Ganesh 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** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943** **CRL.A NO. 719 OF 2016** **AGAINST THE JUDGMENT IN SC 431/2012 OF II ADDITIONAL SESSIONS COURT** ## **KOLLAM** **CP 243/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY,** ## **KOLLAM** **CRIME NO.1380/2010 OF Karunaagapally Police Station, Kollam** ## **APPELLANT:** **GANESH, AGED 36 YEARS, S/O.GOPALAKRISHNAN, KAVUNGAL HOUSE, (FROM DALAVA MADAM), PADANAYARKU ANGARA NORTH MURI, KARUNAGAPALLY.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.C.JAYAKIRAN SMT.MITHA SUDHINDRAN** ## **RESPONDENT:** 1. **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADDL.R2 D.PRABHAKARAN PILLAI, PRIJITH BHAVAN, MENAMPALLY, MUKUNDAPURAM P.O CHAVARA, KOLLAM DISTRICT** **ADDL.R3 THULASEEDHARAN PILLAI, ARIKKILEZHATHU THEKKATHIL, MUKUNDAPURAM P.O., CHAVARA, KOLLAM DISTRICT** **(ADDL.R2 AND R3 ARE IMPLEAD VIDED ORDER IN CRL.M.A NO.608 OF 2018 ON 16.11.2021.)** **BY ADVS.** **SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN SRI.S.K.ADHITHYAN SMT.I.S.LAILA SRI.P.MOHANDAS ERNAKULAM SRI.MUHAMMED IBRAHIM ABDUL SAMAD DR.K.P.SATHEESAN SR. SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.11.2021, THE** **COURT ON 25.11.2021 DELIVERED THE FOLLOWING:** ## **- 2 -** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------Crl.Appeal No.719 of 2016 --------------------------------------------Dated this the 25[th] November, 2021** ## **JUDGMENT** ## **Vinod Chandran, J.** **A sad tale of a woman divorced from her husband with two children shared between them. The elder son who was with the mother committed suicide which plunged the mother into depression and the younger son provided support and shelter to the unstable ailing mother; which alienated her from her own siblings. Her eventual death after a debilitating illness, visited the younger son with more misfortune, by way of an accusation of murder. The son is before this Court in appeal asserting that his mother succumbed to her various ailments and he has been wrongly accused of murder; by his mother's siblings with an eye on the property and wealth of the mother.** **2. The death of the mother occurred on 19.07.2010 and the son, the appellant herein was accused of murder. In the trial the prosecution paraded 25 witnesses and** ## **- 3 -** **marked 59 documents. The defence marked D1 to D5, the first two of which were contradictions and the other three, documents. The trial Court convicted the accused under S.302 and sentenced him to undergo imprisonment for life and pay a fine of Rs.1 lakh with default sentence. Learned Senior Counsel Sri P. Vijayabhanu instructed by Smt.Mitha Sudhindran appeared for the appellant and Sri.S.Sreejith, the learned Public Prosecutor appeared for the State. An impleading petition was filed by PWs 1 and 7, the two siblings of the deceased for whom arguments were addressed by the learned Senior Counsel Dr.K.P Satheesan.** **3. Sri. Vijayabhanu first took us through the charge-sheet and pointed out that a murder, in the fashion it has been described in the charge, is not possible. Strangulating to death, in stages or bit by bit between 14.07.2010 and 19.07.2010 has been medically opined to be impossible by the expert witnesses proffered in the case. The motive also is not validly proved since there was no reason for the son to kill his mother. The** ## **- 4 -** **allegation of the son having misappropriated the Fixed Deposits in the name of his mother stood disproved. There were two final reports in the above case; the first alleging motive, of the son intending to take the property of the mother sooner than it will be available for his disposal; on her natural death by virtue of a Will. Later, it was revealed that the mother herself had settled the properties in the name of her son, upon which a further investigation was carried out and a motive presumed of the son being anguished with the reservation of life interest made in the Settlement Deed. The prosecution was also ambivalent regarding the cause of death, which was earlier said to be ligature strangulation, then modified to death by piecemeal strangulation over a period of six days.** **4. PWs 1,4,5,7 and 9 are witnesses who were close** **relatives of the deceased and bent upon accusing the son, who was earlier with the father and returned to the divorced mother, only in her last days. They term the son's return, to be purely eyeing the wealth of the** ## **- 5 -** **mother. The son alleges, otherwise they would have appropriated that. The deposition of the said related witnesses with respect to what the deceased conveyed to them are full of inconsistencies. PW16, the Doctor who treated the deceased in the just prior days specifically spoke of the feeble undecipherable talk of the deceased whose brain had considerably diminished. The trial judge has, quite erroneously, taken these purported statements to be dying declarations. PW1 who made the First Information Statement (FIS) makes a number of embellishments in Court by way of apprehensions he nurtured; which he never spoke of in the FIS. The other related witnesses also have not spoken of the various allegations made before Court to the Police. PW15, the Psychologist who treated the patient spoke of the many ailments of the deceased and PW16, a Neuro Surgeon diagnosed the deceased with drug induced parkinsonism. PW17 who conducted postmortem of the deceased, though spoke of pressure applied on the neck indicating strangulation, it is only an opinion evidence, which need** ## **- 6 -** **not be overtly relied on. None of the signs as would be available on a homicidal strangulation, as delineated in Modi's Medical Jurisprudence and Toxicology, were available on the body; which have been clearly brought out in cross-examination. The learned Senior Counsel also relies on** _**Tomaso Bruno v. State of U.P 2015(7) SCC 178**_ **and** _**Nirmala v. State of Kerala [2006(1) KLT 761]**_ **to further buttress the above position.** **5. In any event, it is pointed out that the cause of death as spoken of by PW17, would also be naturally possible as is seen from the histopathology report available at Ext.P29. PW17 is not clear as to when the marks which led to the opinion of a homicidal death could have been caused. The prosecution case as to the cause of death by piecemeal strangulation, that too, external force applied on the neck bit by bit, has to be taken with, not a pinch of salt but a load of it. The entire evidence is fabricated at the behest of the siblings of the deceased, who had an axe to grind against the appellant. The appellant by looking after his mother** ## **- 7 -** **during the last days, won her affection and also the bountiful wealth she acquired over the years. Death by homicide, is not established medically and there is absolutely no evidence to accuse the son of murder.