Shanavas vs State Of Kerala

P.B.Suresh Kumar, J.

The appellant is the sole accused in S.C.No.679 of 2012 on the files of the Court of the First Additional Sessions Judge, Kollam. He stands convicted and sentenced for the offences punishable under Sections 302 and 307 of the Indian Penal Code (IPC).

The appellant who was working as a helper in a sawmill was married to one Sheeja and they were residing with their 3 year old daughter in a rented house. Since the appellant did not report to work on 28.05.2011, the son of the employer of the appellant along with another person came to his house in search of him. Since there was no response from the appellant when they called out his name from outside the house, they entered inside the house through its back door which was found open then. On entering the house, they saw Sheeja lying dead inside the house. The matter was brought to the notice of the neighbours and they, in turn, informed the same to the local Panchayat Member. The Panchayat Member then passed on the information to Kottiyam police and based on the same, a case was registered. The investigation in the case revealed that it was the appellant who caused the death of his wife. It was also revealed in the investigation that the appellant had attempted to kill his 3 year old daughter as well. A final report was accordingly filed against the appellant before the Jurisdictional Magistrate alleging commission of offences punishable under Sections 302 and 307 IPC. The accusation in the case is that at about 8 p.m. on 27.05.2011, the appellant, with the intention of committing the murder of Sheeja, severely manhandled her in the bedroom of their house and when she fell down unconscious, the appellant strangulated her to death by tying a cable around her neck.

On the appellant being committed to trial, the Court of Session framed charges against him, to which he pleaded not guilty. Thereupon, the prosecution examined 19 witnesses on their side as PWs 1 to 19 and proved through them 20 documents Exts.P1 to P20. MOs 1 to 21 are the material objects in the case. When the incriminating evidence was put to the appellant, he denied the same. Thereupon, on a consideration of the evidence on record, the Court of Session found the appellant guilty of the offences alleged against him, convicted and sentenced him, among others, to undergo imprisonment for life. The appellant is aggrieved by his conviction and sentence, hence this appeal.

The point that falls for consideration is whether the conviction of the appellant and the sentence imposed on him are sustainable in law.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The prosecution attempted to prove the case through the ocular evidence of the daughter of the appellant as also through circumstances which corroborate the ocular evidence of the daughter. It is necessary to refer to the relevant evidence in the case to determine the point formulated for decision. PW1 is the mother-in-law of the appellant. PW1 conceded in her evidence that she knew about the occurrence only from the daughter of the appellant. PW1 deposed that she was also residing along with her daughter and the appellant, and PW1 shifted her residence from there on the direction of the appellant. PW1 also deposed that her daughter wanted to earn by working; that the appellant did not permit her to work; that they often used to pick up quarrels with each other on account of that reason and that the appellant used to beat Sheeja when they quarrelled. It was also deposed by PW1 that the appellant used to threaten Sheeja that he would kill her, if she goes to work.

PW3 was an immediate neighbour of the appellant and was running a tea shop near his residence. PW3 was residing hardly 15 meters away from the house of the appellant. PW3 deposed that on 27.05.2011, he brought some snacks for the daughter of the appellant from his shop and when he called her to give the snacks brought by him from the sit-out of his house, the appellant came and collected the same from him and the appellant told him then that Sheeja was sleeping. It was also deposed by PW3 that by about 7.30 a.m. on the following day, he saw the son of the employer of the appellant who came in search of the appellant along with another, coming out of the house of the appellant suddenly and on being suspicious about their conduct, when PW3 entered inside the house of the appellant, he saw Sheeja lying on the floor of the house and her daughter lying on the cot.

PW4 is none other than the daughter of the appellant. PW4 was examined almost six years after the occurrence and she was nine years old at the time of examination. Inasmuch as PW4 was a child, voir dire was conducted by the court and it is thereafter that she was permitted to be examined. PW4 deposed that at about 8 p.m. on the relevant day, the appellant brought some articles and handed over some money to Sheeja and after sometime, required Sheeja to return the money entrusted to her. It was deposed by PW4 that Sheeja did not return the money when demanded by the appellant and the appellant then beat on the cheek of Sheeja repeatedly and thereafter, kicked on her abdomen. It was also deposed by PW4 that blood came out then from the mouth of Sheeja and the appellant left the place thereafter. It was also deposed by PW4 that the appellant came back after sometime and placed his hand on the nose of Sheeja and thereupon tightened her neck using the television cable and that Sheeja had no movements thereafter. It was also deposed by PW4 that when she cried thereupon, the appellant held her face and hit against the cot and threatened that she would be done away with. It was also deposed by PW4 that blood oozed consequently from her face. It was also deposed by PW4 that the appellant thereupon opened the almirah, kept some of his clothes in a bag and left the place. In cross-examination, she conceded that it was her grandmother who admitted her in a school and that she used to talk to her grandmother about the death of her mother. PW4 however denied the suggestion made to her that she gave evidence as tutored by her grandmother. Similarly, PW4 denied the suggestion that the police and Public Prosecutor tutored her.

