinging on to the bucket. According to P.W.1, Appellant No.2 was making some noise. She was in her nighty, whereas Appellant No.1 was wearing only an underwear. As requested by somebody, P.W.1 ran to his house and brought rope, pully, sack etc. and with the help of P.W.24, Ayyappan and others pulled out the appellants from the well. Both of them were taken to the S.D.T.T.A.Hospital, Chottanikkara in an autorickshaw. P.W.1 came back to the scene after leaving the appellants at the hospital. At that time, search was on for the other missing family members. By that time, somebody had telephoned to the Fire Force. The search by the Fire force ultimately resulted in the recovery of the bodies of Latha, Lathika, Suresh and Sujith from the well. It was thereafter that P.W.1 went to the police station and reported the incident and gave Ext.P1 statement.
13. P.W.2, the Doctor attached to the S.D.T.T.A. Hospital, stated Crl.A.819/2005. : 6 :
that he had examined the appellants at about 7.45 a.m. As regards Appellant No.1, it was stated by the Doctor that he was found winking rapidly, but all his systems and parameters like B.P., Pulse etc. were normal. His cloth was not wet. No external injury was noted. Since the persons who brought Appellant No.1 to the hospital had informed the Doctor that he might have consumed poison, he was given a stomach wash. He was transferred to the ward for monitoring. By about 11 a.m., Appellant No.1 became perfectly normal. He was discharged from the hospital on the next day at 2 p.m. P.W.2 stated that Ext.P12 certificate in respect of Appellant No.1 was issued by him.
14. P.W.2 also spoke about the examination conducted by him on Appellant No.2. She was wearing a nighty which was wet, but there was no mud or sand on it. Her nose and mouth also did not have mud or sand. Appellant No.2 was found crying and talking irrelevant things. But her B.P. and other parameters were found normal. No external injury was noted. Since consumption of poison was suspected, Ryle's tube was put. No smell came out. Appellant No.2 was also given a stomach wash. The contents collected by stomach wash in respect of the two appellants were collected in bottles for the purpose of chemical analysis. They were marked as M.Os.1 and 2. P.W.2 identified his signature in Ext.P3 in respect of Appellant No.2.
15. Pw.3 conducted post mortem on the body of Syamala and Suresh. In the case of Syamala the Doctor opined that the death was due to "constriction force" on the neck, whereas in the case of Suresh the doctor recorded the opinion that death was due to drowning. The post mortem findings were consistent with death by drowning. Post Crl.A.819/2005. : 7 :
mortem certificates of Syamala and Suresh were marked as Exts.P6 and P8 respectively. After receipt of the report of the Chemical Analyst, additional reports were also given by Pw.3 which were marked as Ext.P6(a) and P8(a) respectively. In Ext.P6(a) report in relation to Syamala, the doctor confirmed that the death was due to constriction force on the neck. He further reported that viscera and blood contained lambda cyhalothrin. In the case of Suresh also additional report indicated that viscera and blood contained the same poison. Death due to drowning was however confirmed. Exts.P7 and P10 reports of the Chemical Analyst were relied on by Pw.3 for filing the additional reports. We will refer to the post mortem findings recorded by Pw.3 a little later.
16. Pw.4 conducted post mortem examination on the body of Sujith and Lathika. Exts.P11 and P13 respectively are the post mortem certificates. and Exts.P11(a) and P13(a) are the additional reports. In both these cases the post mortem finding was that the victims died of drowning. Similarly additional reports confirmed the presence of the poison referred to above in the viscera of these two persons also.
17. Pw.5 conducted post mortem on the body of Sudha and Latha. Exts.P15 and P17 respectively are the post mortem certificates. Exts.P16 and P18 respectively are the reports of the Chemical Examiner. Exts.P15(a) and P17(a) respectively are the additional reports issued by Pw.5 after receipt of the report of the Chemical Examiner. In these reports also presence of poison in the viscera of these two victims was indicated. The doctor opined in the post mortem Crl.A.819/2005. : 8 :
certificates that his findings were consistent with death due to hanging in the case of Sudha, while in the case of Latha the doctor opined that she died due to drowning.
18. Pw.6 who was working as Professor and Head of Department of Forensic medicine in Amrita Institute of Medical Sciences was examined in the case as an expert to elicit his views on the various findings entered by the doctors who conducted post mortem. Pw.6 issued Ext.P19 and P19(a) additional reports. We will revert back to the evidence of this witness in the latter part of this judgment.
19. Pw.7 who was working as Asst. Surgeon in the Govt. hospital, Mulanthuruthy had examined the first appellant on October 20, 2003 at about 5.50 p.m. and issued Ext.P20 wound certificate. A lacerated wound measuring 1 x 0.5 x 0.25 cms. above the right eyebrow was noticed by the doctor. In this context it may be noticed that the case of the prosecution was that appellant No.1 had turned violent in the Police Station when he was told that he was being arrested in connection with the case.