** **6. The learned Public Prosecutor pointed out that after discharge from the hospital, the deceased was in the exclusive care and company of the accused till her death on 19.07.2010. The accused had also been in the company of the mother, on the afternoon of 19.07.2010 as spoken of by his own wife and the landlady (PW14 and PW21). The accused hence should have an explanation for the injuries seen on the body of the deceased, specifically injury No. 2 and 3, which according to the Doctor was caused by external force. None had access to the mother, but the son and he was with her just before her death. The opinion of PW17 is categorical insofar as causing no difficulty in finding a death by homicide. The son has a motive which is evident from the transfer of the Fixed Deposits standing in the name of the mother to his own name. Though the Will executed earlier stands** ## **- 8 -** **effaced by the Settlement Deed; the motive alleged is the anxiety of the son to dispose of the property. This was not possible even after the settlement deed, by reason of the reservation of life interest. The motive stands further fortified by the closure and encashment of a Fixed Deposit. The conviction is proper and so is the sentence imposed.** **7. The FIS-Ext.P1 is by PW1 an elder sibling of the deceased. He informed the Police about the death of his sister whose body was kept at the Thaluk Head Quarter's Hospital, Karunagappally. He speaks of himself being one of eight siblings; five female and three males. He is the eldest and the deceased was staying to the east of his residence, in the property given to the deceased; presumably on partition. His sister had two children, elder of whom committed suicide, when he was 25. The 2[nd] son aged 27 was with the divorced husband of his sister and used to come to his mother after the death of his brother. The younger son was staying at Karunagappally, in a rented house, near his father's residence. For the** ## **- 9 -** **last six months the deceased was in the care of that son who agreed to look after his mother. On 12.07.2010 the deceased was admitted to Benzigar Hospital for old age ailments. She was discharged and brought home three days back. On 19.07.2010 at about 8.00 p.m she was taken to the hospital for treatment; where she was brought dead. The sister was being treated for mental illness. He also expresses apprehension, at his sister having been brought to the hospital, dead and said that she had no ailment to cause death. He had suspicion about the death; but aired no specific allegation against anyone.** **8. PW1 while examined in Court made a number of embellishments and aired a lot of apprehensions, none of which were stated in the FIS. He is said to have made Ext.P2 complaint to the Home Minister on 15.07.2010 wherein he raised the apprehension of threat to the life of the deceased. He says that the complaint was given since the neighbors and relatives who visited the deceased informed him that, his sister told them that her son caught her neck and threatened to kill her. He also** ## **- 10 -** **states that on 15.07.2010 he went to the Hospital and saw his sister, when she burst into tears and informed him that the accused would kill her. On being queried the reason, it was stated to be the desire of the accused to sell the property settled in his name, which settlement had a reservation of life interest on the settler-the mother of the accused. Soon after the interaction, the accused came to the room and immediately his sister stopped talking. But he says, she implored him to take her with him, for fear of death at the hands of the accused; which could only have been in the presence of the accused. PW1 also spoke to the accused, who asked him to mind his own business. PW1, then approached the Duty Doctor and requested that his sister not be discharged and on the same day he wrote to the Home Minister as per Ext.P2. It is his testimony that he got an acknowledgment of Ext.P2, by way of a communication, redirecting the complaint to the Superintendent of Police. The specific threats allegedly spoken of by his sister was never mentioned in the FIS and the Doctor at the Benzigar** ## **- 11 -** **Hospital also had a different version, as we will see later.** **9. It has to be pertinently mentioned that neither was anything produced to indicate that Ext.P2 was sent to the Home Minister nor was the acknowledgment received, produced. After narrating the sad life of his sister he also stated that she was employed and had amassed wealth as also obtained 55 cents of property as her rightful claim on partition. She had first executed a Will in the name of her living son, with the condition that the property would not be sold, without informing CW2 and CW6, two of her siblings. Then the son coerced the mother into executing a Settlement Deed, which PW1 and the other relatives encouraged her to execute, since he was after all the only legal heir. The sister executed such a deed on 24.09.2008, but reserving life interest to herself. The accused again created problems and made complaints against the siblings of his mother, to the Dy.S.P Karunagappally. The siblings agreed that the wealth of the sister can be given to her son, if the son** **- 12 -** **looks after her, which till then was done by PW1 and the other siblings. Quite an inconsistent stand, from the earlier one, of the siblings having encouraged the deceased to settle her property on the son, who was the only legal heir. Here, PW1 also speaks of a rider in the form of an obligation on the son to look after the mother, to have a smooth inheritance. On 02.10.2008 the documents pertaining to the assets (F.D's) of the mother were entrusted to the son and a receipt was issued agreeing to look after the mother. The said receipt was marked as Ext.P3, which was one signed by the mother and witnessed by the son. After 02.10.2008 the deceased was staying with CW8 (PW6) who was engaged by the accused to look after his mother. PW1 also narrates an incident when his sister lost consciousness and the house had to be accessed through the roof. She was taken to the hospital and was diagnosed as having hypoglycemia. After that the accused took his mother to his residence at Karunagappally and within six months she died. He made a number of allegations against the accused regarding the** ## **- 13 -** **ill treatment meted out to his sister. He also spoke of his sisters having informed him about the abject condition in which the deceased was maintained at the house of the accused. He says that he was informed of the death, directly from the THQ, Karunagappally and on going to the hospital, he saw a dark mark on the neck of the dead body and he immediately gave a request for postmortem. He also says that, when he saw the deceased last she was in a debilitating state and that on 02.10.2008 when she left with the accused she had no problem to walk and was healthy. Again on 22.07.2010, PW1 gave another complaint to the Home Minister which is produced as Ext.P5 and then to the Superintendent of Police; Ext.P4 dated 07.08.2010.