Remani @ Sujatha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 12TH DAY OF DECEMBER 2017/21ST AGRAHAYANA, 1939 CRL.A.No. 1007 of 2011 (A) AGAINST THE JUDGMENT IN SC.NO.736/2010 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK COURT I), THRISSUR, DATED 31-12-2010. AGAINST THE ORDER IN CP NO.40/2010COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS II, THRISSUR. CRIME NO.182/2010 OF TOWN WEST POLICE STATION , TRISSUR APPELLANT: ACCUSED: REMANI @ SUJATHA, C.NO.41, WOMEN'S .PRISON, KANNUR. BY ADV. SRI.MANJU ANTONEY RESPONDENT: COMPLAINANT: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN & CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.12.2017, THE COURT ON 12.12.2017 DELIVERED THE FOLLOWING: **“C.R.”** # **A.M.Shaffique & P. Somarajan, JJ.** # **---------------------------------------------------Crl.Appeal No.1007 of 2011** **---------------------------------------------------Dated this the 12[th] day of December, 2017** ## **JUDGMENT** ## **P. Somarajan, J.** The appellant, a lady aged 43 years, had preferred this appeal challenging the judgment of conviction and the order of sentence under S.302 IPC, in S.C.No.736 of 2010, dated 31.12.2010, of the Additional District & Sessions Judge, Fast Track Court No.I, Thrissur, in connection with the death of an age old lady by name Hymavathy while she was leading a secluded life along with her husband (PW1) in a flat. They were provided with a home nurse, the accused herein, by a private concern “Perfect Nursing Service” run by PW4, and she used to stay with the deceased lady in her room during night time. The learned Sessions Judge found the accused not guilty of the offence punishable under S.394 IPC, though she was charge sheeted for the said offence. The accused was found guilty for the offence of murder of the deceased Hymavathy, aged 80 years, under S.302 IPC and convicted thereunder and sentenced to undergo ## **Crl.Appeal No. 1007 of 2011** :: 2 :: imprisonment for life and to pay a fine of ` 5,000/-, in default, to undergo simple imprisonment for ten days. Aggrieved by the judgment of conviction and the order of sentence, the accused had come up with this appeal. 2. The prosecution case through the witnesses unfolded as follows: On the ill-fated day, the accused, a lady home nurse, as usual, was sleeping along with the deceased in their bedroom. At about 10.00 p.m., electric supply was cut off. So, PW1 had gone to the balcony and sat there for some time. After some time, the accused came there and asked PW1 to go for sleep. Then he went to his bedroom. At about 10.30 p.m., he heard some feeble sound from the bedroom of his wife. The door of the bedroom of his wife was found to be locked from inside. He called the accused and asked her to open the door, but there was no response. Immediately he went to the verandha and called the Security. Hearing his sound, Tomy (PW2) and his wife Lucy, the immediate neighbours, came there. All of them, four in numbers, again called the accused and asked her to open the door of the bedroom. The ## **Crl.Appeal No. 1007 of 2011** :: 3 :: Security even made a threat to the accused that he would break open the door. It is at that time she opened the door. Thereon they saw the victim lying on the floor in an unconscious condition. PW1, by that time, informed the matter to the police. The police also came to the place of occurrence and found the accused sitting on a small bed inside the room. The body of the victim was found lying dead on the floor of the room. Though she was removed to the hospital, she was declared brought dead. 3. The prosecution relied on the oral evidence of PW1 to PW3, detection and recovery of MO1 to MO4, and the medical evidence adduced, besides the scientific evidence. There is no eye witness to the alleged incident. The circumstances relied on by the prosecution are: (1) That the accused and deceased were alone in the bedroom during the odd hours of the night of the ill-fated day. (2) The alleged incident happened within the secrecy of the bedroom which was found locked inside at the time when the alleged offence was committed. (3) The accused did not explain how the victim sustained injuries on her neck. (4) The explanation submitted by the ## **Crl.Appeal No. 1007 of 2011** :: 4 :: accused during her examination under S.313 Cr.P.C. did not disclose how the victim sustained injuries on her neck. (5) The accused during her examination under S.313 Cr.P.C. admits her presence in the room and also admits that none else was there in the room except the victim at the time of alleged incident. (6) She had also admitted that the room was locked from inside. (7) The accused admitted the scuffle between her and the victim inside the room. (8) The accused had also admitted that she had sustained a bite injury on her left hand from the victim. (9) She had also mounted on the box under S.314 Cr.P.C. and gave evidence as a witness admitting that she and the victim alone were there in the bedroom at the time of alleged incident and the room was locked inside. (10) The exculpating portion of S.313 statement given by the accused prima facie found to be false. (11) There is inconsistency between the statement given under S.313 Cr.P.C. and at the time of her examination under S.314 Cr.P.C. as DW1. Different versions were supplied by her while under S.313 Cr.P.C. and as a witness under S.314 Cr.P.C. (12) Human saliva was detected on the bite mark on the left hand of the accused under chemical examination. ## **Crl.Appeal No. 1007 of 2011** :: 5 :: (13) During her examination under S.314 Cr.P.C., she had admitted breakage of tip of her finger nail during the course of alleged incident. (14) During postmortem examination, a piece of tip of nail was recovered from the larynx of the victim. 