20. Pw.8 had examined appellant No.2 and issued Ext.P22 certificate. According to this witness, appellant No.2 had informed him that she had been having sexual contact with appellant No.1 since 4 years. The findings recorded by Pw.8 were consistent with information furnished by appellant No.2 about her physical relation with appellant No.1.
21. Pw.9 had conducted the potency test of appellant No.1 and issued Ext.P23 certificate. Pw.10, Asst. Chemical Examiner had Crl.A.819/2005. : 9 :
conducted examination of viscera and blood and issued Ext.P7 , P9, P10, P12, P14, P16 and P18 certificates. In the examination it was noticed that lambda cyhalothrin, a poisonous synthetic parathroid insecticide was detected in the samples of all the victims. The above certificates issued by Pw.10 were marked in the case. Pw.10 had also issued Exts.P24 and P25 certificates. In Ext.P24, the examiner stated that the vomit of Syamala collected from the bed where her dead body was found also contained the above poison. In Ext.P25 he opined that the contents of the stomach wash of the two appellants did not contain any poisonous substance. Pw.10 had also issued Ext.P26 certificate after examining the vaginal smear of appellant No.2. Semen and Spermatozoa were not detected in the vaginal smear.
22. Pw.11 who was working as the Asst. Director (Document) in the Forensic Science Laboratory had examined Ext.P28 suicide note and issued Ext.P27 report. Handwritings, which were marked as S1 to S33 (Ext.P30 series) were found to have been written by appellant No.2. In fact it had come out from evidence and the records that appellant No.1 had written Ext.P28 suicide note. We need not refer to the evidence of Pws.12 to 17 who were witnesses to various mahazars for recovery of the materials seized in this connection.
23. Pw.18 was a neighbour. He deposed that Asokan had told him that he was the eldest son of Syamala. According to this witness Asokan had always given such an impression. He further stated that he had found appellants 1 and 2 inside the well in an embracing position. He also stated that he had found the dead body of Syamala on the cot with a thorthumundu (bath towel) tied around her neck. He also saw Crl.A.819/2005. : 10 :
Sudha hanging in the next room. He had come to know about the tragic incident at about 6.30 in the morning.
24. Pw.19 was yet another witness and son of Pw.18. He also spoke in similar lines with that of Pw.19. Pw.20 had taken M.O.13 series photographs. M.O.14 series are the negatives.
25. Pw.21 deposed before the court that appellant No.1 who hailed from Thiruvananthapuram had married her in the year 1996. After the marriage they had lived together for about one year at Athani. A child was born in that wedlock. A residential building was purchased in the name of herself and appellant No.1. He had left for Thiruvanantahpuram when huge liability was incurred after the purchase of the house. At that time Pw.21 started residing in her house. Pw.21 further stated that appellant No.1 deserted her and the child, who was 2 years of old at that time, and thereafter there was no information about him. She knew appellant No.2 while she was living with Asokan at Thiuvananhapuram. Appellant No.1 had taken her to the house of appellant No.2. He had introduced Lekha saying that she was a close relative. Appellant No.1 used to beat her whenever she asked about appellant No.2. Pw.21 also spoke about an item of property belonging to her which was sold by appellant No.1 to one Shafeek. Appellant had obtained Rs.90,000/- from Shafeek. Though the sale was in respect of her share, appellant No.1 had not given her the money. Later she was compelled to execute a registered deed in respect of her share in favour of Shafeek. In short, she stated that for more than 5 years she had no contact with appellant No.1. She produced her wedding photo before the Police which was marked in Crl.A.819/2005. : 11 :
the case as Ext.P40.
26. Pw.22 the Secretary of SNDP Yogam produced the marriage register to prove the marriage of Pw.21 with appellant No.1. Ext.P42 was the marriage certificate and Ext.43 extract of the relevant register.
27. Pw.23, wife of Pw.1 deposed before the court that she was a neighbor of Syamala and she knew all the family members. She stated that the family of Syamala had been living in the house belonging to Pw.29 on rent for the last 4 years. Syamala and her children used to go to the temple every day. She used to see light in the residence of Syamala at about 2 a.m. on almost all days. Syamala and her children used to come back from the temple by about 5 a.m. On the day of the incident she did not see light in the house of Syamala even at 5.30 a.m. At about 6.30 a.m., Pw.23 went to the house of Syamala along with her sister Alice and called out the name of appellant No.1. The door on the side of the kitchen was found open. Nobody responded to the call. They went inside and found Syamala lying on the bed. Vomit was found inside the room. They also found Sudha hanging on the raft of the ceiling in the other room. She felt giddiness and went to her house. Later when several people gathered at the scene, including her husband. This witness stated that she had found the family of Syamala living happily. In short, this witness corroborated the evidence of Pw.1 and others who had found the dead body and appellant Nos.1 and 2 in the well.
