IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRL.A.No. 558 of 2004() ----------------------- SC.336/2000 of ADDL.SESSIONS COURT,(ADHOC), FAST TRACK NO.11, MANJERI. .................... APPELLANT: 1ST ACCUSED: ------------------------------ LAILA, W/O.PUNNAKKADAN MOIDEEN, CHOLAKALAKATH HOUSE, BHEEMANAD AMSOM DESOM, PALAKKAD DISTRICT. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL RESPONDENT: COMPLAINANT --------------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.7.2008, ALONG WITH CRA NO.574 OF 2004, THE COURT ON 31/07/2008 DELIVERED THE FOLLOWING: ORDER ON CRL.M.A.NO.3841/04 IN CRL.A.NO.558/04 DISMISSED SD/- K.BALAKRISHNAN NAIR, JUDGE. 31.7.08 SD/- M.C.HARI RANI, JUDGE. K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.NOs.558 & 574 OF 2004 ----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 J U D G M E N T Balakrishnan Nair, J. Crl.A.No.558/04: The appellant was the first accused in S.C.No.336/2000, before the Additional Sessions Court (Adhoc), Fast Track No.II, Manjeri. She was tried along with the second accused for the offence under Section 302 read with Section 34 IPC. She was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence imposed on her, the appellant has come up in appeal. 2. The facts of the case in brief are as follows: The appellant was the wife of CW1, Moideen. Fathimuthu, CW2 was the 5th wife of Mr.Moideen. Two children named Noorul Nihar alias Munna( CW3) and Noorul Najma alias Ponnu (the deceased) were born to CW2 out of that wedlock. The children were aged 5 and 3½ years respectively. The said Moideen divorced CW2 and married the CRL.A.NOs.558 & 574/04 -2- first accused, who is stated to be his 7th wife on 3.11.1994. One child was born in that marriage also. It appears that CW2 left the two minor children in the custody of their father CW1. CW1 along with his present wife (A1) and three children were living together in his house. PW1 was a guard, who used to come during nights to stand guard for the family of CW1. The 2nd accused Najmath was the maid servant of the first accused and she was also living in that house. CW1 left for Gulf on 21.3.1997. After about one month, on 20.4.1997, the deceased Noorul Najma(second daughter of CW2 and CW1) was brought in an unconscious state to the Kottakkal Nursing Home. She was taken to the hospital by PW2, who is the brother of CW1, along with the first accused. Since the condition of the child was very bad, the Doctor who attended the child in that Nursing Home referred her to the Medical College Hospital, Kozhikode. But, she was taken to Maulana Hospital and Scanning Centre, Perinthalmanna for treatment. She was admitted there. At the time of admission, she was in an unconscious state and even painful stimuli did not have any effect on her. When she was brought to the said hospital, there were multiple injuries on her body also. The alleged cause of unconsciousness stated CRL.A.NOs.558 & 574/04 -3- by the persons who brought her was a head injury resulting from a fall. The child was thereafter under treatment in the said hospital and she breathed her last on 2.5.1997. In the meantime, on the basis of the telephonic information given by PW2 and the first accused, CW1 came to the hospital on 25.4.1997. After the death of the child, CW1 lodged Exhibit P21 first information statement before the police and crime No.84/97 was registered by PW15, the Head Constable attached to the Kalpakancheri Police Station, for unnatural death. The reason for the injury leading to the death of the child was shown as fall from a stair-case in the house of CW1. PW18 conducted the inquest and prepared Exhibit P1 report on 3.5.1997. PW10 conducted the post- mortem examination and prepared Exhibit P13 post-mortem certificate. He also gave Exhibit P14 final opinion on 8.9.1999, that the cause of death was due to infection. The opinion was that the “death was due to cardio respiratory failure as a result of septicemia and multiple system failure due to the extensive injuries sustained”. The investigation by the police led to the filing of reports before the Magistrate's Court incorporating the offence punishable under Section 302 read with Section 34 of the IPC in the crime and also arraying A1 CRL.A.NOs.558 & 574/04 -4- and A2 as the accused. The accused were arrested also. The Circle Inspectors of Police, PWs 16, 18, 19 and CW48 conducted the investigation and PW17 laid the final charge before the Judicial First Class Magistrate's Court, Tirur on 21.1.2000. The learned Magistrate committed the case for trial by the Sessions