Edathatta Narayanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **CRL.A NO. 809 OF 2016** **AGAINST THE JUDGMENT IN SC 430/2007 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST WOMEN AND CHILDREN, THALASSERY UNDER POCSO ACT, KANNUR** **CP 46/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANNUR** ## **APPELLANT:** **EDATHATTA NARAYANAN, C.NO.127/16, CENTRAL PRISON & CORRECTIONAL HOME, KANNUR** **BY ADV K PUSPAVATHI (STATE BRIEF)** ## **RESPONDENT:** **STATE OF KERALA** **BY ADVS.** **ADVOCATE GENERAL OFFICE KERALA SMT.S.AMBIKA DEVI, ADDL.CGSC(CG-151)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 809 of 2016 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------Crl.Appeal No.809 of 2016 ------------------------------------Dated this the 28[th] February, 2022** ## **JUDGMENT** ## **Vinod Chandran, J.** **A 14 year old girl was found hanging in her house; whether it was by suicide or homicide, is the vexing question in this appeal. The accused is the uncle of the deceased, who is alleged to have attempted rape, inside the kitchen of her house, when she fell and became unconscious. The accused, according to the prosecution, for fear of disclosure, hanged her on the wooden rafter over the fire place. The accused was found guilty of the offences punishable under S.302 & 449 IPC and acquitted under S.376 IPC. He was sentenced to undergo life imprisonment under S.302 and RI for six years under S.449 IPC. A fine of Rs.50,000 and 25,000/- were imposed respectively with default sentences.** Crl.A No. 809 of 2016 3 **2. Adv.Pushpavathi.K., learned Counsel, argued for the appellant and Smt.S.Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children] argued for the State.** **3. It was urged on behalf of the accused that there was absolutely no circumstance incriminating the accused, brought out by the prosecution. The circumstances attempted to be brought before Court does not establish unequivocally the guilt of the accused and there is no unbroken chain inculpating the accused. Learned Counsel relies on** _**Satish Nirankari v. State of Rajasthan [(2017) 8 SCC 497]**_ **and** _**Chandrakant Chimanlal Desai v. State of Gujarat [(1992) 1 SCC 473]**_ **to further buttress her contention. The learned Special Government Pleader seeks for sustaining the conviction and sentence imposed. It is pointed out that though a crucial witness could not be examined before Court by reason of her death, the presence of the accused is established and so was he seen last,** Crl.A No. 809 of 2016 4 **together with the deceased. The scientific evidence also inculpates him.** **4. An autorickshaw driver, PW1, made the FIS before the Police Station. According to him at around 2'O Clock in the afternoon he was coming back from a hire, when in front of the L.P. School, one Panchu was seen crying aloud. He stopped the autorickshaw and saw the deceased child hanging inside the kitchen of the residence of Pushpaja. The child, daughter of Pushpaja, was studying in the IX[th] Standard. Panchu is no more and could not be examined before Court. A number of witnesses examined before Court spoke of Panchu having told them that the accused was seen leaving the house of Pushpaja. We place absolutely no reliance on that evidence for reason of it being hearsay.** **5. PW1 spoke in tandem with the FIS and also spoke of Panchu having told him that the accused was seen at the residence of Pushpaja when she was going to take water and when she came back, he was seen** Crl.A No. 809 of 2016 5 **leaving the house. It is very pertinent that PW1 did not speak of such narration by Panchu to the Police, when he made the FIS. PW2 witnessed Ext.P2 inquest report and again spoke of the narration of Panchu, having seen the accused in Pushpaja's house. PW3 is the maternal uncle of the deceased, who only heard about the death of his niece at 4 O'Clock in the evening. The accused is the husband of another sister of PW3. Though he saw the child hanging, he does not speak of the narration of Panchu. According to him he suspected homicide because the legs of the child were touching the floor. He also spoke of the victim having been born to his sister before her marriage. The victim was staying along with her mother and her husband, who was not her biological father. PW3 categorically stated that the victim was not suffering from any mental depression.** **6. PW4 is the President of the Irikkoor Grama Panchayat, who does not have any direct knowledge of the incident. PW5 is the grandfather of the friend of** Crl.A No. 809 of 2016 6 **the victim. He deposed that the victim used to remain at his residence when there was no School and her parents were away at work. The victim, at his residence, used to play with his granddaughter or see the television along with her. He deposed that the victim, on the crucial day, was in his residence up to 1.30 p.m. and later was seen hanging in the kitchen of her residence. He is said to have gone to the victim's house on hearing the cry of Panchu. PW5 deposed that his daughter told him that the victim was taken from their residence by the accused. PW5's daughter was not examined before Court.