Samirudheen vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.9 of 2013 on the files of the Court of the First Additional Sessions Judge, Thodupuzha is the appellant in the appeal. He stands convicted and sentenced for offences punishable under Sections 302 and 307 of the Indian Penal Code (IPC). The appellant is aggrieved by his conviction and sentence in the said case and hence this appeal.

The accused hails from Biaora in Madhya Pradesh. His wife Renis who was working at Biaora, hails from Nedumkandam. The accused and Renis had a child aged seven months. The accused came to Nedumkandam with Renis and the child in connection with the marriage of the younger sister of Renis. Since the marriage was postponed, they decided to stay back at Nedumkandam in the house of Renis until the marriage. While so, the parents of the accused insisted the accused to return to Madhya Pradesh. The accused was not prepared to do so without Renis and the child. Renis was reluctant to return to Madhya Pradesh until the marriage of her younger sister. There arose an argument between the husband and wife in connection with the same and it was while so, the occurrence which is the subject matter of the case, took place on 17.02.2011. The case of the prosecution is that the accused, on account of his enmity towards Renis for not accompanying him to Biaora, repeatedly struck on her head as also on the forehead of their child with a rolling pin at about 3.30 p.m. on the relevant day and thereby caused grievous hurt to Renis and caused death of the child. The offences alleged are the offences punishable under Sections 302 and 307 IPC.

On the accused being committed to trial, the Court of Session framed charges against him to which he pleaded not guilty. Thereupon, the prosecution examined 21 witnesses as PWs1 to 21 and proved through them 16 documents as Exts.P1 to P16. Exts.D1 to D5 are the Case Diary statements of the witnesses proved at the instance of the accused and MOs.1 to 9 are the material objects. When the incriminating evidence were put to the accused in terms of the provisions contained in Section 313 of the Code, he denied the same and pleaded that he is falsely implicated in the case. The Court of Session, on a consideration of the evidence on record, held that the accused is guilty of the offences for which he is charged, convicted and sentenced him to undergo imprisonment for life and to pay fine for the offence punishable under Section 302 IPC and rigorous imprisonment for a period of 10 years and fine for the offence punishable under Section 307 IPC. As noted, the accused is aggrieved by his conviction and sentence.

Heard the learned counsel for the accused as also the learned Special Public Prosecutor.

The learned counsel for the accused contended that the evidence let in by the prosecution does not establish that it was the accused who caused grievous hurt to Renis and caused death of the child. Alternatively, it was argued by the learned counsel that at any rate, the finding of the Court of the Session that the accused intended to cause the death of his child, is unsustainable in law and if that be so, he is not guilty of the offence punishable under Section 302 IPC. Per contra, it was argued by the learned Special Public Prosecutor that although the evidence tendered by Renis would only show that the accused struck the child once, the injuries suffered by the child in the occurrence would indicate that the accused struck the child more than once and if that be so, it can certainly be inferred that the accused intended to cause the death of the child as well.

In the light of the arguments advanced by the learned counsel for the parties, the points that arise for consideration are (i) whether the prosecution has established the occurrence as has been alleged; (ii) whether the conviction of the accused under Sections 302 and 307 IPC is sustainable in law and (iii) whether the sentence imposed on the accused for the offences for which he is found guilty, is appropriate and proportionate.

Points (i) and (ii): In order to adjudicate these points, it is necessary to refer to the evidence let in by the prosecution in the case. PW1 is a person residing close to the house of Renis at Nedumkandam. It was PW1 who informed the occurrence to the police. PW1 did not witness the occurrence. The essence of the evidence tendered by him was that at about 3.30 p.m. on the date of occurrence, he heard a scream "എന  ന  ലന " from the house of Renis and when he rushed there, he saw Renis sitting outside the kitchen with blood on her body and she told him then that "അവ  എന  അടച  ന  ല ന  രങ , ഓടന  യ ". It was deposed by PW1 that although he entered inside the house and searched for the person mentioned by Renis, he could not find anyone there. It was also deposed by PW1 that he then called a jeep and made arrangements to take Renis to the hospital. PW3 is the mother-in-law of PW1. PW4 is the wife of PW1. PW5 is another neighbour of Renis. All of them gave evidence more or less on similar lines of the evidence tendered by PW1. None of them saw the occurrence. PW6 was one of the workers engaged by PW1 then for painting work in the house of PW1. PW6 deposed that when he reached the house of Renis on hearing the scream, he saw a few people carrying a lady and one among them told him that a child is lying in the house and required him to take the child also. PW6 deposed that when he went inside the house accordingly, he saw a child beneath a cot without any movement and he brought out the child from there and handed over the child to persons who were in the jeep, to take the child to the hospital.