Court. The accused pleaded not guilty to the charges before the Additional Sessions Judge, who tried the case. From the side of the prosecution PWs 1 to 20 were examined and Exhibits P1 to P28 were marked. MO1 series were also produced, which were the dresses worn by the deceased at the time of her death. From the side of the first accused Exhibits D1 and D1(a) were marked, which were the contradictions in the deposition of PW2 with reference to his statement recorded under Section 161 Cr.P.C. From the side of the 2nd accused, Exhibit D2, which is the abstract of the admission register of her school, showing her date of birth, was produced. The accused were questioned under Section 313 Cr.P.C. No witness was examined from the side of the defence. The learned Additional Sessions Judge after hearing both sides found both the accused guilty of the offence under Section 302 read with Section 34 of the IPC. They were convicted and sentenced accordingly. CRL.A.NOs.558 & 574/04 -5- Hence this appeal by the first accused. 3. Before referring to the rival contentions of the appellant and the prosecution, we will refer to the evidence on record in this case. PW1 Shaji was the security guard working in the house of the first accused and he gave evidence as follows: The house belongs to CW1, Moideen. The first accused, the wife of Moideen and the 2nd accused, the maid servant of the house were residing there. When he joined duty, Moideen was there. Two months thereafter, Moideen left. Thereafter, in the house, the accused and the children were there. He was not aware, the children belonged to whom. While so, on a day, the second child was taken to the hospital. She was brought back dead from the hospital. He further deposed that he had seen the second accused beating the child using a bamboo stick. Beating was done outside the house. The same happened four or five days before the child was taken to the hospital. In the cross-examination, he has stated that he did not see the first accused ill-treating the children. He has also deposed, in answer to a specific question, that the first accused was looking after the children, in the same manner, she was looking after her child. In the cross-examination by the second CRL.A.NOs.558 & 574/04 -6- accused, he has stated that a cane stick was used for beating the child by the second accused. The beating was done on the buttocks of the child. He does not know the date or month when the second accused had beaten the child. He has also deposed that one Mr.Manu used to come to the house. 4. The next witness is PW2, who is the brother of CW1 Moideen. He deposed that he was residing close to the house of CW1. In the house of his brother, the accused and the three children were there. One of them was the child of the first accused and the other two children were born to Fathimuthu (CW2). The second child among them died. PW1 came to him and told that the child was not keeping well. She was in an unconscious state. The said child was taken to Kottakkal Nursing Home by PW2 along with the first accused and others. Later, the child was taken to Maulana Hospital, Perinthalmanna and admitted there. At the time of admission, there were injuries on the body of the child which appeared to have been caused by burning. When he was asked how the injuries were caused, he told that he did not know and the first accused may be asked about the same. After the child was admitted, he called CW1 who was CRL.A.NOs.558 & 574/04 -7- working in the Gulf. Before CW1 went to the Gulf, the witness went to his house and took photos. On the previous day of the date of leaving of CW1 for Gulf, PW2 went to that house. At that time no injuries were noted on the body of the child. After the departure of his brother to Gulf, the first and second accused, the three children and the security guard Shaji alone were residing in the house. The relationship between CW1 and PW2 was not cordial. CW1 has married seven times. The first accused was his 7th wife. She is hailing from Bheemanadu. The mother of the deceased child was the 5th wife. She belongs to Edakkara. The child was in the hospital for about one week. She died of burn injury. In the cross-examination, he has stated that when he took the photos, the children were in a very happy mood. They were found playing with the first accused. He has taken the photos of the first accused as well as the children. He, further stated that the 1st accused gave him the golden chain and bangles worn by her to pledge and raise funds for the treatment of the deceased and PW2 pledged those gold ornaments and the amount was given to the first accused. The suggestion of the defence that he was giving false evidence at the instance of CW1 was denied by him. A CRL.A.NOs.558 & 574/04 -8- suggestion was also made to the effect that CW1 was harbouring doubts regarding the paternity of the deceased child. The same was also denied by PW2. 