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Kerala High Court
Kanu Paulose vs State Of Kerala Represented By The on 28 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 682 of 2006()


1. KANU PAULOSE, AGED 21 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.RAJIT

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :28/01/2010

 O R D E R
                 R.BASANT & M.C.HARI RANI, JJ.

                      *************************

                   Crl..Appeal No.682 of 2006

                   ******************************

              Dated this the 28th day of January 2010


                            JUDGMENT

BASANT, J.

Have the incriminating circumstances been proved

sufficiently and satisfactorily by the prosecution? Can the

circumstances proved lead a prudent mind to the safe conclusion

that the guilt of the accused has been established? Is the request

of the accused for a further opportunity to adduce evidence

justified? These questions arise for consideration in this appeal.

2. 3 accused originally faced indictment for offences

under Sections 302, 318 and 201 I.P.C. The appellant before us

is the 1st accused. Both others have already been found not

guilty and acquitted by the trial court under Section 232 Cr.P.C.

3. The prosecution alleged that the appellant/accused, a

young girl/woman at about 4.15 a.m on 16.03.2004 caused the

death of her new born live child by gagging the mouth with a

cloth and applying force with stone on the neck/head.

Crl.A.No.682/06 -2-

4. F.I.R Ext.P1(a) was registered on the basis of Ext.P1

F.I statement lodged by PW1, a sweeper engaged in a

government hospital. She had allegedly seen the dead body of

the child in M.O1 bucket with M.O2 stone placed on the child in

the bucket in the waste dumping area of the hospital.

Investigation commenced and PW20, after completion of the

investigation, filed the final report against the accused.

5. The appellant/accused denied the offences alleged

against her and the prosecution examined PWs 1 to 20 and

proved Exts.P1 to P21. M.Os 1 to 7 were also marked.

6. The accused denied all offences alleged against her.

Hers was a case of total denial. She did not examine any defence

witness. Ext.D1, a property list submitted by the Investigating

Officer to Court was proved by her on her side.

7. The court below came to the conclusion that though

some witnesses had turned hostile and the prosecution did not

succeed in placing evidence before court of all the circumstances

that they had originally intended to rely on, the evidence that has

been adduced is sufficient to come to a safe conclusion of guilt

against the appellant/accused. Accordingly the impugned verdict

of guilty, conviction and sentence was passed. The learned

Crl.A.No.682/06 -3-

Sessions Judge, however felt that in the facts and circumstances

of the case, the case deserves to be referred to the Government

under Rule 131 of the Kerala Criminal Rules of Practice.

Accordingly the judgment was forwarded to the Government and

the learned Public Prosecutor reports to us that the Government

as per order dated 26.05.2007 has commuted the sentence to a

total of simple imprisonment for 5 years.

8. We shall initially try to look at the evidence adduced.

PW1, as stated earlier, had seen the dead body of the child and

had reported that fact to her superiors and later to the police.

Ext.P1 is the F.I statement and Ext.P1(a) is the F.I.R. M.O1

bucket and M.O2 stone were proved through her. PW2 is an

attestor to Ext.P2 inquest report which was also prepared on

18.03.2004 by PW19. PW3 doctor conducted postmortem

examination and issued Ext.P3 postmortem certificate on

19.03.04. After arrest of the accused, she was referred to PW4

for examination and PW4 issued Ext.P4 wound certificate on

27.03.04 to confirm that the accused had given birth to a child

within a period of 2 weeks. PW5 conducted scientific

examination of the bucket, stone etc. He issued Ext.P5 report

dated 25.03.2004. PW6 Village Officer prepared Ext.P6 scene

Crl.A.No.682/06 -4-

plan. PW7, a hostel mate of the appellant, was examined by the

prosecution to prove what had allegedly occurred on 16.03.2004.

She turned hostile to the prosecution completely. Exts.P7 and P7

(a) case diary contradictions were marked by the prosecution in

an attempt to discredit her testimony. PW8 is an attestor to

Ext.P8 scene mahazar. PW9 is a police constable. He is an

attestor to Ext.P9 seizure mahazar for seizure of M.O1 bucket.

