JUDGMENT
1. This is one of the unusual cases of infanticide alleged to have been committed by none else than the father of twin infant daughters hardly aged 1 year. According to the prosecution, accused and his wife P.W. 1-Jayalakshmamma had four daughters. Out of whom, the two deceased Suma and Sumalatha aged about one year were twins and the youngest. As per the prosecution case, as the accused had only daughters and no son, he wanted to marry the daughter of P.Ws. 8 and 9 and as they alleged to have informed him that if there are so many daughters, they will not give their daughter in marriage to accused, it is alleged that in the night of 25-1-1995, he killed both the infants while they were sleeping in the cradles by smothering. The investigation started on the first information given by the accused himself as per Ex. P. 23 on 26-1-1995 at about 7 a.m. As per Ex. P. 23, he has reported to the police that on the night when the accused and P.W. 1 along with the deceased children were sleeping, at about 10.30 in the night, P.W. 1-wife felt the movement of snake on her legs, got up scared and also woke up the accused. After putting the light, he noticed that both the children were dead and according to him, as he noticed two injuries on the lips of both the deceased, he suspected they have died due to snakebite. On the basis of this information, P.W. 16-Nagesh Rao, ASI of Nuggehalli Police Station, registered a case in UDR No. 1 of 1995 under Section 174 of the Cr. P.C. and took up the investigation. During the investigation, inquests as per Exs. P. 22 and P. 25 were conducted and the bodies were sent for autopsy. P.W. 4-Dr. Ravishankar conducted autopsy on both the dead bodies and noted the following injuries on Suma.–
“2. Finger tips and toes completely cyanosed. I found the following external injuries over the dead body:
1. Crescentic abrasion measuring 0.5 cm x 0.1 cm over outer aspect of right side of upper lip — 1 cm. over above the lip skin margin.
2. Crescentic abrasion measuring 0.5 cm x 0.1 cm over 0.5 cm above and outer to the injury No. 1.
3. Linear abrasion over the 0.5 cm outer and below to injury No. 2, measuring 1 cm x 0.1 cm.
4. Abrasion measuring 0.5 cm x 0.2 cm over right side of the upper lip.
5. Crescentic abrasion 0.5 cm x 0.1 cm over outer aspect of right side of lower lip 0.5 cm below the lower lip skin margin.
6. Lacerated injury over the outer part of the right side of the lower lip, measuring 0.6 cm x 0.6 cm situated 0.5 cm below and outer to injury No. 5.
7. Abrasion 0.5 cm x 0.2 cm over lower part right side of lower lip 0.5 cm lower and outer to injury No. 6.
8. Abrasion 1 cm x 0.5 cm over right nostril.
9. Contusion measuring 0.5 cm x 0.5 cm over left nostril.
10. Contusion 2 cm x 1 cm over inner aspect — right side of upper lip.
11. Contusion 1 cm x 1 cm over inner aspect of right side of lower lip.
12. Contusion measuring 0.5 cm x 0.5 cm over inner aspect of both nostrils.
Similarly, he noted the following external injuries on the dead body of Sumalatha:
2. Finger tips and toes completely cyanosed. I found the following external injuries:
1. Crescentic abrasion measuring 0.5 cm x 0.1 cm over outer aspect of right side of upper lip 0.75 cm above the lip skin margin.
2. Crescentic abrasion measuring 0.5 cm x 0.1 cm over 0.5 cm above and outer to injury No. 1.
3. Linear abrasion measuring 0.75 cm x 0.2 cm outer and below to injury No. 2.
4. Crescentic abrasion measuring 0.5 cm x 0.1 cm over outer aspect of right side of lower lip; 0.5 cm below lip skin margin.
5. Abrasion 0.5 cm x 0.2 cm over lower part of right side of lower lip 0.4 cm lower and outer to injury No. 4.
6. Abrasion measuring 1 cm x 0.5 cm over right nostril.
7. Contusion measuring 0.75 cm x 0.5 cm over left nostrils;
8. Contusion measuring 1.5 cm x 0.75 cm over inner aspect of right side of upper lip.
9. Contusion measuring 0.75 cm x 0.75 cm over inner aspect of right side of lower lip.
10. Contusion measuring 0.5 cm x 0.5 cm over inner aspect of both nostrils.
11. The internal organs like brain, both lungs, heart, liver, spleen, kidney were intact and congested. Stomach was normal.
12. Both lungs were congested with plenty of petechial haemorrhages;
13. The heart is intact, congested, plenty of petechial haemorrhages present.
14. Stomach is normal. All injuries were anti-mortem and fresh in nature”.
2. These injuries were noted in the post-mortem reports Exs. P. 6 and P. 7 respectively. As the Investigating Officer had referred the case for autopsy on the information regarding the death as due to snakebite, opinion of P.W. 4 was also sought as to the possibility of the deaths of Suma and Sumalatha by snakebite which he negatived totally. According to the Doctor, the cause of death of both the children was due to asphyxia as a result of smothering.