28. Pw.24 was another neighbour who helped Pw.1 and others to take out the dead bodies from the well. Pw.25 was the driver of the autorickshaw in which the appellants were taken to the hospital. Pw.26 Crl.A.819/2005. : 12 :
was the nephew of Pw.29, the landlord of the residential building in which Syamala and his family had been staying. He spoke about the fight between appellant No.1 and Pw.29 in the morning on the day of the incident. Pw.27 was the officer attached to the Fire Force who had come to the scene of occurrence and helped in taking the dead bodies out of the well.
29. Pw.28 Police Constable seized M.O.4 plastic rope allegedly used by Suresh. M.O.11 was the piece of branch on which M.O.4 plastic rope was tied for hanging. M.O.2 was the bucket found at the scene. These objects were taken into custody under Ext.P33 mahazar.
30. Pw.29, the landlord of the residential building deposed before the court that the building was let out to appellant No.1 on April 1, 2000 on the strength of Ext.P29 kychit. A sum of Rs.2,000/- was received as advance. Initially rent was fixed at Rs.600/- per month. Later, by mutual agreement it was enhanced to Rs.800 per month. He admitted that there was an altercation between him and appellant No.1 in the morning on the day of the incident. The altercation occurred when he demanded for the arrears of rent (Rs.2400/-) from appellant No.1. He further admitted that he had asked appellant No.1 to vacate the building if the rent was not paid immediately. Pw.29 further admitted that he had hit appellant No.1 once in the course of the altercation since appellant No.1 behaved in an arrogant manner. He further stated that later in the day appellant No.1 and Suresh had come to his residence threatening to assault him; but any untoward scene was averted by the neighbours. He had gone to the scene of occurrence on getting information, but he came back since he felt like fainting. Crl.A.819/2005. : 13 :
31. Pw.30 had admittedly purchased the poison which was used by the victims. He deposed before the court that deceased Suresh was his friend. Suresh used to help him in spraying pesticides in paddy fields. On October 15, 2003 at about 3 p.m. Suresh had requested Pw.30 to procure an insecticide known as "Karate" for him. Suresh had given Rs.150/- for this purpose. Suresh told Pw.30 that it was to be used for spraying in a property at Erumeli. Pw.30 purchased the insecticide and kept it in his cycle along with the bill. But some time later in the evening Suresh came to him and asked for the balance. The balance was given to Suresh. M.O.7 bottle of insecticide was identified by this witness. We do not deem it necessary to refer to the evidence of Pw.32 to 40 who spoke about the various loan transactions between them and appellant No.1. It came out in evidence that appellant had borrowed money from these people on several occasions. For instance, from Pw.36 appellant No.1 had borrowed Rs.30,000/- and from Pw.37 a sum of Rs.20,000/-.
32. Pw.41 was a fisherman who deposed that the family of Syamala used to purchase expensive fish from him regularly. At the time of the incident Syamala's family owed a sum of Rs.2190/- towards purchase of fish from him.
33. Pw.42 was yet another neighbour who deposed that he used to see the two accused and other family members of Syamala going to the temple on many occasions. Pw.43 was a witness to the inquest held on the body of Lathika. He signed in Ext.P47 inquest report.
34. Pw.44 is the mother of Syamala. She stated that Syamala was her eldest daughter. Syamala's husband passed away about 15 Crl.A.819/2005. : 14 :
years ago. Syamala had 6 children -- 4 daughters and two sons. Eldest son Shaji was in Muscat. Syamala's daughter Sudha was given in marriage to Mahendran. In that wedlock Sujith was born. After the death of Syamala's husband, Syamala and her children were residing with Pw.44. But after the advent of Asokan (appellant No.1), Syamala started to avoid Pw.44. A small plot of land having an extent of 5 cents which was given by Pw.44 to Syamala was sold by her and they left the place. This witness further stated that Shaji, the eldest son of Syamala was antagonised by Asokan and he left his family house. Thereafter he used to stay with Pw.44.
35. Pw.45, the brother of appellant No.1 spoke about the relationship between his brother and appellant No.2. Pw.46, the husband of Sudha stated that his marital relationship with Sudha go strained because of appellant No1 who had started living with the family of his wife. He also spoke about the few instances involving him and appellant No.1. According to this witness, appellant No.1 had in fact assaulted him on more than one occasion when he questioned about the undue freedom being taken by appellant No.1 in the family of his wife.
36. Pw.46 Village Officer prepared Ext.P48 scene plan. Pw.48 was the Clerk working in the Court of Judicial Magistrate of First Class. He preferred Ext.P14 property list. Pw.49 was a witness to Ext.P50 mahazar prepared at the time of taking the contents of stomach wash. Pw.50 was a witness to the seizure of vomit under Ext.P1 mahazar at the residence of Syamala. Pw.51 was yet another witness for recovery of some mahazar objects including the note Crl.A.819/2005. : 15 :
book from which appellant No.1 had reportedly torn off a page on which Ext.P28 suicide note was written. Pw.52 Sub Inspector of Police registered Ext.P1(a) FIR. This witness stated that initially FIR was registered under the caption unnatural death. He also conducted inquest on the body of Latha under Ext.P36 and recorded Ext.P1 F.I statement given by Pw.1.
37. Pw.53 Sub Inspector of Police Moovattupuzha conducted inquest on the body of Syamala and prepared Ext.P35 report. Pw.54 Sub Inspector of Police, Ramamangalam conducted inquest on the body of Suresh and issued Ext.P46 report. Pw.54 Asst.Sub Inspector, Koothattukulam conducted inquest on the body of Lathika and prepared Ext.P47 report. Pw.56, Asst.Sub Inspector Piravom conducted inquest of Sujith and issued Ext.P38 report. Pw.57 Head Constable conducted part of the investigation and recorded the statements of Cws.77 to 79 and 81 and 82. Pw.58 Circle Inspector, Piravom conducted part of the investigation. Pw.59 Dy.S.P (CB CID), Ernakulam completed the investigation after he took over investigation from the local Police and laid the charge sheet before the court.
38. The evidence adduced by the prosecution was considered by the trial court after formulating the following points:
"(1) Whether the accused 1 and 2 have criminally conspired together along with deceased persons and abetted them to commit suicide as alleged by the prosecution?
(2) Whether the accused persons in furtherance of their common intention and as a result of the criminal conspiracy, Crl.A.819/2005. : 16 :
abetted the deceased persons by making them believe that suicide is the only way out to escape from the financial burden of the family and thereby driven them to commit suicide as alleged by the prosecution?
(3) Whether the accused persons in furtherance of their common intention and as a result of the criminal conspiracy murdered Syamala, Suresh and Sujith as alleged by the prosecution?
(4) Whether the accused persons have in furtherance of their common intention tried to screen themselves by giving false information as alleged by the prosecution?
(5) Whether the prosecution had succeeded in proving any of the offences alleged against the accused persons and if so, what is the proper punishment to be meted out to the accused persons?"
The learned Judge found that the prosecution had succeeded in proving all the charges levelled against the two appellants and accordingly found them guilty and convicted and sentenced them, as mentioned earlier.
39. At the very outset it has to be noticed that all the 6 victims viz., Syamala, the mother, her three daughters viz., Sudha, Latha and Lathika, son Suresh and grandson Sujith (minor) were wittingly or unwittingly parties to a suicide pact which the two appellants allegedly made those innocent victims believe to be a genuine pact. Appellants Crl.A.819/2005. : 17 :
have not disputed the preparation of Ext.P28 suicide note. They also did not have a case that they were not signatories to Ext.P28. More importantly, the evidence of the handwriting expert (Pw.11) corroborated the prosecution case that the handwriting found in the text of Ext.P28 was similar to the standard writings of appellant No.1. The fact that all the 6 victims consumed poison was confirmed through the report of the Chemical Examiner. It is also beyond controversy that Suresh, Latha, Lathika and Sujith died due to drowning , whereas Sudha died due to hanging. In the case of Syamala the prosecution case is that she was throttled by using M.O.3 thorthumundu (bathing towel). The post mortem report revealed that death was due to constriction force on the neck. The ante mortem injury revealed that muscles of the under surface of the chin and the neck showed haemorrhages at several places. Left cornua of hyoid bone showed fracture. Thus the fact that poison was found in the viscera and other systems of all the victims will conclusively show that all of them had either consumed or were administered poison prior to drowning/hanging/strangulation.
40. According to the prosecution, appellants hatched a conspiracy to abet commission of suicide by the victims and had induced them to consume poison. Appellants had also ensured that none of these 6 people failed in their attempt to commit suicide. The prosecution further alleged that Latha and Lathika jumped into the well after consuming poison at the instigation of the appellants. Sudha hanged herself with the help of a saree inside the house. Syamala was throttled with M.O.3 thorthumundu. Sujith, the 6 year old son of Crl.A.819/2005. : 18 :
Sudha was dumped into the well. Suresh had tried to hang himself with the help of M.O.4 plastic rope; but the branch of the nutmeg tree broke and he fell down. Prosecution further alleged that Suresh was dumped into the well by the two accused after he fell down unconscious from the tree.
41. It is contended by Sri.K.Ramkumar, learned senior counsel that the entire prosecution story incriminating the appellants in the commission of the various offences alleged against them is too far fetched and totally unbelievable. He assails the findings entered by the trial court which according to him, were based on assumptions and conjectures. Those findings, according to the learned counsel, are wholly illegal and unsustainable.
42. According to the learned counsel the learned Sessions Judge has held the appellants guilty on the premise that the prosecution had established that appellant No. 1 was in the habit of living a luxurious life beyond his means and had been borrowing money from all and sundry and had thus incurred heavy debts. He wanted to get the sympathy of his creditors by making them believe that financial difficulties had persuaded him and the other family members to commit suicide. The further case of the prosecution that in fact appellant No.1 wanted to continue his illicit relationship with appellant No.2 after the death of other family members. It was therefore that he had persuaded the 6 victims to commit suicide while they cleverly manipulated not to do so. Learned counsel submits that these are all assumptions which had no basis at all.
