LAKSHMANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant, Lakshmanan, aged 25 stands convicted by the Sessions Judge of Palghat under S. 302 I. P. C. for causing the death of his wife Devaki by strangulation, and sentenced to rigorous imprisonment for life.

(2.) THE accused had married Devaki three years ago and while they were living as man and wife he was involved in a criminal case and was convicted and sentenced to imprisonment for one year. It was just about three months prior to the occurrence that he returned from jail. At the time of his marriage, he had presented Devaki with a gold chain weighing 11/2 sovereigns. While the accused was in jail this gold chain was pledged by devaki's mother without the knowledge or consent of the accused. Devaki was unwilling to return to her husband without the gold chain. While so, about a week prior to the occurrence the accused went to Devaki's house and took her back. On the evening of 1111966, Devaki expressed her desire to go to her house, but the accused was not amenable. When Devaki persisted in her demand, the accused got wild and beat her twice with a bamboo stick. That night Devaki, in protest, abstained from taking any food. In the succeeding morning also she repeated her demand to go home. THE accused was still adamant. Just to solve the riddle the accused's father intervened and persuaded him to take her back to her house. By way of travelling expenses he gave the accused eight annas also. THE accused put the coin in his pocket and went to the paddy field to resume his work there. Devaki got restive and was seen walking to and fro in the courtyard of the house in a state of despair. Accused's sister Pw-1, happened to be in the house that day. THE restlessness shown by Devaki instilled fear in the mind of Pw-1 that she would run away from the place or commit some mischief or other. She accordingly called the accused from the paddy field. He came in an agitated mood and asking Devaki "do you want to go home" pushed her by her throat and took her into the room. Pw-1 cried out to the accused "don't kill her". THE accused's parents were also attracted to the scene; but the accused overcome with rage asked them all to get away and after a short while he called them back saying that Devaki had betrayed him. To their astonishment they saw Devaki lying dead in the front room of the house. THE accused himself went to the nearby Hemambika Nagar police station and lodged the F. I. statement Ex. P-14. His statement to the police was that Devaki had died by swallowing oleander seeds. Crime No. 5/66 was registered and the F. I. R. is Ex. P-14 (a ). Postmortem examination showed that Devaki died of strangulation.

(3.) THE two points that call for decision in this appeal are: (1) the cause of Devaki's death; and (2) whether the conviction based solely on the retracted statement of Pw-1 given in the committing Magistrate's court could be sustained. Point No. 1. From the postmortem examination the doctor has drawn the conclusion that death was due to asphyxia as a result of strangulation. THE opinion was given after a long interval, i. e. , on 15 31966. THE postmortem was conducted as early as on 13166. THE doctor had his own doubts about the cause of death and he was unable to give an opinion then and there. It was suspected that the deceased had taken poison and so the viscera was sent for chemical examination and the doctor had to wait for the result before he could finalise his opinion. THE reasons given by him for his conclusion that the death was due to strangulation are: (1) Extravasation of blood under the skin over the neck and face; (2) Sub-conjunctival haemorrhage; (3) Hyoid bone broken; and (4) Passing of urine and wetting the external genitalin. It is argued for the appellant that other clearer indications like swelling on the face and change in the position of the tongue which are usually found in a case of strangulation were significantly absent in the instant case. On the other hand, learned counsel pointed out that in fact the symptoms of poisoning were present. One such symptom was the dilation of pupils. No hand mark was noticed on the neck, which according to the learned counsel is a negative symptom of strangulation. So also, cyanosis was found continuously around and above the neck, which also would rule out strangulation. Doctor's answer on this point was that cyanosis would occur at the site of strangulation as well as the area above or below depending upon the circulation of blood. He also stated that if the person was strangulated by both hands, cyanosis would be present throughout the area. But in the present case the evidence is that the deceased's throat was pressed by the right hand only. In short, barring the fracture of the hyoid bone none of the other symptoms noticed was conclusive to warrant the conclusion that it was a case of strangulation. But the doctor himself was positive that mere breaking of the hyoid bone will not result in death. It has come in the evidence that just before her death, Devaki had vomited profusely and the vomit contents, on chemical examination, were found to contain oleander poison. In this state of the evidence and especially in view of the fact that the doctor himself was hesitating to form his conclusion it cannot positively be said that the death was due to strangulation. Point No. 2. We have already seen that the only evidence in the case is the testimony of Pw-1 given in the committing Magistrate's court. Before the Sessions, that statement was retracted by the witness saying that she was compelled by police pressure to depose so before the Magistrate. We are not expected to launch ourselves upon a roving enquiry as to the truth or otherwise of the alleged police torture and such an enquiry is uncalled for also. All that we are concerned with is whether S. 288 of the Code of Criminal procedure has properly been applied and if so whether the statement is sufficient in itself to justify the conviction. On the former aspect, viz. , the procedural requirement, we are satisfied that it was well complied with, and that the statement was treated as substantive evidence only after giving due notice to the parties, of the court's intention to do so; but we are not prepared to say that the learned judge is justified in entering the conviction solely on the said retracted statement. It is unsafe to convict an accused solely on the evidence of persons who give one version in the committing magistrate's court and a totally different one before the sessions court, unless there is other reliable evidence in support of the prosecution. When once a statement is put in evidence under S. 288 it becomes substantive evidence and is not restricted to purposes of contradiction or corroboration alone. Courts are hence advised to resort to the section only sparingly and to be extremely cautious and circumspective in its application. Prudence dictates that such a statement should not be accepted much less made the sole basis for a conviction without effective corroboration in material particulars. We have, therefore, to look in for corroboration, and in the present case we have looked in vain. THE learned judge, however, would say that Pw-2 has, in a way, corroborated the statement by his evidence. We have read through the evidence of Pw-2 carefully and the only item of corroboration which one might deduce from his evidence is that he heard Pw-1 saying 'don't kill' and these words were uttered by Pw-1 immediately after Devaki was taken to the eastern veranda of the house by the accused by pushing her. In our opinion, this is too slender and flimsy a link in the chain to supply the necessary corroboration to Ex-P2 statement. In ex-P-2 we see very many material aspects of the incident being stated. But none of them has been corroborated by Pw-2. For instance it was stated in Ex-P-2 that on turning back she saw Devaki lying flat on her back and the accused removing her blouse and bodice. This does not receive corroboration at the hands of Pw-2. THE act of throttling was not seen at all by him. It has also to be remembered in this connection that Pw-2 cannot with justification be characterised as an independent witness. He was once arrested by the Hemambika nagar police for not measuring out the levy of paddy as required by the paddy acquisition and control rules. On 12166, i. e. , the date of occurrence, he had admittedly gone to the police station and had stood surety for two accused persons in another case. He is thus one, ready and willing to oblige the police and this would reflect against the credit of the witness and it is possible for the accused, in the circumstances, to contend that during the relevant period he was bridled by the police.