High Court Kerala High Court

Muhammed Hussain vs State Of Kerala on 10 October, 2007

Kerala High Court
Muhammed Hussain vs State Of Kerala on 10 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 183 of 1998(A)



1. MUHAMMED HUSSAIN
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.B.RAMAN PILLAI

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :10/10/2007

 O R D E R
                            K.THANKAPPAN, J.
                    ----------------------------------------------
                     CRL. APPEAL NO. 183 OF 1998
                    ----------------------------------------------

                  Dated this the 10th day of October, 2007

                                  JUDGMENT

This appeal is filed against the judgment in S.C. No.87 of 1996 on

the file of the Additional Sessions Court, Alappuzha. The appellant faced

trial for the offences punishable under Sections 498A and 306 I.P.C.

2. The prosecution case in brief is as follows: The appellant –

accused married one Shahana, the deceased in this case, on 16.2.1992 in

accordance with the customs prevalent in their community. After

marriage, they resided at a place called Karuvatta for sometime and

thereafter shifted their residence to the house of the uncle of the accused.

After sometime, the accused sold the gold ornaments given to deceased

Shahana at the time of marriage and purchased 23 cents of property in his

name at Mannancherry. Thereafter, the appellant – accused compelled

and harassed deceased Shahana to get more share from her family

whereupon an amount of Rs.15,000/- was given to her out of the family

CRL.APPEAL NO.183/1998 2

share and an amount of Rs.25,000/- was given on selling the property

belonging to her father and one half of the 23 cents of landed property was

transferred in her name during 1993. Thereafter, the accused used to

harass and torture deceased Shahana physically and mentally to transfer

her share of the property in his name and on 27.2.1995, the appellant –

accused assaulted her and thereby abetted her to commit suicide. On

28.2.1995 deceased Shahana went to the house of her uncle, PW.4 , along

with her child and when her brother PW.1 was informed about this, he

took deceased Shahana and her child to his house and seeing the injuries

on her body, took her to the Medical College Hospital Alappuzha. She

returned home on the same day and as she was mentally depressed due to

the torture, she consumed poison on 1.3.1995 at 4.p.m. and as she started

vomiting on 2.3.1995, she was again taken to the Medical College

Hospital, Alappuzha and while undergoing treatment she died at 9.45 p.m.

on 4.3.1995. With the above charge, the appellant was prosecuted. To

prove the case against the appellant, the prosecution examined PWs.1 to 24

and produced Exts.P1 to P25 as well as MOs.I to VII(e). On the side of

the defence, DWs.1 and 2 were examined and Exts.D1 to D3(c) were

produced. After closing the prosecution evidence, the accused was

questioned under Section 313 Cr.P.C. The appellant – accused denied the

prosecution charge and stated that he had never harassed deceased

CRL.APPEAL NO.183/1998 3

Shahana. He further stated that deceased Shahana had field a complaint

against her brother, PW.1 before Mohamma Police Station and that there

was a wordy altercation between himself and PW1 at the police station.

He further stated that he came to know about the death of his wife through

his friend Saddiq. The accused also stated that on 15.3.1995, he went to

Alappuzha North Police Station and the Circle Inspector of Police arrested

him and detained him at the police station for 12-15 days. After

considering the entire evidence, the trial court found the appellant –

accused guilty under Sections 306 and 498A I.P.C., convicted him

thereunder and sentenced him to undergo rigorous imprisonment for seven

years under Section 306 I.P.C. and rigorous imprisonment for three years

under Section 498A I.P.C. The sentences were ordered to run

concurrently. The accused was also given the benefit under Section 428

Cr.P.C. The above conviction ans sentences are challenged in this appeal.

3. Heard the learned counsel appearing for the appellant as well as

Sri. P.G. Thampi, the learned Director General of Prosecution.