PW10 is the father of the appellant. He turned hostile to the

prosecution completely. Ext.P10 case diary contradictions was

marked by the prosecution in an attempt to discredit him. PWs

11 and 12 are neighbours of PW10. According to the

prosecution, they were witnesses to the seizure of M.Os 3 and 4

on the basis of information revealed by the accused to the

Investigating Officer in the confession statement given by the

accused after her arrest. Both of them turned hostile to the

prosecution. PW11 went to the extent of denying his signature in

Ext.P11, whereas PW12 admitted his signature in Ext.P11. Both

of them did not subscribe to the contents of Ext.P11. PW13 is an

attestor to Ext.P12, which is a mahazar describing the toilet,

which is said to be the scene, where the murder of the child

allegedly took place. PW14 is an attestor to Ext.P13 for seizure

Crl.A.No.682/06 -5-

of the attendance register and the student movement register of

the institution, where the appellant was allegedly a student.

Exts.P14 and P15 are those documents seized. PW15 is a teacher

of the institution where the appellant was a student. She turned

hostile to the prosecution completely and did not even state on

oath that the accused was a student of the institution. She

however proved Exts.P14 and P15, which were produced by her

before the police. PW16 is a bus conductor. He was examined to

prove the movements of the appellant/accused. He turned hostile

to the prosecution. Ext.P16 is a case diary contradiction of his,

marked by the prosecution. PW17 similarly is an auto rickshaw

driver, who had allegedly taken PW10, the father of the appellant

to the institution, where the appellant was a student. PW18 is

the secretary of the Local Grama Panchayat. He proved Ext.P17

to show that a nursing college was run in a building under the

name of the 2nd and 3rd accused in a specified premise. PW19 is

the Sub Inspector of Police who recorded Ext.P1 F.I statement

and registered Ext.P1(a) F.I.R. Ext.P2 inquest report was

prepared by him. PW20 is the Investigating Officer, who took

over the investigation from PW19. He completed the

investigation and filed the final report. He proved Exts.P18 to

Crl.A.No.682/06 -6-

P21. Ext.P18 is a report submitted by him to court. Ext.P19 is

the incriminating information in Ext.P11, which is sought to be

introduced in evidence under Section 27 of the Evidence Act.

Ext.P20 is a document under which the clothes of the appellant

were seized by the police. Ext.P21 is the report of the Forensic

Science Laboratory.

9. As stated earlier, in the course of cross examination of

the prosecution witnesses and later when examined under

Section 313 Cr.P.C the accused took up a defence of total denial.

No specific explanation whatsoever was offered by her. She

proved Ext.D1 which, as stated earlier, is a property list

submitted by the prosecution. She relied on the same to bring to

the notice of the court the difference in the description of M.O3

in Ext.D1 as against that in Ext.P2.

10. We have heard Sri.Rajit, the learned counsel for the

appellant and Sri.Mohammed Anzar, the learned Public

Prosecutor. The learned counsel for the appellant submits that

the prosecution has not succeeded in proving the circumstances

relied on by it satisfactorily and beyond doubt. It is then

contended that the circumstances proved do not, at any rate,

point unerringly to the guilt of the accused.

Crl.A.No.682/06 -7-

11. Though the prosecution had intended to rely on other

circumstances also, after evidence, the prosecution was left to

rely on the following circumstances.

i) That the dead body of a child was found near the

place of residence (hostel of the accused) with

M.O3 piece of cloth placed on the body;

ii) That the accused had given birth to a child about a

fortnight prior to 27.03.2004, the date on which

PW4 examined her and issued Ext.P4 wound

certificate;

iii) That the dead body found was of a live born child;

iv) That the said child had met with a homicidal

death;

      v)    That the dead child was the child born to the

            accused;

vi) No explanation whatsoever is offered by the

accused.

12. We shall now consider the contention of the learned

counsel for the appellant that these circumstances have not been

established. Regarding circumstance No.(i), there cannot

virtually be any dispute. The oral evidence of PW1 read along

Crl.A.No.682/06 -8-

with the evidence of PW19 and Ext.P2 clearly shows that the

dead body of a new born child was found near the place of

residence (hostel), where the accused was residing. It is also

established beyond the semblance of doubt that the child was

wrapped in M.O3 when the dead body was found. Ext.P1 F.I

statement had reached the court immediately without any delay.

