Body Of Infant Disposed In Sea Believing It To Be Lifeless: Kerala High Court Sets Aside UP Couple's Murder Conviction

On analyzing Section 299 IPC, the Division Bench comprising Justice P.B.Suresh Kumar and Justice Johnson John acquitted the parents and observed that the offence of culpable homicide was not attracted as the acts were performed on the body of the infant believing it to be lifeless. It noted that there was no intention or knowledge on the part of the parents to put an end to the life of the infant.

“As evident from the extracted definition itself, 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. These three are the species of mens rea contemplated in the provision, and unless it is established that the act of the accused would fall under any of these, it would not amount to an offence of culpable homicide. Therefore, in order to attract the Section, 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 Needless to say, 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.”

The allegation was that the accused 1 and 2 who were the parents of the infant daughter aged 6 months caused head injury to the child and disposed of the body in the sea on October 10, 2015. The body of the infant was found in the sea on October 16, 2015. The Sessions Court convicted the parents of murder and the 3rd accused for aiding them in disposing of the body. Accused 1 and 2 have preferred to appeal against conviction for murder before the High Court.

The Counsel for the appellants argued that the parents disposed of the body in the sea believing it to be lifeless. It was argued that the prosecution was unable to prove that the parents had any knowledge that the child was alive when the body was being disposed of in the sea.

The Court noted that the charges were not framed against the parents for causing head injury but only for disposing of the body in the sea. The Court took note of the submission of the appellants that they disposed of the body in the sea as per their burial custom on the belief that the child was lifeless.

The Court also perused the statement of the witnesses and opined that it created a suspicion that the child was abused physically by someone, but it noted that it was not sufficient to prove that the abuse was caused by the parents themselves. It also took note of the conduct of the appellant mother who took the infant to the hospital for treatment of a hand injury and was found weeping at the hospital holding the infant child based on the testimony of the social worker. The Court noted that the prosecution was unable to prove any facts from which a reasonable inference could be made that the parents had any knowledge that the infant was alive when the body was being disposed of in the sea.

“Even assuming that the said circumstance is sufficient to make a reasonable inference that the accused had the knowledge that the infant was alive when they disposed of her body, an explanation is seen offered by the accused when they were questioned under Section 313 of the Code that the child had an accidental death on account of an unexpected fall from the cot and they buried the body in the water as per their custom. In other words, they maintained that they were not aware that the child was alive when they disposed of her body in the sea.”, the Court held.

The Court further held that Section 299 IPC falls under Chapter XVI titled ‘ of offences affecting the human body' and under sub-title 'of offences affecting life'. It noted that the provision cannot be attracted in the facts of the present case since the parents had no intention of causing death or bodily injury or knowledge that their acts would cause the death of the infant. It held that section 299 IPC will not be attracted for acts performed on the infant believing it to be lifeless.

The Court relied also upon the Full Bench decision of the Madras High Court in Palani Goundan v. Emperor (1919), where the accused therein was acquitted for culpable homicide as he hanged the body believing it to be lifeless. The Court further noted that there were no charges framed against the parents for the original act of causing head injury which made the infant unconscious and for causing the disappearance of evidence, or else they could have been convicted for it.

Accordingly, the Court set aside the conviction against the parents under Section 302, 201, read with Section 34 IPC and acquitted them.

Counsel for the appellants: Advocate J.R.Prem Navaz, Sumin.S, P Yemuna K

Counsel for the respondents: Special Government Pleader Ambika Devi S

Citation: 2023 LiveLaw (Ker) 672

Case title: Prathibha v State of Kerala

Case number: Criminal Appeal Nos.277 & 676 of 2019

Click Here To Read/Download The Judgment