Kerala High Court

Abu @ Abdulla vs State Of Kerala on 27 May, 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 MRS. JUSTICE M.B. SNEHALATHA
  MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
                      CRL.A NO. 83 OF 2017
  AGAINST THE JUDGMENT DATED 04.01.2017 IN SC NO.106 OF
2011 OF THE COURT ADDITIONAL SESSIONS COURT-I, THALASSERY
 (SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST WOMEN
                    AND CHILDREN, THALASSERY)
APPELLANT/ACCUSED:

         ABU @ ABDULLA,
         AGED 43/2017, S/O.KADER HAJI, TRIPANGOTTUR

        BY ADVS.
        SRI.P.VIJAYA BHANU (SR.)
        SMT.MITHA SUDHINDRAN
        SRI.M.REVIKRISHNAN



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM


OTHER PRESENT:

         Smt.Ambika Devi S.., Spl.P.P.




     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.05.2024,   THE     COURT   ON       27.05.2024,   DELIVERED   THE
FOLLOWING:
 Crl.Appeal No.83 of 2017              -: 2 :-




         P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
             -----------------------------------------------
                    Crl.Appeal No.83 of 2017
              -----------------------------------------------
             Dated this the 27th day of May, 2024


                              JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.106 of 2011 on the files

of the Court of the Additional Sessions Judge-I, Thalassery is

the appellant in the appeal. He stands convicted and

sentenced for the offence punishable under Section 302 of the

Indian Penal Code (IPC).

2. The victim in the case was a physically

challenged girl aged 7 years. The accused is none other than

the father of the victim. The victim suffered a serious head

injury in the late hours of 14.01.2010 and she succumbed to

the said injury. A case was registered by Kolavallur police in the

early hours of the following day, on the basis of the complaint

lodged by the brother of the wife of the accused that he was

informed that the accused caused the death of the victim out

of anger. After investigation, the final report has been filed in

the case against the accused alleging commission of the

offence punishable under Section 302 IPC. The accusation in

the final report is that on 14.01.2010, at about 10.10 p.m., the

accused committed murder of the victim by holding her upside

down by her legs and hitting her with force on to the floor of

the veranda of their house, causing the head of the victim to

get smashed on the floor. The victim succumbed to the injury

sustained on the way to the hospital.

3. On the accused being committed to trial, the

Court of Session framed charge against the accused, to which

he pleaded not guilty. Thereupon, the prosecution examined 16

witnesses as PWs 1 to 16 and proved through them 23

documents as Exts.P1 to P23. MOs 1 to 8 are the material

objects in the case. When the incriminating circumstances

were put to the accused in terms of the provisions contained in

Section 313 of the Code of Criminal Procedure (the Code), the

accused denied the same. The Court of Session, thereupon, on

a consideration of the evidence on record, held that the

accused is guilty of the offence for which he was charged,

convicted and sentenced him to undergo imprisonment for life.

The accused is aggrieved by his conviction and sentence, and

hence this appeal.

4. It is seen that in terms of the order passed on

11.04.2017, this Court suspended the execution of sentence

imposed on the accused by the Court of Session and enlarged

him on bail.

5. Heard the learned Senior Counsel for the

accused as also the learned Special Public Prosecutor.

6. The argument of the learned Senior Counsel

for the accused is that even though all the witnesses cited by

the prosecution to prove the occurrence turned hostile, the

accused has been convicted by the Court of Session solely

based on the medical evidence and also by applying Section

106 of the Indian Evidence Act. According to the learned Senior

Counsel, in the absence of any substantive evidence to prove

the occurrence, the Court of Session ought not have convicted

the accused. It was also the argument of the learned Senior

Counsel that it is not a case where Section 106 could be

applied. Per contra, the learned Special Public Prosecutor

supported the impugned judgment, placing reliance on the

decision of the Apex Court in Selvamani v. State Rep. by

the Inspector of Police, 2024 KHC OnLine 6272.

7. The point that arises for consideration is

whether the conviction of the accused and the sentence

imposed on him, are sustainable in law.

8. The Point: The fact that the victim suffered a

grave head injury on the relevant day at the relevant time, is

not in dispute. The victim was taken by PW3, the father of the

accused to PW9, a private doctor. PW9 deposed that he

examined the victim in the car in which she was brought to his

house and at the relevant time, the victim was lying on the

laps of a lady and her grandfather inside the car and blood was

oozing out from the nose and mouth of the victim. PW9

deposed that when he examined the victim, there was only a

feeble heartbeat and the same had stopped within seconds.

Even though PW9 deposed that he was informed that the child

suffered the head injury on account of a fall, he opined that the

injury suffered by the victim was not one which is likely to be

caused on account of a fall and that an injury of this nature

would be possible only by a forcible hit of her head on the floor

by someone. PW9 also deposed that he referred the victim to

the Government Hospital, Thalassery. PW11 was the Civil

Surgeon attached to the Government Hospital, Thalassery who

examined the victim at about 11.55 p.m. on the relevant day.

PW11 deposed that the victim was brought dead to the

casualty by one Muhammed Haneefa and there was a bleeding

injury on the head of the deceased. PW11 also deposed that he

was told that the victim suffered the injury on account of a fall.