Similarly Ext.P2 inquest report had also reached the court

immediately after it was prepared. These documents support the

oral evidence of PW1 and PW19 and together they establish the

first circumstance beyond any semblance of doubt, according to

us.

13. We now come to the second circumstance. The

evidence of PW4 and Ext.P4 are of crucial relevance now. These

pieces of evidence show that the accused had given birth to a

child about a fortnight prior to 27/3/2004. We find absolutely no

reason to doubt the evidence of PW4 and her evidence is clearly

sufficient to establish the fact that the appellant had given birth

to a child about 14 days prior to 27/3/2004. Of course, the

learned counsel for the appellant has laboriously contended that

it would be idle to assume that no other person perceived such

advanced pregnancy till the date of delivery. The learned counsel

Crl.A.No.682/06 -9-

argues that it is extremely artificial and improbable to assume

that the appellant was able to conceal her pregnancy from the

other students and her parents and relatives and her

teachers/hostel warden etc. From this, the learned counsel for

the appellant contends that the theory that she was pregnant and

had given birth to a child after a full term of pregnancy cannot be

accepted.

14. We are primarily concerned with the oral evidence of

PW4 and not a semblance of doubt is entertained by us on the

question whether the oral evidence of PW4 supported by Ext.P4

can be accepted. The learned counsel for the appellant argues

that all the symptoms could have been present even if a medical

termination of pregnancy had taken place or an abortion had

taken place. The appellant has no such case at all. The

prosecution has not been able to secure the evidence of her

classmates, parents, teachers etc. Whatever evidence the

prosecution had secured we have seen that the relevant

witnesses had turned hostile to the prosecution with impunity. In

these circumstances that the prosecution was not able to place

before court any evidence of perception of her pregnancy by her

classmates, teachers, warden, parents etc. is found to be of no

Crl.A.No.682/06 -10-

significance at all. The same does not, at any rate, dislodge the

evidence tendered by PW4 supported by Ext.P4. The clinical

perceptions made by PW4 expert clearly and ambiguously

support her conclusion that the appellant had given birth to a

child about 14 days prior to her examination on 27/03/2004. The

second circumstance also, according to us, is established

satisfactorily.

15. The 3rd circumstance relied on by the prosecution is

that the dead body of the child seen by PW1 was that of a live

born child. On this aspect, we have the oral evidence of PW3 and

Ext.P3 postmortem certificate issued by him. He has tendered

competent evidence. He has explained how he came to the

conclusion that the body was of a live born child. The sum total

of the evidence of PW3 is that there was unassailable evidence to

show that the child had breathed after it was born. This was

confirmed in the hydro static test. The learned counsel for the

appellant, relying on books of medical jurisprudence, attempts to

advance an argument that the mere fact that the lungs of a child

had floated in water after its death cannot, ipso facto, be held to

be a safe and sure test to come to a conclusion that the child was

born alive. The learned counsel for the appellant relying on texts

Crl.A.No.682/06 -11-

argues that when putrefaction takes place, the presence of gases

could lead to flotation of lungs and that by itself cannot be

reckoned as the litmus test to decide whether the child was born

alive or dead. We have gone through the evidence of PW3 and

the contents of Ext.P3. This aspect was not put to PW4 in

meticulous details. The learned counsel for the appellant relying

on Modi’s medical jurisprudence and Toxicology 21st edition page

413 advances an argument that the presence of putrefactive

gases may lead to flotation of the lung and this might lead to a

mistaken conclusion that it was a live birth. The relevant

observations in the book clearly show that in the case of

putrefaction, if there is attempt to expel such putrefying gases

from the lung, flotation will not take place if the lungs had not

expanded on account of breathing. Whereas, any amount of

attempt to expel without disintegration of the lung tissue may not

lead to sinking if it is a live birth. We note that the opinion of

PW3 that it was a case of live birth has not been challenged

effectively and the available materials clearly point to the

acceptability of the conclusion of PW3 that it was a live birth. In

these circumstances, we hold that the 3rd circumstance also has

been established satisfactorily and the conclusion of the court

Crl.A.No.682/06 -12-

below on that aspect does not warrant interference.

