IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 CRL.A.No. 1114 of 2004() ------------------------ SC.68/1998 of SESSIONS COURT, MANJERI CP.7/1998 of JUDL.FIRST CLASS MAGISTRATE'S COURT, PARAPPANANGADI .................... APPELLANT/ACCUSED: ----------- KUTTIMON @ HARINDRAN, CONVICT NO.600, CENTRAL PRISON, KANNUR. BY ADV. . SRI.M.R.JAYAPRASAD RESPONDENT: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.HEMA, JJ. ----------------------------------------- CRL. APPEAL NO. 1114 OF 2004 ----------------------------------------- Dated 22nd May, 2008. JUDGMENT Balakrishnan Nair, J. The appellant has come up in appeal, feeling aggrieved by his conviction and the sentence imposed on him in S.C.No.68/1998 by the Sessions Court, Manjeri. 2. The brief facts of the case are the following: The appellant and PW1 are husband and wife . They are cousins also. A child was born to them in the wedlock. The appellant was harbouring doubts regarding the paternity of the child, who was born in the 8th month after the marriage. On 28.7.1997 the appellant instructed PW1, his wife to prepare food for him. When he returned home at 7 p.m., it was found that the food was not prepared as instructed by him. PW1 told him that the child was crying and therefore, she could not cook food. Infuriated by the same, the appellant caught hold of the child by its legs, smashed its head on the cement floor of their residential hut and thereafter ran towards the nearby well to throw the CRA 1114/04 2 child into it. PW1 followed him crying, prevented him from throwing the child into the well and got released it from his clutches. Soon , the appellant made his escape. Hearing the cries of PW1, PW2, who was residing in the neighbourhood, came to her house. PW1 told PW2 that the child is not crying and it may be taken to the hospital. PW1 was very sick and she did not accompany the child. PW2 and others took the child to a doctor in the neighbourhood, who advised them to take it to the Medical College Hospital. The child was admitted in the Medical College Hospital at 9 p.m., and it succumbed to the injuries by about 10 p.m. During the night PW1 was asked to go to the Medical College Hospital to feed the child. But, on her way she was told that it is not necessary and therefore, she returned. When PW2 returned to her house from the hospital, PW1 was there. On questioning, PW1 revealed that the child sustained the injury because the appellant smashed its head on the cement floor of the house, holding the child by its legs. 3. In the next morning, accompanied by her elder sister and husband, PW1 went to the Police Station and lodged Ext.P1 FI Statement. The Sub Inspector of Police, Parappanangadi registered Crime No.201/97 for the offence punishable under Section 302 of I.P.C. The investigation was taken over by the Circle Inspector of Police, Tanur. The final report in the crime CRA 1114/04 3 was filed before the Judicial First Class Magistrate, Parappanangadi, alleging that the accused committed the offence punishable under Section 302 of the I.P.C. The learned Magistrate committed the case for trial to the Sessions Court, Manjeri, as per the proceedings in C.P.No.7/1998. 4. From the side of the prosecution Pws.1 to 11 were examined and Exts.P1 to P11 were marked. Material objects M.O.1 to M.O.4 series were also produced. The learned Sessions Judge questioned the accused under Section 313 of the Cr.P.C., pointing out the circumstances appearing against him in the evidence. He denied the allegations against him. The accused did not tender any defence evidence. After hearing both sides, the learned Sessions Judge found that the child died because of the head injury sustained on 28.7.1997. It was also found that the injury was inflicted by the appellant. Based on the said finding, he was found guilty of the offence punishable under Section 302 of the I.P.C and sentenced him to undergo rigorous imprisonment for life. The appellant was also directed to pay a fine of Rs.75000/- as compensation to PW1. Default sentence of five years rigorous imprisonment was also imposed. Aggrieved by the same, the accused has preferred this appeal, raising several grounds. 