4. The appellant, on the other hand, challenged the credibility of PW1 to PW3, though she had admitted her presence in the room. The alleged injuries were sustained by the victim during the course of a scuffle. The bite mark on the left hand of the accused and detection of saliva on it and its origin have not been established by the prosecution and no investigation was conducted in that behalf. She had also taken shelter under the umbrella of Section 100 IPC as she had sustained bite injury on her left hand from the victim. There was no explanation for the prosecution, how she had sustained the injury on her left hand - a bite mark injury with human saliva. Failure of prosecution to explain the origin of the injury sustained by the accused is fatal to the prosecution. If at all the role of accused is proved, it would come under the 4[th] exception to S.300 IPC. ## **Crl.Appeal No. 1007 of 2011** :: 6 :: 5. In a case resting on circumstantial evidence, the prosecution has to establish all the chain of circumstances unerringly pointing towards the guilt of the accused and there should not be any other hypothesis inconsistent with the guilt of the accused. In the instant case, there is no eye witness to the alleged incident. The oral evidence tendered by PW1 to PW3 and the admission made by the accused during her examination under S.313 Cr.P.C. as well as her oral deposition under S.314 Cr.P.C. by mounting on the box as a witness, DW1, make it clear that the accused and the victim alone were there in the bedroom at the time of alleged incident and it was locked inside. The alleged incident happened within the secrecy of their bedroom during the odd hours of the night of 26.2.2010. This would caste a duty on the accused to explain what happened to the victim within the secrecy of their bedroom. (See _**Trimukh Maroti Kirkan v. State of Maharashtra (2006 KHC 1469), State of West Bengal v. Mir Mohammad Omar and others ((2000) 8 SCC 382), Balram Prasad Agrawal v. State of Bihar and Others (AIR 1997 SC 1830) and Ram Gulam Chaudhary and Others v. State of Bihar ((2001) 8 SCC 311).)**_ ## **Crl.Appeal No. 1007 of 2011** :: 7 :: 6. It may not be known to the prosecution what actually happened within the secrecy of the bedroom and some times it may be known to the accused alone. What actually transpired/happened within the secrecy of the bedroom during night time may not be discernible to the prosecution with its precision and the prosecution can rely only on the attending circumstances in which the alleged incident happened. Sec.106 of the Evidence Act mandates the accused to explain and to disclose what is known to him/her, what happened within the secrecy of their bedroom during the odd hours of a night, especially when the room was found locked inside. The accused cannot escape from his liability to disclose/reveal the special knowledge regarding what actually transpired/happened resulting into the injury sustained by the victim. The same principle is available to the injuries sustained by the accused within the secrecy of their bedroom/dwelling house and no mandate can be imposed on the prosecution to explain the injuries sustained by the accused, in a case of death of victim. Failure to explain the injuries, if any, sustained by the accused within the secrecy of the bedroom ## **Crl.Appeal No. 1007 of 2011** :: 8 :: during the odd hours of the night by the prosecution, in such circumstance is not fatal. The principle embodied under S.106 of the Evidence Act would be available to the prosecution regarding injury/injuries sustained by the accused either during the course of incident or as a part of the same transaction, if it was sustained by the accused within the secrecy of either their dwelling house or bedroom especially when it had happened during the odd hours of the night and it may be known to the accused alone and may not be discernible for the prosecution from the attending circumstances, S.106 of the Evidence Act would come into play, casting a duty on the accused to speak/disclose not only how the victim had sustained injuries but also the injuries sustained by him/her. No blame can be placed on the prosecution regarding absence of non-explanation of the injuries sustained by the accused. 7. The legal position settled in _**Bheru Lal and Others v.**_ _**State of Rajasthan (AIR 2009 SC 3208)**_ is really standing on a different footing and when there is eye witness to the alleged incident, the failure to explain the injury sustained by the accused ## **Crl.Appeal No. 1007 of 2011** :: 9 :: may be fatal to the prosecution if it is not serious in nature. Earlier the Apex Court had settled the legal position in _**Lakshmi Singh v.