16. We now come to the 4th circumstance that the child

had met with a homicidal death. The child had injuries on its

person. There was effusion of blood. That the child died of the

injury suffered described in Ext.P3 is thus established

satisfactorily. The learned counsel for the appellant advances an

argument that it could be a case of accidental death and not

homicidal death. The learned counsel for the appellant relies on

text books of Obstetrics & Gynaecology to contend that where

precipitate labour takes place, there could be possible expulsion

of the baby from the womb and under the pressure of that

expulsion when the body of the child comes into contact

accidentally with any hard surface, an injury like the one

described in Ext.P3 is possible. The learned counsel for the

appellant, with great penchant for details, relies upon the

description of the scene of the crime – toilet in Ext.P12 and

contends that in a situation like that where the pregnant mother

may not even have found space to lie down and precipitate labour

takes place it is possible that the child thrust out of the womb

may suffer such accidental injuries by contact with any hard

surface. The learned counsel for the appellant relies on texts to

Crl.A.No.682/06 -13-

suggest that normally the head of the child comes out first and

the doctor cannot be reckoned as an expert on possible positions

to jump to a conclusion that the injury described in Ext.P3 is not

an accidental injury.

17. We have gone into this contention in detail. The

nature of the injury described in Ext.P3 is of crucial importance.

We have the clear evidence of PW3 that it is unlikely that such an

injury could have been suffered except intentionally by the child.

What happened inside the toilet is known only to the accused.

We cannot assume – in circumstances like this, that the accused

has no burden to explain any circumstance in a criminal trial.

Section 106 of the Evidence Act stares at the accused and obliges

her to offer a satisfactory explanation. We find not a semblance

of a circumstance which can suggest that it could have been an

accidental death. The conduct of the accused before and after

labour must suggest convincingly that it could not have been a

case of accidental death. She deliberately concealed such

pregnancy from all concerned till labour took place.

Subsequently also, she did not reveal to anyone of her pregnancy,

birth or alleged accidental injury suffered during labour. We

must hold that, with reasonable certainty, the 4th ground has also

Crl.A.No.682/06 -14-

been established satisfactorily – that it is a case of homicidal

death.

18. The learned counsel for the appellant has taken pains

to contend that the 5th circumstance cannot at all be held to have

been proved. The learned counsel for the appellant contends that

even assuming that the prosecution version that the appellant

had given birth to a child can be accepted and even assuming

that the child, whose body was seen by PW1, was born alive and

had met with homicidal death, that cannot expose the appellant

to any responsibility for culpable conduct unless it is established

satisfactorily that the body was of the child which was given birth

to by the appellant. The learned counsel for the appellant

contends that there is significant gap in evidence to link the

alleged delivery by the appellant with the child that was found

dead. The learned counsel for the appellant argues that on this

crucial aspect, there is breaking of the nexus and at any rate, it is

not possible to come to a safe conclusion that the child which was

found dead/murdered was the child to which the appellant had

given birth.

19. We agree that the question deserves to be considered

meticulously and carefully. We agree with the learned counsel

Crl.A.No.682/06 -15-

for the appellant that if this crucial linkage is not established, all

the other circumstances referred to earlier shall lose all their

significance. The court below found that the child which was

found dead was the child born to the appellant. Is this finding

correct? Can this finding be supported? These are the next

questions to be considered.

20. The learned counsel for the appellant first of all

contends that going by the version of the prosecution, the

incident had taken place on 16.3.2004. According to the

prosecution, the child was born on 16.3.2004 and was done away

with on that date. The learned counsel relies on Exhibit P3 to

contend that the body that was found by PW1 was described in

Exhibit P3 to be the body of a three days’ old child. This is

inconsistent with the case of the prosecution and the appellant is

entitled to the benefit of that crucial incongruity, urges the

learned counsel.

21. The learned Public Prosecutor on the other hand

contends that such a plea had never been taken at the stage of

trial. The learned counsel for the appellant is ingeniously

attempting to make use of an innocuous circumstance that the

Doctor described the body examined by him to be “aged about

Crl.A.No.682/06 -16-

three days”. An authentic opinion was not given about the age of

the child by PW3 either on oath or in Exhibit P3. Postmortem

examination was conducted on 19.3.2004 and the totality of

circumstances must lead this Court to come to the conclusion

that the age of three days mentioned in the descriptive portion of

the postmortem certificate refers only to the gap of time between

the date of actual death and date of postmortem examination.