43. Before we deal with the above contentions, we may refer to Crl.A.819/2005. : 19 :
the other primary challenge raised by the learned counsel while assailing the order of conviction and sentence. He contends that the prosecution theory that appellant No.1 was the mastermind behind the suicide pact is wholly unsustainable and baseless. Even assuming appellant No.1 had prepared Ext.P28 suicide note, it is beyond controversy that Syamala, Suresh, Sudha, Latha and Lathika had subscribed their signature to the said note (except the minor). Appellants had also put their signature in the note along with others. Therefore according to the learned counsel, the decision taken by the entire family members (minor exempted) to commit suicide was deliberate. All of them wanted to ensure that none of them survived. It was therefor that all of them had consumed poison. When there was some doubt about the effectiveness of the poison, Suresh, Latha and Lathika jumped into the well. Sudha had hanged herself.
44. Learned counsel further points out that the learned Sessions Judge categorically found that there was no evidence to show that Sujith was dumped into the well by the two accused. According to the learned counsel it was eminently possible that Sudha might have dumped her son into the well before she hanged herself because she might have felt that her son did not suffer after her departure. The other possibility pointed out is that one of the 4 persons who jumped into the well, also might have taken the child along with him/her while jumping into the well.
45. As regards the death of Syamala, it is contended by the learned counsel that the lady could have done it by herself. Learned counsel does not rule out the possibility of any of the other four Crl.A.819/2005. : 20 :
children of Syamala strangulating her before committing suicide. In short, the contention of the learned counsel is that , in the absence of any direct evidence or clinching proof with regard to the actual involvement of the appellants in the crime, the learned Sessions Judge was not justified in holding the appellants guilty.
46. As regards the suicide pact, learned counsel has advanced an argument that appellant No.1 could not have been accused of being the master mind. He points out that admittedly Suresh had procured the poison through Pw.30. Suresh was a grown up person. He was looking after the family. Therefore the fact that he had purchased the poison with the help of Pw.30 will undoubtedly show that it was not appellant No.1, but only Suresh who was the master mind. In this connection learned counsel has also advanced an argument that the prosecution had miserably failed in adducing any evidence with regard to the charge of abetment. We will deal with that aspect with specific reference to Ext.P28 a little later.
Crl.A.819/2005. : 21 :
47. As has been noticed already the appellants had not consumed poison as was done by the victims. This fact has been conclusively established by the report of the chemical examiner as evidenced by Ext.P25 prepared after examining the contents of the stomach wash of the appellants held at the hospital by PW2. If in fact appellants wanted the entire world to believe that they had also decided to commit suicide along with other members of the family, it is beyond one's comprehension as to why they did not consume the poison procured for the said purpose. Significantly, no explanation whatsoever was given by the accused in this regard.
48. There is yet another aspect of the matter. It has come out in evidence that the dead bodies of Suresh, Lathika and Sujith were recovered from the well. Prosecution has no case that Latha and Lathika were dumped into the well by anybody else. In other words, it has to be assumed that they had jumped into the well on their own. But in the case of Suresh, the prosecution had a case that after he failed in his attempt to hang himself on the branch of a Nutmeg tree, he was lifted from the ground where he had fallen unconscious and put into the well by the two accused. Similarly, the case of the prosecution is that six year old Sujith was also dumped into the well by the two accused.
49. Going by the nature of the defence taken by the appellants, before this court they had tried to commit suicide by jumping into the well. But no such case was set up by the accused not even as a suggestion to any of the prosecution witnesses and more importantly such a case was never advanced by the accused when they were questioned under Section 313 of the Code of Criminal Procedure. It is Crl.A.819/2005. : 22 :
true that the accused need not necessarily answer the question put to them in the course of examination under Section 313 of the Code. The provisions contained in the above Section are only to enable the accused personally to explain any circumstance appearing in the evidence against him. The Court may at any stage, without previously warning the accused put such questions to him as the Court considers necessary. However,the section mandates that the court shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question the accused generally on the case. (Sub Clause (a) and (b) of the above Section). It has to be remembered that no oath need be administered to the accused when he is examined under Sub Section (1). However, the provision postulates that the accused shall not render himself liable to be punished if he refuses to answer such questions or gives false answers to them. We have only referred to the above statutory provisions and also to the failure/refusal of the accused to respond to the questions put to them under Section 313 of the Code only in the context of mentioning that the accused have not offered any explanation whatsoever in this connection.