PW6 is the son of the employer of the appellant who came to the house of the appellant on the morning hours of the day following the date of occurrence. PW6 deposed that he along with one Saji went to the house of the appellant by about 08.30 a.m. on 28.05.2011 in search of the appellant and since nobody responded when they called out the name of the appellant, PW6 enquired about him from his neighbours and they informed him that there was a quarrel in the house on the night of the previous day. It was also deposed by PW6 that the back door of the house of the appellant was then lying open and when PW6 and Saji went inside the house through the said back door, they saw a lady lying dead in the house and a child sitting on a cot. It was also deposed by PW6 that when he asked the child about the appellant, she told him that the appellant left the house in the night itself. PW7 is a cable TV service provider and he deposed in his evidence that he had provided a cable TV connection to the appellant.

PW12 is the Executive Magistrate who held the inquest of the body of the deceased. PW12 deposed that at the time when the inquest was held, there were injuries on the body of the deceased and blood was oozing out from her nose and mouth. PW14 is the doctor who conducted the postmortem examination on the body of Sheeja and issued Ext.P8 post-mortem certificate. The following were the ante-mortem injuries found on the body of Sheeja at the time of postmortem examination as deposed by PW14:

“1. Abraded contusion 4x3x0.5cm on left side of head just behind middle of root of left ear.

Contusion 5x3x0.2cm on back of pinna of left ear 2cm above its lower end.

Contusion 4x2x0.2cm on front of pinna of left ear 3cm above its lower end.

Contusion 9x3x0.4cm on right side of back of head just above occiput and just to right of midline.

Contusion 5x3x0.3cm on right side of back of head 2.5cm outer to Injury No. (4).

Abrasion 1x0.7cm on right side of forehead 4.5cm outer to midline and 5cm above eyebrow.

Contusion 4x1x0.2cm on left upper eyelid.

Contusion 3x1x0.2cm on left lower eyelid just outer to its inner angle.

Abrasion 1x0.2cm on right side of face 3cm outer to outer angle of right eye.

Contusion 2x0.6x0.3cm on outer aspect of upper lip just inner to its left angle.

Contusion 2x0.5x0.3cm on outer aspect of lower lip just inner to its left angle.

Contusion 3x1.5x0.3cm on inner aspect of lower lip just above jaw margine and 1cm to left of midline.

Superficial contusion 1.5x0.3cm on right angle of mouth. Brain showed diffused subdural haemorrhage bilaterally, sulci narrow and gyri flattened.

Abrasion 1.5x0.3cm horizontally placed on under chin in the midline 4cm below tip of chin.

Pressure abrasion 21cm long horizontally placed on front and sides of neck with pale areas in between with a discontinuity of 15cm on back. It was placed 5cm below right ear (6cm broad), 5.5cm below chin over thyroid certilage (5.3cm broad), 5cm below left ear (6cm broad) and 6cm below left mastoid (4cm broad).

Flap dissection of the neck was done in a blood less field, the subcutaneous tissue underneath the pressure abrasion showed infiltration of blood 1.5 x0.5x0.2cm on left side 5cm below left angle of jaw and 2x1x0.2cm 8cm outer to midline and 6cm below left ear. Submandibular gland on right side showed contusion over an area 4x2.5x1cm and submandibular gland and adjoining soft tissues on left side showed contusion over an area 6x1.5x0.5cm. All other neck structures including bones and cartilages were intact and normal.

Contusion 3x1.5x0.5cm on front of abdomen in the midline 8cm below lower end of breast bone. Mesentery showed contusion 7x5cm full thickness just above its root. Peritoneal haematoma present bilaterally (10x1x5cm on right side) and 9x6x1cm on left side. Peritoneal cavity was smeared with blood.

Contusion 2x1x0.3cm on left side of abdomen over top of hip bone.

Contusion 1.5 x1x0.2cm on inner aspect of left elbow.

Abrasion 0.5x0.1cm on outer aspect of left elbow.”

