The Kerala High Court on Wednesday acquitted a mother who had been convicted by a trial court for murdering her only child, a 9-year-old boy. [Teena v State of Kerala]
A Division Bench of Justices K Vinod Chandran and C Jayachandran opined that there may be more than meets the eye, but investigators lack the sensitivity to grasp the same.
“When a woman kills her progeny there is more than that meets the eye; which sensitivity, often, the investigators lack,” the Court said in its judgement allowing the mother’s appeal.
In this case, the mother was accused of committing the gruesome act to wreak vengeance on her husband with whom she shared a deteriorating and abusive marital life. But the Court felt that the attribution of motive solely for this reason would be unfair.
“None can ferret out the feelings of a distressed woman and it is difficult to fathom the despair of a woman subjected to constant domestic abuse. But based on such surmises, it would be unfair to find motive of revenge, that too in a case where a beleaguered woman is accused of killing her own child,” the Court said in this regard.
The Court took strong exception to the fact that the trial court in convicting the mother, had placed heavy reliance on a supposed dying declaration of the mother who went on to survive the suicide attempt.
The Court declared that when dying declarations turn into confessions, judicial officers must pause and comply with the salutary statutory procedure prescribed under sub-sections (2) to (4) of Section164 of the Code of Criminal Procedure (CrPC).
“The Magistrate is not merely acting as a scribe. It is the status as a judicial officer, well versed in law, which motivated the Legislators to treat the statement recorded under Section 164 at a higher plane than those recorded by the police under Section 161, which would also inspire the Court analysing the evidence. The moment, a dying declaration transforms itself into a confession, with the possibility of the declarant being accused of the offence itself, it is incumbent upon the Magistrate to pause and comply with the salutary statutory procedure prescribed under sub-sections (2) to (4) of Section 164,” the judgment stated.
The allegation against the mother who preferred the appeal was that she administered sleeping pills to her unsuspecting child, and while he was dozing, slit his left wrist with a razor blade and subsequently smothered him with a towel.
Later, the accused supposedly consumed poison and with the very same razor blade, slit the vein on her right hand with the intention of committing suicide.
A statement allegedly given by the accused to the doctors who treated her was heavily relied upon by the trial court that found her guilty of the offences charged under Sections 302 (murder) and 309 (attempt to commit suicide) of the Indian Penal Code, and sentenced her accordingly.
Advocate PK Varghese appearing for the accused, argued that the reliance placed on the alleged dying declaration is impermissible in law.
The counsel attacked the manner in which the trial court invoked the power under Section 311, because when the case was posted for judgment it was reopened and summons issued to two witnesses.
Senior Government Pleader S Ambikadevi argued that the declaration is not a confession under Section 164, but still has relevance under the Evidence Act.
The most important issue considered by the Court was whether the extra-judicial confession in this case was a dying declaration or a confession or an admission or a mere statement under S.164.
Going by Section 32(1) of the Evidence Act, the Court said that since the declarant in this case survived and was also not under any fear of imminent death at the time the statement was given, her statements are confessions of a crime which do not fall under the definition of a dying declaration.
Therefore, the Court observed that it is inadmissible under Article 20(3); unless it is recorded following the procedure mandated under sub-sections (2) to (4) of Section 164.
“If we look at the statement recorded and the clear expression of opinion of the Doctor that she is not in a critical stage; when statements were made inculpating herself of a homicide, the Judicial Officer ought to have cautioned her of the implications of the further statements,” the Court stated.
The Court examined whether there was over zealousness on the part of the trial court, in summoning the witness for re-examination under Section 311 CrPC, when there was no such prayer by the prosecution.
The Court noted that the witness was summoned to produce the case sheet and give evidence ‘for the just decision of the case’ (sic).
“The principles propounded by the Hon’ble Supreme Court, we are sure, does not merely mandate a hollow reiteration of the words employed in the provision: ‘for a just decision of the case’. There should be strong and valid reasons recorded, however brief, as to the exercise of that power, facilitating a just decision,” the Court opined.
Therefore, the Court declared that in the instant case, the invocation of the power under Section 311 CrPC was bad in law.
On the aspect of motive, the Court noted that the husband had a history of addiction, mental illness and that the accused wife had alleged that he had been abusive on several occasions.
However, the Court was unable to find unequivocally, that this proved the motive for the murder of the child and the subsequent attempt to suicide.
On considering the other facts and circumstances of the case, the Court opined that the prosecution has failed to establish guilt beyond all reasonable doubt, and that the sessions judge had erred in the marshalling of facts and scrutiny of evidence.
Therefore, the High Court acquitted the accused.
Read Judgment here:
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