** **10. In cross-examination he was specifically asked whether he had stated before the Police about the apprehensions; the deceased expressed to him on the 15[th] in the hospital, which he affirmed. But the same was not available in the FIS as confirmed by PW22, the Sub-Inspector who recorded the FIS. PW1 denied having** **- 14 -** **stated that the accused took his mother to his residence at Karunagappally, eleven months back which portion was marked from the 161 statement, as Ext.D1 contradiction. PW 24, the I.O who took the statement of PW1, in cross-examination, proved D1 statement of PW1. PW24, I.O also said that PW1 though stated about his visit to Benzigar Hospital, the date and time were not specified. PW1 reiterated in cross-examination that it was the hospital staff who informed him of the death and that he was so informed at 10 O' clock in the night. He also deposed that he reached the hospital at 10.30 p.m. On being confronted with the FIS given at 10 O' clock he refused to offer any explanation.** **11. In cross-examination, PW1 deposed that he** **told the Doctor at the Benzigar Hospital that the accused had assets totalling 1.5 Crores and hence she need not be discharged soon. When queried as to why the deceased did not inform PW1 or the other siblings, through telephone, about the sufferings at the hands of the accused; first he feigned ignorance, then he said it was informed** **- 15 -** **through telephone and again it was stated that the house did not have a telephone. The maid who was looking after the deceased PW6 said that the house had a telephone. In re-examination PW1 said, 15.07.2010 was the date on which the complaint was sent and he saw the deceased at the hospital two days before that, a clear departure from his statements in chief-examination. Obviously, as pointed out by the learned Senior Counsel, it was to clear an anomaly; since the deceased was shown to have been discharged from the hospital on 14.07.2010. The learned Senior Counsel would also alertly point out that the examination of the witness stretched into the afternoon and the re-examination was after lunch; the clarification clearly was one on being tutored. PW1 according to us is not trustworthy and is inimical towards the accused.** **12. PW3 to PW5 & PW7 are the neighbour and the three siblings of the deceased. PW3 is the neighbour, who is said to have visited the deceased along with PW4 and one Sobhana [CW4, PW4's daughter]. She deposes that the deceased was lying in water when she went to her house.** ## **- 16 -** **The deceased told her that she was hungry and the maid also refused to feed her. She also expressed threat to her life. When the maid was asked, she replied that only the food as permitted by the son can be given to the mother. The accused is said to have come to the house and in the presence of the visitors, shaken the hand of his mother in anger and abused the visitors. It was also stated by PW3 that earlier the deceased always wore 10 to 20 bangles on her wrist; quite preposterous and not spoken of by her own siblings. However, none of the statements made in chief-examination were made to the Police, as admitted by her, in cross-examination.** **13. PW4, a sibling of the deceased deposed that four days before the death, she saw the deceased at the hospital. She also says that she had gone to the hospital on being informed by PW5, who had visited the deceased in the hospital. When she went to the hospital, prepared to be a bystander, the deceased asked her to be taken to Chavara, expressing the fear that otherwise she will be killed. In the same breath, she also deposes that she** ## **- 17 -** **asked the accused to take the deceased to his house. She speaks of a visit made to the house of the accused along with CW4 & PW3. PW4 also stated about the deceased having spoken of denial of food and threat to her life. In cross-examination she admitted that it was the accused, who informed her about the death. She also admitted that the complaint given by the accused to the Police for return of F.D. receipts was made on the specific request made by his mother, the deceased. She also admitted having not spoken of what happened in the house of the accused, to the Police; in cross-examination.** **14. PW5 is the younger sister of the deceased, who also narrates the ill-treatment complained of by the deceased. She states that when she visited her sister at the hospital, her condition was very bad. PW5 says that it had worsened from what it was a month back when she visited her sister at the residence of the accused. She deposed that her sister told her about the violence meted out on her, by her son, the accused. The deceased complained of being denied with food and water and of** **- 18 -** **constant torture by the accused. It was only due to the mother denying his request to sell the property and purchase a house at Karunagapally. When the mother refused to allow that, when she was alive, the son was accused of having dragged her on the floor and strangulated her repeatedly. She also deposed that her sister lost her teeth when the accused pushed her down when she was proceeding to the toilet. PW23, I.O, however confirmed that PW5 has not spoken of such an incident to the Police. Ext.D2 marked from the S.161 statement of PW5 was proved through PW23 I.O. Ext.D2 was a statement that after PW5 returned from the residence of the accused her sister informed her over telephone that there was no problem and the accused also informed her that he will look after his mother. Obviously PWs 3, 4 and 5 made a lot of embellishments in Court which strangely the learned trial Judge took as dying declarations. In fact all the allegations were said to have been made by the deceased one month before, when PWs 3 & 4 visited her. PW5 does not say when she visited the deceased at her** ## **- 19 -** **home. The evidence of PWs 4 and 5 is that they went to the hospital four to five days before the death but on 14[th] their sister was discharged from the hospital and she died on the 19[th] . As for the allegations spoken to them a month back, none of these were stated to the Police by the witnesses. In fact PW3 was more loyal than the siblings, in having stated that the deceased earlier used wear 10 to 20 bangles. Neither PW1 or PW7 the brothers nor PWs 4 and 5 the sisters have any case of the ornaments of the deceased having been misappropriated by the accused.