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.
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CRL. APPEAL NO. 183 OF 1998
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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, andCRL.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