Monday, 3 October 2016

The case that shook a state

While surfing the internet, i came across an article about the rape and subsequent death of a 23 year  young woman in Kerala in which the Supreme Court has overturned  the punishment for murder confirmed by the the Kerala High Court upon an appeal from a Fast Track Court. It made me sift through various newspaper reports and finally through the Supreme Court judgment itself. What i concluded from my knowledge of law is,respectfully stating, not in consonance with the judgement of the Apex Court.

The incident took place on  1st February 2011 while the victim/deceased was returning home and was at that time, in the ladies compartment of the train, all alone. The case of the prosecution was that the  accused, finding the victim alone in the ladies compartment of the train, trespassed into the compartment and tried to rape her but when the victim resisted, he assaulted her by repeatedly hitting her head on the walls of the compartment(Injury no.1) and upon her screaming, he threw her out of the moving train, himself jumped off it ,lifted the victim to another place by the side of the track and sexually assaulted her.

 One of the witnesses have deposed that as he were to stop the train by pulling the chain, a middle aged man stopped him saying that the girl has jumped off the train and made good her escape. This is where doubt seeps into the mind of the Court as to whether the victim was thrown off the train or she jumped off the train herself.

The medical report mentions various injuries on body of the victim. It has been mentioned that the banging of head of the victim by the accused, on the walls of the compartment although capable of
creating dazeness to head and rendering incapable to respond, may not be of the nature of exclusive cause of death. It has also been mentioned that the victim need not become total unconscious but can do nothing.

Pointing to the cause of death of the victim, the following has been stated

The decedent had died due to blunt injuries sustained to head as a result of blunt impact and
fall and their complications including aspiration of blood into air passages (during unprotected unconscious state following head trauma) resulting in anoxic brain damage. She also showed injuries as a result of assault and forceful sexual intercourse. She had features of multiple organ disfunction at the time of death."

 In the above context, a few things must be noticed. The accused might have not hit the victim with the intention of killing her and the statement of one of the witnesses created doubt in the mind of the Court as to whether the victim herself jumped out of the train ? The prosecution couldn't clear the doubt. But,  the medical report says that the injury due to repeated hitting of the victim's head on the walls of the compartment,  "is sufficient to render her dazed and insensitive. It is capable of creating dazeness to head and rendering incapable to respond..." It goes on to say that although these wounds might have not been an exclusive cause of death  "....what I understand is that after hitting the head on a flat and hard substance several times and rendering insensitive dropped." A question arises that if the victim was unable to make a judgement then how can she be said to jump off on her own from the train 'to escape'? It is akin to hitting someone on head while he/she is standing near the edge of the cliff while knowing that this might cause his/her death due to fall.

 I am quoting here a certain part of the post mortem report as available in the Supreme Court judgement   :

"...In post mortem request it is pushed down from running train. So though it was a running train it had only negligible speed. In inflicting this injury the speed of the train had only a negligible role. The speed ignorable. Since she was rendered insensitive as a result of injury No.1 in the absence of natural reflex the face had to bear the full force of the descent, it is seen. In case she was not dazed and had alert reflexes and fallen in such a condition she would have moved hands forward and the hands would have showed the force of the fall to some extent."

 Now this doesn't proves that the accused knew that the victim would jump off/fall off from the train but it also makes clear the fact that the victim did not take a conscious decision to jump off from the train and escape. Even if the victim fell off from the train, it was due to the insensitivity induced and the absence of normal reflexes because of the acts of the accused and therefore it cannot be taken as a defence.

Till now the accused cannot be held responsible for the death of the victim. However, what i propose here is that, the acts of the accused inside the train and those carried out when he got off from it cannot be severed. 

The doctor who conducted the post-mortem has told the Court that the death was due to a combination of the injuries inflicted upon the victim inside the train and the injuries resulting from the fall of the victim from the train and the complications arising therefrom including aspiration of blood into the air passages resulting in anoxic brain damage  which occurred due to the fact that the deceased was kept in a supine position for the purpose of sexual assault. It has been opined later on in the judgement that unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of
the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessary follow.

It is also important to consider para 17 of the judgment before we proceed further. Here the Hon'ble Court observed as follows :

"Keeping of the deceased in a supine position for commission of sexual assault has been deposed to by P.W. 64 as having a bearing on the cause of death of the deceased. However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of  medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts
discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such act may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor."

(P.W. 64 was the doctor who conducted the post mortem.)

I have earlier argued that even if the victim jumped off from the train, her act cannot be a conscious one ,but as a result of the injuries inflicted by the accused himself. The post mortem report clearly mentions that there was absence of natural reflex on the part of the victim due to the injury no. 1 (inflicted upon her by the accused upon the victim, inside the train). This thread of actions on the part of the accused carries further when he, even after finding the victim in a critical state, sexually assaults her. The Court opined that the requisite knowledge cannot be attributed to the accused because, as mentioned by P.W. 64 himself, such knowledge and information is, in fact, parted with in the course of training of  medical and para-medical staff. Here, clause 4 to section 300 of the Indian Penal Code, 1860 comes into play. According to it, if a person committing the act knows that it is so imminently dangerous that it must , in all probability, cause death or such bodily injury likely to cause death , and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The word 'knows' and the phrase 'in all probability' are the keys to the section.

The level of knowledge attributed here is personal knowledge. The level of probability that of most probable result. However when we attribute knowledge to a person if we consider that a person must be professionally trained to know about the outcome of an event, then it would be very difficult in any case to say that the person knew that a certain result would follow. In the present case, when the victim fell down from a moving train and as can be deduced from the post mortem report, that she was critically injured, a common man would have the knowledge that the victim can die if left unattended. Instead, the accused sexually assaulted the already critically injured victim and then robbed her off her valuables. What can be deduced from the facts is that the accused had complete disregard of the life of the victim.

The acts of the accused formed a complete chain of events. At first the victim was assaulted inside the train, even if she jumped out from the train , it cannot be attributed to her as a consciously taken decision but due to being rendered insensitive because of the act of the accused. Here if the accused would have stopped, he would have distanced himself from the act of falling of the victim from the train. However, the accused jumped out of the train and sexually assaulted the victim even after the victim was critically injured due to his very act. This lead to the death of the victim, with the accused having complete knowledge that it is almost certain the victim would die. It would not be correct to say that since the victim died after a long time, hence it shows that the accused wouldn't know that she would most probably die. In many cases, advance medical facilities help the victim to survive for a few days or longer. It cannot lessen the level of knowledge attributable to a person. In fact, chances are higher that a person involved in healthcare might know better that the victim may survive while a layman will think the opposite and therefore sexually assaulting the victim in such circumstances can be seen as the last part of the act of murder which started inside the train.


  1. Hats off! You have, very dextrously, untangled the knot of this complicated case through it's loose ends like a seasoned lawyer. Had the arguing counsel of this case projected the sequence of events of this case though your logical prism before the court, result would surely have been different.
    Anyways...hoping to hear more from you on this platform...!!!
    Keep going great...

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  3. Thank you! It was an effort to let people see what i think about the case. Hoping that the 'justice done' be revisited again.