We note that no substantive evidence has been adduced by either

side on this crucial aspect. The Doctor had not tendered expert

opinion on the question of the age of the child or about the gap of

time between the death and postmortem examination. In these

circumstances, we find merit in the contention of the learned

Public Prosecutor that the said statement in Exhibit P3 regarding

which no substantive evidence has been tendered and which was

not the point of contention at any stage before the appeal is

argued cannot be reckoned as sufficient to generate a reasonable

doubt on the question of nexus between the child which was

given birth to by the appellant and the child whose body was

examined by PW3.

22. The learned Prosecutor further points out that a

reading of the evidence of PW4 clearly shows that when she

Crl.A.No.682/06 -17-

referred to the possibility of the child having been born two

weeks prior to 27.3.2004, that was only an approximate

statement and not a statement that the child was born on 14×24

hours prior to her examination of the appellant. The learned

Public Prosecutor is absolutely justified in pointing out that the

opinion of PW4 is only that the birth could have taken place

approximately two weeks earlier. This cannot lead us to the

conclusion that the child must have been born on 13.3.2004 and

hence is not the child that was allegedly murdered on 16.3.2004

immediately after its birth.

23. The learned counsel for the appellant submits that it is

not as though the prosecution could not adduce authentic and

foolproof and clinching evidence to link the child with the

appellant. Science and technology has advanced to such an

extent that conduct of DNA test could have authentically resolved

the question once and for all. In fact, the learned counsel for the

appellant points out that, both PWs 3 and 4 Doctors were

apprised of and were aware of the need to conduct DNA test.

They had taken the necessary samples to get the DNA test

conducted. But still the DNA test was not conducted. The

learned counsel argues that thereby the possibility of adducing

Crl.A.No.682/06 -18-

foolproof, clinching and indisputable evidence was squandered by

the prosecution and the appellant is entitled to the benefit of

doubt on this aspect at any rate, urges the learned counsel.

24. A criminal trial cannot merely be reduced to a search

for perfection in the case of the prosecution and in the conduct of

the Investigators. This circumstance certainly is relevant. This

Court will bear in mind this circumstance while appreciating the

totality of evidence. But the mere fact that better and more

foolproof evidence has not been adduced cannot lead any court to

commit the indiscretion of squandering the acceptable evidence

that is already available. We shall look into the evidence very

carefully and if we are not otherwise convinced about the linkage

between the child born to the appellant and the child found dead,

we shall certainly concede to the appellant the benefit arising

therefrom. But, we shall not certainly commit the indiscretion of

finding fault with the prosecution and Investigators for not

adducing better and more foolproof evidence without

exhaustively considering the materials that is adduced and is

available.

25. The prosecution relied on two circumstances. The first

circumstance was that in MO1 bucket in which the body of the

Crl.A.No.682/06 -19-

child was found, there were strands of hair – one long and one

short. The same was perceived by the Investigator. They were

taken into custody. After arrest of the accused, her hair sample

was taken and the same was sent to the Expert. Exhibit P21 is

the report of the Forensic Science Laboratory. In Exhibit P21, it

is stated that the long hair found in MO1 bucket was similar to

the hair obtained from the scalp of the accused. The learned

counsel for the appellant rightly points out that the opinion

tendered is not final, authentic or clinching. In that the opinion

is only that the hairs are similar. There is significant absence of

an assertion that they are identical also. The learned counsel

relies on texts and precedents to contend that mere similarity of

hair though it may help to exclude, cannot be made use of to

include or to specifically identify the culprit. The science of hair

analysis has advanced to a level that it is possible now to assert

whether a strand of hair is identical and not merely similar. It

having not been stated in Exhibit P21 that the strand of hair

found in MO1 bucket is identical with that of the appellant,

crucial significance could not be attached to that fact, contends

the learned counsel. We take note of that submission. We accept

that the nature of the opinion tendered in Exhibit P21 may not be

Crl.A.No.682/06 -20-

sufficient to clinch the issue and help the Court to specifically

identify the appellant as the one to whom the strand of hair in

MO1 bucket belonged, though it is easy to accept the conclusion

that the said strand of hair was similar to that of the appellant.