** **7. PW6 came to the scene of occurrence on hearing the cries of PW2. He went home for lunch and while he was proceeding back to work, he saw the accused. He also asked the accused as to where he was going. The accused replied that he is going for work. While he was coming back after lunch, he heard the commotion from the residence of the victim. In cross-examination he was asked whether he had told the** Crl.A No. 809 of 2016 7 **Police about the incident having occurred after the accused was seen by him. He affirmed the same, but the I.O denied it.** **8. PW7 is the photographer, who took the photos of the deceased victim. PW8 is the witness to Ext.P5 scene mahazar. PW11, the Village Officer, who prepared Ext.P7 scene plan. PW14 witnessed Ext.P11 mahazar, by which the rope around the victim's neck was cut and handed over to the Sub Inspector by the Doctor who conducted the postmortem. PW15 witnessed arrest of the accused as per Ext.P12. PW16, the Sub Inspector of Police, who carried out the initial investigation in the crime registered as an unnatural death and PW17, the Head Constable, who brought the accused to the Police Station. PW18 is the I.O and PW19, the Officer who requested S.164 statement to be taken of Panchu and recorded statements of CW9 and CW13. PW19 specifically said that PW6's house was not marked in the scene plan. PW6 also did not speak of where exactly he saw the accused on the crucial day.** Crl.A No. 809 of 2016 8 **PW20 is the Magistrate who took the S.164 statement.** **9. PW9 is the mother of the witness, who again only spoke of what Panchu narrated to her about the incident. According to her the victim was staying along with her mother and used to be with her only on the weekends. The victim used to come home on Fridays and if the mother is not available, she used to go to the house of PW5. The mother, in the witness box, did not toe the prosecution line and denied having stated to the Police that, on the previous day she saw the accused, who asked her about the arrival of the victim, upon which she told him that her daughter will come positively on the next day, to collect examination fees. The contradiction was marked as Ext.P6 and she was declared hostile. PW10 is a tapper, who claims to have acquaintance with the accused, who was also a tapper. They were both tapping in adjacent plots on a day in December, 8 years back. The accused left early by around 11-11.30. He asked the accused why he is leaving early and it was replied that he had** Crl.A No. 809 of 2016 9 **to see a person.** **10. PW12 is the Doctor who conducted the postmortem. On the opinion as to the cause of death, it was deposed that findings are not conclusive of death due to single hanging suicide. The Doctor relied on the postmortem examination and the examination of the scene of occurrence. According to her, injury No.3 as shown under the heading 'C.other injuries' indicates the head of the victim having impacted with a hard object, thus rendering her unconscious. Further, under the heading 'B. Neck findings' it is indicated that 'there was another vague pressure abrasion on the back and left side of neck', which indicates a horizontal ligature application on the back and left side of neck, prior to hanging. The Doctor on the above findings in the postmortem examination, inconsistent with the conclusion of a suicide by hanging, expressed opinion that there was a possibility of presence of another person in the scene of crime, who first attempted to strangle her and then** Crl.A No. 809 of 2016 10 **hanged her. The Doctor had also verified the crime scene, which revealed the body having hanged from a wooden rafter tied at one end by a plastic wire and the other end by a thin and transparent plastic rope. The wooden rafter was one which would break easily and there were other wooden rafters, which were strong. If it was a suicide, the person would have chosen a stronger rafter to hang and it also reveals a hurried attempt to give the impression of a suicidal hanging. The Doctor also opined that the body was seen with the knees touching the floor. This leads to the conclusion that the entire body weight was not on the rope and there would also occur injuries on the knees, which were totally absent. The evidence of PW12, the Doctor who conducted the postmortem, is clear insofar as the death being in all possibility caused by homicide and not suicide.