'When A Woman Kills Her Progeny, There's More Than Meets The Eye' : Kerala HC Acquits Mother For Allegedly Killing 9 Yr Old Son

'God could not be everywhere and therefore he made mothers', quoted the Kerala High Court on Wednesday while reversing the trial court's conviction of a woman who was accused of killing her 9 year old son in an attempt to avenge her disturbed marital life.A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran observed that in such cases, there is often more than meets the eye."...quite paradoxical and tragic, is the story projected before us of a mother having murdered her nine year old; an only child. When a woman kills her progeny there is more than that meets the eye; which sensitivity, often, the investigators lack."The prosecution case was that in 2016, the woman brutally slit her son's throat, smothered him to death with a towel and later attempted suicide due to her disturbed marital life. This was apparently done to wreck vengeance against her husband who allegedly used to subject her to constant domestic abuse. The trial court found her guilty under S.302 and 309 of the IPC and sentenced her to life and six months simple imprisonment respectively, together with a fine under S.302 and a default sentence. The main ground for conviction was her motive which the prosecution proved before the trial court.However, the Bench opined it would be unfair to attribute motive for murder and suicide solely for the reason that she was vengeful. It also noted that the husband had a history of addiction, mental illness and that the accused had alleged him of being 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."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." A statement allegedly given by the accused to the doctors who treated her was relied upon by the trial court to find her guilty. The Judges objected to the trial court having placed reliance on the alleged dying declaration for the reason that she had survived the suicide attempt.It was held that 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 S.164(2) to (4) of 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."Another notable issue that the Court pondered over was whether the extra-judicial confession given by the accused was a dying declaration, confession, admission or a mere statement under S.164.The Court noted that as per Section 32(1) of the Evidence Act, since the declarant survived and was not under any fear of imminent death at the time the statement was given, her statements can be considered as confessions of a crime which do not fall under the definition of a dying declaration.Hence, it was observed that the same was inadmissible under Article 20(3) unless it was recorded following the procedure mandated under Section 164(2) to (4)."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." Further, the Bench examined if there was 'over zealousness' on the part of the trial court in summoning the witness for re-examination under Section 311 CrPC, particularly 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'.It was emphasised that the principles propounded by the Supreme Court do not merely mandate a hollow reiteration of the words employed in the provision: 'for a just decision of the case' and that there should be strong and valid reasons recorded, however brief, as to the exercise of that power, facilitating a just decision.Accordingly, the Court declared that the invocation of the power under Section 311 CrPC was bad in law in this case. For the said reasons among others, it was held that the prosecution had failed to establish guilt beyond ...

'When A Woman Kills Her Progeny, There's More Than Meets The Eye' : Kerala HC Acquits Mother For Allegedly Killing 9 Yr Old Son

Hannah M Varghese

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