3. As the post-mortem reports indicated death by smothering and as such, homicidal, P.W. 18-the CPI who took further investigation suspected that it was the act of homicide by accused and his wife P.W. 1-Jayalakshmamma. Accordingly he registered a suo motu complaint and a case in Crime No. 20 of 1995 for the offence under Section 302 of the IPC against them and further investigation was carried on. During the investigation, the spot mahazar was conducted, the twin cradles, beds, etc., wherein, the deceased children were sleeping at the time of death, were seized. Statements of witnesses including the relatives of the accused were recorded and investigation was being completed. It is to be noted at this stage that as Investigating Officer did not find any incriminatory circumstance or evidence so far as P.W. 1 is concerned, he filed the charge-sheet against the appellant-accused alone. On the basis of the material, the accused was charged for the offence under Section 302 of the IPC. As the accused denied the charges and claimed to be tried, he was tried in Sessions Case No. 55 of 1995.
4. In order to establish the guilt of the accused, the prosecution examined as many as 18 witnesses, got marked Exs. P. 1 to P. 7 and M.Os. 1 to 4. The accused in his 313 of the Cr. P.C. statement denied the prosecution case in its entirety. Appreciating the evidence before the Court, the Trial Court found the accused guilty of the offences under Section 302 of the IPC and as such, sentenced him to undergo imprisonment for life. Hence, the present appeal.
5. Sri Shankarappa, learned Counsel for the accused/appellant vehemently contended that in view of the fact that witnesses P.Ws. 1 to 3, 6 to 11 and 14 who are the close relatives of either accused or P.W. 1, and also the neighbours have not supported the prosecution case in the least
and as there is absolutely no positive material that it was the accused and accused alone who did commit the offence and as such, conviction of the accused by the Trial Court was not proper. It is further contended that the entire evidence of the prosecution is totally based on circumstantial evidence viz., last seen together and conduct of the accused coupled with the medical evidence. It is contended that as the prosecution, except proving the medical evidence, has not established the other circumstances which are too weak in the nature, the Trial Court committed an error in not giving benefit of doubt to the accused. On these and other grounds, it is contended that conviction of the appellant is not justified and is liable to be set aside giving benefit of doubt. On the other hand, Sri Mohan Shantanagoudar, learned State Public Prosecutor appearing for the respondent-State argued in support of the findings of the Trial Court.
6. We have perused the material evidence before us in detail. At the outset, it has to be noted that this is one of the unusual cases of homicide wherein majority of the witnesses have not supported the prosecution and nevertheless, the Trial Court has convicted the accused. Insofar as the fact that on the fateful night it was the accused and his wife P.W. 1-Jayalakshmamma were in the house along with the two deceased children is not in dispute. It is the very case of the accused that while himself and P.W. 1 were sleeping in the night of 25-1-1995, in the late night, they observed the death of their two infant daughters. As such, first aspect of the circumstantial evidence viz., accused being last person seen with the deceased though along with P.W. 1 is established by the prosecution.
7. The next question is whether Suma and Sumalatha met with homicidal death. According to the prosecution, both the children died as a result of asphyxia by smothering and according to the accused, due to snakebite. So far as the homicidal death is concerned, evidence of the Dr. Ravishankar-P.W. 4 who held autopsy over the dead bodies is very much relevant. After noticing almost 10 to 12 injuries on each of the dead bodies concentrated around the faces of both the deceased along with the definite indicative symptoms like cyanoser, congestion of lungs, petechial haemorrhage etc., he definitely opined that both the deceased died as a result of asphyxia on account of smothering. In the evidence, he has definitely overruled the death due to snakebite mainly on two counts, (1) absence of any snakebite marks and (2) improbability of snake biting two persons one after another especially two little children while sleeping in two different cradles. According to the doctor, if a person has received a snakebite, there would be two fragile marks over the bite site and the same will be indurated. Further indication would be dribbling of saliva from mouth. In the absence of these definite indications, along with the other definite symptoms of smothering like cyanosis of the face, distinct nail marks over mouth area, laceration of lips, soft part of the victims’ face as well as petechial haemorrhage around the site, he has stated that this is a definite case of smothering. When enquired by the Investigating Officer as to the probability of two persons being bitten either simultaneously or one after another, he has definitely stated that it is practically an impossibility. This opinion of the doctor, cannot be said to be just an assumption. It cannot be disputed that once poisonous snake, bites a person or an animal and empties its poisonous glands, it takes some time to fill the glands again with the venom and according to the doctor it takes about one or two weeks and as such, two persons not only receiving snakebite one after another and dying due to poison is practically impossible and hence, the doctor has positively concluded that this is a case of death by smothering and as such, homicidal death. Absolutely, there is no contra material from the evidence of this doctor to doubt his conclusion arrived at. Added to this, during the investigation, after the accused was arrested, he was sent for examination. Dr. Devaraj-P.W. 5 who noticed the extra grown nails on the right and left hand of the accused has opined that the crescentic marks found by the autopsy doctor around the upper lip and surrounding the face especially nose and lower portion is a possibility due to nail marks, as a result of pressing the parts with hands. The learned Counsel for the appellant contended that in the absence of these nails being sent to chemical analysis (this conclusion of the doctor cannot be believed and we do not understand for what purpose the nails should be sent to), the report of the chemical examiner should be obtained and has in fact no relations with the observations of the autopsy doctor. The opinion of P.W. 5 is an expert opinion to show that it was possible for the accused to commit the murders by smothering and presence of nails on his hands and the crescentic nail marks found on the dead bodies are co-relatable to each other. The improbability/impossibility of snakebite to two children one after another coupled with definite symptoms of smothering and the circumstances strengthened by admission of P.W. 1 though hostile that there was no snake seen or felt by her are definite indication that both Suma and Sumalatha met with homicidal death by smothering only.