** **15. PW7, another brother of the deceased admitted that the fixed deposits of the sister were entrusted to him and the accused had given a complaint to the Dy.SP for return of the same. However, he admits that when he went to the Dy.SP's office, his sister came along with her son, the accused. Hence the complaint was not initiated by the accused and his sister was in the know of things; which PW5 another sister also admits. He also admitted Ext.P3 receipt. Further PW7 stated that he saw** ## **- 20 -** **his sister five days before discharge from the hospital when she spoke about the threat to her life. He also asserted that he told the Police about what his sister told him. PW23, the I.O who took the statement of PW7 categorically stated that no such statement was made to him. PW9 is another neighbour who was also the VicePresident of the NSS Karayogam. According to him, he saw the deceased in the hospital and her body was full of ulcers and her face was looking terrible. She implored him to ask her brothers to some how ensure that she was not discharged, which her son was insisting upon. It was also said that she spoke of being denied even water to drink at the residence of the accused, which was conveyed to the brothers. In cross-examination a specific suggestion was made whether he stated all these to the Police, which was affirmed; but those were not available. PW 8 was also one from whom statement was taken in 2015, on further investigation, raising valid suspicion about the veracity of his testimony.** **16. PW6 says that she was with the deceased for** ## **- 21 -** **two months at Chavara. She was also with the deceased at Karunagappally along with the accused and his wife and had left the residence just a week before the deceased was admitted to Benzigar Hospital. Her version is that the deceased was shifted from Chavara after the incident of the deceased falling unconscious inside the locked house, when she was alone. According to her it was the accused who rescued the deceased and later took her to Karunagappally. She speaks of one incident when the deceased fell and hit her face on the almirah at Karunagapally. She also admits to have informed the accused when PW3, PW4 and CW4 tried to take the mother of the accused from the house at Karunagappally. She speaks of the accused having had very cordial relationship with the mother and both the accused and his wife looked after the mother when she was not available. She asserts that after coming to Karunagappally not even once the mother had demanded to go back to Chavara. She speaks of the deceased lying down, after filling the bed with water. PW23, I.O also speaks of a water bed in the room** **- 22 -** **inhabited by the deceased. This explains the statement of the sisters and the neighbour that she was lying in water, when they met her at the residence of the accused. The deceased was bedridden and her body had bed sores; which is evident from the medical evidence. PW6 categorically said that the accused never ill treated his mother and helped her when the maid was not around. She also spoke of a phone in the house at Karunagappally. The picture we get from the evidence of this witness is that the mother was ailing and the son and daughter-in-law looked after her. It is also discernible that after the son came back to his mother, she got alienated from her siblings, who till then were looking after her and from the other facts, had a strangle hold over her wealth. After the son rejoined the mother, she was staying first at Chavara, her own house, near that of her siblings and after she fainted due to hypoglycemia the son took her to his residence at Karunagapally.** **17. PW2 is the Sub Registrar, Chavara, through whom was marked Ext.P6, attested copy of Will executed by** ## **- 23 -** **the deceased and registered on 05.01.2002. PW2 also produced and marked Ext.P7 registered Settlement Deed executed by the deceased on 24.09.2008. PW8 and PWs 10 to 12 are the Managers of different Bank-branches who were examined to prove Ext.P15 to Ext.18 certificates showing the transfer of F.Ds in the name of the deceased, to the name of the accused. However all these certificates indicate that the F.Ds were transferred in the name of the deceased herself. PW19 is the Manager of Federal Bank, Vallikkavu Branch to which the F.Ds in the name of the deceased in the Kollam District Co-operative Bank, Vallikkavu Branch were consolidated and transferred. Ext.P30 is the certificate which indicates amounts having been transferred to the joint accounts of the accused and his mother and renewed in the name of the mother and the son on** _**'former or survivor'**_ **status. Hence even when the amounts were transferred it was retained in the name of the deceased and the accused can raise a claim only after the death of the first name holder, who is his mother. The withdrawals said to have been made from closure of a** ## **- 24 -** **fixed deposit is on 20.12.2010, after the death of the mother. The certificates so produced from the banks, works against the motive projected by the prosecution since there has been no misappropriation of the amounts. The consolidation and transfer made as indicated in P17 and P30 is to the Federal Bank; obviously for reason of both the accused and his wife working in that bank; the accused in that branch too. The closure and withdrawal from one of the F.Ds was after the death. It cannot at all be said that the accused had attempted to appropriate the wealth of his mother.** **18. PW14 is the wife of the accused who though was declared hostile at the request of the prosecution; vouch for the good relationship and affection the accused had for his mother. She deposed that on the day of death both the accused and herself had gone to work. She was also pregnant at that time and was intermittently absent from work. Ext.P23, is a complaint submitted to the C.I Karunagappally, wherein the accused had complained against the harassment by his uncle; marked through PW14** **- 25 -** **and dated 31.07.2010. PW14 deposed that on the particular day when she and her husband went for work they had entrusted the key with the landlady, PW21 in the hope that the maid-PW6 who looks after the mother would arrive. In the afternoon the accused had come home to feed his mother and had gone back to work. PW21 landlady of the accused also stated about the cordial relationship between the deceased and accused. She also confirmed that in the morning the key was entrusted with her since they expected the maid to come back. In the afternoon, the accused took the key from her but did not return it. PW13 is the Manager of the branch in which the accused was working. He confirmed the seizure of the attendance register and the extract produced at Ext.P21, which indicates that the accused was on duty, on the 19[th] of July 2010. PW20 is the Chief Manager, Federal Bank Karunagappally Branch, who produced Ext.P31 extract, from the staff attendance register, which indicates that PW14, the wife of the accused was also on duty, on 19.07.2010.