The opinion of PW14 as to the cause of death was the combined effect of blunt injuries sustained to the head and abdomen as also the constriction force on the neck. It was also deposed by PW14 that injury 15 can be caused by using a folded cable; that Injury 16 can be caused by forceful stamping and injuries 1 to 13 can be caused by forcefully hitting on the head multiple times. It was also deposed by PW14 that injuries 15 and 16 could cause immediate death.

PW16 is the police officer who recorded Ext.P1 First Information Statement from PW2, the Panchayat Member and he deposed the said fact in his evidence. PW17 is the police officer who conducted the investigation in the case. PW17 deposed that the articles collected by the Scientific Assistant from the scene of occurrence includes MO21 cable having a length of 1.93 meters. It was also deposed by PW17 that when the appellant was arrested, he was found carrying a bag with his clothes therein. PW18 is the doctor who examined PW4, the daughter of the appellant on 28.05.2011 and issued Ext.P13 wound certificate. The cause of injury found on the body of PW4 was stated to PW18 to be “വ പ ക  ങയ പ ട ചത ഉണ യത ". The injury noted by PW18 on the body of PW4 at the time of examination was a contusion on right forehead 1x1 cm. It was deposed by PW18 that the contusion noted on the right forehead could be caused as alleged. In cross-examination, PW18 clarified that the injury found on the body of PW4 could be caused by a fall on the ground also. It is based on the aforesaid evidence that the Court of Session came to the conclusion that it was the appellant who caused the death of Sheeja and caused injury to PW4.

We shall now refer to the arguments advanced by the learned counsel for the appellant. The essence of the elaborate submissions made by the learned counsel for the appellant is that the prosecution has not let in satisfactory evidence to prove that it was the appellant who caused the death of Sheeja and injured PW4. It was argued by the learned counsel for the appellant that there is no evidence in the case to prove the occurrence except the evidence of the minor daughter of the appellant and it was solely based on the evidence tendered by her that the Court of Session convicted him. It was pointed out by the learned counsel that at the time of occurrence, PW4 was aged only 3 years and the trial court ought not have, therefore, convicted the accused solely based on the evidence tendered by PW4. Per contra, the learned Public Prosecutor asserted that there is absolutely no reason to doubt the veracity of the evidence tendered by PW4, and even if the evidence tendered by the child witness is eschewed, the circumstances brought out in evidence would establish beyond reasonable doubt, the guilt of the accused. The learned counsel for the appellant met the argument advanced by the learned Public Prosecutor pointing out that if the evidence tendered by PW4 is eschewed from consideration, going by the standards settled for establishing the guilt of an accused person by means of circumstantial evidence, the circumstances available in the case do not establish beyond reasonable doubt that it was the accused who caused the death of Sheeja and caused injury to PW4.

As noticed, the evidence in the case consists of the oral testimony of PW4 and certain circumstances. As serious arguments were addressed by the learned counsel for the appellant on the acceptability of the evidence tendered by PW4, let us deal with the same before proceeding to consider the other evidence in the case. No doubt, it may not be safe to convict a person solely based on the evidence of a child witness. Even though there is no rule or practice that in every case the evidence of a child witness must be corroborated before a conviction can be allowed to stand, as a rule of prudence, the courts always find it desirable to have corroboration to such evidence from other dependable evidence on record. Coming to the case on hand, PW4 was aged only 3 years at the time when the occurrence took place. No doubt, a child of that age would certainly be in a position to recollect and tell others as to how an incident which he/she witnessed, had occurred. But, the question as to how far reliance could be placed on the version of the child, would depend on the facts and circumstances of each case. In the case on hand, the only relative the child had after the death of her mother is PW1, her grandmother and she was living with the latter all throughout after the death of Sheeja. The evidence tendered by PW1 in the case would show that PW1 earnestly believed that it was the appellant who caused the death of Sheeja. It cannot, therefore, be presumed that the child would not be influenced by PW1. As such, we are of the opinion that it may not be safe to place reliance on the evidence tendered by PW4 as regards the occurrence. If that be so, the case on hand is to be treated as one based on circumstantial evidence. At the same time, we are of the view that reliance can be placed on the evidence tendered by PW4 on matters incidental to the occurrence. As noted, there cannot be any impediment in placing reliance on the evidence tendered by PW4 that there occurred a quarrel between the appellant and Sheeja immediately preceding the occurrence over the cash entrusted by the appellant to her. Similarly, there cannot be any impediment in placing reliance on the evidence tendered by PW4 that the appellant left home after the occurrence with a bag after keeping some of his clothes therein.

