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.
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Crl..Appeal No.682 of 2006
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