4. The main contention raised by the learned counsel appearing for

the appellant is that the trial court committed serious error in finding that

Shahana committed suicide and that the appellant had abetted her to

CRL.APPEAL NO.183/1998 4

commit suicide. Before proceeding further, it is necessary to find out

whether the finding of the trial court is based on evidence. In paragraph

41 of the impugned judgment, the trial court observed as follows:

“There is no evidence to prove when she
has taken poison and from where. The
Investigating Officer was not able to produce
acceptable evidence as to the time and place of
consumption of poison. But the charge is that the
deceased consumed poison after 4 p.m. on 1.3.95
and before 2.3.95 morning because she began to
vomit on 2.3.95 in the morning. Failure to prove
the exact time and place of consumption of
poison is not at all fatal to prosecution in this
case. The contention of the defence is that if she
had consumed zinc phosphide the fatal period is
24 hours that she should have died earlier. But
this contention is not acceptable because PW.22
the doctor has stated categorically that if the
quantity of the poison consumed is small the
person will survive beyond 24 hours. The
argument advanced by the defence counsel is
based on medical jurisprudence that if the
deceased consumed zinc phosphide the death
would occur within 24 hours. But if the quantity
of poison is lesser there is the possibility of
extension of time of death as stated by PW.22.”

A reading of the above finding of the trial court would show that there was

no evidence before the trial court to conclude that deceased Shahana

committed suicide. If that be so, the trial court committed serious error in

finding that the accused had abetted her to commit suicide and thereby

CRL.APPEAL NO.183/1998 5

committed offence punishable under Section 306 I.P.C. The prosecution

case is based on the evidence of PWs.1 to 4. These witnesses had given

evidence regarding the marriage of the accused and deceased Shahana and

the subsequent ill treatment suffered by deceased Shahana at the hands

of the accused.

5. Now, coming to the medical evidence, PW.12 was the doctor

who treated Shahana on 28.2.1995. He issued Ext.P6 wound certificate in

which the following injuries are noted:

1) Multiple tiny abrasion, contusion on right
forearm, left forearm,left side of neck covered
with blood clot which is dried.

2) Contusion left shoulder region 3 x 2 cms.

This witness stated that he was in the Casualty attached to the Medical

Colleges Hospital and that Casualty being the busy section of the hospital,

he was not able to go deep into the other injuries found on the body of

deceased Shahana. He further stated that the victim was conscious and

oriented. PW.12 also stated that the allegation was ”

” He further stated that

there was no complaint regarding consumption of poison or any case of

CRL.APPEAL NO.183/1998 6

vomiting. PW.13 was working as Lecturer in Medicine at the Medical

College Hospital, Alappuzha during the relevant time. This witness was

examined to prove that deceased Shahana was admitted at the Medical

College Hospital at about 8.30 a.m. on 2.3.1995 with the alleged history of

consumption of rat poison three days prior to her admission in the

hospital. This witness stated that the patient complained of abdominal

pain, vomiting and giddiness. He further stated that the patient was de-

hydrated and that there was no other symptom of poisoning. Ext.P8 is the

O.P. ticket issued by him. When cross-examined, this witness stated that

there was no clinical signs of poisoning and that he was not told about her

previous treatment at the hospital. PW.22 was the Assistant Professor,

Medicine, Medical College Hospital, Alappuzha during 1995. He stated

that a patient by name Shahana was admitted in the hospital on 2.3.1995

alleging consumption of unknown poison. This witness stated that the

patient was fully conscious, oriented, her lungs were clear and B.P. was

100/60 mm. He also stated that her heart and nervous system were normal

and that he noted tenderness in the abdomen. He further stated that he

elicited the history that poison was consumed by deceased Shahana on

26.2.1996. This witness further stated that the fatal period in the case of

rat poison is 24 hours. When it was suggested to this witness that the

person would not have survived if poison was taken on 26.2.1995, he

CRL.APPEAL NO.183/1998 7

stated that if the quantity consumed was small, the patient would survive

even after 24 hours. He also stated that the fatal period may vary

according to the type of poison and the quantity of consumption. He

further stated that he had seen the patient six times during the treatment on

2.3.1995, that the patient was suffering from vomiting, giddiness and de-

hydration and that she died at 9.45 p.m. on 4.3.1995. In cross-

examination, this witness had stated that when he saw the patient at 11.45

a.m. on 4.3.1995, she was restless and irritable. He also stated that the

date of consumption of poison was recorded as per the statement given by

the patient.

6. The Associate Professor and Deputy Police Surgeon attached to

the Medical Colleges Hospital, Alappuzha who conducted postmortem on

the body of deceased Shahana was examined as PW.17. He issued

Ext.P12 postmortem certificate. He stated that he noted the following

antemortem injuries on the body of deceased Shahana:

1. Contusion 1.5 x 1 cm over the outer aspect
right arm 3 cm below tip of shoulder.

2. Contusion 8 x 3.5 cms involving the tip of left
shoulder and outer aspect of left arm.

3. Contusion 8 x 4.5 cms on the front of right

CRL.APPEAL NO.183/1998 8

forearm, 3 cms below elbow. All the above
contusions were brownish black in colour.

4. Abrasion 1.5 x 1 cm over left side of neck 1 cm
below the ear.

5. Abrasion 2.5 x .5 cms over the back of right
elbow.

6. Abrasion 0.7 x 0.5 cm. over the inner aspect of
right forearm 2.5 cms aboves the wrist.

7. Abrasion 2.5 x 1 cms over the inner aspect of
right forearm 2 cm above injury number (5).

8. Abrasion 1.5 x 0.5 cms over the back of right
thump 1 cm below its root.

9. Abrasion 1 x 0.5 cm over the back of right
hand 2 cms above root of thump.

10.Abrasion 0.5 x 0.5 cms on the outer aspect of
left forearm 1 cm above the wrist.

11.Abrasion 0.5 x 0.5 cms over the back of root
of left palm.

12.Abrasion 2 x 1.5 cms over the front of left leg
4 cms below the knee. All he above abrasions
were covered with black dry scab.

This witness further stated that the stomach contained 20 ml. of brownish

fluid with partly digested soft meat particles and blackish powdery

materials sticking to mucosa which was pale and yellowish with a strong

unusual smell. He also stated that as per Ext.P13 chemical analysis report,

CRL.APPEAL NO.183/1998 9

the patient died of zinc phosphide poison as zinc phosphide was detected

in the stomach contents. According to this witness, normal fatal period of

zinc phosphide poisoning is one day, but it can go upto three days and that

death occurs within three days. He further stated that zinc phosphide

causes vomiting, abdominal pain and restlessness. This witness also

stated that the patient might have consumed the poison three days prior to

her death. When cross-examined, this witness stated that he cannot say

exactly when the deceased took the poison. He was definite that all the

antemortem injuries were visible and measurable. This witness also stated

that clinically it was possible to detect poison.

7. From the above medical evidence and the evidence of PWs.1 to 4,

it is not possible to say whether deceased Shahana consumed poison

voluntarily or whether poison was administered to her by the appellant –

accused. In this context, Ext.P16 first information statement recorded by

PW.20 is relevant. In Ext.P16 it is stated as follows:

.

   .             .

    .





    .

CRL.APPEAL NO.183/1998                10






       . From the above statement and the evidence of

PWs.1 to 4 it can be seen that some medicine was administered to deceased

Shahana by the appellant – accused on 26.2.1995. The evidence of PW.20

who recorded the above statement would show that he went to the

hospital on getting information regarding the incident. PW.21, the Sub

Inspector of Police, North Police Station, Alappuzha stated that he

registered Crime No.95 of 1995 and Ext.P17 First Information Report was

sent to the court. PW.23, the Circle Inspector of Police stated before the

court that he took up investigation of the case on 4.3.1995, questioned the

witnesses and as per Ext.P19 search list, searched the house of the

appellant – accused from where he seized MOs.1 to MO.VII(e). He

further stated that he arrested the accused on 24.3.1995 at 7.40 p.m. He

also stated that his investigation did not reveal the time and place of

consumption of poison. This witness also stated that his investigation did

not reveal whether the deceased had consumed poison voluntarily or

whether poison was administered to her by somebody else. PW.24 was

the Deputy Superintendent of Police who took over the investigation of the

case on 8.3.1995. The evidence of this witness also would not show

whether the deceased Shahana had consumed poison voluntarily or

whether poison was administered to her by somebody else.

