IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 CRL.A.No. 1927 of 2004(A) ------------------------- SC.155/2000 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT/ ACCUSED --------------------- BINDU, D/O.VASU, MADAKKARA, KUPPAKOLLY, NENMENI, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.A.K.SRINIVASAN SRI.N.S.MOHAMMED USMAN SRI.A.S.BENOY RESPONDENT/COMPLAINANT: -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.127/96 OF AMBALAVAYAL POLICE STATION). PUBLIC PROSECUTOR, SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. --------------------------------- Crl.A.No.1927 OF 2004 --------------------------------- Dated this the 11th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is convicted for the offence under Sections 302 and 309 of the I.P.C and sentenced to undergo imprisonment for life for the offences under Section 302 of the I.P.C. and simple imprisonment for one year under Section 309 of the I.P.C. by the Additional Sessions Judge (Adhoc), Kalpetta in S.C.No.155/2000. Aggrieved by the said conviction and sentence imposed on her, this appeal is filed. The prosecution case in brief is as follows: 2. Appellant is the wife of Biju and they had a 7 month old son Vipin Raj. The husband of the accused pledged her gold ornaments to raise funds for the treatment of his elder brother. Later, when the brother received money from the Government for treatment, the pledged gold ornaments were not got released by her husband. Infuriated by that, the accused using Crl.A.No.1927/2004 2 a chopper killed her son by inflicting cut injury on his neck and other parts of the body. She inflicted an injury on the back of her neck. Thereafter, she cried allowed that her son was killed. The neighbours who came saw the accused lying on the 'Verandah' of the house soaked in blood. She was rushed to the hospital. On the way, she confessed to the persons, in the vehicle in which she was carried, that she killed her son and inflicted self injury to die. But, the accused survived the injury on getting medical treatment from the Medical College Hospital, Kozhikode. 3. A crime was registered based on the information lodged by PW1. PW11, Assistant Sub Inspector of Police, at the relevant time, has proved Ext.P1 First Information Statement given by PW1. The investigation was completed by PW12. PW13, Circle Inspector of Police, filed the final report before the Judicial First Class Magistrate's Court, Kalpetta. The learned Magistrate committed the case for trial by the Sessions Court which in turn was made over to the 1st Additional Sessions Court, Fast Track. Crl.A.No.1927/2004 3 4. The accused pleaded not guilty to the charges. From the side of the prosecution, PWs 1 to 15 were examined and Exts.P1 to 12 were marked. MOs 1 to 13 were also marked. The accused denied the circumstances put to her appearing in the prosecution evidence, under Section 313 of the Cr.P.C. No defence evidence was tendered. After hearing both sides, the learned Additional Sessions Judge found the accused guilty of the offences charged against her. 5. The learned counsel for the appellant submitted that the appellant was convicted without any evidence on record. No witness has spoken regarding the commission of the offence by the appellant. The circumstances proved in this case are not sufficient to enter a conviction against the accused. So, he prayed for acquittal of the accused. We heard the learned Public Prosecutor who supported the finding of the learned Sessions Judge. 6. We went through the deposition of all the witnesses. We notice that this is a case where conviction is entered based on no evidence. PWs 1 to 5 were neighbours who were examined to support the prosecution case. Among them, Crl.A.No.1927/2004 4 PWs 1, 3 and 4 were hostile. They have not whispered anything in their deposition to implicate the accused. Though PWs 2 and 5 were not hostile, they also have stated nothing to connect the accused with the commission of offence. PW8, Santha, who is the mother-in-law of the accused, was examined. But, at the relevant time when the incident took place she was away from the scene of occurrence. Therefore, her deposition also will not, in any way, help the prosecution. She has deposed nothing against the accused. Even if, she deposed anything, the same can only be hearsay, which is no evidence in the eye of law. The evidence of PW7, the doctor who examined the accused and gave Ext.P4 wound certificate, shows that the injury on the back of the neck of the accused cannot normally be self inflicted. 7. No doubt, the death of the Vimal Raj is homicidal as evident from Ext.P3 postmortem certificate proved through PW7. But, there is nothing on record to show that it was the accused who inflicted the fatal injuries on the child. Based on suspicion, no one can be punished. Having regard to the nature of the injury and the deposition of PW7, the possibility of somebody else inflicting the injury on the accused cannot be Crl.A.No.1927/2004 5 ruled out. Except the deposition of the investigating officers, there is nothing on record to suggest that the injury on the neck of the accused was self inflicted. In the absence of any evidence, we are not referring in detail to the deposition of the witness. We think, it would be a waste of time. We are satisfied that there is no evidence to convict the accused under Section 302 or under Section 309 of the I.P.C. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellant in Sessions Case No.155/2000 on the files of the Additional Sessions Judge (Adhoc), Kalpetta is set aside. Sentence against the appellant was suspended by this Court pending hearing of this appeal and she was released on bail. The bail bond executed by the appellant is cancelled and she is set at liberty. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps