Bijumon @ Mukesh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **CRL.A NO. 537 OF 2006** **AGAINST THE JUDGMENT DATED 22.02.2006 IN SC NO.1049 OF 2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV, THIRUVANANTHAPURAM.** ## **APPELLANT/ACCUSED:** **BIJUMON @ MUKESH, S/O SADASIVAN, ANAMARAMVALICHA PUTHUVAL VEEDU, KANJIRAMKULAM, THIRUVANANTHAPURAM.** **BY ADV SRI.V.S.BABU GIREESAN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 CIRCLE INSPECTOR OF POLICE, POOVAR POLICE STATION, KANJIRAMKULAM. BY ADV.C.N.PRABHAKARAN, SENIOR PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 15.07.2024, THE COURT ON 22.07.2024 DELIVERED THE FOLLOWING:** 2 Crl.A.No.537 of 2006 ## **C.S.SUDHA, J.** **----------------------------------------------Criminal Appeal No.537 of 2006 ------------------------------------------------Dated this the 22nd day of July 2024** ## **J U D G M E N T** This appeal under Section 374(2) Cr.P.C. has been filed by the sole accused against the judgment dated 22/02/2006 in S.C.No.1049/2002 on the file of the Court of Session, Thiruvananthanpuram challenging the conviction entered and sentence passed against him for the offence punishable under Section 304 Part II IPC. 2. The prosecution case as stated in the final report is as follows:- Sowmya, the deceased girl, aged about eight months is the second child of the accused. Being a girl child, the accused was not happy with the child. Added to that the child had umbilical hernia. Due to the aforesaid reasons, the accused used to get irritated and beat the child whenever she cried. On 24/11/2000 at 09:30 a.m. while CW1, the mother of the deceased and the wife of 3 Crl.A.No.537 of 2006 the accused was away, and when the child started crying, the accused committed murder by smothering and throttling her. Hence, the accused is alleged to have committed the offence punishable under section 302 IPC. 3. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as S.C.No.1049/2002. On appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 15/07/2005, the trial court framed a charge for the offence punishable under Section 302 of IPC, which was read over and explained to the accused to which he pleaded not guilty. 4. The prosecution examined PWs.1 to 15 and got marked Exts.P1 to P14 and MO.1 series. Exts.D1 to D3 were marked on the side of the accused. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the 4 Crl.A.No.537 of 2006 evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence of culpable homicide not amounting to murder and hence sentenced him under Section 304 Part II IPC to undergo rigorous imprisonment for a period of 7 (seven) years. The accused was granted set off u/s.428 Cr.P.C. 7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not. 8. There was no representation for the accused on several posting dates and hence this Court by order dated 15/06/2023 5 Crl.A.No.537 of 2006 appointed Advocate Sruthi N.Bhatt as _Amicus Curiae_ for the accused. Heard the learned _Amicus Curiare_ and Advocate C.N.Prabhakaran, the learned senior Public Prosecutor. 9. Initially crime no.220/2000, that is, Ext.P7 FIR was registered by PW14, the then Head Constable, Kanjiramkulam police station under section 174 Cr.P.C. based on Ext.P6 FIS of CW1, the mother of the deceased and the wife of the accused. Investigation revealed the commission of the offence punishable under Section 302 IPC and hence the section was altered and Section 302 IPC incorporated. PW13, the then ASI, Kanjiramkulam prepared Ext.P5 inquest report and Ext.P3 scene mahazar. PW15, the then CI, conducted the investigation and PW9, the Circle Inspector who thereafter took charge, verified the investigation and submitted the charge sheet before the court. 10. As per the final report and court charge the accused committed the offence punishable under Section 302 IPC. Therefore, the question that arose for consideration before the trial court was whether the offence disclosed by facts and circumstances 6 Crl.A.No.537 of 2006 established by the prosecution against the accused, was murder or culpable homicide amounting to murder. The trial court found evidence lacking to find the accused guilty of the offence of murder and he was found guilty of having committed culpable homicide not amounting to murder falling under the third limb of Section 299 IPC, that is, causing death by doing an act with the knowledge that he is likely by such act to cause death. Hence he has been sentenced under Section 304 Part II IPC to rigorous imprisonment for seven years. 11. To prove the death of the child, the prosecution relied on Ext.P1 post-mortem certificate and the testimony of PW4, the then Associate Professor, Forensic Medicine, Medical College, Thiruvananthapuram who conducted the post-mortem examination of the body of deceased Sowmya. According to PW4 the following ante-mortem injuries were noted by her:- _“1. Cresentic abrasion 0.4x0.2 cm vertical, on the chin, 0.8 cm to the right of midline._ _2. Three abrasions 0.4x0.2 cm, 0.5x0.1 cm, and 0.5x0.2 cm, 1.3 cm, and 1.7 cm apart, oblique on the right side of face the last outer one being 2 cm in front and just above the angle of jaw._ 7 Crl.A.No.537 of 2006 _3. Abrasion 2x0.2 cm, oblique, on the right side of face, its outer end being 1 cm above the angle of jaw._ _Three contusions 1x0.3x0.3 cm and 0.8x0.3x0.4 cm and 1x0.3x0.3 cm, the former two in front and the latter third behind 0.5 cm apart, situated over an area 2x2 cm on the right side of face, the back one being 1 cm above the angle of jaw._ _4. Contusion 1x1x0.5 on on the left side of face 1.5 cm outer to left ala of nose._ _5. Contusion 0.5x0.5x0.5 cm on the left side of face 2.5 cm outer to left comer of mouth._ _6. Contusion 2x0.5x0.5 on on the right side of lower border of lower jaw 1 cm below ear lobe._ _7. Contusion 0.5x0.5x0.3 cm on the right side of front of neck 2.5 cm to the right of midline and 1cm below the lower jaw._ _8. Contusion 0.5x0.5x0.3 cm on the left side of under chin 1 cm to the left of midline._ _9. Crecentic abrasion 0.5x0.2 cm on the left side of root of neck 1 cm to the left of midline and just above collarbone._ _10. Crescentic abrasion 0.5x0.2 cm on the right side of root of neck 0.5 cm to the right of midline and just above collarbone,_ _11. Cresentic abrasion 0.5x0.1 cm, on the front of neck, 1.5 cm to the left of midline and 3 cm above collarbone._ _12. Abrasion 0.5x0.3 cm on the left side of front of neck, 2.5 cm to the left of midline and 3 cm below angle of jaw._ _Flap dissection of neck was done under bloodless field. Copy to Subcutaneous and other tissues of neck including cartilage and bones were intact._ _13. Contusion 2.5x0.5x0.5 cm of the front of right shoulder 1.5 cm below the tip of collarbone._ _14. Two contusions 1x1x0.5 cm each, 0.5 cm apart on the front of right thigh 1 cm below the groin._ _15. Contusion 3x2x0.5 cm on the front of right thigh 5 cm above knee._ _16. Contusion 1.5x1x0.4 cm on the front of left thigh 2.5 cm below_ 8 Crl.A.No.537 of 2006 _groin._ _xxxxxxx_ _Opinion as to cause of death:_ _Death was due to the effects of blunt force injuries sustained over face and neck.”_ 11.1. PW4 deposed that injuries 1 to 6 in Ext.P1 could be caused by smothering; injuries 7 to 12 by throtlling; injuries 13 to 16 by beating with hands and that the injuries noted in Ext.P1 are not consistent with a fall. According to her, death was caused due to the effect of blunt force injuries sustained over the face and neck by the child. The abrasions seen on the neck and face could be caused by pressure of the nails and the contusion on the face and neck could be caused by applying pressure with fingers. She further deposed that the effect of the injuries on neck and mouth could affect respiration as well as circulation of blood to the brain and that the effect of the injuries to face and neck were sufficient in the ordinary course of nature to cause death. Nothing was brought out to discredit the testimony of PW4 or the entries in Ext.P1 certificate. The testimony of PW4 coupled with Ext.P1 certificate 9 Crl.A.No.537 of 2006 shows that the death of the child was in fact a homicide. 12. Now the question is was it the accused who committed the homicide. CW1 the mother of the deceased and the wife of the accused who gave Ext.P6 FIS could not be examined as she committed suicide before the matter came up for trial before the court. PW1, the uncle of CW1 had not seen the incident. He was present at the time of inquest. He deposed that the accused was not happy with his second child as she was a girl and that he had heard that the accused used to beat her. PW2 and PW3, the immediate neighbours of the accused, though had not actually witnessed the act of the accused causing death, testified regarding the circumstances leading to the incident. Both of them deposed that they had heard the child crying on the morning of the said day and the accused scolding her and demanding/ordering her to stop crying. PW2 deposed that on the said day by about 09:30 a.m. he had heard the child crying, at which time the accused was present at home. When the child started crying he saw the accused beating her. When the child did not stop crying the accused closed her 10 Crl.A.No.537 of 2006 mouth with his palm. He did not see anything other than that. Thereafter, he did not hear the child crying. After some time the accused came running to him with the child in his arms. PW2 gave the child some black coffee and instructed the accused to take the child to the hospital. When he saw the child, there were abrasions on the neck and chin. PW1 further deposed that at that time CW1 was not at home and that she had gone to buy firewood. 12.1. PW3, yet another neighbour, whose house is situated about 5 to 6 meters away from the house of the accused deposed that the incident took place at about 09:30 a.m. On the said day she heard the child crying and the accused scolding her and asking her to stop crying. After sometime she saw the child being taken to the hospital at which time there was nobody else other than the accused at home. 12.2. PW5, supports the case of the prosecution that on the date of the incident CW1 had come to her house for the purchase of firewood. PW6, the owner of a pan shop situated near the house of the accused, deposed that on the date of the incident at 11 Crl.A.No.537 of 2006 about 08:45-09:00 a.m., he had seen CW1 going for purchasing firewood. About half an hour later CW1 returned and at that time he saw the accused walking through the pathway situated on the northern side of his shop with the child in his arms. Seeing this, CW1 dropped the firewood on the ground and ran after the accused. Thereafter, by afternoon he came to know about the death of the child. 12.3. PW7 is the driver of the taxi in which the child was taken to the hospital. PW7 deposed that on 24/11/2000 while he was passing through the Balaramapuram road after going for a trip to Nellimood, the accused gestured to stop the car, which was at the road in front of Vijaya hospital. He stopped the car and as requested by the accused took him to the SAT, Medical College, Thiruvananthapuram. The accused with a child in his arms was accompanied by a woman also. He had no prior acquaintance with the said persons. He took them to the Medical College Hospital, where the child was admitted. Later on he came to know that the child died. It was in his taxi the accused and CW1 had gone to the 12 Crl.A.No.537 of 2006 police station to give the statement. He also deposed that after postmortem, the child was taken back home in his car. 13. PW12, a then panchayat member, deposed that on being informed of the incident, he had gone to the Medical College Hospital. He is an attestor to Ext.P5 inquest report. PW12 also deposed that at the time of inquest he had noted injuries on the neck and cheeks of the child. When he reached the hospital CW1, the accused, the mother of CW1 and other relatives were present. 14. It is true that there are some discrepancies and inconsistencies in the testimony of the prosecution witnesses. However, they are not quite material and has not gone to the root of the case. A pertinent aspect that needs to be noted is that when the prosecution witnesses were examined, the accused had no case that he was not present in the house with the child. Not even a suggestion is seen put to the prosecution witnesses that he was not present in the house or that he was away. However, the accused when questioned under Section 313 Cr.P.C. took up a case that he was not present at his residence. According to him when he came 13 Crl.A.No.537 of 2006 home, he found the child unwell at which time CW1 was not at home. He took the child to Vijaya hospital where treatment was given. Thereafter he was directed to take the child to Medical College Hospital. He took the child in PW7's car to the Medical College Hospital. The doctor examined the child. He was asked to wait outside. Thereafter, post-mortem was conducted. He took the body of his child home and made all necessary arrangements. The police then came and took him to the police station where he was detained for two days. He had seen PW12 and his wife in a compromising position. He warned PW12 from coming to his residence. PW12 then beat him up and also threatened him. He told his wife about the same. His wife is then alleged to have replied that she cannot leave/desert either the accused or PW12. Thereafter, his wife committed suicide. 