JUDGMENT
J.B.Koshy, J.
1. The first accused in S.C. No. 28 of 1997 on the file of the Additional Sessions Court, Pathanamthitta is the appellant herein. Originally there were three accused in this case. A1 is the sister of A2. Their mother is PW2. A3 is the wife of PW3 who is the paternal uncle of A1. The case of the prosecution was that: First accused was working in Delhi. She fell in love with one Reghu and, married him. Out of that relationship a son was born. The relationship between them became strained and for the last three and a half years she is residing with PW 2. In the night of 26.8.1996 there was Thiruonam programme in the courtyard of a house at about 200 metres away from the house of PW2. PW2 along with A2 left the house for attending the programme. At that time, Al was having advanced pregnancy and therefore, Al and her son did not go to attend the programme. PW2 and A2 came back at 2 AM in the early morning. Then they saw Al in an unconscious condition and her eldest son was seen crying. They took Al to Menathottam Hospital at Ranni. PW13, the Gynecologist of that hospital at about 5 A.M. on 27.8.1996 examined A1 and issued Ext. P13 certificate. A1 came to the hospital after delivering a child. As the child was not seen with her, PW 13 enquired her where the child was. She said that she put a cloth on the face of the baby and she kept the baby under a coconut tree near her house. Al also told that she delivered a child at 11 P.M. on 26.8.1996. Even though A1 approached the hospital telling the story of abortion, on examination, PW13 found that A1 delivered a baby and there was no abortion. Then only she disclosed about the delivery. On the basis of this, PW13 intimated the matter to the police and the dead body was exhumed.
2. PW10, the Assistant Police Surgeon of Medical College Hospital, Kottayam conducted autopsy on the dead body and issued Ext. P9 postmortem certificate. In Ext. P9 postmortem certificate the following injuries were noted by PW10:
“1.Pressure abrasion 16 cm long nearly horizontal completely encircling the neck below the legal of thyroid cartilage being 3.5 cm below the behind the chin (1.5 cm broad) 2.5 cm below right ear lobule (1.2 cm broad) 7 cm below occiput (1 cm broad) and 2.5 cm below left year lobule
(1 cm broad). The subcutaneous tissue underneath the injury showed infiltration of blood at several sites. Deep seated contusions were noticed in the thyroid gland.
2. Contusion of scalp 3 x 2 cm involving its whole thickness on the back of middle of head overlying the occiput. Brain was found to be intact.”
PW10 opined that the death was due to ligature strangulation and nonligation of the umbilical cord. The doctor also opined that the baby was full term and was live born.
3. A2 and A3 were charged only for offences punishable under Section 201 read with Section 14 of the Indian penal Code. The Sessions Judge found that there was no evidence
against them and they were acquitted. The first accused was found guilty under Sections 302 and 318 IPC. The first accused was sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment
for a period of six months for offence under Section 318 IPC. Against the order of conviction
and sentence, first accused filed this appeal. She had already undergone imprisonment
for more than three years.
4. The defence statement under Section 313 was that she delivered a child, there was nobody to attend her and she became unconscious, she was taken to the hospital by her brother and she was totally ignorant about the death of her child as she was unconscious. Deposition of PW1 also shows that A1 was unconscious when they returned after attending Thiruonam programme. There was no eye witness in this case and A1 was convicted on the basis of circumstantial evidence. The main point of circumstantial evidence was the extra judicial confession made before PW13, which was recorded in Ext. P13 certificate and mentioned in the case sheet, Ext. XI. The sole basis on which the Sessions Judge convicted the accused is the extra judicial confession. Extra judicial confession is treated as a very weak piece of evidence.
(The State of Punjab v. Bhajan Singh and Ors. (AIR 1975 SC 258)). It is true that though there is only one extra judicial confession, if that confession is made to a trustworthy person who is not even remotely inimical to the accused, and if it evokes confidence of the Court, the Court can rely on such extra judicial confession. See
State of U.P. v. M.K. Anthony (AIR 1985 SC 48). Normally extra judicial confession made to an unbiased doctor is treated as a very important piece of evidence. Conviction can be based on extra judicial confession if it is made voluntarily and truthfully to a trustworthy unbiased person. The question here is whether there is any extra judicial confession at all. What is said to have been stated by A1 before PW13 is only that she had delivered a child at 11 P.M. on 26.8.1996, she put some clothes on the face of the baby and kept the body under a coconut tree near her house. She has not confessed that she killed the child or strangulated the child or buried the child. Extra judicial confession to be relied on as against an accused must be clear, unambiguous and unmistakably conveyed that accused had committed the crime. As held by the Privy Counsel in Pakaia Narayana Swami v. Emperor (AIR 1939 Privy Council 47) a
confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. (See Veera Ibrahim v. The State of Maharashtra AIR 1976 SC 1167). We have already seen that as per Ext. P9 certificate, the baby died due to strangulation. There is no admission in the alleged extrajudicial confession that she killed the baby or she strangulated the child or buried it for secret disposal of the dead body. Therefore, statement recorded in Ext. P.13 certificate cannot be treated as a confession at all.
5. Even though PW1 gave Ext. P1 FI statement, she as well as PWs. 2 and 3 turned hostile. It cannot be ruled out that there is possibility of her brother killing the child because his sister delivered a child while her husband was living in Delhi for the past 3 1/2 years. Whatever may be that, there is no evidence to show that A1, mother of the child, killed the baby. She was in a perplex mood when she was examined by PW13 and herself admitted that she was in a perplex mood and the statement made may not be correct. Ext. XI case sheet shows that several bottles of blood were given to her: When she was attended by the doctor at the untimely hour of 5 A.M. because of emergency she was not in normal sense. If she heard the news that her child was buried beneath the coconut tree in a subconscious stage, there is possibility of making such statements out of hallucination and imagination. The story that she became unconscious immediately after the delivery also cannot be ruled out as it was an unattended delivery and there was bleeding. It is also difficult to believe that she immediately after delivery made a pit beneath the coconut tree and buried the child. Medical evidence shows that she was profusely Weeding as umbilical cord was not tied. An emergency operation was also done. Even though doctor deposed that she was conscious, Ext. XI case record and Ext. P3 certificate shows that her B.P. was 80/40mm/Hg. Pulse rate was much low. There was excessive bleeding. Quick loss of blood may reduce the memory of a person and weaken or confuse the intellectual power. In any event, the prosecution was not able to prove that the first accused murdered her child in the manner as narrated in the charge sheet solely on the alleged uncorroborated and retracted extra judicial confession, recorded in Ext. P13, (if at all, it can be called a ‘confession’) made in an unfit state of mind. There is no evidence to show that she strangulated the child as mentioned in the postmortem certificate. It is the duty of the prosecution to prove the case beyond any shadow of doubt. Therefore, we give the benefit of doubt and set aside the conviction and sentence passed by the Sessions Court against Al for offence under Sections 302 and 318 IPC.
In the result, we give the benefit of doubt and acquit the first accused/appellant. The first accused/appellant should be released from jail forthwith, if she is not required in any other case.
6. The Criminal Appeal is allowed.