Back
2022 Supreme(Ker) 76
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, C.JAYACHANDRAN, JJ.
Teena, W/o.Baiju – Appellant
Versus
State Of Kerala – Respondent
Crl.A No.917 of 2020
Decided on : 16-02-2022
Advocate Appeared:
For the Appellant : SRI.P.K.VARGHESE, SMT.M.B.SHYNI, SMT.SANJANA RACHEL JOSE
For the Respondent: SMT.AMBIKA DEVI S., adv
Point of law: Confession - Admission is relevant and it has to be proved before it becomes evidence.
Headnote:
Penal Code, 1860 – S.302 and 309-Offence of Murder – Murder of son by mother – Matrimonial Distressing matrimonial life- Extra judicial confession - Mandatory compliance of S.164(2) to (4) – Power under S. 311 of Criminal Procedure Code, 1973 – Whether there was over zealousness on the part of the court, in summoning the witness for re-examination under S.311 Cr.P.C, when there was no such prayer by the prosecution.
Finding of the Court:
It is very pertinent that the accused who made the confessions do not at all speak of a smothering. There can be no inference that a mother, who administered sleeping pills to the son and slit the veins of his wrist would then smother the child – Doctor who conducted the post-mortem, PW15 categorically stated that death was caused by smothering and neither by reason of the cut injury found on the wrist nor by imbibing any poison, ruling out the cause of death by administration of sleeping pills. The prosecution has failed to bring home the guilt of the accused and establish it beyond all reasonable doubt. We admit to a lingering suspicion which cannot take the place of proof beyond all reasonable doubt – Other suspicions also, regarding the cause of death of the child by smothering; reasonable hypothesis. The purchase and administration of sleeping pills also has not been established. We are unable to sustain the conviction found by the trial court, which is based on mere surmises and conjectures.
Result : Appeal allowed
JUDGMENT
JUDGMENT :
Vinod Chandran, J.
'God could not be everywhere and therefore he made mothers'; wrote Rudyard Kipling. But quiet paradoxical and tragic, is the story projected before us of a mother having murdered her nine year old; an only child. When a woman kills her progeny there is more than that meets the eye; which sensitivity, often, the investigators lack.
2. The charge against the accused was that due to marital discord, to wreck vengeance against her husband, the accused killed her son and for reason of her distressing married life, she attempted suicide at around 10'O clock on 30.04.2016. The accused administered sleeping pills (Nitrest 10mg) to her unsuspecting child, and while he was dozing, slit the vein on his left hand with a razor blade. The child woke up and he was smothered with a turkey towel. Later the accused consumed pesticide and with the very same razor blade, slit the vein on her right hand with the intention of committing suicide. The prosecution examined twenty seven witnesses, marked Exts P1 to P32 documents and produced Material Objects MO1 to MO5. The defence examined DW1 and the Court suo motu under S.311 Cr.P.C, summoned two witnesses; one for re-examination. The case sheet of the accused at the Hospital was marked as Ext. C1. The trial court found the accused guilty of the offences charged under S.302 and 309 of the IPC and sentenced her to life and six months simple imprisonment respectively, together with a fine under S.302 and a default sentence.
I. THE CONTENTIONS
3. Sri.P.K.Varghese, learned Counsel who appeared for the accused, argued that the trial court's findings are quiet contrary to the evidence led; which in fact exonerates the accused from the offence of murder. The reliance placed on the alleged dying declaration is impermissible. In any event Ext.P28 as spoken of by PW27 says nothing about cause of death; as evidenced from the post-mortem examination. PW15, the Doctor who conducted the post-mortem examination and marked Ext.P12 report clearly stated the cause of death as smothering. The alleged dying declaration does not speak of smothering. Further death having not occasioned to the declarant, the declaration does not qualify as one under S.32 of the Evidence Act. It cannot be treated as a confession, since the provisions under S.164(2)&(4) have not been complied with. The husband, PW8, entered the house after opening the locked front door, to see his wife lying supine and bleeding in the front hall. He did not look around for the son and only later, when a neighbour enquired, he went in search of the boy. PW8 was careful to create an alibi by asking his neighbour as to whether his wife was available in the house; before he entered his own house. While the prosecution relies heavily on the admission of the accused, regarding administration of sleeping pills and cutting the vein on the boy's hand; there was no investigation carried out regarding the smothering. If the accused admitted to the other acts, ordinarily, it would have been spoken of by the accused; if, she smothered the child. The extra judicial confession is suspect and so is the medicine strip recovered by Ext.P6. PW 4, the witness did not see the accused handing over the strip and he also does not remember where he signed the mahazar; at the house or the Police Station. The recovery by Ext.P6 was on 12.05.2016, before which on 01.05.2016, the just next day of the occurrence, the entire house was examined with a fine tooth-comb, by the I.O as evidenced from Ext.P5 scene mahazar. The recovered strip contained a half tablet, while Ext.P32 chemical examination report speaks of an empty strip having been received for examination. The learned Counsel would heavily rely on the evidence of DW1, the Psychiatrist who examined the accused at the hospital from which hospital Ext.C1 case sheet was issued.
4. The learned Counsel attacked the manner in which the trial court invoked the power under S.311; specifically pointing out G