** **19. The deceased was suffering from depression** ## **- 26 -** **and also had multiple ailments as is evidenced from the records. The medical evidence in this case is not confined to the postmortem examination. Three doctors who attended to the deceased at various stages have been examined. PW15, is the Psychiatrist who was being consulted by the deceased. He speaks of the consultation having not been regular. Initially, the patient's brother was accompanying her and then, her son. She was diagnosed with mental illness, cholesterol and diabetes as is evident from Ext.P24, his prescription. Ext.P25 another prescription also indicates that the deceased was subjected to treatment for thyroid. He complained of no regular follow up having been carried out, despite her condition warranting that. In cross-examination it was brought out that he had seen the patient on 17.10.2008, 16.01.2009 and 06.03.2009. Again he had seen the patient on 14.08.2009 and 27.09.2009. According to him drug induced parkinsonism can be caused by the drugs administered for mental illness and even when such drugs are discontinued. He admitted that the patient was** ## **- 27 -** **suffering from schizophrenia and mood symptoms. He also deposed that when the patient commenced treatment, she was not suffering from parkinsonism and that a patient having parkinsonism can repeatedly lose balance and fall down.** **20. PW16, is the Neurologist who treated the deceased at the Benzigar Hospital and produced Ext.P26 case sheet. The patient was admitted on 08.07.2010 and discharged on 14.07.2010. There were bed sores detected on admission, which itself indicates that the patient was bed ridden. The diagnosis as revealed from Ext.P26 are: '** _**Type 2 diabetes mellitus, Parkinsons disease (?drug induced) dyslipidemia' (sic)**_ **('** _**dyslipidemia**_ **' is abnormally elevated levels of cholesterol and fats, increasing the chance of heart attack and stroke). The complications were noticed as pressure sores. PW16 spoke of the patient having been carried by two persons to the hospital at the time of admission; being non ambulant. Her brain was shrunk and though the patient was speaking, the speech was feeble and was not clear. Other than bed** ## **- 28 -** **sores, there were no injuries on the body. She was discharged because her condition was not capable of improvement and she could be looked after at home. None of the relatives objected to the discharge. But two days before discharge, a person who introduced himself as the patient's brother came to the Doctor and told him that the patient was financially sound and that she could be admitted for any period. The patient was not capable of narrating her discomforts. The Doctor opined in cross-examination that** _**'consolidation of the lungs due to pneumonia can cause hypoxia' (sic.)**_ **He also opined that in a case of death by strangulation there would be bleeding from the nose, mouth and ears and larynx will be fractured. He categorically stated in re-examination by the prosecution, that piecemeal strangulation cannot cause hypoxia and only continuous strangulation at one instance could lead to hypoxia and death. The symptoms suggested by the prosecution was opined as not necessary in every case of strangulation. Modi's was admitted to be an authoritative text. It was also deposed that the** ## **- 29 -** ## **patient on discharge had 100% perfect lungs.** **21. PW17 is the Doctor who conducted the postmortem examination. Almost 18 injuries were noticed on the body. Brain was soft and oedematous with patchy areas of subarachnoid haemorrhage on left tempero parietal area, on tip of both frontal lobes and on tip of left occipital lobe. The cause of death was stated to be** _**'hypoxic encephalopathy following constriction force around the neck'.**_ **It was confirmed that the patient could have been bed ridden and non ambulant. According to the Doctor the patchy areas of consolidation in right lung is suggestive of pneumonia and is in conformity with Ext.P29** **histopathology report. It was also opined that subarachnoid hemorrhage can cause pneumonia. It was** ## **opined so:** _**'A constriction to the neck, would obstruct the blood vessels prevent flow of blood to the brain at least for 3-5 minutes. It can produce permanent hypoxia to the brain. This can cause subarchnoid haemorrhage and edema. All the contusions were dark brown in colour, so they would have occurred about a minimum of 48 hours prior to death. The patchy areas which are dark red in colour and so they could have occurred in minimum of 24 hours prior to death. After subarchnoid haemorrhage the**_ ## **- 30 -** _**patient would be traumatic semi conscious or unconscious. When the patient is in a morbid stage, very ill, the rate of digestion would be retarded. Injury No.2 and No.3 can be due to mechanical violence using ligature. The hypoxic effect of brain following the injuries in the neck are sufficient to cause, in the ordinary course, to cause death. It is not necessary that larynx fracture should be present in all cases of neck strangulation. Classical symptoms of asphyxia is also not necessary in all such cases. 'Taylor's Medical Jurisprudence' is an authentic text.'**_ **22. PW23 is the Addl.Sub Inspector, who prepared Ext.P33 Inquest Report. He also speaks of a maxi having been taken into custody as per Ext.P33, the Inquest Report, which does not show such seizure. There was a discoloration seen on the back of the right ear. He took the statements of PW2, PW3, PW5 & PW6. In cross, he admitted that the Inquest report was prepared after examining the body of the deceased, which was laid on the back and on the face. There was no injury visible on the neck; which a naked eye could detect. As was earlier noticed, many of the statements made by PW3 & PW5 were confirmed by him as not having been stated before the Police. In re-examination, questions were put by the** ## **- 31 -** **prosecution based on the statements made under S.161, which is a wrong procedure, since there can be no corroboration based on S.161 statements.