5. PW3 was the witness to the inquest report Exhibit P1 dated 3.5.1997. PW4 was the photographer who took the photos of the dead body of the child as requested by the police. Through him Exhibit P2 series photographs (13 numbers) and Exhibit P3 series negatives of those photos were marked. PW5 was the witness to the second inquest report dated 18.6.1997. Exhibit P4 is the said inquest report. The body was exhumed and a second inquest report and a post- mortem certificate were prepared. PW6 was the witness to the scene mahazar, Exhibit P5 prepared on 31.5.1997 by the police. PW7 was the Judicial First Class Magistrate, Ponnani, who recorded Exhibit P6 statement of CW3 under Section 164 of the Cr.P.C., on 20.5.1998. CW3 is the elder sister of of the deceased. PW8 was the doctor who was serving in the casualty of the Maulana Hospital. It was he who admitted the injured child at 4 PM on 20.4.1997 in the hospital. Exhibit P7 is the wound certificate issued by him dated 2.5.1997. Exhibit P8 is the case sheet concerning the treatment of the deceased. CRL.A.NOs.558 & 574/04 -9- Exhibit P9 is the mahazar prepared by the police for recovering Exhibit P8 case sheet. Exhibits P7, P8 and P9 were marked through PW8. In Exhibit P7, the history and the cause of injury is shown as “alleged torture from the step mother and found unconscious”. The wound certificate also reveals the injuries on the body of the child. PW9 was the Neuro Surgeon who treated the child. Exhibits P10 to P12 were marked through him. Exhibit P10 is the C.T. scan report. Exhibit P11 is the C.T. scan film and Exhibit P12 is the mahazar prepared by the police for the seizure of Exhibits P10 and P11. PW9, who was the Neuro Surgeon of Maulana Hospital has deposed that the patient was in comatose condition and there was no response to painful stimuli. He also stated that there was severe head injury and total brain damage. He noted that chances of survival of the child were remote. He has further deposed that the injury on the sole of the foot was one week old. The submental injuries were 3-4 days old. The burn injuries were two weeks old. He also stated that from her appearance, it can be inferred that the child was not given medical aid. All possible medical aid was given to the child in the Maulana Hospital, he submitted. In the cross-examination by the first accused, PW9 has CRL.A.NOs.558 & 574/04 -10- stated that in the reference letter from the Kottakkal Nursing Home, it was mentioned that the child was having fits. He also said, by the time the patient was brought for treatment in Maulana Hospital, brain function was completely lost. PW10 was the doctor of Government Hospital, Perinthalmanna who conducted the first post-mortem examination on 3.5.1997. Exhibit P13 is the post-mortem certificate. The final opinion regarding the cause of death is Exhibit P14 dated 8.9.1999. He has noticed 22 injuries on the body of the deceased child. He has also stated that all the injuries were ante-mortem. He also deposed that the skull was intact and the brain and meninges were otherwise normal. His final opinion regarding the cause of death was due to cardio respiratory failure, as a result of septicemia and multiple system failure due to extensive injury sustained. Later, the body was exhumed. The second inquest was conducted by PW13, the Tahsildar and he prepared Exhibit P4 inquest report dated 18.6.1997. PW11 was the doctor who conducted the second post-mortem examination. Exhibit P15 is the certificate dated 18.6.1997 given by the said doctor. Exhibit P16 is the final opinion regarding the cause of death, given on 10.12.1998. In Exhibit P16, the said doctor has stated CRL.A.NOs.558 & 574/04 -11- that no definite opinion as to the cause of death can be given. PW11 also gave Exhibit P17 report based on Exhibit P2 photographs. In the said report, he has noticed 23 injuries and has stated as follows: “ All the injuries are of different stages of healing. Based on the above findings on the photographs I am of opinion that the child had sustained multiple trauma of different ages on multiple parts on the body. These findings are suggestive of non accidental injuries (Battered Child Syndrome). “ 6. PW12 