26. The learned Public Prosecutor submits that it is not

necessary to attach any significance to the above circumstance as

we have convincing evidence otherwise available to link the

appellant/accused with the dead body of the child that was found

in MO1 bucket by PW1. The learned Public Prosecutor relies on

the presence of MO3 in MO1 bucket and which was seized under

Exhibit P2 by the Investigator. We have already stated while

discussing circumstance No.1 above that it is safe to come to the

conclusion that the child was wrapped in MO3 when it was found

by PW1 in MO1 bucket. The learned counsel argues that the

court seal shows that MO3 had reached the Court under Exhibit

D1 on 26.3.2004. The gap of time between 18.3.2004, the date of

Exhibit P2 and 26.3.2004, cannot in these circumstances be held

to be so crucial or important as to generate any serious doubts on

the recovery of MO3 under Exhibit P2. It is perhaps of crucial

relevance to note that Exhibit P2 with detailed description of

MO3 in it had reached the learned Magistrate on 20.3.2004.

Crl.A.No.682/06 -21-

That circumstance clearly shows that no significance whatsoever

can be attached to the alleged delay in MO3 reaching the court

on 26.3.2004. It will not be inapposite in this context to note that

when the FIR was registered, it was registered under Section 174

Cr.P.C. and the records were sent to the Sub Divisional

Magistrate. It was after the caption was altered that the records

and documents were sent to the learned Magistrate along with

Exhibit P18 report. We are in these circumstances unable to

attach any significance to the alleged delay in MO3 reaching the

learned Magistrate.

27. The learned counsel for the appellant further contends

that the description of MO3 in Exhibit D1 is totally different from

the description of the cloth seized under Exhibit P2 from the dead

body of the child. The learned counsel hence argues that what

was seized under Exhibit P2 was not the piece of cloth that was

sent to the Magistrate and what was later examined by the

Expert. The learned counsel hence contends that this incongruity

between the description of MO3 in Exhibit P2 vis-a-vis Exhibit D1

must deliver to the appellant the advantage. The benefit of doubt

must be conceded, it is further submitted.

Crl.A.No.682/06 -22-

28. The contention appears to be impressive at the first

blush, but cannot obviously stand careful and anxious scrutiny.

We have gone through Exhibit D1 very clearly. Exhibit D1 clearly

shows that item No.2 is described as “piece of cloth with red

dots” ( ). But in column No.3 of

Exhibit D1, the same is described in detail to be the article

recovered under the inquest report (Exhibit P2) which was

available in the bucket where the dead body of the child was

found. If the person who performed the administrative act of

forwarding the seized property to the learned Magistrate did not

take care (or the pains) to describe the seized article in the same

words as that in Exhibit P2, but chose to describe it in a gist in

the list of property sent to court with the rider in the very same

document that it was found along with the child in MO1 bucket

and was seized under Exhibit P2, we are of the opinion that it

would be puerile for any prudent mind to attach any crucial or

vital significance to that inadequacy in description.

29. The prosecution attempts to link the child born to the

appellant with the dead body of the child found in MO1 bucket

by the theory that MOs 4 and 5 were discovered on the basis of

information furnished by the appellant in her confession

Crl.A.No.682/06 -23-

statement. According to the prosecution MOs 4 and 5 and MO3

are portions of the same saree and that MOs 4 and 5 were

pointed out to the Investigator -PW20, by the appellant and they

were seized as per Exhibit P11 seizure mahazar prepared by

PW20 in the presence of PWs 11 and 12. If this Court is

convinced that MOs 3, 4 and 5 came from the same origin and

that MO3 was found on the dead body while MOs 4 and 5 were

available with the accused, that would be a crucial link

establishing the nexus between the child to which the appellant

had given birth and the child which was found dead.

30. The question is whether the prosecution has

succeeded in establishing that MOs 4 and 5 were recovered on

the basis of the information furnished by the accused in her

confession statement to PW20. The confession statement is

marked as Exhibit P19.