Now let us summarise the circumstances :

(i) that there were frequent quarrels between the appellant and Sheeja;

(ii) that the appellant used to physically assault Sheeja at times when they picked up quarrels with each other over her desire to work;

(iii) that a quarrel took place between the appellant and Sheeja at their house after the appellant returned from work on 27.05.2011 over the cash entrusted to Sheeja by him;

(iv) that PW3, their neighbour saw the appellant on the night of 27.05.2011 in the house of the appellant;

(v) that the appellant told PW3 on the night of 27.05.2011 that Sheeja was also there in their house at that time;

(vi) that the appellant left his residence on the night of 27.05.2011 after taking some of his clothes in a bag;

(vii) that PW3, and PW6, the son of the employer of the appellant saw Sheeja lying dead in the house of the appellant at about 8.30 a.m. on 28.05.2011;

(viii) that the appellant was not present in his house in the morning hours of 28.05.2011 when PW3 and PW6 found Sheeja lying dead and PW4 abandoned;

(ix) that PW12 noticed injuries on the body of Sheeja at the time of holding the inquest. PW12 also noticed blood oozed from her mouth and nose then;

(x) that the ante-mortem injuries found on the body of Sheeja at the time of postmortem examination are suggestive of forceful stamping, forceful hitting on the head multiple times and also strangulation;

(xi) that Sheeja died due to the combined effect of the blunt injuries sustained to her head and abdomen as also the constriction force applied on the neck;

(xii) MO21 cable, with which it was possible to inflict injury 15 found on the body of the deceased, was recovered from the scene of occurrence;

(xiii) that the injury found on the body of PW4 was an injury that is possible by holding on her neck;

(xiv) that when the appellant was arrested, he was carrying a bag containing some of his clothes.

It is trite that the following requirements must be fulfilled in order to hold that an accused, in a case based on circumstantial evidence, is guilty of the offence/s for which he is charged:

(1) that the circumstances from which the conclusion of guilt is drawn are fully established,

(2) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) that the circumstances are of a conclusive nature and tendency,

(4) that they should exclude every possible hypothesis except that the accused is guilty, and

(5) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

The pointed questions are whether the circumstances found to have been established by the prosecution are sufficient, in the light of the principles aforesaid, to hold that it was the accused who caused the death of Sheeja and caused injury to PW4.

As already noticed, if the oral evidence tendered by PW4 as regards the occurrence is eschewed, the only evidence to prove the case of the prosecution that the appellant attempted to commit murder of his minor daughter is the contusion found on the right forehead of PW4 and the opinion given by PW18 that the contusion is possible by holding on her neck. But, the specific case of the prosecution is that the appellant attempted to cause the death of PW4 by holding on her mouth and neck. We are not fully convinced by the evidence tendered by PW18 that the injury found on the body of PW4 namely, the contusion on the right forehead is possible by holding on her neck. Be that as it may, according to us, the appellant cannot be convicted for the offence punishable under Section 307 IPC solely based on the contusion found on the right forehead of PW4 and the opinion evidence given by PW18. Needless to say, the finding rendered by the Court of Session that the appellant is guilty of the offence punishable under Section 307 IPC, is liable to be set aside and we do so.

Although we found that the circumstances proved in the case do not establish beyond reasonable doubt the allegation that the appellant attempted to commit murder of his minor daughter, we are convinced on the facts of this case that the said circumstances would establish that it was the appellant who caused the death of his wife, Sheeja for, according to us, the circumstances are not explainable on any other hypothesis except that the accused is guilty; that they would exclude every possible hypothesis except that the accused is guilty and that they form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and would show that in all human probability, the act must have been done by the appellant. We take this view also for the reason that the appellant had no explanation to offer as to the reason for leaving his house on the date of occurrence, abandoning his 3 year old daughter, that too, during the night hours itself. That apart, according to us, having regard to the facts established, the appellant was also obliged in terms of 106 of the Indian Evidence Act to explain as to how the death of his wife occurred. The appellant has not offered any explanation in this regard. Instead, the vague explanation offered by him was that he came to know of the death of his wife only when he was arrested by the police. It is apposite in this context to refer to a passage from the judgment of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681. The passage reads thus:

“Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”

In the light of the discussion aforesaid, we do not find any reason to interfere with the impugned decision of the Court of Session. The appeal is, therefore, dismissed.