was the Village Officer who prepared Exhibit P18 site plan. The scene of occurrence is the house of CW1. PW14 was the Secretary of the Jama-Ath Committee, who produced Exhibit P19 certificate regarding the marriage between CW1 and the first accused on 3.11.1994. The said certificate was seized by the police under Exhibit P20 mahazar dated 23.5.1998. PW15 was the Head Constable, who recorded Exhibit P21 FI statement of CW1 on 3.5.1997 and prepared Exhibit P22 first information report, for unnatural death. PW16 was in charge of the investigation from 6.9.1998 to 2.6.1999. Earlier, the case was investigated by CW48, Mr.Basheer, during the period 1997-98. The inquest report Exhibit P1 was prepared by PW18. PW19 also was in charge of the investigation from 2.6.1999 to CRL.A.NOs.558 & 574/04 -12- 8.10.1999. It was he who arrested the first accused and conducted part of the investigation. The 2nd accused was arrested by PW16. PW17 laid the final charge sheet before the Magistrate's Court. PW20 was the Judicial First Class Magistrate, Parappanangadi, who recorded the confession statement of the second accused. 7. Based on the above evidence, both the accused were found guilty and convicted. The learned senior counsel Mr.M.K.Damodaran, who appeared for the first accused, the appellant herein, attacked the findings of the court below on various grounds. We heard learned counsel Mr.K.P.Mujeeb, who is appearing for the 2nd accused who filed the connected Crl.A.No.574/04. We also heard Mr.Jai George, learned Public Prosecutor for the State. 8. The learned senior counsel appearing for the appellant submitted that there is no evidence to connect the first accused with the crime. The learned senior counsel referred to us the principles laid down by the Apex Court, concerning the conviction of an accused based on circumstantial evidence. In the light of those well settled principles, the learned senior counsel attacked the findings of the learned Additional Sessions Judge in paragraph 25 of the judgment. CRL.A.NOs.558 & 574/04 -13- The said paragraph is extracted below for convenient reference. “25. From the evidence on record the prosecution has proved the following factors. 1. The accused and children were alone in the house. 2. They were leading a cloistered life. PW2 stated that CW1 never liked people frequenting that house. 3. Before CW1 left for Gulf countries PW2 took photographs of the family members and at that time there was no injury on the person of the child. 4. PW1 has seen A2 beating the child with a cane with impunity – it is seen that this is only a tip of an ice berg. 5. There were multiple injuries like burn injuries, an incised wound and contusions all over the body of the child including on the genitalia. 6. The injuries were inflicted on different dates and are not accidental injuries. 7. No medical attention was given to the child till it slipped into coma. 8. When the child was brought to the hospital there was total brain damage. 9. The photographs of the body shows the nature of the infected injuries which are heart rending and revolting. 10. A1 and A2 were the only adult members of the house. 11. The explanation given by the accused with regard to the injuries is highly improbable outslandish, grotesque and not supported by any facts and circumstances.” CRL.A.NOs.558 & 574/04 -14- 9. The learned senior counsel pointed out that the finding concerning circumstances 1 and 10 mentioned above, is plainly untenable. The learned counsel pointed out that apart from accused 1 and 2, a third man called Manu was also staying in the house. He referred to the deposition of PW1 and also the confession statement of the 2nd accused, which is produced as Exhibit P28. In the said exhibit also, the presence of Manu is mentioned. The learned counsel fairly admitted that the said document cannot be admitted in evidence and it was rightly not relied on by the trial court. The learned counsel also pointed out that the second circumstance taken as proved in this case, that the inmates of the house of CW1 were leading a cloistered life, is rendered based on no evidence. No one has spoken to that they were leading a life cut off from the outside world. The finding under point No.3 is also equally fallacious, it is submitted, as the photographs concerned were not produced. The learned senior counsel also submitted that the fourth point mentioned above relates to the second accused only. The findings under Point Nos.5 and 6 are illegal, submits the learned senior counsel for the reason that the learned Additional