CRL.APPEAL NO.183/1998 11

8. On analyzing the evidence of these witnesses, the trial court had

not come to a definite conclusion whether the death of Shahana was

suicide of homicide. Unless and until this aspect is proved, the findings

entered by the trial court are not sustainable. In the above circumstances,

this Court is left with two options, either to order reinvestigation of the

case or order retrial. In a case of this nature, the materials placed before

this Court has to be looked into. It is not possible to come to a definite

conclusion from the medical evidence adduced by the prosecution whether

deceased Shahana consumed poison voluntarily or otherwise. Hence, it is

not possible to hold whether death was due to suicide or homicide. Both

PWs.12 and 13, the doctors who examined and treated Shahana, were

definite that the fatal period in a case of zinc phosphide poisoning is one

day. Even in Ext.P16 first information statement, the case of the deceased

was that some medicine was given to her by her husband on 27.2.1995.

At the same time, in the statement recorded by PW.12, it was stated that

consumption of medicine was on 26.2.1995. In the above circumstances,

the evidence of PWs.1 to 4 is not enough to prove whether death was due

to suicide or homicide. If Ext.P16 is taken as a dying declaration of

deceased Shahana,the investigation conducted by the investigating agency

is also shabby as it does not prove the exact incident.

CRL.APPEAL NO.183/1998 12

9. In the above circumstances, as per the principles laid down by

the Apex Court in the decision reported in Zahira Habibulla H. Sheikh v.

State of Gujarat, 2004 S.C.C. (Cri) 999, this Court is of the view that the

finding entered by the trial court and the conviction and sentence ordered

against the appellant – accused is shocking to the conscience of justice and

this Court is compelled to take a view under the appellate power of this

Court contemplated under Section 386 Cr.P.C. to remand the matter to the

trial court for retrial. In the decision referred to above, the Apex Court

had considered the power of the appellate court to order a retrial under

Section 386 Cr.P.C. or direct additional evidence to be taken under Section

391 Cr.P.C. Considering the purpose of a judicial trial, the Apex Court,

in paragraph 38 of the above judgment, held as follows:

” A criminal trial is a judicial examination
of the issues in the case and its purpose is to
arrive at a judgment on an issue as to a fact or
relevant facts which may lead to the discovery of
the fact issue and obtain proof of such facts at
which the prosecution and the accused have
arrived by their pleadings; the controlling
question being the guilt or innocence of the
accused. Since the object is to mete out justice
and to convict the guilty and protect the innocent,
the trial should be a search for the truth and not a
bout over technicalities, and must be conducted
under such rules as will protect the innocent, and

CRL.APPEAL NO.183/1998 13

punish the guilty. The proof of charge which has
to be beyond reasonable doubt must depend upon
judicial evaluation of the totality of the evidence,
oral and circumstantial, and not by an isolated
scrutiny.”

10. Considering all these aspects and finding that the trial court had

not conducted a proper trial so as to serve the purpose of a trial, this Court

is of the view that the impugned judgment is liable to be set aside.

Accordingly, the impugned judgment is set aside and the matter is

remanded to the trial court for retrial. It is made clear that if the State and

the accused desire to adduce any further evidence or cross-examine any of

the witnesses already examined, that shall be allowed by the trial court.

As the matter is of the year 1995, the trial court is directed to dispose of

the matter within a time frame.

The Crl. Appeal is allowed by way of remand. The interim order

passed by this Court on 11.3.1998 in Crl. M.P.No.1051 of 1998 shall

continue till a final decision is taken by the trial court.

(K.THANKAPPAN, JUDGE)

sp/

CRL.APPEAL NO.183/1998 14

K. THANKAPPAN, J.

CRL.A. NO.183/1998

JUDGMENT

10th OCTOBER, 2007