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 Ground D in th