5. We heard the learned counsel Mr.M.R.Jayaprasad for the appellant and also Mr.S.U.Nazar, learned Public Prosecutor for the State. The learned CRA 1114/04 4 counsel for the appellant submitted that the prosecution has failed to prove any motive for the commission of the offence. There is no evidence to show that there was enmity between the husband and wife. It was also contended that since the wife failed to prepare food, in the sudden heat of passion there was a quarrel between them. There was no pre-meditated motive or preparation for the offence. During that quarrel the child fell down and sustained injury. The deposition of PW1 that the appellant smashed the child's head on the floor cannot be believed. The learned counsel also pointed out that when PW2 came running to the scene, PW1 did not tell her that the cause of injury to the child was the smashing of its head on the floor of the house by the appellant. Normally, if the allegation against the appellant was correct, PW1 would have divulged it to PW2 immediately when they met. Therefore, the version of PW1 lacks credence. It is quite unsafe to convict the appellant solely depending on her deposition, it is submitted. 6. The learned Public Prosecutor in answer submitted that when the incident is proved through eye-witnesses, it is not necessary to prove any motive to sustain the conviction. It is also submitted that lack of proof of enmity between the husband and wife is a point in favour of the prosecution to show that there is no reason for the wife to falsely implicate her husband. CRA 1114/04 5 The learned Public Prosecutor also pointed out that the nature of the injury sustained by the deceased is not one, which will be caused by falling down from the hands of PW1. The medical evidence regarding the injury would show that the flattening of the back side of the head will be caused, if only the head is smashed against any hard surface. So, the said medical evidence will support the case of the prosecution that the child sustained the injury as a result of smashing of its head on the cement floor. The learned Public Prosecutor also pointed out that the finding on this point rendered by the learned Sessions Judge is legal and valid. 7. We gave anxious consideration to the contentions of both sides. Since the offence is sought to be proved through the deposition of an eye- witness, we will first consider the third point raised by the learned counsel for the appellant, which is the main point, the decision on which will decide the fate of the case. 8. To decide this point, we feel that it is apposite to refer to the evidence of Pws.1, 2 and 3. PW1, the wife of the appellant and mother of the deceased deposed as follows: She is staying at Chettipadi. She is employed as a house-maid. The accused is her husband. He is also the nephew of her father. They got married on 28.4.1996. A male child was born to them on 25.12.1996. They were staying together in the house of the CRA 1114/04 6 accused at Chettipadi. Her son died on 28.7.1997 at Kozhikode Medical College Hospital at about 10.30 p.m. The incident which led to the death of the child was witnessed by her. The incident took place at about 7 p.m on 28.7.1997 in the house at Chettipadi, where she was residing along with the accused. The accused killed the child by smashing its head on the floor of the said house. On the date of the incident, the accused came to the house at about 4 p.m and asked her to prepare food. He came back by 7 p.m. Since the child was crying incessantly, she told the accused that she was not able to prepare food. Suddenly he became very angry, caught hold of the child by its legs, raised it above the head of the accused and its head was smashed by him against the floor of the house. The child cried once and thereafter became silent. She cried aloud. Thereupon the accused took the child and went to their well to throw it into it. She ran after him crying, caught hold of the child and rescued it. At the time of the incident PW1, the accused and her child alone were there in the house. There was a lighted lamp inside the house. After PW1 got the child released from the hands of the accused, she cried and persons in the neighbourhood came there. PW1 handed over the child to PW2, stating that the child is not crying and it should be taken to the hospital. PW2 along with others took the child to the hospital. PW1 did not accompany the child. After some time, somebody CRA 1114/04 7 came and asked her to go to the hospital to feed the child. Thereupon, she proceeded to the Medical College Hospital. By the time she covered some distance, she was told that the child is not having any problem and therefore, she returned. She came to know about the death of the child only by about 6 p.m on the next day. Regarding this incident she gave statement to the police. Ext.P1 is the FI Statement given by her. Thereafter, the police questioned her. She has shown the police the place of incident. The accused did not participate in the funeral of the child. At the relevant time, the child was aged about 7 months. Before the incident the accused was in the habit of picking up quarrel with her. He used to quarrel, alleging that the said boy is not his child. She identified the hawai chappals worn by the accused at the time of occurrence and which were recovered from the scene of incident. They were marked as M.O.1. The wrist watch worn by the accused was identified by her. It was marked as M.O.2. Though she was cross-examined extensively, the above statements made by her remain substantially not shattered. 