** **11. PW13 is the Assistant Director of the Forensic Science Laboratory. He examined 7 sealed packets sent from the Court. Item No.8(a) to 8(d) were** Crl.A No. 809 of 2016 11 **cellophane tape prints of the right hand fingers, right palm, left hand fingers and left palm of the accused. They are marked as MO11 series. These cellophane tape prints contains particles of husk, in addition to particles of dust and epithelial cells similar to item No.1, marked as MO7. Item No.1, items 5(a) and 5(b) contain coconut fibers and husk particles. The attempt of the prosecution was to show that the rope on which the victim was hanging was handled by the accused. In cross-examination the Assistant Director admitted that if coconut shells are handled, it would leave husk particles on the hands. It was also admitted that a rubber tapper, who collects latex using coconut shell will have husk particles in his hands if the shells are new. There is a possibility suggested by the defence that the husk particles could be available if a person's hand is rubbed with a rope.** **12. PW13's evidence or Ext.P10 report do not by itself inculpate the accused, merely because there** Crl.A No. 809 of 2016 12 **were husk particles detected on the hands of the accused. The suicide or homicide was by a rope and the so called scientific evidence of husk in the hands of the accused, would not, on that alone, prove the crime having been committed by the accused. In this context the arguments raised by the defence regarding the circumstances surrounding the arrest of the accused have to be noticed. PW16 is the SI who registered the FIR-Ext.P13. He immediately went to the scene of occurrence, arranged for the photos to be taken and with the help of the witnesses took down the body. Ext.P2 inquest report was prepared and since suspicion was raised against the accused, PW17 Head Constable was deputed to observe the accused. He arranged for the postmortem, took the statements of the witnesses and on 17.12.2006 interacted with the Forensic Surgeon. By Ext.P11 mahazar, MO7 rope tied around the neck of the victim was taken into custody. On the same day he directed PW17 to get the cellophane tape prints.** Crl.A No. 809 of 2016 13 **13. The cellophane tape prints from the hands of the accused, were seized by Ext.P14 mahazar dated 17.12.2006. What is stated in Ext.P14 mahazar is that the cellophane tape prints taken by the Head Constable was seized, when the same were produced by the said Head Constable. There is nothing to indicate that the cellophane tape prints were in fact taken from the hands of the accused, but for the testimony of PW17. PW17 also speaks of the cellophane tape prints having been taken from the accused after he was brought to the Police Station and then surrendered to the Sub Inspector at 5.30 p.m. If the prints were taken within the Station, definitely a mahazar could have been prepared by the person who took the prints and the same could also be witnessed by another; at least another police man in the station. The taking of the prints is shrouded in mystery.** **14. The accused was arrested on 18.12.2006 at 11.00 a.m as evidenced by Ext.P12, which again raises serious doubts about the prints having been taken from** Crl.A No. 809 of 2016 14 **his hands on the previous day, especially when there was no mahazar prepared for such prints being taken by pressing cellophane tapes on the hands of the accused. The property list by which the cellophane tape prints were sent to the Court was produced as Ext.P20(b), which is dated 17.12.2006 and was received in the Court only on 03.01.2006. There is no explanation as to why the prints were not sent immediately after they were taken on 17.12.2006 as evidenced from Ext.P14 mahazar.** **15. At best the prosecution has proved that the accused was in the vicinity. The presence of the accused in the residence of the victim, where the hanging was occasioned, has not been established. True, the witness, who raised the allegation and repeated it to many of the other witnesses, could not be examined by reason of her death. Even her S.164 statement cannot be relied on, since it could only be used for corroboration and contradiction. Further, the daughter of PW5, who is said to have seen the accused taking** Crl.A No. 809 of 2016 15 **the child victim from their house was also not examined. But for the apprehensions raised by the mother, who also turned hostile on an important aspect, of enquiry made by the accused regarding the arrival of the victim and the hearsay spoken of by many of the witnesses, there is nothing to inculpate the accused.** **We find absolutely no reason to sustain the sentence and conviction of the accused. We acquit the accused and he shall be released forthwith if he is not required in any other crime.** **Sd/K.VINOD CHANDRAN, JUDGE** **Sd/C.JAYACHANDRAN, JUDGE** **sp/jma/05/03/2022**