31. We have primarily the oral evidence of PW20 about

Exhibit P19 information furnished to him by the appellant. We

have no reason whatsoever to doubt the evidence of PW20.

PW20 is of course the police official. The mere fact that he is a

police official is certainly not a reason to approach his testimony

with any amount of doubt, distrust or suspicion. Care and

Crl.A.No.682/06 -24-

caution – yes, but unjustified doubt and suspicion cannot be

employed while appreciating the oral evidence of a police official.

There is not an iota of material for this Court to entertain even a

remote suspicion or reservation against PW20 who conducted the

investigation. It cannot be lost sight of that the police is also part

of the criminal justice delivery system. They have a role to play

in the administration of criminal justice. One part of the system

cannot feed itself on a regular diet of distrust against the other,

except to the peril of the efficacy of the system. This is not to say

that this Court is not aware of the havoc which police officers at

times have played in the investigation of the crime. But, that

does not justify a general attitude of distrust. Facts of each case

will have to be looked into very carefully and appropriate

conclusions have to be reached by the Court adopting the

yardstick of a prudent person as enjoined by Section 3 of the

Evidence Act. Adopting that yardstick, suffice it to say that we

find no reason to approach the oral evidence of PW20 with any

amount of doubt, distrust or suspicion.

32. The version of PW20 is eminently supported and

corroborated by the contents of the contemporaneous Ext.P11

seizure mahazar. PWs.11 and 12, (local persons who reside near

Crl.A.No.682/06 -25-

the house of PW10, the father of the appellant) are the attestors

to Ext.P11. One of them, PW11 went to the extent of denying

his signature of Ext.P11. But PW12 did not go that far and

admitted his signature in Ext.P11 . In this context, we take note

of the contents. Ext.P11 is eminently sufficient to support the

oral evidence of PW20. Hostility of alleged independent witness

is not something new to the Indian Courts. Almost every day

courts have hostile witnesses visiting them. Hostility of

witnesses by itself cannot generate doubt, distrust or suspicion

against the public officials in relation to their conduct and acts

performed by them in the discharge of their official duties. In the

total absence of any reason whatsoever to doubt or suspect on

the evidence of PW20, we are of the opinion that his evidence

about Ext.P19 information furnished to him by the appellant in

her confession statement and the consequent seizure of MOs. 4

and 5 from the house of the accused as pointed out by her can

safely be accepted.

33. We come to the next question as to whether MOs.3,4

and 5 have come from a common source. On this aspect, Ext.P21

clinches the issue. Ext.P21 shows clearly that MOs.3,4 and 5 are

of the same colour and texture. The number of yarn/sq.inch is

Crl.A.No.682/06 -26-

also the same. This opinion of the Forensic Science Laboratory is

not challenged at all. We are in these circumstances satisfied that

Ext.P21 read along with other evidence available in this case is

absolutely sufficient to come to the conclusion that MOs.3,4 and

5 belong to a common source.

34. The presence of MOs.4 and 5 in the house of the

accused and the seizure of the same in pursuance of Ext.P19 and

the presence of MO.3 on the dead body sufficiently, satisfactorily

and convincingly and beyond the trace of any doubt establishes

the linkage between the child born to the appellant/accused and

the dead body found in MO.1 by PW1.

35. The learned counsel for the appellant has taken pains to

draw our attention to certain incongruity in the description of

MOs.3,4 and 5 in different documents by officials. He also draw

our attention to the different descriptions in the documents

issued by the expert in Ext.P21. We have applied our mind

carefully to this contention. 150 x 37 cms. are the dimensions of

MO3 in Ext.P2 whereas 154 x 35 is the description of the

dimensions of MO3 in Ext.P21 by the expert. Similarly, so far as

MO.4 is concerned 162 x 117 is the description in Ext.P11

whereas 155 x 116 cms. is the description in Ext.P21. So far as

Crl.A.No.682/06 -27-

MO.5 is concerned, 154 x 55 cms. is the description in Ext.P11

whereas 155 x 55 cms. is the description in Ext.P21. We are

unable to attach any crucial significance to this innocuous

inaccuracy in the description of dimensions. One cannot ignore

the fact that the cloth found is of synthetic yarn. We cannot also

afford to omit to note of the fact that the significance while a

police officer is describing the dimensions in the police

documents, it is an expert with precision and accuracy, who

describes the document in Ext.P21. That incongruity does not in

any way weigh with us to tilt the scales in favour of the accused.