Sessions Judge failed to discuss as to which injury caused CRL.A.NOs.558 & 574/04 -15- the death of the child. The finding No.7 is that no medical attention was given to the child till it slipped into coma. The learned senior counsel pointed out that the child slipped into coma only on 20.4.1997. In fact, she was taken to the hospital at Kottakkal on 19.4.1997, as evident from the FI statement. Circumstance No.8 found by the court below is that the child was brought to the hospital with total brain damage. The learned senior counsel submitted that the said finding is also unsustainable, in view of Exhibit P10 scan report, which does not speak of total damage to the brain. The learned senior counsel who had occasion to see Exhibit P2 series photographs did not dispute the finding of the court below on point No.9 that the nature of the injuries is heart rending and revolting. The 11th point deals with the explanation given by the accused for the injuries on the body of the deceased. According to the learned Additional Sessions Judge, the explanation is highly improbable, outslandish and grotesque and also not supported by any facts and circumstances. The learned senior counsel pointed out that the said finding is also factually not correct. Most of the circumstances taken to have been proved by the learned Additional Sessions Judge are not, CRL.A.NOs.558 & 574/04 -16- in fact, proved and therefore, the appellant is entitled to the benefit of doubt and consequential acquittal, it is submitted. The learned senior counsel pointed out the following circumstances, which, according to him are consistent with the hypothesis of innocence of the first accused. 1) The child was taken by the first accused to the hospital at Kottakkal on 19.4.1997. The same would show that she has given treatment to the child even before she fell into coma. 2) PW2 has deposed that the first accused caused to pledge her gold ornaments to raise the funds to save the child. 3) PW2 has also deposed that when he was taking photographs, on the day previous to the date of departure of CW1 to Gulf, the children were found very happy in the company of the first accused. 4) The first accused though contacted CW1 on 20.4.1997, he came only on 25.4.1997 to see the child. This submission is made in the context of the case of the first accused that CW1 was harbouring doubts regarding the paternity of the deceased child and therefore he was ill-treating her. In the statement under Section 313, the first accused has pointed out that CW1 was present in the house all along and he used to beat the child and caused burn injuries using burning cigarettes. 5) No witness has spoken before the court that the first accused was ill-treating the deceased child. 6) PW1 in the cross-examination has stated that the first CRL.A.NOs.558 & 574/04 -17- accused was looking after the children as if they were her own children. 7) From the evidence of PW7, it is clear that the appellant/first accused was attending to the child through out when she was in the hospital. 8) The reference letter from the Kottakkal Nursing Home to Maulana Hospital which is part of Exhibit P8 would show that the child was suffering from fits. So, the possibility of the child falling down as a result of fits cannot be ruled out. 9) The varying ages of the injuries stated by PW9 would show that they were not caused on 19.4.1997 or 20.4.1997. 10. The learned senior counsel also pointed out that there is no evidence to show who, among the two accused, has caused the injuries to the deceased. According to him, there were three persons in the house. That is, Manu was also there, apart from accused 1 and 2. At any rate, according to the prosecution, there were two persons in the house where the child sustained the injuries. There is no evidence, whatsoever, to show who among the two inflicted the injuries. Therefore, the first accused is entitled to get the benefit of doubt. The non-examination of CWs 1, 2, 3 and 48 vitiates the case of the prosecution. The first accused lost the chance to cross-examine them and to prove her innocence. The doctor who examined the child CRL.A.NOs.558 & 574/04 -18- on 19.4.1997 and 20.4.1997 in the Kottakkal Nursing Home was not questioned by the investigating officers and he was not made a charge witness even, it is pointed out. 11. Apart from the above, the learned senior counsel also pointed out certain defects in the trial of the case. The cause of death as per the medical opinion is infection from wounds inflicted on the child. But the charge framed against the