50. Learned Senior Counsel has vehemently contended that the refusal of the accused to answer or to take up a particular stand in the course of examination under Section 313 of the Code shall not be taken as a ground to hold him guilty. There is no doubt or ambiguity about the said legal position. It is trite that the accused cannot be compelled to explain any of the circumstances which appear against him in the prosecution case. Learned counsel has invited our attention to a decision of the Supreme Court in Bishan Dass V. State of Punjab Crl.A.819/2005. : 23 :
[AIR 1975 SC 573] wherein it was held that even if the accused maintained silence in answer to the charge against him under Section 302 IPC, the burden was on the prosecution to prove its case satisfactorily. Silence of the accused was of no consequence, the court held. In Nagappa Dondiba Kalal V. State of Karnataka [AIR 1980 SC 1753], it was held that it was for the prosecution to prove its case affirmatively and it can not gain any strength from the conduct of the accused in remaining silent. In State of Goa V. Sanjay Thakran and another [2007 (3) SCC 755], the apex court held that if the accused refuses to give any explanation in his examination under Section 313 Cr.P.C. it cannot be taken as a circumstance pointing towards the irresistible conclusion that he was involved in the commission of the crime. In Krishna Janardhan Bhat V. Dattatraya Hegde [2008 (1) KLT 425] their Lordships of the Supreme Court held that the accused have a constitutional right to maintain silence.
Crl.A.819/2005. : 24 :
51. If we carefully peruse the above judgments, it can be seen that the settled legal position is that no accused can be convicted solely for the reason that he had kept silence or had refused to offer any explanation about the incriminating circumstances appearing against him. As has been consistently held not only by the apex court but also by the various High Courts as well, the primary burden always lies on the prosecution to prove the charge against the accused. The accused can maintain silence. He may or may not offer an explanation in response to the circumstances brought against him in support of the charge. If the prosecution fails to prove the charge against the accused, no court can convict the accused even assuming no explanation was forthcoming from the accused.
52. But, in Eshwaraiah and another V. State of Karnataka [1994 (2) SCC 677], the apex court had occasion to consider a case where a homicide took place in a house bolted from inside, to which entry for any one from outside was impossible. Accused was found with the deceased inside the room who was lying dead with injuries on his person. No explanation was offered by the accused. The court held that since the murder took place inside the home in the presence of both the accused, they had to explain as to how it had happened.
53. In Trimukh Maroti Kirkan V. State of Maharashtra reported in [2006 (4) KLT 638] it has been held by the apex court that "in a case based on circumstantial evidence where no eye witness is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an Crl.A.819/2005. : 25 :
explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete." The same view has been taken in a catena of decisions of the apex Court. State of Tamil Nadu V. Rajendran [1999 (8) SCC 679], State of U.P. V. Dr. Ravindra Prakash Mittal (AIR 1992 SC 2045), State of Maharashtra V. Suresh (2000 (1) SCC 471), Ganesh Lal V. State of Rajasthan (2002 (1) SCC 731) and Gulab Chand V. State of M.P. (1995 (3) SCC 574).
54. In our view, the appellants cannot take shelter under the plea that they were not bound to explain as to how the homicide of Syamala by strangulation took place or how Sujith happened to be drowned in the well after poison being administered to the young child. The evidence of PW6 will show, that it would be impossible for a child of 5-6 years to consume or swallow poison on his own.
55. The appellants were found partly perched on the side wall of the well and partly clinging on the rope and the bucket, while the other four members of the family lay dead in the well. The evidence of PW1, PW23 and PW24 will show that the two appellants were perched on the ring like step of the well. While appellant No.1 was wearing only an underwear, appellant No.2 was in her nighty. There were no injuries on both of them. Of course, it had come out in evidence that appellant No.2 was found making some sound. There was no evidence or mark on their body or dress to suggestive of a fall or jump from a higher level. It is in this context that the silence of the two accused looms large. If the appellants have got a case that they also jumped into the well and somehow they did not drown themselves and thereafter they Crl.A.819/2005. : 26 :
managed to climb up and caught hold of the rope and bucket, it would have given some credence to their story. Apparently, as alleged by the prosecution the two appellants had climbed down to the well using the rope on the pully used for drawing water. PW24, who had got down inside the well to rescue the appellants, stated in his deposition that he had found appellant No.2 on the step of the well with one of her legs in the bucket and the other on the side wall. Appellant No.1 was found embracing appellant No.2 holding her waist with one hand while holding the rope with the other. The evidence of PW1 was also in similar lines as regards the manner in which the two appellants were found perched inside the well. As mentioned by us earlier, the accused did not have a case that they had also jumped into the well, but somehow managed to escape. At any rate, they had not consumed poison as was done by others. In that view of the matter, the appellants cannot be heard to say that their silence or refusal to respond to the questions put to them under Section 313 of the Code cannot form the basis to draw an inference that they had not attempted to commit suicide under the suicide pact entered among them.