** **23. PW24 & PW25 are crucial insofar as they having carried out the investigation and filed Final Reports, one after the other. PW24, who first carried out the investigation, speaks of having recorded the statement of the Doctor, who carried out postmortem examination and then added S.302 IPC. He arrested the accused on 08.09.2010. In cross-examination he said that the motive for the crime was the apprehension of the accused that he would loose the property standing in the name of the mother. PW24, was unaware of the settlement deed executed by the deceased in favour of the accused. According to him, in the afternoon of 16.07.2010, while the wife of the accused was asleep, the accused strangled his mother using the maxi worn by her. The strangulation blocked the blood flow to the brain, causing death as per the final report filed by him. PW24, said that there was no complaint received from PW1 as forwarded from the** ## **- 32 -** **Office of the Home Minister or from the Superintendent of Police, nor did PW1 say anything about it. The postmortem report indicated strangulation by soft ligature and it was assumed that the crime was carried out using the maxi worn by the deceased. He also asserted that the maxi was forwarded to the Court. He stood by the earlier version, as disclosed in the first final report filed. PW1 did not state before him that the deceased told him about the accused having throttled his mother. But PW1 stated that the deceased spoke of her son having hit her on the face and dragged her by the legs. PW1 did not say about any marks seen on the neck of the dead body, to the police. PW24 also said that the room, inhabited by the deceased had only 180 cms. width, contained a water bed and if anybody falls, they are sure to hit their head on the wall.** **24. PW25 filed the final report, on which the present charge has been framed. He verified the records and again questioned witnesses and detected the settlement deed also. According to him, the cause of** ## **- 33 -** **death was similar to that found by the earlier I.O. But, the maxi allegedly seized by the Police and forwarded to the Court could not be traced out. Hence he left out the ligature material from the charge-sheet. As per his investigation, between 14.07.2010 to 19.07.2010 the deceased was tortured, which was confirmed from the case sheet of the Doctor at Benzigar Hospital and the postmortem examination report. He confirmed that PW17 told him that one could be killed if there is piecemeal strangulation and that it is possible that if the strangulation was carried out bit by bit, between 14[th] and the 19[th] , death could occur as stated in the charge-sheet. Surprisingly, this opinion was not elicited from the Doctor, who was examined before Court. In crossexamination, on being queried, PW25 stated that he does not know how the strangulation was carried out and as per the inquest report there is no injury on the neck, visible to the naked eye. To a specific question regarding the complaints made by PW1 of the accused having committed the crime in collusion with his father,** **- 34 -** **step-mother and wife, it was stated that on investigation no such allegations were proved.** **25. At the risk of repetition it has to be said that there were two final reports in the case, showing the ambivalence of the investigating agency. PW24 was the first I.O who stated the motive as being that of the anxiety to sell the property belonging to the mother, which normally would devolve on the accused only on her death, as per the Will. PW24 was unaware of the settlement deed executed subsequently by the mother. The I.O who took over the investigation, PW25, seized the settlement deed and spoke of the same motive, but based on the reservation of life interest made in the deed. On motive, we do not find any discrepancy in the prosecution case, since the foundational allegation is of the accused wanting to sell the property of the mother, which she refused to accede to during her life time. We hasten to add that we make this observation only because there are two final reports and we may not be taken as having found the motive to be established. Further, motive, as is** **- 35 -** **trite, if established can only be one of the links in the chain of circumstances which together should form an unbroken chain, establishing the guilt of the accused. The lack of motive does not absolve the accused, if the other circumstances proved, establish the guilt of the accused beyond reasonable doubt. Likewise the mere existence of a motive does not establish the crime against the accused, especially when the case is based on purely circumstantial evidence.** **26. As for the establishment of motive the prosecution further relies on the conduct of the accused in having transferred the F.Ds in the name of the mother, to the name of the accused and the evidence of PW1, PWs3 to PW5 and PW7. The transfer of F.Ds, the evidence of the prosecution itself, shows that they were transferred from one Bank-branch to another and remained in the name of the mother with the son surviving to the proceeds, only after the death of the first name holder. The closure and disbursement of the amounts in one F.D has also been established to be after the death of the mother. The** **- 36 -** **learned Senior Counsel has a plausible explanation insofar as the accused having lost his job and being hard pressed for money due to the criminal proceedings; despite the wife being employed.** **27. Now we come to the evidence of PW1, PWs3 to 5 and PW7 regarding the motive as spoken of by them. The siblings of the mother were looking after her after the elder son died and admittedly the F.Ds were in the custody of PW7, a brother. After the suicide of the elder son, the mother succumbed to depression and admittedly had commenced psychiatric consultation. When the younger son, who was with the father, had grown close to the mother, the mother had executed a Will (Ext.P6) in the name of the son dated 20.01.2004 and registered in 2008. Subsequently a settlement deed dated 24.09.2008. Obviously this indicates the mind of the deceased mother; to ensure that the property devolves on her re-united younger son. Though it is stated by PW1 that it was the siblings who persuaded the deceased to settle the properties on her son; he being the only legal heir, they** ## **- 37 -** **refused to part with the F.Ds standing in the name of their sister. It was later to the settlement deed that the F.D receipts were handed over to the sister on a complaint made before the Dy.SP. At the Dy.SP Office the son came along with the mother to receive the F.D receipts. The receipt was executed by the mother acknowledging the handing over of the F.D receipts. There is no recital of the son having accepted the obligation to look after the mother; definitely a condition insisted upon by the siblings of the mother. The manner in which the siblings left their sister to live with the son, on being forced to give up their hold over the F.D receipts; we are sorry to say, disclose their rather cavalier and mercenary attitude. There are also inconsistencies in the** **evidence of all these witnesses which we have specifically referred to while discussing the testimony of each of them. While PW1 would assert that the son had raised the complaint for the F.Ds, PW5 admits that it was with the knowledge of the sister that the complaint was initiated.