36. Undaunted, the counsel argues that even the description

of Mos.3,4 and 5 – colour of the cloth, the nature of the print and

the colour of the print in Mos.3,4 and 5 vary in the various

documents. We have authentic statement in Ext.P21 that all the

three are identical. In these circumstances that innocuous

inadequacies in the description of Mos.3,4 and 5 in the relevant

documents does not weigh with us at all and do not persuade

us to concede any undeserved advantage to the appellant/

accused. In these circumstances though dissatisfied that a DNA

test has not been conducted and though dissatisfied that it had

not been made clear in the substantive evidence of PW3 as to

Crl.A.No.682/06 -28-

whether the three days referred to in Ext.P3 is the gap of time

between birth and death or death and postmortem examination,

we are satisfied that the similarity of the hair as reported in

Exhibit P21 indicates the probability of the prosecution version

and recovery of Mos.4 and 5 identical to MO.3 on the basis of

the confession statement of the accused clinches the issue so far

as the 5th circumstance is concerned.

37. Lastly, the prosecution relied on the absence of any

explanation on the part of the accused. As we have earlier

referred, right to silence of an accused in a criminal trial

cannot be understood in derogation of the provisions of Section

106 of the Evidence Act. Where other circumstances are proved,

the burden does shift to an accused to explain the circumstances

and volunteer information which is exclusively within the

province of her perception. It is not as though in a criminal trial,

the accused has no burden whatsoever at any point of time.

When totality of circumstances point to the guilt of the accused,

the absence of explanation or even a false explanation offered

can be reckoned as a crucial link in the chain of circumstances to

complete the chain. In these circumstances, we look at the total

absence of explanation of the accused to explain what has

Crl.A.No.682/06 -29-

happened to the child born to her as stated by PW4. The

principle that the entire burden is on the prosecution and the

accused has no burden in a criminal trial cannot be understood

unrealistically. The total absence of any explanation on the part

of the accused is certainly a relevant circumstance to complete

the chain of circumstances relied on by the prosecution. In this

context, we note that the sixth circumstance that the accused

has offered no explanation whatsoever itself is another

circumstance against the accused.

38. We are satisfied that the sixth circumstance referred

above has been established. Do these circumstances point to the

guilt of the accused unerringly? This is the last question to be

considered. We have riveted our pointed attention to all the

circumstances referred above. These circumstances are

convincingly established. We are satisfied that on the basis of

these circumstances with reasonable certainty and beyond

doubt, it can safely be concluded that the dead child was the

child of the accused and that the child suffered death at the

hands of the appellant/accused. No other possible explanation

appeals to us in the light of the totality of the circumstances

proved. We are, in these circumstances, of the opinion that the

Crl.A.No.682/06 -30-

court below was absolutely justified in coming to the conclusion

that the guilt of the accused has been established satisfactorily.

39. The learned counsel for the appellant towards the end of

the hearing has filed Crl.M.A.No.1009/2010 with the request that

further evidence may be adduced at the appellate stage in the

interests of justice. Counsel prays that PW3, Doctor may be

recalled by this Court for further cross examination. This, it is

specifically urged, is to bring out the possibility/probability of

accidental death having resulted in contra distinction to

homicidal death. Such a plea has not been advanced at all in the

course of the trial by the accused, though we find that PW3 had

been cross examined on this aspect. Though suggestions were

thrown at PW20 to that effect, we are not persuaded to agree

that the jurisdiction under Section 391 Cr.P.C. deems to be

invoked in the facts and circumstances of this case.

40. No challenge is raised against the question of sentence

and in the light of the order passed by the Government dated

26-5-2007 to which we have already referred to, no further

directions are necessary.

Crl.A.No.682/06 -31-

41. In the result:

a) Crl.M.A.No.1009/2010 is dismissed.

b) This appeal is dismissed.

c) The impugned verdict of guilty, conviction

and sentences are upheld.

R. BASANT, JUDGE

M.C.HARI RANI, JUDGE

dsn


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