56. Similarly, the argument advanced by the learned Senior Counsel that the appellants cannot be found responsible for the alleged homicide of Syamala and Sujith cannot also be accepted. In the case of Syamala, the defence set up by the appellants is that she might have been strangulated by one of her three daughters or by the son, Suresh. Yet another argument is that Syamala might have strangulated herself. The latter theory has been ruled out by PW6, Dr.Umadattan, the Medico Legal Adviser, who was working as Professor and Head of Crl.A.819/2005. : 27 :
Department of the Forensic Medicine, Amritha Institute of Medical Sciences. In Ext.P6 Postmortem certificate, the fatal injury was described thus:
"B. Injuries (Antemortem)
1. Faint Pressure abrasion 30 cm long, horizontally and completely encircling the neck. It was situated 6 cm. behind the chin (3 cm broad), 5.5. cm. below left ear (3.5 cm broad), 5 cm. below right ear (3 cm broad) and 7 cm. below the prominence at the back of head (2cm. broad). Flap dissection of the neck was done under a bloodless field and the subcutaneous tissues. Underneath showed infiltration of blood. Muscles of the under surface of the chin and the neck showed haemorrhages at several places. Left cornua of hyoid bone showed fracture. Cervical, vertebrae were intact.
57. As regards the above injury, PW6 in Ext.P19 report stated thus:
"Injury No.1 describes a ligature mark around the neck, caused by a soft ligature material. Bleeding in the muscles of neck and fracture of hyoid bone indicate violence. The findings in toto are suggestive of ligature strangulation"
58. In the course of his examination, PW6 asserted in answer to the suggestion made by the defence counsel that one cannot strangulate himself/herself. When the ligature is tightened, the victim will become unconscious and the grip will become loose. Victim cannot effectively constrict the neck. Thus the medical evidence on record clearly established that Syamala died due to ligature strangulation (though ofcourse poison was also detected in her stomach) and that there was absolutely no possibility of self strangulation. Anyhow, such a Crl.A.819/2005. : 28 :
possibility was ruled out in no uncertain terms by PW6. There was no challenge on this aspect by the defence.
59. Then the only the question that remains is as to who could have strangulated Syamala. As has been mentioned by us earlier, the argument advanced on behalf of the appellants is that it could have been done by any one of the other four children of Syamala before they committed suicide. But this theory put forth by the appellants is hard to believe or accept. We have already noticed that the appellants had deliberately avoided taking poison. They had offered no explanation as to why they did not choose to consume poison, while others did as per the alleged suicide pact. Further there is nothing on record to indicate that the appellants had jumped into the well to commit suicide. The circumstances indicate otherwise.
60. It is in this background that the above contention now raised by the appellants that it might have been the four children who might have strangulated Syamala has to be examined. From the conduct of the two appellants and the manner in which they have executed the entire plan, it cannot be said that anyone of the other four children of Syamala might have strangulated their mother. We have no hesitation to take that view, particularly, for the reason that the accused had not bothered to offer any explanation in this regard.
61. It must be remembered that the appellants were the only persons who survived the grotesque episode. Evidently they must have been the last persons who "got inside" the well, if we may use that expression, since apparently they have not jumped into the well as has been held by us. So necessarily appellants cannot pretend ignorance Crl.A.819/2005. : 29 :
and refuse to give any explanation as to what had happened to Syamala. In our view, the silence of the accused on this aspect is fatal. They cannot be heard to say that it might have been someone else who had strangulated Syamala.
62. As regards the unfortunate child who also happened to be a victim of this totally inhuman and macabre plot of the perpetrators of this crime, it has to be noticed that visible injuries were found on the face of the poor child. He had black eyes apart from other injuries. PW6 deposed before the court that if some force was used to administer poison to a child, these injuries could have resulted. Significantly, PW6 had stated that no child of that age would have jumped into the well on his own. Similarly, PW6 had also categorically stated that no child of such a tender age would have voluntarily consumed poison. The above explanation appears to be quite formidable and acceptable.
63. Then the only question that remains is as to who could have dumped the child into the well. Appellants would contend that it might have been the mother of the child or one of her aunts, namely, Latha or Lathika or even his uncle Suresh. For the very same reasons stated by us in the previous paragraph, we are unable to accept the above contention. We may repeat that the accused had offered no explanation whatsoever as to what had happened in the household on the fateful night especially after admitting that they were also parties to the suicide pact. In that view of the matter, we have no hesitation to hold that the court below was justified in holding the appellants guilty under Section 302 read with Section 34 IPC.
Crl.A.819/2005. : 30 :
64. It is true the learned Sessions Judge in the course of his discussion has stated that it might have been possible that one of the victims could have put the child into the well. It is contended by the appellants that the learned Sessions Judge after having entered such a finding could not have ultimately found the appellants guilty of the charge of murder of the child also. Having carefully perused the materials available on record, especially, the evidence of PW6 and the attendant circumstances referred to above, we do not find any reason to upset the finding of the learned Sessions Judge in this regard. We are satisfied that all circumstances clearly indicate that Syamala was strangulated by the appellants/accused and that they had also put the young child into the well and murdered him.