**_ _**State of Bihar (AIR 1976 SC 2263)**_ that the non-explanation of the injuries sustained by the accused would be relevant from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable and (3) that in case there is a defence version which explains injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. ## 8. In _**Babu Ram and others v. State of Punjab (AIR 2008**_ _**SC 1260)**_ **,** the question was again considered by the Apex Court. Paragraph 19 of the said judgment is extracted below for reference: “19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of ## **Crl.Appeal No. 1007 of 2011** :: 10 :: interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” ## 9. In _**State of Rajasthan v. Madho and another (AIR 1991**_ _**SC 1065)**_ , the legal position was again reiterated as follows: “If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured PW2.” 10. A Division Bench of this Court had occasion to consider the very same question in _**Kishore Kumar v. State of Kerala (2001 Crl.L.J.2137 (Kerala)**_ and _**Sivaraman alias Gopi v. State of (2003**_ ## **Crl.Appeal No. 1007 of 2011** :: 11 :: _**Crl.L.J.4186 (Kerala))**_ . Then again the very same question was considered by this Court in _**Asokan v. State of Kerala (2017 (2) KLT SN 75 (C.No.107)**_ and held that non-explanation about the injuries on accused is an important circumstance and the omission of the same assumes importance when evidence consists of interested or inimical witnesses, after referring the decisions rendered in _**Bheru Lal and Others v. State of Rajasthan (AIR 2009 SC 3208), Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)**_ and _**State of Rajasthan v. Madho and another (AIR 1991 SC 1065)**_ . But in a case resting on circumstantial evidence, it would intake the application of S.106 of the Evidence Act, hence governed by the said provision in so far as matters within the special knowledge of the accused is concerned and the prosecution may not be aware of what actually transpired/happened to the victim within the secrecy of their company. The application of Section 106 of the Evidence Act is restricted only to cases in which a particular fact in question is purely resting on circumstantial evidence. When there is eye witness to the particular fact in question, there cannot be any application of Section 106 of the Evidence Act. The legal position ## **Crl.Appeal No. 1007 of 2011** :: 12 :: settled by the decisions in _**Bheru Lal and Others v. State of Rajasthan (AIR 2009 SC 3208), Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263), Babu Ram and others v. State of Punjab (AIR 2008 SC 1260), State of Rajasthan v. Madho and another (AIR 1991 SC 1065), Kishore Kumar v. State of Kerala (2001 Crl.L.J.2137 (Kerala), Sivaraman alias Gopi v. State of (2003 Crl.L.J.4186 (kerala))**_ and _**Asokan v. State of Kerala (2017 (2) KLT SN 75 (C.No.107)**_ cannot be extended/applied to a case resting purely on circumstantial evidence. The legal position settled by the said decision having only a restricted application to the cases wherein direct evidence through eye witnesses are available. 11. The admission made by DW1, the accused, that there was a scuffle between her and the deceased and the deceased inflicted a bite injury on her left hand has to be analysed under the given circumstances visualising the probabilities so as to rule out existence of other hypothesis, rather than what is consistent with the guilt of the accused. Human saliva detected on item No.11 in Ext.P15 chemical analysis report would show that the bite injury on ## **Crl.Appeal No. 1007 of 2011** :: 13 :: the left hand of the accused stained by human saliva, came from a human bite. The cause of death of the victim is due to manual strangulation and smothering, as deposed by PW3, the Doctor who conducted the postmortem examination on the body of the deceased. This would show that the biting should be and must be before manual strangulation or smothering or during its course. The possibility of having such a bite mark on the left hand, not on the fingers of the accused, during the course of smothering or manual strangulation is very remote as it would not be possible for the victim to inflict a bite injury on the left hand and not on the fingers, either during the course of smothering or manual strangulation and hence the chances of inflicting the bite injury sustained by the accused before smothering/manual strangulation cannot be ruled out. In a case resting on circumstantial evidence and when there is injury sustained by the accused, the Court can visualise the situation in reference to the attending circumstances, at least for the purpose of ascertaining existence of any other hypothesis rather than the guilt of the accused. If the bite injury was sustained by the accused before smothering/manual strangulation, it should be from the victim. ## **Crl.Appeal No. 1007 of 2011** :: 14 :: What actually prompted the victim to attack the accused is discernible from the fact that a broken gold bangle was found on the bed of the victim. It is admitted by the accused as spoken by PW1 to PW3 that the accused is a lady doing the work of home nurse. What is advanced by her during 313 examination and also mounting on the box as DW1 is that the victim gave her a bite injury on her left hand. PW9, C.I. of Police, the investigating officer had admitted the bite injury sustained on the left hand of the accused. Ext.P15 chemical analysis report reveals detection of saliva on the bite mark on the left hand of the accused. The fact that a gold bangle worn by the deceased was found to be broken and lying on the bed was also admitted by the accused by advancing an exculpating story both under S.313 examination and at the time of giving direct