8. It is next contended that even if the fact that both the children met with homicidal death is established, that by itself does not bring home the guilt of the accused. It is contended that when in the house apart from accused P.W. 1 was also staying, the possibility of either of them, doing the act cannot be ruled out and as there is no definite indication or material pinpointing to the accused alone, the Trial Court should have given benefit of doubt to the accused especially when initially P.W. 1 was also suspected and was given up by police. It is to be noted that the doubt need not be a doubt simplicitor. It must be a reasonable doubt. In the sense, the doubt felt by a prudent person and not imaginative one. Although the Investigating Officer found that the possibility of commission of crime by both P.W. 1 and the accused was there and as such, he initially registered a case against both. During the investigation, as it is revealed to him that it was the accused alone who possibly committed the crime, has given up the case against P.W. 1. The possibility of P.W. 1-the mother committing such a heinous crime of killing her two innocent children in the absence of any probable motive is very remote. On the other hand, it is the prosecution case that fed up by P.W. 1 giving him 4 daughters and no son, it was accused who wanted to get married
second time and also by eliminating the two infants to relieve his future burden.
9. Most important aspect in this case ultimately revolves around the conduct of the accused. In this case, it was only the accused and P.W. 1 who could have stated as to how the two children of theirs died. This is not the usual cases of any enmity or anybody else having ill-will towards the two deceased who were infants of one year age. The earliest explanation by the accused as could be found from Ex. P. 23, the information given by him to the police on the next day states that on the night, his wife-P.W. 1 having felt a snake moving over her legs, woke up the accused and after he put the light, he saw both the children dead in their cradle. The very fact that the accused goes in the morning to the Police Station to lodge an information of alleged death of his two infants by snakebite itself is an unusual conduct on the part of the accused. This was not a case of suicide or anyone else committing homicide due to any enmity or any accidental death. Even if according to the accused the children had died due to snakebite, nobody would rush to the Police Station to inform the police of this fact. As the material reveal the only possible reason for the accused was to mislead the people as well as the police least the crime is detected. The facts narrated in Ex. P. 23 are even not supported by his wife-P.W. 1 or his mother, Sannamma P.W. 2. Both of them, though turned hostile, did not whisper about the children died due to any snakebite. P.W. 1 in her examination-in-chief itself has stated that in the night of incident, she fed the children and made them to sleep and on the next day, she noticed both the children had died and she does not know the cause of death. Similarly, P.W. 2-Sannamma, the mother of the accused who came to their house at about 11 p.m. itself has except stating that on coming there, she came to know that her two grandchildren are dead, does not whisper anything about snakebites. As noted, though these witnesses have turned hostile and not supported the prosecution, possibly with fear or even to save the accused who is none other than their husband/son, they too did not say anything about the alleged snakebites. This act of accused giving information to the police of death of Suma and Sumalatha by snakebite, non-whisper of any snakebites by P.W. 1 the wife, P.W. 2-the mother of the accused and especially coupled with the definite and positive evidence of the doctor (P.W. 4) who conducted the postmortem that it was a case of death due to asphyxia as a result of smothering and improbability by snakebite, leaves us to the only conclusion that it was only the accused who has committed the act and in order to mislead, has came up with the case of snakebite. As observed by the Hon’ble Supreme Court in the case of State of Tamil Nadu v Rajendran, in case of circumstantial evidence, conduct of the accused especially omission to offer the explanation or offering a false explanation would be a material link to establish the guilt of the accused. Similar is the view taken by the Hon’ble Supreme Court in another case of Molai and Another v State of Madhya Pradesh.
10. Once the medical evidence positively establishes the homicidal death of Suma and Sumalatha due to asphyxia as a result of smothering and in the absence of possibility of any other person committing the said crime other than the accused, coupled with his furnishing false information about the cause of death, would be in totality, a circumstance against the accused. Falsity of defence can be counted as providing a missing link for completing the chain of circumstantial evidence. The false information furnished by the accused as to cause of death, negates totally the innocence of the accused and brings home the charge beyond any reasonable doubt. On careful consideration of the entire material evidence, we have no hesitation to hold that the findings arrived at by the Trial Court that it was the accused and accused alone who committed the infanticide of Sums and Sumalatha by smothering is just and proper and there are no materials to hold that these findings are either perverse or illegal. In the result, the appeal fails. Same is rejected upholding the conviction of the accused/appellant.