PW2 is Renis. PW2 gave a detailed narration in her evidence about the occurrence and also about her marital relationship with the accused. As regards the occurrence, the version of PW2 was that on the relevant day after about 3.00 p.m., while she was about to take rest on the cot after giving her child a bath, when she turned around on hearing someone coming towards her, the accused struck her on the head and also on the forehead of the child with a rolling pin and that she saw blood oozing out from the nose of the child. It was deposed by PW2 that she then came out of the house screaming and found PWs 1 and 3 in the house. It was deposed by PW2 that after sometime, PW1 took her out of the house and sent her to Nedumkandam Taluk Hospital in a jeep and since the injury sustained by her was serious, she was referred to the Medical College Hospital, Kottayam and she was undergoing treatment there for a week. PW2 identified the accused in the dock and MO1 as the rolling pin that was used by him. PW2 deposed that the accused hails from Biaora in Madhya Pradesh and she was living with him and their child there until they came to Nedumkandam in connection with the marriage of her younger sister. It was also deposed by PW2 that since the marriage had to be postponed, they were staying back at Nedumkandam in her house and the father of the accused then wanted the accused to return to Madhya Pradesh. It was also deposed by PW2 that the accused was reluctant to return to Madhya Pradesh without her and their child; that she wanted to stay back at Nedukandam till the marriage of her sister and it is on account of the reluctance shown by her to accompany the accused with the child to Madhya Pradesh that the accused attempted to murder her. In cross-examination, it was clarified by PW2 that she was about to sleep when the accused struck her, and the child was lying on the cot then. PW2 denied in her cross-examination having made Ext.D1(b) statement to the police to the effect that the accused pulled her and her child from the cot to the floor. Similarly, she denied the suggestion that the child sustained injuries on account of a fall while she was holding him.

As regards the background of her marital relationship with the accused, it was deposed by PW2 that even though there were occasional quarrels between them, they were in intense love and she did not deny the suggestion put to her that the accused is a person who is unable to live without her. The relevant portion of the evidence tendered by PW2 reads thus:

“7-)o മ സത  പസവത   കടന  ണവന . വ ടന!ത 2 ദവസ#  ഴഞന&   സമ വന . സമറ   എന   രഞരക   വയ തതന  ണ യരക # . സമ ഞങളനട വട  ത മസച . കട ഉണ യന5ഷ# എന യ#, കടനയയ# ആച രപ  ര# ന: & ! സമറന; വട ന  ണന  യ ആക. ഈ സമയങള ഞ ന#, സമറ# ആയതവമ യപണയത! യരന .”

PW2 also deposed that she never intended to stay back at Nedumkandam permanently and always wanted to return to Madhya Pradesh and the accused used to compel her to accompany him with the child and she had no disliking to that course. The relevant portion of the evidence reads thus:

“  ട  സര# ത മസകണനമ   എ ക  ആഗഹമല യരന . എ ക  തരച ന: & !  ന      ഇഷമ യരന. ന: & !ന!ക  ഞ ന#, കടയമ യ തരച ന   ണനമ   സമ  ര Gനകമ യരന . എ ക  ന     ഇഷകറവല യരന "

It was clarified by PW2 in her evidence that the only dispute between her and the accused was as regards the time of their return journey to Biaora. The relevant portion of her evidence reads thus:

“വJ വറയ  തരച ന   ണനമ   മ തമ യരന ഞ ന# സമറമ യ ത ക# . നവനറ ഇഷനകനട ന# ഉണ യര ല "

It was also clarified by PW2 that she would have gone back to Biaora with the accused, had this occurrence not taken place.

PW11 was the police officer who conducted the investigation in the case. PW11 deposed that he found MO1 rolling pin on one of the cots in the house of PW2. PW21 was the police officer who submitted the final report in the case after completing the investigation. In cross-examination, among others, PW21 admitted that PW2 gave Ext.D1(b) statement to him.

PW12 was the Orthopaedic surgeon attached to the Taluk Hospital, Nedumkandam on 17.02.2011. PW12 deposed that on that day at about 4 p.m., he examined PW2 and on examination, it was found that PW2 had multiple lacerated wounds on different parts of her head, 15 in number with contusion on the wound margins. It was also deposed by PW12 that one among the said wounds was measuring 10 x 1 x 1 cm. Ext.P13 is the wound certificate issued by PW12. The version of PW12 as regards the alleged cause of injury as disclosed to him by PW2 was that “വ ട  നവച  എന യ# കഞന യ# നവട ". It was also deposed by PW12 that the injuries sustained by PW2 were injuries that could be caused with MO1 rolling pin and that the same are sufficient in the ordinary course of nature to cause death.

PW14 was the doctor who conducted the post-mortem examination on the body of the child and issued Ext.P14 post-mortem certificate. The ante-mortem injuries noticed by PW14 at the time of post-mortem examination, as deposed by him are the following:

Contusion 3.5x3x0.5cm sourrounding left eye, its upper extent at the eyebrow.

Contusion 3x2.5cmx0.5cm, sourrounding right eye, 0.8cm below, eyebrow.

Abrasion 0.5x0.5cm and 0.2x0.3cm, 2cm apart on right side of forehead, the latter being 2.5cm above eyebrow and 1.5cm outer to midline on dissection scalp tissue showed contusion corresponding to injury No.3, 4x2x0.5cm. The periostenum of skull showed contusion and infiltration with blood. Dura was intact. Brain showed contusion involving right frontal lobe. 4x3x0.5cm. There was bilateral subdural and subarachnoid haemorrhage. The base of left anterrior cranial fossa showed fissured fracture 4cm long.

Graze abrasion 3x2.5cm involving right cheek 4cm outer to midline.

The opinion of PW14 as to the cause of death of the child was that the death occurred due to head injury. It was also deposed by PW14 that injuries 1 to 3 can be caused by a forceful assault with MO1 rolling pin. In cross-examination, it was clarified by PW14 that injury 4 is possible on contact with rough surface. Although PW14 denied that injuries 1 to 3 will not occur in a single fall, it was clarified by him later that “ ല ഉയരത   ന വ ണ    റ വ  injury ആണ ".

PW18 is the person who took PW2 to the hospital in his jeep. PW18 deposed that while he was returning after leaving PW2 at the hospital, PW18 saw the accused at about 100 meters away from his house and the accused attempted then to run away and it was PW18 who caught hold of the accused and handed him over to the police. It was deposed by PW18 that at the relevant time, there was blood on the clothes worn by the accused. PW18 identified MO5 and MO6 as the clothes worn by the accused at the relevant time.

As noticed, PW2 is the only eyewitness to the occurrence. What PWs 1 and 3 to 5 have deposed is only what was told to them by PW2. We do not find any reason to disbelieve the evidence tendered by PW2 that it was the accused who struck her on her head with MO1 rolling pin for, there is absolutely no reason for PW2 to falsely implicate the accused as her assailant, having regard to their marital relationship, if he was not the person who inflicted injuries on her. Even otherwise, the evidence tendered by PW2 appears to us to be real, natural as also corroborated by Ext.P16 report of the Forensic Science Laboratory wherein, it is stated that stains contained on MO1 rolling pin and MOs 5 and 6 clothes worn by the accused at the time of his arrest are that of human blood.

Serious arguments were not addressed by the learned counsel for the accused in respect of the acceptability of the evidence tendered by PW2 as regards the injuries caused to her head by the accused with the rolling pin. Serious arguments were however addressed by the learned counsel as regards the acceptability of the evidence tendered by PW2 that the accused struck on the forehead of the child also with the same rolling pin. The learned counsel asserted that even though PW2 stated in her deposition that she saw the accused striking on the forehead of the child with the rolling pin, there are serious doubts as regards the genuineness of the said evidence. In order to substantiate the said stand, it was argued by the learned counsel that no motive, whatsoever, is attributed to the accused to cause death of the child. It was also argued by the learned counsel, placing reliance on the evidence tendered by PW6 that the child was found by him beneath the cot in the house and there was no explanation on the side of the prosecution as to how the child happened to be seen on the floor beneath the cot. According to the learned counsel, in the absence of any explanation from the prosecution as to how the child happened to be seen beneath the cot in the house, the possibility of the child sustaining injuries on account of a fall, cannot be ruled out. To reinforce the said argument, the learned counsel has brought to our notice, Ext.D1(b) statement given by PW2 to the police that she and her child were pulled down from the cot by the accused in the course of the attack. Even though PW2 denied in her evidence having made such a statement, as noted, it has been proved through PW21 that she made such a statement.

We have examined meticulously the arguments aforesaid of the learned counsel. It was deposed by PW2 that she saw the accused striking on the forehead of the child with the rolling pin, after striking on her head once. Even though PW2 stated that the accused struck on her head repeatedly, she has not stated in her deposition that she had seen the accused striking the child with the rolling pin more than once. Her version was that it was after striking on the forehead of the child, the accused struck on her head repeatedly. The said evidence of PW2, if at all true, creates a doubt whether the strike on the forehead of the child was an intentional one, for the accused had no motive to inflict an injury on the child and the motive is attributed to him only to cause the death of PW2. Be that as it may, as pointed out by the learned counsel, the prosecution has proved that the body of the child was taken out by PW6 from beneath a cot and no explanation is offered by the prosecution as to how the body of the child happened to be seen there. In this context, according to us, Ext.D1(b) statement given by PW2 to the police that she and her child were pulled down from the cot by the accused in the course of the attack, assumes relevance. During cross-examination, the stand taken by PW2 was that she was standing near the cot when the accused struck on her head for the first time but in the light of Ext.D1(b) statement, it is not safe to accept the stand of PW2 that she was standing when the accused struck on her head. If that be so, it can be presumed, in all probability, that PW2 was either lying beside the child on the cot or sitting on the cot when the accused attacked her. If PW2 was on the cot at the time of attack, in all probability, according to us, the child would have fallen down from the cot in the course of the attack as informed by PW2 herself to the police. The pointed question then is whether the injuries sustained by the child in the occurrence were injuries that could be caused on account of a fall. As noticed, when a suggestion to that effect was put to PW14, the doctor who conducted the post-mortem examination, he denied the same, although he clarified that such injuries might occur on account of a fall from a higher place. In the circumstances, we are inclined to hold that even though the prosecution has proved beyond reasonable doubt that it was the accused who inflicted the injuries on PW2, it is not safe to place reliance on the evidence tendered by PW2 that the accused consciously and intentionally struck on the head of the child with MO1 rolling pin. In other words, according to us, the injuries found on the body of the child might have been, in all probability, injuries sustained by him accidentally while the accused was striking on the head of PW2.

Let us now deal with the sustainability of the conviction of the accused for the offences punishable under Sections 307 and 302 IPC. As noted, the accused struck on the head of PW2 repeatedly with MO1 rolling pin and thereby caused 15 lacerated wounds on her head. There is nothing on record to suspect the evidence tendered by PW2 in this regard. It has been categorically stated by PW12 that the injuries suffered by PW2 are sufficient in the ordinary course of nature to cause death. The said part of the evidence tendered by PW12 has not even been challenged by the accused in cross-examination. In the circumstances, we do not find any infirmity in the finding rendered by the Court of Session that the accused is guilty of the offence punishable under Section 307 IPC.

We have already found that the injuries found on the body of the child might have been, in all probability, injuries sustained by him accidentally while the accused was striking on the head of PW2. The pointed question, therefore, is as to the offence committed by the accused, if injuries were sustained by the child in the said fashion. As noted, it was while PW2 was sleeping beside the child or sitting on the cot, the accused attacked her with MO1 rolling pin. But for the attack on PW2, the death of the child would not have been caused. Inasmuch as death of the child was caused as a result of an act committed by the accused, the questions to be examined are whether the accused intended to cause the death or a bodily injury as is likely to cause death of the child, and if the accused had not intended to cause the death or a bodily injury as is likely to cause the death of the child, whether the act has been done by the accused with the knowledge that he is likely by such act, to cause death of the child. As already indicated, the evidence on record is not sufficient to hold that the accused intended to cause the death of the child or bodily injury as is likely to cause death of the child. But, on the facts of this case, we are inclined to hold that the accused shall certainly be attributed with the knowledge that he is likely, by such act, to cause the death of the child who was lying on the cot, for it is only natural that when a person strikes on the body of another who either lies or sits on a cot repeatedly in a brutal manner, the possibility of one of the hits falling on the child lying on the cot, cannot be ruled out. If that be so, the act committed by the accused would fall within the third limb of Section 299 IPC, punishable under Part II of Section 304 IPC. We take this view as the expression “knowledge” used in Section 299 IPC is bare awareness and not the same thing as intention that such consequences should ensue [See Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32]. The adjudication on the point cannot be stopped at this stage, for, if the knowledge that could be attributed to the accused is of such a degree that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and he committed the act without any excuse for incurring the risk of causing death or injury as aforesaid, the offence would be one punishable under Section 302 IPC, as such cases would certainly fall under the head “fourthly” in Section 300 IPC. On a meticulous examination of the facts and circumstances of the case, we are unable to hold that the accused did the act with the knowledge that his act would, in all probability, cause the death of his child, and he did the act without any excuse for incurring the risk of causing the death of his child. Needless to say, the accused is liable to be convicted in the place of Section 302 IPC, only for the offence punishable under Section Part II of Section 304 IPC.

Point (iii): The sentence provided for the offence punishable under Section 307 IPC is imprisonment for life or imprisonment for a term which may extend to ten years. The Court of Session sentenced the accused for imprisonment for a period of ten years. Having regard to the peculiar facts and circumstances of this case, we do not find any reason to interfere with the sentence imposed on the accused for the said offence. Coming to the offence committed by the accused under Part II of Section 304 IPC, we are of the view that the appropriate sentence to be awarded to the accused would be imprisonment for a period of eight years with fine. The point is answered accordingly.

In the result, the appeal is allowed in part, sustaining the conviction of the accused under Section 307 IPC and altering the conviction under Section 302 IPC to Section 304 Part II IPC. The sentence imposed on the accused for the offence punishable under Section 307 IPC is sustained and the accused is sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.10,000/-, and to undergo simple imprisonment for a period of six months, in default of payment of fine for the offence punishable under Section 304 Part II IPC. As directed by the Court of Session, the sentence passed on the accused shall run concurrently.