Accused Is Not Guilty Of Culpable Homicide If He Believed That The Body Is Lifeless: Kerala HC
The Kerala High Court has held that an accused is not guilty of an offence of Culpable Homicide if his intention was directed only to what he believed to be a lifeless body.
The Court was deciding a case in which two accused persons had filed appeals against the judgment of Additional Sessions Court by which they were convicted for offences under Sections 302 and 201 read with Section 34 of the Indian Penal Code (IPC).
A Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John observed, “As evident from the extracted passage in the judgment, the view taken is that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances and that therefore, he/she is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body. We are in respectful agreement with the said view. Needless to say, the conviction of accused 1 and 2 under Section 302 read with Section 34 is liable to be interfered with.”
The Bench said that in order to attract Section 299 of IPC, the act must be one performed with the intention of putting an end to a human life or with the knowledge that the same may put an end to a human life.
Advocate J.R. Prem Navaz represented the accused/appellant while Spl. GP Ambika Devi represented the respondent/State.
Factual Background -
The accused persons (appellants) were husband and wife respectively and the dead body of their infant daughter aged 6 months was found floating in the Arabian Sea at Azheekkal by a man where he was baiting fish. Based on the information furnished by him, a case was registered under Section 174 of the Code of Criminal Procedure (CrPC) and pursuant to it, the Sub Inspector of Police conducted the inquest and made arrangements for autopsy. Later, having found that it was a suspected case of murder, the Sub Inspector submitted a report to that effect before the Jurisdictional Magistrate. It was alleged in the final report filed in the case that the appellants, due to the discontent towards their daughter, in furtherance of their common intention, caused grievous hurt to her, resulting in the fracture of the elbow of her left hand.
It was also alleged in the final report that the appellants caused an injury on the back of her head by hitting the same against the edge of a cot and thereby caused her death. It was further alleged in the final report that the appellants with the help of the third accused, caused destruction of the evidence of the crime by disposing of the body of the child in the Arabian Sea. The appellants did not challenge the case of the prosecution that they were the biological parents of the deceased infant and similarly, they also did not challenge the case of the prosecution that they disposed of the body of the deceased infant at the Arabian Sea. But, according to them, they did not dispose of the infant alive in the sea as alleged in the charge, but they only disposed of the body in the sea after her death, as it was a form of burial as per their custom.
The High Court, after considering the facts of the case, noted, “Although the evidence tendered by the witnesses referred to in the preceding paragraphs would create a suspicion that the infant was being abused physically by somebody at home, the same, according to us, is not sufficient to hold that the child was subjected to any physical abuse either by the first or the second accused, for suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence.”
The points that arose for consideration were:
(i) whether the prosecution has established that the accused had knowledge that the infant was alive when they disposed of her body in the sea; and
(ii) if not, the offence, if any, committed by the accused.
The pivotal question that fell for consideration in the appeals was whether an act performed by a person on a body which he/she believed to be lifeless, would attract the offence punishable under Section 299 of the Indian Penal Code (IPC).
The Court further noted, “In the light of the evidence tendered by PW27 that the cause of death of the infant was the combined effect of drowning and head injury, it has to be held that the child was disposed of alive by accused 1 and 2 in the sea, even though they believed that the child was lifeless. This takes us to the legal issue whether an act performed by a person, as in the case on hand, by disposing of the body of the infant in the sea which he/she believed to be lifeless, would attract the offence punishable under Section 299 IPC.”
The Court also said that the provision is attracted only when a person does an act which causes death of another, either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. It added that if the act is performed on a body which the person concerned believed to be lifeless, the offence is not attracted, for when the act was performed, the person concerned could have neither had the intention of putting an end to the human life nor had the knowledge that the act performed by him may or is likely put an end to human life.
“As clarified by the Madras High Court in Palani Goundan, in a case of this nature, the accused can certainly be convicted for the original act which rendered the child to an unconscious state and also for their attempt to cause disappearance of the evidence. But, in the case on hand, as noted, there is no charge in respect of the same. In other words, the accused cannot be convicted for any offence. If the accused cannot be convicted for any offence, the question of convicting them for causing disappearance of the evidence does not arise”, concluded the Court.
Accordingly, the High Court allowed the appeals and set aside the conviction of the appellants.
Cause Title- Prathibha v. State of Kerala (Neutral Citation: 2023/KER/72745)