9. PW2 is a relative of the accused. She stated as follows: The accused is the son of the brother-in-law of PW2. She deposed that she heard the cries of PW1 from her house at about 7.15 p.m on July, 28. At the relevant time she was working in her kitchen. On hearing the cries, she CRA 1114/04 8 rushed to the house of PW1. She saw PW1 coming, carrying the child. She was told that the boy is not crying and he must be taken to the hospital immediately. Thereupon, she along with another took the child to Dr.Radhakrishnan's hospital at Chettipadi. He advised them to take the child to the Medical College Hospital. Thereupon, PW2 along with her husband went to the Medical College Hospital. The doctor who examined the child told them that the child requires an operation. But, before any operation was performed, they were told that the child breathed its last. When PW1 handed over the child to her, PW2 saw a bulging behind the back side of the head of the child. She did not see from where the child was picked up by PW1. In both the hospitals she was asked by the doctors about the cause of the injury. She pleaded ignorance. She said she was not aware of the reason for the injury. At about 2 a.m she and others came back from the Medical College Hospital. At that time PW1 was there in her house. She asked PW1, what happened to the child. Thereupon, PW1 told her that her husband smashed the child on the cement floor of the house. To a specific question, PW2 answered that she does not remember to have seen the accused. When she was asked whether there was any problem between PW1 and the accused, she deposed that they came to reside there one month back and she was not aware of any problem between them. She resiled CRA 1114/04 9 from her earlier statement made before the police that she saw PW1 crying and she consoled her. The Prosecutor was permitted by the learned Sessions Judge to confront her with her earlier statement made to the police. Thereupon, she admitted that she had earlier stated that on a day when she went to her house, she found PW1 crying. She consoled PW1 and told that in a family there will be such problems and for that it is not proper to cry. 10. PW3 is another witness residing in the neighbourhood of the accused. She deposed before the court that she knew PW1 and the deceased child. She knew that the child died in the Medical College Hospital. On the date of occurrence she went to the house where the accused and PW1 were residing. She went there to give milk, at about 5 p.m. Thereafter she returned. At about 3 a.m on the next day she came to know about the death of the child. But, she was not aware of the cause of death of the child. PW1 told her that the child fell down. She heard cries from the house of the said witness. It was after sunset on the said date. On hearing her cries, she went to the house of PW1. By that time the child was taken to the hospital and therefore, she could not see it. At that time PW1 told her that the child fell down. But, the said witness did not tell her when the child fell down. When PW3 went there, she found PW1 sitting exhausted and crying. PW3 further deposed that there was no problem between PW1 and the accused. CRA 1114/04 10 She was confronted with her earlier statement made before the police, by the Prosecutor, as permitted by the learned Sessions Judge. Those previous statements were concerning the alleged quarrels between PW1 and the accused. She denied all the suggestions of having made statements to the police about their quarrel. 11. The point to be decided is whether the version of PW1 regarding the manner in which the child sustained the injury, should be believed or not. The learned Sessions Judge, who had occasion to see and hear the witness, after noticing that even at the time of giving evidence before the court she fainted during the middle of her examination, held that PW1 has spoken the truth. Even according to the defence there was no quarrel or ill- will between the appellant and his wife, PW1. Normally, therefore, there is no reason for her to falsely implicate her husband. The main circumstance relied on by the defence is the non-mentioning of the reason for the injury as smashing of the child by the accused, to the persons who came running on hearing the cries of PW1. She, for the first time, spoke about the said incident to PW2 late in the night and thereafter she gave that version before the police in Ext.P1 FI Statement. Going by normal