Allowed

N.v.Jayarajan @ Jayan v. State of Kerala

Kerala HC6 Mar 2023CRL.A/2419/2006

Case brief

AI extract

What is this about?

, Criminal Appeal against conviction for culpable homicide not amounting to murder. The High Court found prosecution evidence insufficient to prove guilt. The court acquitted the appellant due to lack of motive and failure to establish an unbroken chain of circumstantial evidence inconsistent with innocence.

What did the court decide?

Conviction and sentence set aside. Appellant acquitted. Bail bond cancelled.

N.v.Jayarajan @ Jayan Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 6^TH DAY OF MARCH 2023 / 15TH PHALGUNA, 1944

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CRL.A NO. 2419 OF 2006

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AGAINST THE ORDER/JUDGMENTSC 456/2004 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD

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APPELLANT/ACCUSED:

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N.V.JAYARAJAN @ JAYAN S/O.KUNHIRAMAN, 37/2003, PATHIRIKKUNNU,, AJANOOR VILLAGE, KANHANGAD. BY ADV SRI.P.V.ANOOP

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RESPONDENT/COMPLAINANT AND STATE:

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STATE OF KERALA

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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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BY ADV PUBLIC PROSECUTOR

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SRI.S.REKHA.SR.P.P

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 2419 OF 2006

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JUDGMENT

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This appeal has been filed by the accused in S.C. No.456 of

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2004 on the file of Sessions Court, Kasaragod against the judgment dated 08.12.2006, convicting and sentencing him under Section 304 Part I of the IPC.

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2 . The appellant is the father of the child. PW 1 is the wife of the appellant and mother of the child. PW1, her father, mother, the appellant and the child were residing together in the house No.X/390 situated at Mogral Puthur Grama Panchayat in Kudlu Village. PW2 is the mother of PW1. The father of PW1 was bedridden at the house. On 19.07.2002, at 9.00 a.m., PWs 1 and 2 went to the hospital to purchase medicines for the father of PW1 entrusting the minor child with the appellant. According to PW1, when they returned, they found contusion on the forehead and red colour on the cheeks of the child. The appellant gave an explanation that the child fell from a bench and sustained those injuries. After two days when PW1 noticed swelling over private parts of the child, she took the child to a nearby hospital and obtained some medicines. On the next day, since there was no

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CRL.A NO. 2419 OF 2006

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improvement, the child was taken to a hospital at Kasaragod belonging to one Doctor Narasimha Bhat. From there he was referred to Wenlock Hospital, Mangalore for expert management. However, the child succumbed to the injuries at Wenlock Hospital, Mangalore on 25.07.2002.

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On 25.07.2002, at 2.30 p.m., the Kasaragod police registered a crime under Section 174 of the Cr.P.C. During the investigation, it was revealed that the accused beat the head of the child against the wall intentionally to cause his death and thus, sustained injuries and later on succumbed to the injuries. Accordingly, the offence under Section 302 of the IPC was incorporated and the appellant was arrayed as the accused.

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PW9, the additional SI of Police, Kasaragod Police Station conducted the initial part of the investigation. PW10, the CI of Police, Kasaragod, conducted the remaining part of the investigation and submitted the final report at the Judicial First Class Magistrate Court, Kasaragod. The learned Magistrate, after complying with the statutory formalities, committed the case to stand trial at the Court of Sessions, Kasaragod (for short, 'the Court below').

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CRL.A NO. 2419 OF 2006

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The accused appeared at the Court below. After hearing both sides, charge under Section 302 of the IPC was framed against the accused. The charge was read over and explained to him. He pleaded not guilty. On the side of the prosecution, PWs 1 to 10 were examined and Exts.P1 to P13 were marked. No defence evidence was adduced. After trial, the Court below found that the accused has committed the offence punishable under Section 304 Part I of the IPC and accordingly, he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- under Section 304 Part I of the IPC, in default to suffer rigorous imprisonment for one year. Aggrieved by the said conviction and sentence, the accused preferred this appeal.

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I have hear d Smt.Anju R.S., the learned counsel for the appellant and Smt.S.Rekha, the learned Senior Public Prosecutor.

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There is no direct evidence to prove the incident. The prosecution case is built upon circumstantial evidence. The learned counsel appearing for the appellant impeached the finding of the Court below on appreciation of circumstantial evidence and resultant finding as to the guilt. The learned counsel submitted

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CRL.A NO. 2419 OF 2006

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that the circumstances highlighted by the prosecution do not present a complete chain of circumstances to warrant the conclusion of the guilt of the accused. There is absolutely nothing to connect the accused with the incident and not even a single circumstance projected by the prosecution stood established, submitted the learned counsel.

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The learned Senior Public Prosecutor, on the other hand, supported the findings and verdict handed down by the Court below and argued that the prosecution has succeeded in proving the case beyond reasonable doubt. All the links in the chain which are so well connected to one another form a strong chain from which the conclusion that the accused had caused his death in the manner alleged by the prosecution is inescapable, contended the learned Public Prosecutor.