** ## **- 38 -** **28. We also see that the learned Sessions Judge has overstepped, insofar as treating the deposition of the related witnesses; specifically of the narration of what the deceased told them, as dying declaration under S.32(1) of the Evidence Act. This was coupled with the motive alleged, of the lust of the accused for the property. The motive as we found, is just aired but not established. Neither by the F.D receipts produced nor the Bank Managers examined or the testimony of the related witnesses. We found the related witnesses to be not believable by reason of the inconsistencies in their testimony before Court, most of which they failed to state to the Police at the first instance when their statements were taken. The sequence of events, as discernible from the evidence, also discredit the said witnesses. The mother joined the son even prior to the receipt produced at Ext.P6 dated 02.10.2008; which was on a complaint initiated by the mother itself against her siblings. The testimony of the witnesses regarding the narration of the miseries of the accused are exaggerated.** ## **- 39 -** **Even if some credence is given to the allegation of denial of food, the same has to be analysed in the context of the ailments suffered by the deceased; which requires strict diet control. In fact, even PW1 admits that the deceased had to be shifted to the hospital unconscious from the house; which was diagnosed as hypoglycemia. Coupled with this is the schizophrenia and mood disorders, which the Consultant Psychiatrist, PW15, has diagnosed the deceased with. We find the testimony of the motive alleged and the narration of the allegation made by the deceased against her son to be not believable; especially in the context of most of these having not been stated by the witnesses to the Police when their statements under S.161 were recorded.** **29. The two final reports also differ in the allegation of how death was caused. PW24 asserts that the death was caused by ligature strangulation and that is the opinion of PW17, the Doctor who conducted postmortem examination. PW24 also asserts that a maxi was seized, which was the ligature used, to strangle the victim and** ## **- 40 -** **the same was produced before Court. There is no such ligature produced in Court and PW25 the I.O who took over the investigation later, categorically submits that he could not find such a ligature. This has to be looked at in juxtaposition with the assertion of PW24 that he had produced the maxi in Court; presumably from where it was found missing. However, there is no seizure mahazar produced to evidence the seizure of the ligature nor is a property list produced to prove the production before Court. As to the cause of death, PW25 maintains that it is due to piecemeal strangulation that the deceased died and he asserts that PW17 the Doctor who conducted postmortem examination told him that it is possible. Pertinently when PW17 speaks of ligature strangulation, there is no question put to her as to whether death could be caused by strangulating a person bit by bit over a period of five days; which also offends commonsense. Very interestingly, PW24 on being queried about how he came to the conclusion of ligature strangulation deposes before Court that the accused confessed to him; clearly** ## **- 41 -** **inadmissible in trial; which the learned Judge ought not to have recorded. PW25 on being queried as to how piecemeal strangulation could lead to death, defiantly speaks of that being within the knowledge of only the accused. The investigating officers, both of them, floundered and acted with prejudice and prejudgment; the examination of motivation of which, is beyond our ken.** **30. The medical evidence is supplied by PW15 to PW17. PW15 the Psychiatrist speaks of the deceased having suffered from mental ailments and also troubled by high level of cholesterol and diabetics. She was diagnosed as having schizophrenia and mood syndromes and developed parkinsonism in the course of the treatment. He also spoke of patients afflicted with parkinsons being unstable on their legs and prone to frequent falls. PW16 is the Doctor, who treated the deceased just prior to her death. He deposed that the patient though was speaking, her speech was feeble and was not clear. She had bed sores all over her body and was not ambulant when she came to the hospital. She was discharged because there** ## **- 42 -** **was no chance for her condition to improve. He asserts that her lungs were perfect when she was discharged. But, admits that if pneumonia is acquired from the hospital it would be slow to develop. In cross-examination he opined that there was no indication of the deceased having been starved of food or denied water. But her speech was not decipherable, obviously due to multiple ailments. There were no external injuries on her body except bed sores as revealed from Ext.P26 case sheet. He also stated that there were contusions on her body which was due to the frequent falls; which PW16 opined is common to patients afflicted with parkinsons. The brain of the deceased was shrunk considerably and it was opined that this could be due to either age or the side effects of certain medicines. The patient was not able to speak of her discomforts and it was categorically opined that consolidation of lungs due to pneumonia can cause hypoxia and hypoxia caused by pneumonia could lead to subarachnoid hemorrhage. Here Ext.P29, assumes relevance, which is the histopathology report. The histopathology** ## **- 43 -** **examination as per Ext.P29 shows the following diagnosis.** _**Lungs-Pneumonia and consolidation Liver & spleen - chronic venous congestion Kidney-Thickened blood vessels & Oedematous interstitium**_ _**Heart-Thickened blood vessels Brain:- Dilated and thickened blood vessels**_ **31. PW17 is the Doctor who conducted the postmortem examination and the opinion was that the postmortem findings are consistent with death due to '** _**hypoxic encephalopathy following constriction force around the neck' (sic)**_ **. It was also opined that the patient could have been bed ridden and non ambulant and the lungs suggest pneumonia, in conformity with Ext.P29. It was also her opinion that hypoxia can cause pneumonia as also subarachnoid hemorrhage. From the expert opinion of the two Doctors, PW16 and 17, is not clear as to whether pneumonia caused hypoxia and subarachnoid haemorrhage or** _**vice a versa**_ **. In this context the authoritative text has to be looked into and the decisions of the Hon'ble Supreme Court.