human conduct, she would have told the real reason to the first person who met her, submits the learned defence counsel. So, it must be presumed that as a result of an after CRA 1114/04 11 thought, she has falsely implicated the accused. It is also suggested that the child must have sustained the injury as a result of falling down during the altercation between the husband and wife regarding non-preparation of food. 12. The history of the injury noted in the Medical Certificate is “fall”. It is not clear who gave that information. PW6, the doctor who spoke on this aspect, also deposed that the bystanders were not clear about the exact history of the injury. But, the said doctor would swear that the injury sustained by the child will not be caused by the mere falling down from the hands of the mother. The post-mortem examination was conducted by PW9. Regarding the ante-mortem injuries and the internal injuries found on post- mortem, the doctor has spoken as follows: “B. INJURIES (ANTE-MORTEM); 1. Multiple spotted abrasion over an are 7 x 3 cm transverse on back of middle of head 9 cm above root of neck, with flattening of the head on the back. INTERNAL: 1. Scalp contusion 30 x 9 cm transverse, involving entire back of head, extending from ear to ear, thicker on left half (2 cm). 2. Multiple areas of sub arachnoid and subdural bleeding on entire surface of brain.” In his cross-examination, PW9 deposed that if the injury was sustained CRA 1114/04 12 from a fall, there are chances of other injuries also being found on the body of the child. In his opinion, the child sustained the injury as a result of thrashing its head on a hard surface, as suggested by the prosecution. He also deposed that the external injury and the internal injuries in the head tally with the version of the prosecution regarding the history of the injury. When suggestion was put to the said witness that whether it is possible to sustain the injury on falling down, the answer was in the negative. He answered that it is unlikely to cause such an injury by the mere falling down from the hands of the mother. 13. Thus, the medical evidence fully supports the version of PW1 regarding the history of the injury. It is true, from the materials on record, it would appear that PW1 divulged the real reason for the injury only late in the night, for the first time to PW2. To the persons who gathered on hearing her cries at about 7 p.m., immediately after the occurrence of the incident, she did not say anything regarding the cause for the injury sustained by the child. The sudden action of her husband, that is, smashing her child on the floor and the next attempt made by him to throw the child into the well must have completely upset PW1. She was sick and she did not even accompany the child to the hospital. Having regard to the special circumstances in which she was placed, we cannot say that she should have reacted in a CRA 1114/04 13 particular fashion and if she does not conform to our notions as to how she should have reacted, she cannot be disbelieved on that ground. She was perplexed, upset, overtaken by anxiety and she was not sure about the magnitude of the injury caused to the child and its consequences. She was anxious regarding the safety of the child, for which she asked PW2 and others to take the child to the hospital. Further she never had an inkling that the child is going to succumb to the injury. So, if she did not disclose the reason for the injury to others immediately on meeting them, the same cannot be described as a strange conduct. Therefore, we are not inclined to disbelieve the version of PW1 for the reason that she failed to disclose to PW2 or others who came running, the real reason for the injury. 14. Though, PW2 does not fully support the prosecution, a portion of her deposition also corroborates the prosecution version. Further the history of the injury stated by PW1 is supported by the medical evidence also. 15. In view of the above, we are not inclined to accept the third contention urged on behalf of the appellant regarding the merits of the case. Since we believe the version of PW2 regarding the occurrence, lack of proof CRA 1114/04 14 regarding motive, which is the first point urged by the appellant is irrelevant. The 2nd point, namely, lack of evidence regarding ill-will between the appellant and PW1 is, in fact, a point in favour of the prosecution, as contended by the learned Public Prosecutor. It would show that PW1 does not have any axe to grind against the appellant. So, there is no reason for her to falsely implicate the accused. No other points were urged at the time of argument. In the result, the Criminal Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE. K.HEMA, JUDGE. Nm/