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The accused, his wife PW1, the deceased child and parents of PW1 were admittedly residing together in a house, where the alleged incident took place. The prosecution does not have a case that the relationship between the accused and the PW1 was in any way strained. The alleged incident took place when PW1 and PW2 went to the hospital leaving the child alone at

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CRL.A NO. 2419 OF 2006

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the house with the accused. Had the relationship between the accused with the PW1 or the relationship between the accused with the child not been cordial or had PW1 entertained any doubt, PW1 and PW2 would not have entrusted the child alone with the accused. According to PWs 1 and 2, when they returned from the hospital, they found injury on the head of the child and discoloration on his cheek. The accused gave an explanation that the child fell down from the bench.

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The prosecution relied on the evidence of PWs 1 to 3 and few other attended circumstances to prove its case and to fix the culpability on the accused. PWs 1 and 2 deposed in tune with the prosecution. They deposed that when they noticed injury on the body of the child, the accused dissuaded them from taking the child to the hospital. They further deposed that after two days when PW1 noticed swelling on the genital of the child and it was shown to the accused, he again dissuaded her from taking the child to the hospital. They also deposed that when the child was at the hospital, the accused did not visit there. They added that after the death of the child, the accused did not visit the house at all. These circumstances are highlighted by the prosecution to suggest

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CRL.A NO. 2419 OF 2006

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that it was the accused, who caused intentional injury on the head of the child. At this juncture, it is pertinent to mention that in Ext.P1 FI Statement, which was given by PW1 on 25.07.2022, there was absolutely no allegation against the accused. On the other hand, PW1 stated that the child sustained injury by a fall from the bench at home.

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The evidence of PWs 3 and 4, the doctors who conducted autopsy on the body of the child and issued the wound certificate, was heavily relied on by the court below. PW 3 is the doctor who conducted the autopsy on the body of the deceased child. The case of the prosecution is that the child was thrown to a wall by the accused and thus sustained injury. On the other hand, the accused took up a defence that the child sustained injury by falling from the bench. Since admittedly, at the time when the child sustained injury, it was in the custody of the accused, who is none other tha n its father, t he accused has to explain the injury. The accused offered an explanation that the child sustained the injury by a fall from a bench. The height of the bench is 1.5 feet. It is true when a specific question was put to PW3 in chief examination, he answered that injury noted on the head of the

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CRL.A NO. 2419 OF 2006

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child was unlikely by a fall from a bench having a height of 1.5 feet. However, the doctor did not depose that such an injury was not possible. In the cross-examination, the doctor stated that when injury is caused by a fall, height is not the criteria and the way in which the victim falls and the force involved is important. The doctor further deposed that if a child aged 1 ½ years falls from the bench, the injury mentioned in Ext.P2 post mortum certificate is possible and the same depends upon the floor. He added that if the floor is a hard surface, a fracture is possible. Thus, the explanation offered by the accused that the child sustained injury by a fall from a benc h is probable.

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PW4 is the doctor who examined the child initially and

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issued Ext.P4 wound certificate. He deposed that the injury sustained to the head of the child was serious in nature and if a child aged 1 ½ years was thrown to a wall, all those injuries were possible. However, in cross examination, he admitted that he did not treat the child. He also deposed that he cannot say the cause of death. Thus, the evidence of PW4 will not help the prosecution.

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The care and caution with which circumstantial evidence has to be evaluated has been recognised by judicial

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CRL.A NO. 2419 OF 2006

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precedents. It has been consistently held by the Apex Court that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It is equally settled that the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

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As stated already, other than the evidence of PWs 1 and 2, that too based on suspicion and speculation, there is nothing on record to prove that it was the accused who caused injury on the head of the child. The explanation offered by the accused that the child sustained injury by fall from the bench is infact consistent with the medical evidence on record. It is the cardinal principle of criminal jurisprudence that the prosecution has to prove the case beyond reasonable doubt. The proof beyond

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CRL.A NO. 2419 OF 2006

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reasonable doubt is the rule. The proof by preponderance of probability has no place in a criminal trial.

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There is yet another important aspect. The prosecution has not alleged any motive. As stated already, there is no case for the prosecution that the relationship between the accused, PW1 and the child is in any way strained. It is settled that the motive for the crime is material in a case where it was built up with circumstantial evidence. No motive has been alleged or proved by the prosecution in this case. In fact, it is also a circumstance against the prosecution.

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Taking all the above circumstances into account, I have no hesitation to come to the conclusion that the prosecution has failed to prove any acceptable chain of circumstantial evidence which points compellingly and conclusively to the guilt of the accused. None of the circumstances relied on by the prosecution have been established by the prosecution by clear and cogent evidence. As stated already, in order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the

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CRL.A NO. 2419 OF 2006

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guilt of the accused, but inconsistent with his innocence. The

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evidence does not justify the hypothesis of the guilt of the accused. On the contrary, the evidence justifies hypothesis of innocence of the accused. Hence, I hold that the conviction and sentence passed by the court below cannot be sustained.

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In the result, the appeal is allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The accused is found not guilty for t he offence charged and he is acquitted. His bail bond is cancelled.

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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rpk/AS

N.v.Jayarajan @ Jayan v. State of Kerala

Case brief

What is this about?

What did the court decide?

N.v.Jayarajan @ Jayan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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