** _**32. Tomaso Bruno**_ **(supra) was a case of strangulation wherein the medical evidence was found to** ## **- 44 -** **be lacking, insofar as the prominent symptoms of strangulation, which were conspicuously absent. Their Lordships referred to Modi's Medical Jurisprudence and Toxicology, 24[th] edition, the extracted portions of which** **are extracted here under:-** _**“(b) Appearances due to Asphyxia.—The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.**_ _**(ii) Internal Appearance.—The neck and its structures should be examined after removing the brain and the chest organs, thus allowing blood to drain from the neck to the blood vessels. There is extravasation of blood into the sub-cutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. Sometimes, there is laceration of the sheath of the carotid arteries, as also their internal coats with effusion of blood into their walls. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. These should be carefully dissected in situ as they are difficult to distinguish from**_ ## **- 45 -** ## _**dissection artefacts in the neck.”**_ **33. Their Lordships also extracted from the evidence of PW10, the Doctor therein who stated that though the symptoms of strangulation put to him could be present in cases of strangulation it is not imperative. Their Lordships however found the conspicuous absence of symptoms of strangulation coupled with other circumstances militating against the prosecution. Here too we extract the following from the evidence of PW17:** _**Subcutaneous tissues need not always be affected in ligature strangulation. It depends on the face that is used as the particular area. Even if the subcutaneous tissues are not affected the underlying muscles can be affected (Court question). Neck structures including bone, cartilage and soft tissues were intact and normal. The ligature mark was found only on the back of neck. What are the signs and symptoms of strangulation?(Q) Bleeding from nose, ear and mouth may not be there in all cases. It is not common in all cases. I have not seen bleeding from the ear in any case (A) Did you see any lividity on the face?(Q) No. That also may not be there in all cases.(A) I did not find any ecchymos. I did not find any fracture of hyoid bone. Inactive of larynx was also absent. It is not correct to state that the death in the case had not occurred to strangulation. Thyroid cartilage, cricoid cartilage, tracheal rings were found normal without any injury or fracture.**_ ## **- 46 -** **We find the conspicuous absence of the symptoms, as found by their Lordships in** _**Tomaso Bruno**_ **(supra) militating against the prosecution case, here too. There is no clarity as to the cause of death and it cannot be said from the totality of the evidence led, that the death was a homicide.** **34. Admittedly, the deceased, the mother of the accused suffered through her life by the divorce, separation from one son, the suicide of another, presumably overbearing siblings and eventually from debilitating illness. The mother was taken under the wings of the surviving son, definitely before Ext.P3 came into existence. Ext.P2 is a receipt issued by the deceased to her brother (PW7) acknowledging the F.D receipts which were held by PW7. The separation from the siblings can be safely presumed from that point despite the assertion to the contrary by the relatives. The relatives also have no consistent stand; PW1 having stated before the Police that it was eleven months back and then changed it in Court as six months prior to** ## **- 47 -** **death. PW5, one other sister of the deceased speaks of the accused having taken the mother eleven months' back. Even before that obviously the mother was under the care of the son as admitted by the siblings; staying at her own residence in Chavara under the care of PW6, a maid appointed by the accused and then at Karunagapally. PW6 spoke of the cordial relationship between the accused and his mother and there was no ill-treatment complained of by the deceased nor had she demanded to go back to her siblings. The motive as alleged by the prosecution has not been proved and the evidence led by way of F.D receipts, is to the contrary. The ill-will of the siblings towards the accused is very clear and we have already held that those witnesses are not reliable. There is no scope for finding any dying declaration from the testimonies of PW1, PWs3 to PW5 and PW7. The accused though had the custody and care of the mother it is brought out that she was suffering from debilitating illness and there was no scope for improvement of her medical condition. There is also no proof of homicide** **- 48 -** **beyond reasonable doubt by reason of the sketchy medical evidence. The prosecution has also been shifting their stance; first alleging ligature strangulation and then piecemeal strangulation. The evidence of the Doctor who conducted postmortem examination speaks of ligature strangulation; but with ligature marks only on the back of the neck. No ligature has been recovered and the I.O PW24 who conducted first investigation speaks of his knowledge, as to cause of death, arising from the confession made by the accused; clearly inadmissible. As far as the second I.O, PW25, he asserts piecemeal strangulation to be the cause of death; having been informed to him by PW17 Doctor. The evidence of PW17, however, does not support such a cause and no question has been asked to her about the cause as spoken of by PW25 which also is the charge framed against the accused. In the totality of the facts and circumstances as also the debilitating medical condition of the deceased, we find no reason to require an explanation from the son about the cause of death of the mother. We are unable to** **- 49 -** **sustain the judgment of the trial Court and we acquit the accused honourably for complete lack of evidence to prove death of the deceased by homicide and not at all, the involvement of the accused.** **The appeal stands allowed acquitting the accused. The accused shall be released forthwith from custody; if not wanted in any other case and if released on interim bail, the bail bonds shall stand cancelled.** **Sd/K.VINOD CHANDRAN, Judge** **Sd/C.JAYACHANDRAN, Judge** **jma/Sp**