PW11 also deposed that the injury suffered by the victim was

one that could be caused by a hit by force by someone causing

the head of the child to hit on the floor. PW12 was the doctor

who conducted autopsy on the body of the deceased. Ext.P14

is the autopsy certificate issued by PW12. The following are the

ante-mortem injuries noted by PW12 at the time of autopsy:

"1. Punctured lacerated wound 0.4 x 0.3 cm on the left side of head overlying the parietal eminence; crushed brain matter was oozing out through the wound. All the bones of the vault of skull were fractured and fragmented. Some of the fragments were bulging out through the intact skin. There was fragmentation of the floor of anterior cranial fossa; the fracture line extended to the left side of middle cranial fossa also. Dura was irregularly torn. Left cerebral hemisphere was irregularly lacerated, with scattered areas of crushing. Subarachnoid bleeding was seen bilaterally. Cerebellum and the brain stem were completely torn away from the cerebral hemisphere. Air passages contained aspirated fluid blood. Cervical spine was fractured and dislocated at C2 level. Lower jaw was fractured in the midline, upper jaw was fractured into two, just outer to the incisor teeth on the right side.

2. Abrasion 4x0.5 cm vertical on the back of trunk in the midline, midway between the root of neck and natal cleft."

PW12 deposed that the victim died of blunt violence sustained

to the head. PW12 deposed that the entire skull, except the

posterior cranial fossa around the brain stem was seen

fractured. When PW12 was required to explain as to what he

meant by the expression 'blunt violence', he clarified that a

blunt violence to the head means that the injury was caused

by some other person. Even though PW12 was cross-examined

at length, the evidence tendered by him that the victim died of

blunt violence sustained to her head has not been discredited

in any manner, whatsoever. In other words, the prosecution

has established beyond reasonable doubt that it is a case of

homicide.

9. The next aspect to be considered is as to who

caused the death of the victim. PW1 is none other than the

brother-in-law of the accused, on whose complaint the case

was registered. PW1 turned hostile to the prosecution and

deposed that the victim died on account of a fall. Even though

PW1 admitted his signature in Ext.P1 First Information

Statement, he denied having made any statement to the police

that it was the accused who caused the death of the victim out

of anger. PWs 2 to 5 are the witnesses examined by the

prosecution to prove the alleged occurrence, namely that it

was the accused who caused the death of the victim. Among

them, PW2 is none other than the mother of the victim, PW3,

as already noticed, is the grandfather of the victim, PW4 is a

neighbour of the accused and PW5 is the wife of the brother of

the accused who was residing with the accused and his family

in the house where the occurrence took place. All the said

witnesses also turned hostile to the prosecution. Among them,

PW4 deposed that he did not see the occurrence at all and on

enquiry, it was found by him that the victim died on account of

a fall. PWs 2, 3 and 5 who were very much in the house at the

time of occurrence were also consistent in their stand that the

victim died on account of a fall from an elevated place in the

front side of the house which is used to offer prayers. It was

clarified by PW2 in her evidence that the victim who was

suffering from paralysis, was lying on a mat at the elevated

place at the relevant time. In short, there is no evidence to

prove the occurrence.

10. It is seen that the Court of Session found,

based on medical evidence let in by the prosecution, that the

injury suffered by the victim would not have been caused on

account of a fall from an elevated place as deposed by the

witnesses examined on the side of the prosecution. As such,

according to the Court of Session, inasmuch as the occurrence

took place inside the house of the accused, in the light of the

provision contained in Section 106 of the Indian Evidence Act,

the accused is duty bound to explain the homicidal death of his

daughter, and the non-explanation of the same would be a

strong circumstance against the accused that he is responsible

for commission of the crime. The Court of Session has relied on

the decision of the Apex Court in Gajanan Dashrath Kharate

v. State of Maharashtra, (2016) 4 SCC 604, in support of the

said view.

11. We are unable to accept the view taken by the

Court of Session. Gajanan Dashrath Kharate is a case where

the accused committed murder of his own father in their

residential house. A perusal of the said judgment indicates that

at the time of the alleged occurrence, the accused alone was

present in the house along with the victim and it is in the said

circumstances, the Apex Court applied Section 106 of the

Indian Evidence Act to hold that the accused is bound to

explain the homicidal death of his father and the non-

explanation of the same would be a strong circumstance

against the accused that he is responsible for commission of

the crime. The said judgment has no application to the facts of

the present case.

12. In Sirajudheen v. State of Kerala, 2024 KLT

OnLine 1193, after referring to the decisions of the Apex Court

in Trimukh Maroti Kirkan v. State of Maharashtra, (2006)

10 SCC 681 and in Balvir Singh v. State of Uttarakhand,

2023 SCC OnLine SC 1261, this Court explained the scope of

Section 106 of the Indian Evidence Act thus:

"On a consideration of the provision and the decisions of the Apex Court referred to above, we are of the view that it is only when it is impossible or at any rate, disproportionately difficult, for the prosecution to give wholly convincing evidence on certain crucial facts, in terms of Section 106 of the Indian Evidence Act, the accused is obliged to give evidence on those facts, if it is established that those facts are within his knowledge, if he wishes to get rid of his conviction. In other words, it is only when it is shown that all that is possible to prove the facts in issue have been proved by the prosecution and what remains is only the facts which are exclusively within the knowledge of the accused, the burden shifts to the accused."

Reverting to the facts, PWs 2, 3 and 5 were very much present

in the house when the occurrence took place. As noted, all of

them took the consistent stand that the death of the victim

occurred on account of a fall from the elevated place in the

house which was used to offer prayers. In such a situation, the

burden to prove the occurrence will not be shifted to the

accused in terms of Section 106 of the Indian Evidence Act.

13. If Section 106 of the Indian Evidence Act has

no application to the facts, the only evidence available in the

case is the medical evidence which is not substantive

evidence, and there cannot be any conviction solely based on

the medical evidence [See Balaji Gunthu Dhule v. State of