evidence as DW1 that the bangle became broken during the scuffle when the accused attempted to relieve herself from the attack of the victim who had inflicted a bite injury on her hand. It would have happened during the course of resistance offered by her to relieve herself from the attack of the victim. The exculpating statement made by the accused cannot be accepted with respect to the genesis, when the ## **Crl.Appeal No. 1007 of 2011** :: 15 :: attack originated. She had also advanced that she had lost the tip of nail of one of her fingers as it was entangled in the golden bangle during the scuffle. The Doctor who conducted postmortem examination on the body of the deceased on dissection of neck detected and extracted a broken nail tip measuring about 0.7 x 0.5 cm (with reddish glistening nail polish on outer surface on one side) and having a neatly trimmed distal end and an irregularly broken proximal end found entrapped in the left pyriform fossa of the larynx. Admission made by the accused regarding breakage of tip of nail of one of her fingers and presence of a piece of tip of nail entrapped in the left pyriform fossa of the larynx detected on flat dissection of neck would be an indication of manual strangulation and loss of tip of nail of one of her fingers in the course of strangulation. The genesis of the alleged incident has to be tested not only in relation to the injuries sustained by the victim, but also the injuries, if any, sustained by the accused, in reference to all attending circumstances so as to arrive at a conclusion regarding the existence of other hypothesis inconsistent with the guilt of the accused. In other words, the injury alleged to have been sustained ## **Crl.Appeal No. 1007 of 2011** :: 16 :: by the victim is a bite injury with saliva on her left hand would be a relevant factor with respect to the genesis of the alleged incident. The broken gold bangle found on the bed when read along with the bite injury sustained by the accused on her left hand would probabilise a case that it was originated when the accused attempted to remove one of the gold bangles worn by the victim while she was in deep sleep and that she woke up during the course of an attempt to remove the gold bangle and there may have some scuffle, resulting in inflicting a bite injury on the left hand of the accused by the victim, who was aged 80 years and was leading a lonely life with her husband in a flat. Possibility of causing injury to the larynx on the neck, the front upper portion of the neck, in order to stop bitting on her hand by the accused in the given circumstances cannot be ruled out. Going by Ext.P2 postmortem examination report, it is seen that ante-mortem injury Nos.1 to 21 are on the bridge of nose, the surrounding place of nose, upper lip and lower lip, right cheek, midline and partially overlying lower jaw would be an indication regarding the nature of injuries sustained by the victim. All these ante-mortem injury Nos.1 to 21 are multiple contusions and ## **Crl.Appeal No. 1007 of 2011** :: 17 :: multiple abraded contusions of various size. If there is bitting on the left hand of the accused by the victim causing deep bite injury on her hand, there may be some attempt on the part of the accused to relieve herself from the attack of the victim and possibility of causing all these ante-mortem injuries in that attempt cannot be ruled out if the bitting was so violent and continued for a short time till it was relieved by the act of the accused. A violent attack on the part of the victim on the accused cannot be ruled out especially the bite injury on the left hand of the accused is so visible indicating its extensive nature. The injuries sustained to the neck are on front of left side of neck partially across the midline and 6 cm below lower jaw margin (on the right side of front of neck) and upper left end 9 cm outer to midline and 3 cm below left angle of jaw (on the left side of front of neck). The presence of a broken nail tip with trimmed distal end and irregular broken proximal end entrapped in the left pyriform fossa of the larynx would show the application of fingers manually on the left side of front of neck of the victim just below the lower jaw. The antemortem injury No.22, the neck injury, would reveal that it is on the ## **Crl.Appeal No. 1007 of 2011** :: 18 :: top of the neck on left side and it is possible during the course of an attempt to relieve the accused by herself from the attack of the victim if the bitting was violent in nature with high pressure without any stoppage and during that struggle, causing of all the antemortem injuries cannot be ruled out. When there is more than one possible inference regarding the genesis of the incident and the manner in which the injuries were sustained by the victim, the one which favours the accused should be adopted. Since there is another possibility of causing the abovesaid injuries and its genesis/origin rather than what is advanced by the prosecution, the one which favours the accused should be adopted especially in a case resting on circumstantial evidence. Needless to say that the genesis of the incident and its origin assumes importance so as to test whether the same has been committed with the intention or knowledge. The Apex Court in _**Babu Ram's case**_ (supra), considered the application of right of private defence and the relevancy of the injuries on the