15. This explanation given by the accused appears to be apparently false because the evidence on record clearly shows that the accused was alone with his eight month old child at the time of the incident. When such evidence has come on record it was the 14 Crl.A.No.537 of 2006 duty/responsibility/liability of the accused to explain the circumstances in which the young child sustained the several injuries referred to in Ext.P1 certificate. The child was seen alive last in the company of the accused. Section 106 of the Evidence Act says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. No plausible explanation or explanation for that matter has been given by the accused for the injuries seen on the child referred to in Ext.P1 post-mortem report. 16. It is true as pointed out by the learned counsel for the accused/appellant that the child had been first taken to Vijaya hospital, which hospital appears to be situated near the residence of the accused. However, no record was produced by the prosecution relating to the same. It was pointed out that the first version regarding the cause of injuries sustained by the child would have been mentioned by the accused or his wife to the doctor at Vijaya hospital, which was a crucial piece of evidence. But the prosecution failed in producing the same and hence this throws 15 Crl.A.No.537 of 2006 doubt on the prosecution case, argues the counsel. It would certainly have been ideal had the said records also come before the Court. It was submitted by the learned Public Prosecutor that the child was dead by the time she was taken to the hospital. No treatment was given and as directed by the hospital authorities, the child was taken to the Medical college hospital and hence the reason why no documents was produced regarding the same. The said lacuna has in no way affected the prosecution case because the evidence on record clearly shows that the chain of circumstances resulting in the death of the child. 17. It was pointed out by the learned counsel for the accused/appellant that the explanation given in Ext.P6 FIS is given by none other than the mother of the child that the child had accidentally fallen from the hand of the accused resulting in death. Ext.P6 FIS could not be proved as the maker of the same is dead. FIS can be used only for corroborating or contradicting its maker. Since the maker, that is, CW1 is dead, the statements in Ext.P6 FIS cannot be used in this case. It was also pointed out that the injuries 16 Crl.A.No.537 of 2006 noted are consistent with a fall. This is incorrect because PW4, the doctor has clearly deposed that the injuries caused were not consistent with a fall. This is quite clear from the nature of injuries seen noted in Ext.P1 post-mortem certificate. 18. The trial court was right in holding that firstly of Section 300 IPC, that is, the act by which the death was caused was done into the intention of causing death, is not attracted as no evidence has come on record regarding the said aspect. The trial court went on to hold that the evidence on record also does not indicate that the act was done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. According to the trial court, when the child started crying, the accused at the spur of the moment must have closed/shut her mouth with his palm/hand causing death. This finding I am unable to agree. 16 ante-mortem injuries were noted on the child. When an adult person uses force/pressure on the neck or tightly closes the mouth of a young child 8 months old, any sane and reasonable man would be quite aware that the injuries caused would be sufficient in the 17 Crl.A.No.537 of 2006 ordinary course of nature to cause death. Under thirdly of Section 300 IPC, the intention to cause death is not necessary, what is necessary is only the intention to cause such bodily injury sufficient in the ordinary course of nature to cause death ( **State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382** ). It appears to me that thirdly of Section 300 IPC is attracted in this case. However, no appeal has been filed by the State and hence I am not going into the said question any further. In the aforesaid circumstances, I find no reasons to interfere with the conviction and sentence passed by the trial court under Section 304 Part II IPC. The appeal is liable to be dismissed and hence I do so. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ak