Kerala High Court
Usha vs State Of Kerala on 12 April, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO. 492 OF 2024
SC 546/2016 OF ADDITIONAL SESSIONS COURT-I,THALASSERY
APPLICANT/APPELLANT:
USHA, AGED 44 YEARS, W/O ANOOP, PADIYIL HOUSE, KOTTALI P.O, KANNUR,
PIN - 670005
RESPONDENT/RESPONDENT:
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA -
682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence awarded to the
petitioner/appellant in the judgment dated 29.02.2024 in SC No.546/2016 on
the files of the Additional Sessions Court-I,Thalassery ,pending the final
disposal of the appeal and release the petitioner on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S. NANDAGOPAL S.KURUP, ADITH KIRAN
R.S., Advocates for the petitioners and of PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.T.O
P.B.SURESH KUMAR & S.MANU, JJ.
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Crl.M.Appln.No.1 of 2024 in
Crl.Appeal No.492 of 2024
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Dated this the 12th day of April, 2024
ORDER
S.MANU, J.
The petitioner/appellant is the sole accused in
S.C.No.546 of 2016 of the Additional Sessions Court-I,
Thalassery. She faced trial for the offences punishable
under Sections 302 and 309 of the IPC. The trial court has
found her guilty for both the offences. She has been
sentenced to undergo imprisonment for life and to pay a fine
of Rs.25,000/- (Rupees Twenty five thousand only) and in
default to undergo simple imprisonment for one month
under Section 302 of the IPC. For the offence under Section
309 of the IPC she has been sentenced to undergo simple
imprisonment for one year.
2. The case of the prosecution is that the accused is
the wife of PW8 and on 23.1.2010 on account of
irresponsible behaviour of PW8 and his failure to be a good
husband and father, with the intention to commit suicide
Crl.M.Appln.No.1 of 2024 in
and to murder the 2½ year old son, the petitioner/accused
jumped into the well situated on the eastern corner of the
courtyard of house bearing No.III/110, 109(II/54) of Puzhathi
Panchayat on 12.7.2015 at 3.15 a.m. and the child died by
drowning.
3. The final report was filed before the J.F.C.M court,
Kannur and on committal, the case was numbered as
S.C.No.546 of 2016. During the trial before the Additional
Sessions Court, prosecution examined 18 witnesses and
marked 23 documents. During the examination under
Section 313(1)(b) of Cr.P.C the petitioner/accused admitted
her marriage with PW8, the ownership of the house, place of
occurrence, the death of the child due to drowning, etc.
4. The learned Additional Sessions Judge came to the
conclusion that the prosecution succeeded in proving the
offences alleged against the petitioner/accused and found
her guilty of both the offences charged against her.
5. The case of the petitioner/accused is that the
unfortunate death of the child was an accident.
Crl.M.Appln.No.1 of 2024 in
6. Sri.Nandagopal.S.Kurup appearing for the
petitioner/accused argued that many of the witnesses
examined by the prosecution such as PWs.7, 8, 9, 12 and 13
turned hostile. He specifically pointed out that PW8 husband
also turned hostile to the prosecution. Further submission of
the learned counsel is that a perusal of Ext.P3 scene
mahazar would reveal that there was no retaining wall on
the southern side of the well and the occurrence was during
rainy season. He points out that PW8 husband has stated in
his evidence that the area around the well was slippery. He
therefore submits that the death of the child is an accident
and the offence alleged against the petitioner/appellant is
not sustainable.
7. The learned Special Government Pleader
appearing for the prosecution was also heard and the
records were perused.
8. On perusal of the records, we are of the prima
facie view that, the probability of the defence version cannot
be ruled out and there is no direct evidence to prove
jumping into the well by the petitioner/accused with the
Crl.M.Appln.No.1 of 2024 in
child. The learned Additional Sessions Judge has entered
into the findings purely on the basis of circumstantial
evidence. Of course, extensive analysis of the evidence is
not permissible while considering an application under
Section 389 of the Cr.P.C. and hence we do not make any
deep analysis of the evidence.
9. We are of the view that the petitioner/accused has
made out a prima facie case for getting the sentence
imposed on her suspended. We also note that the Criminal
Rules of Practice, Kerala 1982 contains a specific provision in
case of infanticide. Rule 131 of the Criminal Rules of
Practice reads as follows:-
"131. Reference to Government in case of
infanticide.- In all cases where women are
convicted for the murder of their infant children, a
reference shall be made through the High Court to
the Government with an expression by the
Sessions Judge of his opinion as to the propriety or
otherwise of reducing the sentence. Every such
reference shall be accompanied by copies of the
material papers of the record."
Hence, in cases of infanticides, a different approach has
been contemplated.
Crl.M.Appln.No.1 of 2024 in
Taking into consideration various germane facts and
circumstances as narrated above, we are inclined to allow
this application. Hence, the sentence imposed on the
petitioner shall stand suspended on condition that she shall
execute a bond for Rs.1,00,000/- (Rupees One lakh only)
with two solvent sureties for the like sum each to the
satisfaction of the trial court.
Sd/-
P.B.SURESH KUMAR, JUDGE
Sd/-
S.MANU, JUDGE
skj
12-04-2024 /True Copy/ Assistant Registrar