person of accused and its nonexplanation by the prosecution and held that: ## **Crl.Appeal No. 1007 of 2011** :: 19 :: “It is important to point out that the omission on the part of the prosecution to explain the injuries on the person of accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 12. It was further held in paragraphs 20, 21 and 22 of the said judgment thus: “20. .... Thus, non-explanation of the injuries on the person of the accused Indraj and his wife Smt.Maya supports the version of the defence that the accused Indraj inflicted single blow with 'Rambi' on the person of Ant Ram in private defence of his body and also the person of his wife who had suffered several injuries at the hands of Ant Ram with a weapon called 'Kapa', though the injury received by the deceased Ant Ram was turned out to be fatal in nature but it was not inflicted by the accused with the intention of causing death of the deceased or with the intention or knowledge that the injury would, in all probability, cause his death. ## **Crl.Appeal No. 1007 of 2011** :: 20 :: 21. ..... We are of the view that in such a situation the accused Indraj could necessarily apprehend danger to his life and to the life of his wife at the hand of Ant Ram and in that process if one blow was inflicted by the accused on the person of Ant Ram which has proved fatal, the accused had the right of private defence to his body as well as to the person of his wife Smt.Maya. The injuries on the person of the accused Indraj found on the person of his wife Smt.Maya by the Doctor was grievous in nature. The evidence of DW-3, corroborated by the medical evidence, is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy that it has to be relied upon and accepted vis-a-vis the evidence of the prosecution. 22. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence and in the background of the well-settled proposition of law and in view of the improbabilities, the serious omissions and infirmities, the interested nature of the evidence and other circumstances, it was clear that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. The High Court was in error in brushing aside serious infirmity in the prosecution ## **Crl.Appeal No. 1007 of 2011** :: 21 :: case regarding non-examination of the injuries sustained by the accused Indraj and his wife DWSmt.Maya and also not accepting the plea of the right of defence of the accused on unconvincing premises.” 13. The principle embodied under S.100 IPC, right of selfdefence, is resting on doctrine of necessity by which an act which would be otherwise a crime in some cases be excused if it was done only in order to avoid consequences which could not otherwise be avoided and which, if then had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that evil inflicted by it was not disproportionate to the evil avoided. It is one of the canons of the law of right of private defence, it would not enure to an aggressor. In other words, any step resorted to thwart an act of aggression is regarded as defensive act and no right of private defence can be claimed against such an act of self defence. (See _**Pammi v.**_ ## _**Government of Madhya Pradesh (AIR 1998 SC 1185 = (1998) 2**_ _**SCC 700**_ **)** . A clear distinction has been drawn by the Apex Court ## **Crl.Appeal No. 1007 of 2011** :: 22 :: between a defensive act and a right of private defence. Right of private defence sprouts from either apprehension or any attempt to do some harm. A defensive act is really a step resorted to thwart an act of aggression. Hence, the hypothesis as discussed in earlier paragraphs stood in favour of the accused cannot be brought under the umbrella of S.100 IPC as it is only a defensive act resorted to thwart an act of aggression. But from the circumtances, it is not possible to draw an inference that accused has committed the offence with the intention to kill the victim though the resultant effect of the act of the accused is the death of the victim. It may be during the course of attempt on the part of the accused to prevent the attack of bitting on her hand by the victim. The genesis of the incident may be the attempt on the part of the accused to take away the gold bangle worn by the victim and to leave the place. PW1 to PW3 had testified that her belongings and dress were found in a packed stage in a bag inside the room. The bitting on the left hand of the victim and the resultant effect of the act which is natural and normal in the ordinary course of the alleged incident would take away both the first and second limbs of S.300 IPC, an intentional act ## **Crl.Appeal No. 1007 of 2011** :: 23 :: of culpable homicide with knowledge and it can be safely brought under 4[th] exception to Section 300 IPC. The offence alleged would come under the purview of part II of S.304 IPC. Hence the finding of guilt of the accused under Section 302 IPC and the conviction thereunder and the sentence ordered are liable to be set aside and we do so. The accused is found guilty of the offence punishable under part II of Section 304 IPC and convicted thereunder and sentenced to undergo imprisonment for the period of detention she had already undergone including the pretrial detention. She shall be released forthwith if her presence is not necessary in connection with any other case. The Criminal Appeal allowed in part accordingly. ## **A.M. Shaffique Judge** **P. Somarajan Judge** ahz/