65. As has been observed by us already, silence of the accused and their failure to offer any explanation will disable them to argue for the position that there was the possibility of someone else committing the above crimes. We are fortified that the decision of the apex court in Trimukh's case (supra) is the answer to the above contention.
66. The evidence on record will clearly show that appellant No.1 had been having some kind of influence in the affairs of the family.
That he was not in any way related to this family is beyond dispute. Similarly, the fact that he had been living with this family for the last five years prior to the incident is also not in dispute. It had also come out in evidence that appellant No.1 had been maintaining illicit sexual relationship with appellant No.2 through out. Going by the evidence of PW8, appellant No.2 had informed him that she had been having "consistent sex" with appellant No.1 for the last four years. This was Crl.A.819/2005. : 31 :
recorded in Ext.P22 certificate. The examination of the appellant no.2 by the doctor also clearly revealed the possibility of consistent sexual contact. It had also come out in evidence that the marital relationship of Sudha with her husband had got strained because of the presence of appellant No.1 in the family household. PW46, the husband of Sudha, had clearly spoken about the kind of influence or hold that appellant No.1 had in the family. PW46 had practically ended his relationship with his wife Sudha only because of the presence of appellant No.1 in the household. In this context, we may also mention that Latha and Lathika were also found to have had sexual contacts. We refrain from making any further comment on this aspect, since prosecution did not pursue its case in this line. But we have referred to this only to indicate that appellant No.1 had maintained a strangle hold on the family.
67. If we consider the evidence on record with regard to the suicide pact in the backdrop of the conduct of appellant No.1, we have no hesitation to hold that appellant No.1 was the mastermind of the suicide pact. But cleverly appellant No.1 had fooled the other six innocent victims in connivance with appellant No.2 and managed to save their own lives while executing the plot. We need not repeat as to how appellants had managed to put up a show before the neighbours.
In any view of the matter, we have no hesitation to hold that the court below was justified in finding the appellants guilty under Section 306 read with Section 120B IPC.
68. However, in our view, the charge levelled against the appellants under Section 201 IPC cannot be sustained. We have carefully perused the evidence adduced by the prosecution in this Crl.A.819/2005. : 32 :
regard. We do not find any materials on record to hold that appellants had caused disappearance of any evidence with an intention to screen the offender from legal punishment. But it may be true, they had given false information. But in the nature of the evidence on record, the finding entered by the court below under Section 201 IPC against the appellants cannot be sustained and therefore it is set aside.
69. Before we conclude, we may notice the arguments advanced by the learned Senior Counsel that even assuming the death of Syamala and Sujith was a case of homicide falling under Section 300 IPC, appellants ought not to have been convicted and sentenced under Section 302 IPC. According to the learned counsel, appellants are entitled to get the benefit of exception 5 under Section 300 IPC.
70. Exception 5 under Section 300 IPC reads thus:
"Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
A plain reading of the exception quoted above will ex facie show that the above contention is without any merit.
71. In this context, learned counsel has also relied on a decision rendered by a Division Bench of this court in Rajesh V. State of Kerala [2007 (4) KLT 1052].
72. As we have already noticed, Syamala did not die of poisoning. She died due to ligature strangulation. It may be true that she had consumed poison. It can also be said that Syamala might have taken the risk of death with her own consent even if we assume that she had consumed poison voluntarily. But the crucial fact is that she did Crl.A.819/2005. : 33 :
not die due to poisoning. Further, there is nothing on record to show that the quantity of poison found inside her was sufficient enough to cause death. More importantly we have already found that the appellants had strangulated Syamala. Similarly, the young boy Sujith also did not die of poisoning. In his case, the evidence of PW6 clearly showed that such a young boy could not have consumed poison voluntarily. There were also black marks on his body which indicated that poison was administered to him forcibly. Ultimately, he died due to drowning after he was dumped into the well by the appellants.
73. In Rajesh (supra), the question that arose for consideration was in a totally different factual situation. Having carefully gone through the said decision, we have no hesitation to hold that the said decision will not come to the aid of the appellants in any manner. Therefore, the above contention is also repelled.
74. Having carefully perused the entire materials available on record and having considered the arguments advanced by the learned Senior Counsel for the appellants, we are satisfied that the appellants have committed the offences punishable under Section 306 read with Section 120B IPC and Section 302 read with Section 34 IPC. The court below was, therefore, justified in holding the appellants guilty of the above charges levelled against them.
75. We do not find any reason to interfere with the above findings. However, the order of conviction and sentence passed against the appellants under Section 201 IPC is set aside.
The order of conviction and sentence under Section 306, 120B, 302 read with Section 34 IPC is confirmed. The sentence imposed on Crl.A.819/2005. : 34 :
the appellants, in our view, is eminently reasonable and justified in the facts and circumstances of the case. Therefore, no interference is warranted. Sentence shall run consecutively. Appeal is partly allowed.
(A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) sl/an/jes.